Director of Child Protection Litigation v ADB & Ors [2018] QChC 30

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v ADB & Ors [2018] QChC 30 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (appellant) v ADB (first respondent) and BDB (second respondent) and KENDALL HAWDON (separate representative) FILE NO/S: 2265 and 2266 of 2018 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Children’s Court Ipswich DELIVERED ON: 5 December 2018 DELIVERED AT: Brisbane HEARING DATE: 21 August 2018 JUDGE: Shanahan P ORDER: In relation to each appeal: 1. Appeal allowed 2. Each order of the learned magistrate dated 19 June 2018 is set aside 3. I grant custody of each child to the Chief Executive Department of Child Safety, Women and Youth until midnight on 19 June 2019 unless extended or earlier revoked CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – Child protection order – Child protection order allegations of child sexual abuse – Where a parent fails to report breaches by the other parent – -- 1 of 13 -- 2 Breaches of a child protection order – When a learned magistrate gave insufficient weight to findings of breaches LEGISLATION Child Protection Act 1999 (Qld) COUNSEL: Mr K Parrott for the appellant Mr J McKenzie for the first respondent Second respondent self-represented Ms R Lyons for the separate representative SOLICITORS: Director of Child Protection Litigation for the appellant J McKenzie Family Law for the first respondent Second respondent self-represented Forrest Glenn Lawyers for the separate representative [1] These are two appeals by the Director of Child Protection Litigation against decision made by a Childrens Court Magistrate on 19 June 2018. On 19 June 2018 the Childrens Court of Queensland stayed the orders pending the appeals. The issues in each appeal are the same, so it is convenient to deal with them together. The orders appealed against [2] On 19 June 2018, after a three day hearing in December 2017 and February 2018, the learned magistrate made the following orders in relation to two applications by the Director of Child Protection Litigation seeking 12 month custody orders to the Chief Executive in respect of two children, S and M, the children of the two respondents: 1. The Chief Executive is to supervise the child’s protection in relation to the risk of sexual abuse and their emotional security and stability for a period of one year; 2. BDB is directed not to have contact with either of the children other than when a person approved by the Chief Executive is also present; 3. ADB is directed to disclose immediately to the Chief Executive any unauthorised contact between BDB and either of the children; 4. ADB is to undertake such courses and counselling as determined by the Chief Executive to be necessary to ensure the safety and emotional security and stability of the children; 5. BDB is to undertake such courses and counselling as determined by the Chief Executive to be necessary to ensure the safety and emotional security and stability of the children; 6. The order will end at midnight on 19 June 2019 unless extended or earlier revoked. [3] The appellant appeals the making of the child protection orders in relation to each child. Grounds of appeal -- 2 of 13 -- 3 [4] The grounds in relation to each appeal are: 1. The learned magistrate erred at law in failing to give sufficient weight to the evidence before the court establishing that the child would be at unacceptable risk of harm in ADB care, namely the evidence that: (a) BDB had sexually abused the half siblings of the subject child; (b) ADB did not accept that BDB had sexually abused children or that he presented a risk of sexual harm to the subject child; (c) During the currency of the proceedings, BDB and ADB had not complied with an interim order that prevented BDB from contact with the subject child unless the time was supervised. 2. The learned magistrate erred at law in failing to have regard to the safety, wellbeing and best interest of the child as the paramount consideration. 3. The learned magistrate erred at law in failing to provide adequate reasons for his decision, in particular, reasons that addressed the evidence set out in paragraph 1 above. Nature of the appeals [5] These appeals are governed by part 4 Child Protection Act 1999 (CPA). Section 117 gives the appellant the right to appeal against a decision on an application for a temporary custody order to the appellate court (the Childrens Court constituted by a judge – schedule 3, dictionary CPA). The procedures for hearing such appeals are set out in sections 120 and 121 Child Protection Act. Those provide: “120 Hearing procedures (1) An appeal against a decision of a magistrate on an application for a temporary assessment order or a temporary custody order is not restricted to the material before the magistrate. (2) An appeal against another decision must be decided on the evidence and proceedings before the Childrens Court. (3) However, the appellate court may order that the appeal be heard afresh, in whole or part. 121 Powers of appellate court In deciding an appeal, the