Director of Child Protection Litigation v MAP & CJS [2018] QChC 20

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v MAP & CJS [2018] QChC 20 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (appellant) v MAP (first respondent) and CJS (second respondent) FILE NO/S: APPEAL NO: 117/18 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Childrens Court, Cairns DELIVERED ON: 3 August 2018 DELIVERED AT: Cairns HEARING DATE: 30 July 2018 JUDGE: Morzone QC DCJ ORDER: 1. Appeal refused. 2. I will hear the parties about appropriate orders in accordance with this decision. CATCHWORDS: FAMILY LAW – CHILD WELFARE – CARE AND PROTECTION – EVIDENCE – interim application for temporary protection order on adjournment pending determination of application for child protection order – evidence of historical and recent matters conflated - whether child would be at unacceptable risk of harm in the parents’ care – whether error of law failing to give sufficient weight to the evidence – whether error of law placing weight on irrelevant -- 1 of 18 -- 2 considerations – whether error at law failing to have regard to the safety, wellbeing and best interests of the child as the paramount consideration. Legislation Child Protection Act 1999 (Qld) ss 5A, 5B, 5C, 5D, 9, 10, 18, 49, 51AE, 55AF, 53, 67, 99, 104, 105, 117, 120, 121 Childrens Court Rules 2016 (Qld) r 80. Cases Chidiac v R (1991) 171 CLR 432 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 Dale v Scott ex parte Dale [1985] 1 Qd R 406 Dunnett v Gebers and Department of Families, Youth and Community Care; ex parte Dunnett [1997] QCA 56 House v The King (1936) 55 CLR 499 Humberside County Council v B [1993] 1 FLR 257 In Marriage of R (1998) 146 FLR 267 In the marriage of M and M (1988) 166 CLR 69 Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 Morris v R (1987) 163 CLR 454 Obrenovic and McCauley (1985) FLC 91-655 R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 Re K, (Infants) [1965] AC 201 Sudath v Health Care Compliants Commission [2012] NSWCA 171 Youngman v Lawson [1981] 1 NSWLR 439 COUNSEL: M Spiteri for the Appellant A Laurence for Respondent SOLICITORS: Office of the Director of Child Protection for the Appellant Queensland Indigenous Family Violence Legal Service for the Respondent -- 2 of 18 -- 3 [1] The Director of Child Protection Litigation appeals against a decision made in the Childrens Court on 28 June 2018, when the learned magistrate declined to make a temporary custody order for two children in favour of the Chief Executive pending determination of the application for a child protection order for 2 years. [2] The first respondent mother is of Aboriginal and Torres Strait Islander decent and was represented in the Childrens Court, and on the appeal. The second respondent has not participated in the proceeding. Background [3] The original proceeding was commenced on 15 June 2018 by an application for a child protection order pursuant to the Child Protection Act 1999 (“Act”) in relation to the children now aged 4 and 5. Before then it had some history before the Childrens Court. [4] On 12 April 2018 the court made a temporary assessment order in respect of the children then aged 3 and 4 until midnight on 17 April 2018. On 19 April 2018 the court made a court assessment order in respect of the children until 17 May 2018. On that date, the order was extended until midnight 14 June 2018, being the last permissible extension under s 49(4) of the Act. [5] The Chief Executive then applied for a child protection order on 15 June 2018, coupled with an interim application for a temporary custody order pursuant to s 67(1)(a)(ii) of the Act. Although the earlier orders had expired before filing the application, it seems the children remained in the Chief Executive’s custody until the interim application was heard on 28 June 2018.1 [6] At the hearing on 28 June 2018 the appellant relied upon the application for a child protection order (and interim application therein), an affidavit of the relevant child safety officer, an affidavit pursuant to r 13 of the Childrens Court Rules, disclosure form, and affidavits deposing to service on the mother on 27 June 2018. The mother did not file any material, but was represented by counsel instructed by the Queensland Indigenous Family Violence Legal Service. [7] After hearing the parties on 28 June 2018, the learned magistrate refused the interim application, with the effect that the children would be immediately returned to their mother. Other directions were made to encourage the parties to engage in a family group meeting and develop a case plan, file material, attend assessments, counselling and child day care by the next review set for 23 August 2018. Reasons for the decision were delivered ex tempore at 11:11 am on Thursday 28 June 2018. [8] On the same day, the appellant appealed against the magistrate’s decision and applied to stay the magistrate’s decision pending determination of the appeal. After hearing about the matter, at 7:41 pm I made directions for the mother to file material, and directed the parties to confer by the end of 16 July 2018 with a view to narrowing the matters in dispute in relation to the application and, if practicable, the substantive issues in the appeal. The mother filed and served her affidavit pursuant to the directions. The parties reached a resolution at a case conference on 16 June 2018. 1 Contrast, Child Protection Act 1999 (Qld), s 99(2). -- 3 of 18 -- 4 [9] On 17 July 2018 a temporary custody order was made in favour of the Chief Executive until the children were returned to the full time custody of the mother on 23 July 2018 in accordance with the parties’ hand written resolution. They had resolved to transition the children over a short period to the mother’s full time care with continued monitoring and support of the transition period. [10] In furtherance of the resolution, the proceeding was again mentioned on 25 July 2018 subject to the mother’s instructions in respect of relevant case plans. But she failed to appear, and the proceeding was adjourned pending her instruction to 26 July 2018. [11] However, child safety officers became concerned for the children’s welfare when the mother remained incommunicado throughout 25 July 2018, despite efforts made by officers to visit to her house, telephone and text the mother. [12] The appellant sought an urgent hearing and orders to stay the magistrate’s decision or a temporary custody order. After an urgent hearing, I was unpersuaded to make the orders sought and it seems to me that the events had overtaken the revisitation of a stay proceeding where the children’s transition home was complete. Instead, at about 7:05 pm I ordered that the appeal be expedited, and made directions for the appellant to file further material in relation to the events since the start of this proceeding. I also declared that nothing in my orders or in the management of this proceeding curtails the operation of s 18 of the Act or any other proper function of the authorised officer or police officer under that Act. [13] Contact was made with the mother, when two child safety officers and two police officers went to her home at about 8:30 pm after the hearing on 25 July 2018. Whilst observations were made about the mother’s sobriety, the child safety officers did not determine that the children were in immediate risk of harm. [14] On the following day two child safety officers attended the home and met the mother in the presence of her legal representative, and discussed the use of unannounced visits, reliable telephone contact, child care arrangements, and the proposed Case Plans (which reach beyond the parties hand written resolution). The child safety officers apparently did not determine that the children were in immediate risk of harm. [15] The children remained in the mothers care (in day care) at the time of the hearing and this decision. The appellant maintains the appeal and seeks substituted orders that temporary custody orders be made for the children in favour of the Chief Executive pending determination of the application for a child protection order. Mode of Appeal [16] The appellant’s right to appeal exists pursuant to s 117(2) of the Act. [17] This court ought not interfere with the magistrate’s decision unless there is some demonstrated error in the decision making process.2 A mere difference of opinion about the way in which 2 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 at [21] per Gleeson CJ, Gaudron and Hayne JJ. -- 4 of 18 -- 5 the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.3 [18] Pursuant to s 120(1) of the Act 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. The appellate court may order the appeal be heard afresh, in whole or part.4 [19] The parties were granted leave to adduce fresh evidence on the appeal, including the mother’s affidavit going to the substantive matters, and a further affidavit filed by the appellant dealing with events since the start of this proceeding. [20] This court is empowered under s 121 of the Act to: 1. confirm the decision appealed against; or 2. vary the decision appealed against; or 3. set aside the decision and substitute another decision; or 4. set aside the decision appealed against and remit the matter to the magistrate or Childrens Court that made the decision. Grounds of Appeal [21] The grounds of appeal are set out at length in the Notice of Appeal and can be synthesised as follows: 1. The learned magistrate erred at law in failing to give sufficient weight to the evidence before the court establishing that the child had been harmed in the parents’ care; 2. 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 the parents’ care; 3. The learned magistrate erred at law by placing weight on irrelevant considerations; and 4. The learned magistrate erred at law in failing to have regard to the safety, wellbeing and best interests of the child as the paramount consideration. The learned magistrate erred at law in failing to give sufficient weight to the evidence before the court establishing that the child had been harmed in the parents’ care. (Ground 1) [22] The appellant relies upon assessments and observations that the children are suffering emotional harm, and are at ongoing risk of emotional harm, due to the neglect of the mother.5 [23] The learned magistrate said this:6 “The other factors which seem to be at play here are the – an assessment of the children’s development. There are some concerns raised, and there are some serious issues raised on the report from the carers, but I have to also take into account that this is behaviour that is being observed from children who have been removed from the care of their mother, and there might be – and it does seem to be at odds with the 3 House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519. 4 Child Protection Act 1999 (Qld), s 120(1). 5 Affidavit of Ikin 21 June 2018, paras 14-96. 