appellate court may— (a) confirm the decision appealed against; or (b) vary the decision appealed against; or (c) set aside the decision and substitute another decision; or (d) set aside the decision appealed against and remit the matter to the magistrate or Childrens Court that made the decision.” [6] An appeal against a temporary custody order requires that the appellate court conduct a real review of the hearing and of the reasons (Fox v Percy (2003) 214 CLR 118 at [25]; JP v Department of Communities, Child Safety and Disability Services & Ors [2015] QChC 4 at [7], Smith DCJA). In such a rehearing “the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is -- 3 of 13 -- 4 not confined to a reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal…this involves, where, as here, there is no jury, conducting a thorough review of the primary judge’s reasons” (CSR Ltd v Maddalena (2006) 80 ALJR 458; 224 ALR 1 at 7 per Kirby J). [7] In order to succeed the appellant is required to establish some legal, factual or discretionary error by the learned magistrate (Allesch v Maunz (2000) 203 CLR 172 at [23]). An error in the exercise of any discretion can be established if there has been a failure to take into account some material consideration (House v R (1936) 55 CLR 499). [8] In these appeals there were no orders under 120(3) CPA that the appeals be heard afresh, in whole or part. The legislative scheme of the CPA [9] Pursuant to s 51AC CPA an authorised officer may apply to a magistrate for a temporary custody order for a child. Such applications were made here on 20 May 2016 following earlier applications in May 2015. The magistrate may make a temporary custody order only if satisfied that the child will be at an unacceptable risk of suffering harm if the order is not made; and that in placing the child in the care of another person, that person will be able to, within the terms of the temporary custody order, meet the child’s ongoing protection and care needs (s 51AE CPA). [10] A “child in need of protection” is a child who has suffered significant harm, is suffering significant harm or is at unacceptable risk of suffering significant harm and does not have a parent able and willing to protect the child from harm (s 10 CPA). The first and second respondents are the parents of each child. [11] Harm is defined as any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. It is immaterial how the harm is caused. Harm can be caused by physical, psychological or emotional abuse or neglect or sexual abuse or exploitation (s 9 CPA). [12] The issue in each case here is whether there is an unacceptable risk of significant harm to the child from sexual abuse by the second respondent. -- 4 of 13 -- 5 [13] In considering matters under the CPA the court must take into account the purpose of the Act and the principles propounded in it. Section 4 states that the purposes of the Act is to provide for the protection of children. [14] Section 104 CPA provides that in exercising its jurisdictional powers, the Childrens Court must have regard to the principles stated in s 5A to 5C, to the extent the principles are relevant. The section also provides that when making a decision under the Act, the Childrens Court must state its reasons for the decision (s 104(2)). [15] Section 5A provides that the main principle for administering the Act is that the safety, wellbeing and best interest of a child, both through childhood and for the rest of the child’s life, are paramount. [16] Section 5B provides other general principles of application in this case: 5B Other general principles The following are general principles for ensuring the safety, wellbeing and best interests of a child— (a) a child has a right to be protected from harm or risk of harm; (b) a child’s family has the primary responsibility for the child’s upbringing, protection and development; (c) the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family; (d) if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child; (e) in protecting a child, the State should only take action that is warranted in the circumstances; (f) if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests; (g) if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care; (h) if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin; (i) if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible; (j) a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support); -- 5 of 13 -- 6 (k) a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child; (l) a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values; (m) a delay in making a decision in relation to a child should be avoided, unless appropriate for the child. [17] Section 105 CPA provides that, in a proceeding, the Childrens Court is not bound by the rules of evidence but may inform itself in any way it thinks appropriate. The standard of proof is on the balance of probabilities (s 105(2)). Considering the consequences of any orders made, it is appropriate that the Briginshaw (1938) 60 CLR 336 standard is to be applied. [18] Section 59 CPA provides, as relevant here, that