6 D1-2/23-33. -- 5 of 18 -- 6 information from the day care centre from April of this year about their general appearance and their toileting and those sorts of issues which seem to have become an issue, and it – I have to, as I say, balance that with the fact that they have been removed from the care of their primary carer and the effect that that might have had on their behaviours.” [24] In respect of the eldest child, the appellant pleads that the learned magistrate did not give sufficient weight to evidence that: (a) The child has not demonstrated the emotional reaction or response to the mother’s erratic and aggressive behaviour that would be expected of a child his age. (b) The child does not communicate verbally when he has challenged adults’ requests, rather he has demonstrated oppositional and aggressive behaviour at these times. (c) The child demonstrates aggressive behaviour towards peers of his own age. (d) The child has not met his physical and cognitive developmental milestones. At aged 4 years and 11 months, the child is unable to toilet himself; he cannot dress independently, nor can he wash his face or brush his teeth. (e) The child has speech and communication delays and does not have the expected vocabulary for a child of his age. [25] In respect of the younger child the appellant pleads that the learned magistrate did not give sufficient weight to evidence that: (a) The child has not demonstrated the emotional reaction or response to the mother’s erratic and aggressive behaviour that would be expected of a child his age. (b) The child has not communicated verbally when she has physically assaulted by her sibling. (c) The child has been observed to be quiet and withdrawn at these times and self- soothes by rocking herself. [26] The children have been the subject of a past temporary assessment order made on 12 April 2018, and the court assessment order made on 19 April 2018 and extended until midnight 14 June 2018. They have also undergone hearing assessments.7 In that regard the children are appointed to attend with the mother for a paediatric review on 20 and 22 August 2018. No other relevant expert paediatric, speech pathology or psychological assessments were placed before the court to support the nature or cause of the alleged harm or potential harm. [27] At best, the appellant predominantly relies upon casual observations made by child safety officers, foster carers and day care workers and relied upon as indicia of harm or risk of harm to the children.8 Emotional reaction or response [28] The genesis of the allegation, at its highest, is when the mother adversely reacted to a visit by child safety personnel on 5 and 11 April 2018. 7 Rule 13 Affidavit of Ikin 21 June 2018, pp 195-202. 8 Rule 13 Affidavit of Ikin 21 June 2018. -- 6 of 18 -- 7 [29] According to the record of interview for 5 April 2018 at 11:00 am,9 the mother was “agitated and aggressive” and refused to engage. She apparently “raised her voice” at which time the “child was observed to wake, look around, and then go back to sleep”. The children were seen “sleeping on a mattress on the floor”. [30] The interview record for 11 April 2018 at 1:30 pm generally describes the mother’s overt behaviour as “angry and agitated … oppositional”.10 The noted observation was that “Two small children, … were standing beside [the mother]. The children did not show any response to [the mother’s] loud and aggressive outbursts. CSO Ikin made eye contact with one of the children and exchanged smiles.” [31] There is no recent observations, including during the very recent period when the children were transitioned to the mother’s full time care under the resolution reached after the hearing below. [32] It seems to me that evidence does not bear out the alleged harm or unacceptable risk of harm in if children stayed in their mother’s care. Communication Deficit [33] There is clear evidence that the children display verbal communication and comprehension deficits for their age as observed by child safety officers, carers and childcare workers.11 [34] The causative factors relevant to the children’s communication skills remain intolerably uncertain. The observed communication deficits seem incongruous with the children’s state of physical health. Hearing tests have not revealed any auditory causative factors. The matters of concern warrant further investigation of their speech pathology, psychological and intellect. None of these measures are planned. [35] At this stage, it seems to me that the attribution of the children’s communication skills to the mother’s neglect is largely guesswork and conjecture. Further, it is difficult to see how risk of harm like this could be adverted if the children are removed from her care. The evidence falls well short of demonstrating unacceptable emotional harm or risk of emotional harm in if the children stayed in their mother’s care. Physical and cognitive developmental milestones. [36] Within a short time after, and during the period, after removal from their mother, the children showed delayed development achieving milestones of toileting, independent dressing, and hygiene with washing faces or brushing teeth.12 [37] This evidence was contradicted by the mother’s recent affidavit relied upon in this appeal. [38] As to toileting, the mother deposes that both children were toilet trained and wearing underwear since mid-2017. Sometimes she would put a nappy on them a night, but they mostly woke up to toilet if required during the night. She also deposes that she’d send them to their former day care centre in underwear with spare underwear if there were any accidents. The mother deposes 9 Rule 13 Affidavit of Ikin 21 June 2018, pp 12-13. 10 Rule 13 Affidavit of Ikin 21 June 2018, pp 14-15. 11 Affidavit of Ikin 21 June 2018, paras 83-84. 12 Rule 13 Affidavit of Ikin 21 June 2018, pp171-175; Affidavit of Ikin 21 June 2018, para 89. -- 7 of 18 -- 8 to being ‘upset’ to hear and see the children are ‘back in nappies’.13 There is no evidence of chronic problems of toileting before the Chief Executive’s custody or from relevant day care centres. [39] The mother also deposes that she has shown the children how to brush their teeth and wash their face as part of their routine ‘in the shower’, which may differ from their routine in foster care. [40] Again, it seems to me that the attribution of the children’s developmental milestones to the mother’s care is tenuous and does not bear out the alleged unacceptable emotional harm or risk of emotional harm if the children stayed in their mother’s care. Aggressive behaviour & responses [41] While in the Chief Executives custody under the temporary orders, the children’s carer reported aggressive behaviour of the older child to his younger sister and others. The younger child is seen to not verbally communicate and become quiet and withdrawn at these times, and self- soothes by rocking herself.14 [42] This evidence is drawn from telephone, email and meetings with the carer on 13 and 16 April 2018, and 9, 14 and 29 May 2018. [43] These reports evidence an escalation in the older child’s aggressive and oppositional behaviour toward his sister and others during the period they were removed from their mother and in the Chief Executive’s care. This can be contrasted with the observations of the children’s behaviour during periods of contact with their mother. It is not clear how the behaviour is attributed to the mother’s care in the circumstances. [44] It seems to me that evidence does not bear out the alleged unacceptable emotional harm or risk of emotional harm if the children stayed in their mother’s care. It seems to me that the learned magistrate did take sufficient account of the evidence of alleged harm in their proper context, including the children’s environment away form their mother. 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 the parents’ care. (Ground 2) [45] The appellant relies in its notice of appeal on the following evidentiary basis to support this ground in respect of both children: (a) The mother has limited awareness of the developmental delays of each child. (b) The mother has previously agreed to work with an intervention with Parental Agreement however she did not engage and subsequently withdrew consent for the intervention shortly afterwards. 13 Affidavit Mother 13 July 2018, paras. 19-28. 14 Rule 13 Affidavit of Ikin 21 June 2018, pp 173 – 174. -- 8 of 18 -- 9 (c) The mother has acted aggressively towards Child Safety Officers, sent oppositional, erratic and disturbing text messages to Child Safety Officers, and previously threatened to harm a Child Safety Officer. (d) The mother has made disclosure to Child Safety Officers that there is historic and current sexual abuse perpetrated against her by her father and un-named others. Despite these serious allegations, the mother has continued to allow her father access to her children. (e) The Child Safety assessment. (f) The young age and vulnerability of the child. Mother’s awareness of developmental delays [46] The causative link between the mother’s awareness and harm manifest by development delays is subject of opinion evidence in paragraph 26 of the officer’s affidavit as follows:15 “Child Safety are worried that if [the mother] continues to neglect [the older child] and [younger child] developmental needs they will not meet their age- appropriate milestones like being able to communicate with other people and be able to understand when others are speaking to them. Also, the children will not meet their physical developmental milestones like dressing themselves, bathing, and toileting themselves. If this happens the children might not be able to do the things that other children their own age do and this might make the children feel isolated, sad, lonely, upset or frustrated and the children might feel angry and upset at their mother for this. Also, if the children do not develop appropriate communication skill (sic) they might fall behind in their learning and education and if this happens they might not be able to get a job or have opportunities in life that other people have.” [47] It seems to me the nature and extent of the children’s developmental deficits will be better understood with proper assessment and willing support for the mother. [48] It is not clear to me why, despite the opportunity facilitated by the past temporary assessment order made on 12 April 2018, and the court assessment order made on 19 April 2018 and extended until midnight 14 June 2018, the chief executive has not arranged for the children to undergo speech pathology, psychological, paediatric or other medical assessment. [49] The children are scheduled to attend with the mother for a paediatric review in August 2018. This is expected to provide some insight into the appropriateness of the children’s emotional responses, verbal communication skills, behaviour, and physical and cognitive milestones. [50] The learned magistrate was sufficiently abreast of the state of the evidence. She made appropriate directions for the mother and children to attend medical assessment as requested by the Chief Executive. 