the Childrens Court may make a child protection order only if it is satisfied that the child is a child in need of protection and the order is appropriate and desirable for the child’s protection (s 59(1)(a)). Section 59(1)(e) provides that the court must also be satisfied that the protection sought to be achieved by the order is unlikely to be achieved by an order on less intrusive terms. The order sought in relation to each child here was a short-term custody order for 12 months. [19] Thus, once it is determined that a child is in need of protection, there needs to be a determination that the child “does not have a parent who is able and willing to protect the child” (s 5B(d)) from the unacceptable risk of suffering significant harm and an assessment of which of the possible orders available is the least intrusive to achieve the protection necessary to address the identified child protection concerns. Sexual allegations against the second respondent [20] The second respondent was subject to allegations of sexual misconduct in relation to two other children A, his natural daughter, and B the daughter of the first respondent. [21] In relation to A, the second respondent was charged with 20 counts of rape, 1 count of maintaining a sexual relationship with a child and 1 count of indecent treatment. The offences were alleged to have occurred between December 2000 and April 2012. After a jury trial held in October 2016, the second respondent was acquitted of all charges. -- 6 of 13 -- 7 [22] In relation to B, the second respondent was charged with 3 counts of indecent treatment. The charges arose from one incident, alleged to have occurred between January and September 2011. After a jury trial in September 2017, the second respondent was again acquitted of all charges. [23] The child S also made disclosures on or about 21 June 2017 that her “dad” had hurt her vagina. The child also made a similar complaint of inappropriate touching by her “dad” when she was living with “mum and dad”. There was evidence that S referred to previous carers as “mum” and “dad”. It was never clarified to whom the child was referring (decision para 65). There was evidence that the second respondent had no opportunity to touch the child in this way. The child was living away from her parents from mid-2016 to 21 June 2017. [24] The second respondent has constantly denied any allegations of sexual impropriety with any of the children (decision paras 31, 47, 54 and 62). Findings of the learned magistrate [25] The learned magistrate considered the evidence before him in considerable detail concerning the allegations of sexual offences (decision paras 36-67). [26] He concluded the allegations made by S could not be accepted as more probable than not. The allegations were inconsistent with the level of contact that she had with her parents during the relevant period (decision para 97(a)). [27] The learned magistrate noted the difference in the proceedings between the criminal trials the second respondent had faced and the issues in the hearing that he was conducting. He noted that no issue estoppel was created by the acquittals and that the ultimate decision had to be based on the evidence in the current proceedings (decision paras 31-33). The learned magistrate applied the higher standard of proof in relation to the balance of probabilities (Brigenshaw v Brigenshaw (1938) 60 CLR 336) in relation to his findings about the allegations made by A and B (decision para 95). [28] The learned magistrate found that the allegations of sexual offences made by A and B more probably than not did occur (decision para 97(c)). He set out the specific considerations in relation to A in para 97(d) and in relation to B in para 97(e)-(g). -- 7 of 13 -- 8 [29] As a result of those findings, he concluded that the second respondent represented “a risk to female children while they are in his care in a family environment” (decision para 97(g)). [30] In relation to the first respondent’s attitude to such a risk, the learned magistrate noted an April 2016 report concerning her protective capacity and the conclusion that her capacity was compromised (decision para 89). Her allegiance to the second respondent and her failure to acknowledge the possibility that the sexual misconduct allegations may be true, rendered “it likely that she will not participate in risk minimisation strategies”. [31] The learned magistrate concluded: (i) ADB refuses to accept the possibility that the sexual abuse occurred and on that basis would not provide any protection to female children in the family home. This is despite her participation in various courses and counselling. (j) The risk of sexual abuse is a risk of significant harm and there is an unacceptable risk of that occurring. (k) There is no parent willing to protect the children from such harm and therefore both children are children in need of protection.” (decision para 97). [32] The learned magistrate found that it was thus appropriate that an order be made. [33] The learned magistrate noted that after the applications were brought by the Department, the