15 Affidavit of Ikin 21 June 2018, para 25. -- 9 of 18 -- 10 Mother’s disengagement and aggressive responses towards Child Safety. [51] The evidence did disclose the mother’s disengagement with services and her manifested aggression towards child safety officers. [52] Her behaviour is consistent with her perceived frustration, victimisation and siege due to the sustained and ongoing attention and investigation by child safety. That is until she reached out for legal support and representation before the interim hearing below. Through her counsel she effectively undertook to co-operate with the department and relevant services. [53] The learned magistrate properly relied upon these matters and the need for departmental support to make directions about the future management of the proceedings. This was also reinforced by the mother acknowledgment of Her Honour’s explanation at the end of the hearing as follows:16 “So, [mother], this is probably all a bit complicated, and Ms Williams will spend some time now explaining to you what is going on, but the children will come home to you, but you have got to make sure that everything runs a bit more smoothly from here. I know it is going to be hard for you to try and work with Child Safety. You have obviously got some bad memories of your time with the department, but hopefully you can find that the Child Safety officer is somebody you can talk to, and everybody needs help from time to time, and raising two young children on your own is never an easy thing. So I hope that you are willing to accept what help they can give you, ask for help if you think you need it, especially getting the kids to medical appointments. If there are some issues there that they need some extra help with, you need to know now. Every parent would need to know that. So are you happy enough just to try and move forward with a positive approach to it all?” [54] Accordingly, the mother has within the bounds of her understanding co-operated since the hearing below. So much is evidenced by the arrangements made in resolution reached between the parties, which provided sufficient confidence to return of the children to her full care. It is essential that supportive supervision continue as agreed by the Chief Executive. [55] It seems to me that the mother was not aware of the Chief Executives expectations of her from that time. It is unfortunate that the efforts of child safety officers have engendered a siege mentality, fear and distrust in the mother. [56] In any event, I am satisfied that the learned magistrate well understood the nature and scope of the evidence about the mother’s engagement with Child Safety officers. Mother’s disclosures of sexual abuse [57] It is true that the mother has disclosed information about sexual abuse perpetrated against her and related conduct of her father on 13 April 2018 with a male Child Safety officer, two male police liaison officers and another male.17 16 D1-7/29-41. 17 Rule 13 Affidavit of Ikin 21 June 2018, pp 16 - 17. -- 10 of 18 -- 11 [58] The causative link to the harm is subject of opinion evidence in paragraphs 28 and 29 of the officer’s affidavit as follows:18 “Child Safety are worried that if [the mother] continues to allow her father … to come and stay with the family the domestic violence will continue. If this happens [the mother] might be harmed and not be able to care for the children. Further the children might be harmed themselves by [her father]. Further, Child Safety are worried that if the children are exposed to domestic violence they might feel worried and scared for their mother, as well as feeling worried and scared for their own safety. Child Safety are also worried that if the children are exposed to ongoing domestic violence they might grow up thinking this is normal and might not be able to form trusting relationships as they grown (sic) through life, or might perpetrate domestic violence and themselves later in life. Child Safety are worried if [the mother] continues to allow her father … to come and stay at her home and (sic) this will cause the sexual abuse against her to continue. If this happens [the mother] might continue to feel traumatised and withdrawn and she might not be able to care for the children. Also, the children might also be subject to the sexual abuse by [the mother]. Further, Child Safety are worried that if the children are exposed to sexual abuse they might feel worried and scared for their mother, and they might also feel worried and scared for their own safety. Child Safety are also worried that if the children are exposed to sexual abuse they might grow up thinking this is normal and might not be able to form trusting relationships as they grown (sic) through life, or might perpetrate sexual abuse themselves later in life.” [59] The learned magistrate remarked in her decision that:19 “The other factors were that she was apparently allowing her father to live at the address. Now, that is disputed, and it would seem that it has been backed up by the fact that the mother is now seeking to have – she has already got a domestic violence protection order against her father. She is wanting to now extend that to a no contact order. She recognises that he poses a risk, and I accept that she is taking steps to address that risk.” [60] It seems to me Her Honour’s approach was apposite and appropriate on the body of evidence. [61] As to the mother’s disclosures concerning “un-named others”, since she no longer resides in their community there is no real risk of future contact with them. The mother did not disclose “current sexual abuse perpetrated against her by her father and un-named others” nor that she has “continued to allow her father access to her children”. To that extent the opinion is flawed. [62] Further, since the hearing below, the mother has taken appropriate steps to bar contact by her father. [63] Consistent with the submissions made by counsel below, the mother deposes that her father never lived with her and the children, but would visit unannounced and uninvited for a day and 18 Affidavit of Ikin 21 June 2018, para 28 – 29. 19 D1-2/16-21. -- 11 of 18 -- 12 up to three or four days every three to four months and sometimes up to 6 months.20 He last stayed at the house for a night “around February 2018”; she rejected him when he went to the house during “Easter April 2018”.21 [64] The mother and children are named aggrieved in a domestic violence order since 31 August 2017, which remains in force until 31 August 2022. In accordance with her indication to the magistrate, and in the parties’ hand written resolution, on 3 July 2018 she applied to vary the order to include a no contact provision, and a temporary order was made to that effect pending service and determination. [65] The evidence does not bear out the alleged unacceptable risk of harm in relation to their mother’s historical treatment by her father or others. Other matters [66] The last two evidentiary matters are pleaded in very general, vague and uncertain terms. [67] At best I glean from the affidavit of the Child Safety officer’s concern about the mother’s context with her former partner (alleged father), the mother’s substance misuse, and her delay placing the children into day care. [68] As to the former partner, evidence was relied upon about the lewd text messages to the mother. The mother’s recent affidavit deals with these matters. She deposes that he last lived in her house in 2014, has little to do with her family, and last came to her house in “March/April 2018” when she asked him to leave.22 None of these matters are contested or challenged and seem to adequately meet the appellant’s concerns. [69] The mother has admitted to misusing alcohol, cannabis and methyl amphetamine. However, it seems that these matters, particular in relation to methyl amphetamine, have been taken out of chronological context and their repetition in the material has created a ‘snowball’ effect. [70] The mother deposes to using cannabis once every two to three weeks, but only in the absence of the children at day care or other’s care.23 There is no evidence that she does otherwise. [71] The mother did admit to marijuana use and ‘ice’ when admitted to hospital on 16 December 2017 after experiencing visual and auditory hallucinations. But no visual or auditory hallucinations were noted during her admission and she was discharged with some information about the Women’s Centre. She deposes to not using methyl amphetamine since then, which is corroborated by hair analysis was negative for that drug.24 There is no evidence that the mother has relapsed. [72] As to perceptions of the mother’s mental health, she has never been diagnosed with a mental health condition. She has attended counselling and is willing to continue with financial assistance.25 20 Affidavit mother 13 July 2018, paras 6 – 12 & 17. 21 Affidavit mother 13 July 2018, paras 9 & 7. 22 Affidavit mother 13 July 2018, paras 3 – 5. 23 Affidavit mother 13 July 2018, paras 34-35. 24 Affidavit mother 13 July 2018, para 36-37. 25 Affidavit mother 13 July 2018, paras 29-33. -- 12 of 18 -- 13 The learned magistrate erred at law by placing weight on irrelevant considerations (Ground 3). [73] For the third ground, the appellant argues that the oral submissions made by the mother’s counsel in the absence of affidavit evidence required by r 80 of the Childrens Court Rules 2016 are irrelevant, inadmissible and ought not have been given any weight. [74] For the most part the magistrate relied upon a body evidence filed pursuant to r 13 comprising child safety files notes, medical records, and reports, which variously recorded third party information about the mother and children. A further affidavit of a child safety officer contained opinion evidence drawn from the body of evidence. The documents including the affidavit pursuant to r 13 purport to substantiate concerns in relation to the children’s protection including sexual abuse and/or exposure to sexualised content, drug use, domestic violence and refusing medical advice as well as mental health of the mother. The officer’s opinion evidence (like successive assessments and note) tends to conflate historical and contemporary information so as to demonstrate or purport to demonstrate a risk of harm to the children. The weight if the opinion evidence is undermined by the quality of various sources so as to be conjecture, speculation and, in some respects, guess work. [75] While the material was served on the mother within the requisite time, she had not filed any material by the time the interim application was heard. The logistics of seeking legal assistance and appearance by counsel militated against fulsome preparation to meet the interim application. [76] Section 105 of the Act provides that: “(1) In a proceeding, the Childrens Court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. (2) If, on an application for an order, the Childrens Court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.” [77] The premise behind the provision is clear and long held in child protection matters. The court ought have all pertinent information to fulfil the paramount purpose of the proceedings to protect children ensuring that the safety, wellbeing and best interests of a child are paramount.26 In doing so the rules of evidence and procedure should serve and not thwart that purpose.27 The test of convenience is the right one in circumstances where a practice has developed that Child Safety officer have relied upon hearsay evidence and all the relevant parties are before the court.28 [78] It is well settled that, as a matter of law, although not bound by the rules of evidence, the court’s decision must derive from relevant, reliable, and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue.29 It is not enough to suspect or speculate that something might have occurred.30 26 Child Protection Act 1999 (Qld)), s 5A. 27 Dale v. Scott ex parte Dale [1985] 1 Qd R 406 at pp 413-4 per Kelly J. 28 Re K, (Infants) [1965] AC 201 at 240. 