second respondent’s contact with the subject children was restricted because of the criminal proceedings. It was alleged in mid-2016 that the second respondent was not complying with those restrictions. The Childrens Court then made orders that the children be placed in the custody of the Chief Executive and the children were removed from the respondents’ care and placed in foster homes. The learned magistrate noted the evidence which suggested that that further contact had occurred (decision paras 81-85). [34] The learned magistrate found that there had been breaches of previous court restrictions imposed on the second respondent and that the first respondent was a party to those breaches. The respondents’ evidence in denial of some of those breaches was rejected (decision para 97(p)). [35] The learned magistrate found that there was no persuasive evidence that if returned home, the emotional security and stability of either child would be adversely affected -- 8 of 13 -- 9 to the extent of it constituting significant harm, apart from the risk of sexual harm by the second respondent (decision para 97(q)). [36] The learned magistrate found: “98. There is a basis for the making of a child protection order in both cases based on the established sexual abuse of two other children who lived in the family home. The question is which order provides a proper level of protection while at the same time being the least intrusive. – – – 100. Bearing in mind, • The principles set out Part 2, Div 1 of the Act and in particular those set out in s 5A(c), • The conclusion that the risk is founded in the conduct of BDB and that ADB lack (of) protective capacity would only be relevant if BDB is present in the home or has unsupervised access to the subject children, and • The lack of evidence about either child being at risk of significant harm if under the care of ADB only, then notwithstanding the earlier breaches of contact restrictions...” The learned magistrate made the orders which are appealed against. [37] In summary the learned magistrate concluded “to a high standard on the balance of probabilities” that sexual abuse of A and B by the second respondent had occurred. The learned magistrate, on the basis of those findings, found that there was a unacceptable risk of sexual abuse occurring (decision para 97). He found that the first respondent refused to accept the possibility that any prior sexual abuse had occurred and “on that basis would not provide any protection to female children in the family home”. He also found that there had been breaches of court restrictions on the father’s contact with the children to which the first respondent was a party (decision paras 81-85). [38] None of the factual findings by the learned magistrate were challenged by any party on the appeals. Appellant’s submissions [39] The appellant contends that the evidence led on the hearing overwhelmingly supported a conclusion that the parents were not able and/or willing to protect the children from the identified child protection concerns. -- 9 of 13 -- 10 [40] The appellant contends that the learned magistrate’s conclusion that the risk was “founded in the conduct of (the second respondent) and that (the first respondents) lack (of) protective capacity would only be relevant if (the second respondent) is present in the home or has unsupervised access to the subject children” (decision para 100) was unsupported by any evidence that the second respondent would remove himself from the home. [41] The appellant argues that it was not open for the learned magistrate to conclude that the second respondent would remove himself from the family home, that the second respondent would not seek to have contact with his children in the absence of an appropriate supervisor or that the first respondent would not facilitate contact between the second respondent and the children. [42] The appellant argues that the learned magistrates reliance on the offence contained in s 168 CPA (“a child’s parent must not knowingly contravene provisions of an order directing the parent not to have contact (direct or indirect) with the child or with the child other than when a stated person of a stated category is present”) was not open in the light of the finding that the first respondent had already breached such orders. There was no basis on which the court could be satisfied that the threat of sanctions for that offence would have prevented the second respondent from having contact with the children. [43] The appellant submits that the learned magistrate erred at law in failing to give sufficient weight to the findings. The findings include the nature of the sexual abuse by the second respondent, the mother’s failure to accept even the possibility that the sexual abuse may have occurred and the fact that previous breaches of no contact orders had occurred. These were inconsistent with the orders made and the orders would not achieve the protection needs identified. The separate representative’s submissions [44] The separate representative was supportive of the appeal and joined with the submissions