29 Sudath v Health Care Compliants Commission [2012] NSWCA 171 per Meagher JA; R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256. 30 Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at 156. -- 13 of 18 -- 14 [79] However, the court’s use of the evidence is not completely unfettered to avoid an injustice. In R v War Pensions Entitlement Tribunal; Ex parte Bott,31 Evatt J remarked: “Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence.’ Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party.” [80] Her Honour was entitled to inquire of counsel of the mother’s instructions and precede on the basis that counsel would appropriately assist and not mislead the court, which was not bound by the rules of evidence and could inform itself in any way she thought appropriate. In so far as the mother’s instructions about her preparedness of future compliance was concerned, it ought be treated as being akin to undertakings assuring the court of future conduct. None of these matters were the subject of objection or challenge by the appellant’s advocate. [81] In any event, as was demonstrated by the mother’s counsel on appeal, the substance of the matters submitted by counsel below were drawn directly from the evidence before the court, or were reasonable and rational inferences drawn from that evidence. Assisting the court as counsel for the mother did was orthodox and permissible. [82] It seems to me that the learned magistrate did not fall into error. The learned magistrate erred at law in failing to have regard to the safety, wellbeing and best interests of the child as the paramount consideration. (Ground 4) [83] In exercising its jurisdiction or powers, the court must have regard to the paramount and other principles stated in ss 5A to 5C of the Act, to the extent that they are relevant and making a decision under the Act the court must state its reasons for the decision.32 Section 5D identifies the principles about exercising the powers. [84] The main principle for administering the Act is that the safety, wellbeing and best interests of a child are paramount.33 Section 5B provides for other general principles for ensuring the safety, wellbeing and best interests of a child, relevantly here: (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; 31 R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256. See also Local Government Board v Arlidge [1915] AC 120 at 132, 137 & 147. 32 Child Protection Act 1999 (Qld)), s 104. Section C is not relevant to the facts of this case. 33 Child Protection Act 1999 (Qld)), s 5A. -- 14 of 18 -- 15 (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); (k) a child should have stable living arrangements, including arrangements that provide— (i) for a stable connection with the child’s family and community, to the extent that is in the child’s best interests; and (ii) for the child’s developmental, educational, emotional, health, intellectual and physical needs to be met; (l) a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child; (m) 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; (n) a delay in making a decision in relation to a child should be avoided, unless appropriate for the child. [85] Part 4 of the Act provides for the making of child protection orders to ensure the protection of a child in need of that protection.34 A court must find that the child is "in need of protection" before making a child protection order in relation to the child. A child in need of protection is defined in s 10 of the Act as a child who: (a) has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and (b) does not have a parent able and willing to protect the child from the harm. [86] The interim application subject of the hearing below and this appeal is the appellant’s application to adjourn proceeding and for interim orders, in particular an interim order granting custody of the child pursuant to s 67(1)(a)(ii) of the Act, which provides: “67 Court’s powers to make interim orders on adjournment (1) On the adjournment of a proceeding for a court assessment order or child protection order, the Childrens Court may make any 1 or more of the following orders— (a) an interim order granting temporary custody of the child— … (ii) for a child protection order — to the chief executive or a suitable person who is a member of the child’s family; …” 34 Child Protection Act 1999 (Qld)), s 53. -- 15 of 18 -- 16 [87] Such an order has effect for the period of the adjournment by virtue of s 67(4) of the Act. The relevant considerations for granting a temporary custody order are found in s 51AE which provides: “51AE Making of temporary custody order The magistrate may make a temporary custody order for the child only if the magistrate is satisfied— (a) the child will be at unacceptable risk of suffering harm if the order is not made; and (b) the chief executive will be able, within the term of the temporary custody order, to decide the most appropriate action to meet the child’s ongoing protection and care needs and start taking that action.” [88] Section 51AF sets out the width of matters for such the order, including contact, medical examination or treatment, and officers entering, searching and remaining in a place. Later provisions apply to the making and execution of the orders. [89] "Harm" is