of the appellant. [45] The separate representative submits that after finding that there was an unacceptable risk of sexual abuse occurring, the learned magistrate then needed to determine whether the first respondent was willing and able to protect the children. In the light -- 10 of 13 -- 11 of the findings by the learned magistrate, the learned magistrate should have concluded that the mother was not a parent willing and able to protect the children from the identified child protection concerns. [46] The separate representative submits that the orders made by the learned magistrate were completely inconsistent with the findings made in the matter and were not protective. The orders made in effect left the protection of the children to the parents. This was not open as a result of the findings of previously breaching restrictions placed on them and their lack of insight into the risk to the children of sexual harm. Submissions of the first respondent [47] The first respondent submits that the learned magistrate found that there was a risk of significant harm to the children and there was an unacceptable risk of it occurring. It was thus necessary to make a child protection order. The learned magistrate then had to consider which was the least intrusive order to achieve the child protection needs (s 59(1) CPA). The learned magistrate clearly decided that the least intrusive orders to achieve protection were the ones he made. Those orders restricted the contact that the second respondent had with the children and it was the second respondent who posed the risk of harm. The learned magistrate clearly exercised his discretion in making those orders and gave appropriate weight to the findings he had made. There was no error made by the learned magistrate. [48] The first respondent submits that if the appeal succeeded and I am minded to exercise the discretion anew, the respondents needed to be afforded the opportunity to adduce new evidence as to the current circumstances which now exist. Submissions of the second respondent [49] The second respondent did not submit a written outline. In oral argument he submitted that he was prepared to do whatever it took to get his children back into the parents’ care even if it meant he had to move out of his home (transcript 1-18). He made no further submissions in regard to the appeal. Consideration -- 11 of 13 -- 12 [50] I have reviewed the evidence at the hearing. The relevant findings of fact made by the learned magistrate were plainly open on the evidence. There is no challenge to those findings on the appeal. [51] The learned magistrate apparently made the orders based on his findings that the subject children were only at risk from the second respondent and that the first respondent’s lack of protective capacity would only be relevant if the second respondent was present in the home or had unsupervised access to the children. The orders were made “notwithstanding the earlier breaches of relevant restrictions” (Decision para 100). The learned magistrate presumably was of the view that the orders made were the least intrusive in terms of the scheme of the CPA. [52] In the light of the learned magistrate’s findings that the first respondent refused to accept the possibility of any such risk posed by the second respondent and her complicity in the breaches of previous court orders restricting the second respondent’s contact with the children, I am of the view that the learned magistrate gave insufficient weight to such findings. [53] The orders the learned magistrate framed presuppose that the first respondent would play an active role in disclosing any unauthorised contact by the second respondent. He gave no reason as to why the first respondent would comply when she had already been complicit in contact breaches of court orders in the past. Considering her repeated position that the second respondent had not committed any sexual offences on any children, there was a plain risk that she would not comply with that protective responsibility. [54] In my view the orders made would not achieve the protection required. [55] There is no need to consider the other grounds of appeal. [56] Each appeal is allowed. [57] With respect to the first respondent’s submission that further evidence is required before I exercise my discretion to make another order, I am not persuaded of that. The orders sought are for a 12 month order granting custody of each child to the Chief Executive. Such orders would expire on 19 June 2019. In the light of the findings made by the learned magistrate it is difficult to see how any new evidence would -- 12 of 13 -- 13 persuade me that any alternative order would be appropriate. Such issues can be canvassed if further applications are made before 19 June 2019. [58] My orders in relation to each appeal are: 1. Appeal allowed. 2. Each order of the learned magistrate dated 19 June 2018 is set aside. 3. I grant custody of each child to the Chief Executive Department of Child Safety, Women and Youth until midnight on 19 June 2019 unless extended or earlier revoked. -- 13 of 13 --