defined in s 9 of the Act as: “(1) Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. (2) It is immaterial how the harm is caused. (a) physical, psychological or emotional abuse or neglect; or (b) sexual abuse or exploitation. (3) Harm can be caused by— (a) physical, psychological or emotional abuse or neglect; or (b) sexual abuse or exploitation. (4) Harm can be caused by— (a) a single act, omission or circumstance; or (b) a series or combination of acts, omissions or circumstances.” [90] When determining whether a child will be at unacceptable risk of suffering harm if the order is not made the focus is necessarily on the context of the particular case. The legislation is purposely broad.35 The provisions apply whether the requisite risk of harm or the harm is caused despite a parent’s conscientious efforts the child remains exposed to risk of harm. They also include circumstances, such as here, where it is alleged that a parent does not have the capacity to care safely for the child despite a desire to do so. Risk of harm includes circumstances where harm is likely to occur if no action is taken to protect the child having regard to indicia of current or future risk to a child. [91] Although it is immaterial how the alleged harm is caused, here the appellant relies upon the current and future risk of emotional harm if the mother’s alleged neglect continues while the children remain in her care. [92] The relationship of a parents ability and potential risk of harm to a child was discussed by Street CJ in Youngman v Lawson,36 and he said: "It is not difficult to envisage a child being at a current and immediately existing state of risk if the guardianship is incompetent or improper by reason of, inter 35 Explanatory Notes to the 1999 Bill. 36 Youngman v Lawson [1981] 1 NSWLR 439. -- 16 of 18 -- 17 alia, the condition or attitude of the person who has the legal dispositive power and authority over the child I can see no necessary inconsistency between the existence of a present state of risk to the child from incompetent or improper guardianship and a current factual state of the child being, as was the child in the present case, in the immediate care of the Balmain Hospital". [93] The concept of “significant harm” connotes harm that the court considers as considerable, noteworthy or important.37 In Humberside County Council v B,38 Booth J considered the concept of "significant harm": "… whether or not a child may be likely to suffer significant harm must be seen in the context of all the circumstances of the case and in relation to the particular child with whom the Court is concerned. The child may be exceptionally vulnerable in one way or another. For example, if a child suffers from brittle bones then a push or a slap might be of great significance, whereas in the case of a child who does not so suffer it may be a minimal incident." [94] The concept of “unacceptable risk” was considered by the High Court in In the marriage of M and M,39 in the context of sexual abuse (not directly relevant here) where the court held: “After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.... Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm", "an element of risk" or "an appreciable risk", "a real possibility", a "real risk", and an "unacceptable risk". This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding." (references omitted) [95] In Marriage of R (1998) 146 FLR 267 the court held that there is nothing which limits the concept of "unacceptable risk" to abuse cases and that it was a useful test in many circumstances. However, the level of risk must be more than a “bare possibility” that something may be done or omitted to be done by the carers of a child, before an order which removes a child from a long-term caregiver is made.40 37 Cf. Humberside County Council v B [1993] 1 FLR 257 at 263 per Booth J in the context of the English analogy. 38 Humberside County Council v B [1993] 1 FLR 257. 39 In the marriage of M and M (1988) 166 CLR 69 at 76-78. 40 Dunnett v Gebers and Department of Families, Youth and Community Care; ex parte Dunnett [1997] QCA 56 at 2 per McPherson JA. -- 17 of 18 -- 18 [96] I have also made my own independent examination of the evidence, including credit of witnesses subject to what I said above,41 to make an assessment of both the sufficiency and quality of the evidence in relation to the relevant issues.42 Where the evidence conflicts between the child’s safety, well-being and best interests and the interests of the mother caring for the children that conflict must be resolved in favour of the child.43 I also exercise due caution and adopt a course which will exposes the children to the least risk.44 And of course, the safety, wellbeing and best interests of the children are paramount. [97] It seems to me that there is concerning indicia that the children have behavioural, communication and developmental deficits apparently not commensurate with their age, which ought to be the subject of diagnosis, assessment and treatment. However, the evidence falls well short of supporting a finding of harm or risk of harm to the requisite detrimental effect of a significant nature on their emotional wellbeing. [98] I am not satisfied that the children will be at an unacceptable risk of suffering harm if the temporary custody order is not made. Further, it seems to me, as has been well demonstrated by the parties own case plan resolution, that the chief executive will be able, while the children remain in their mother’s case pending hearing and determination of the child protection proceeding, decide the most appropriate action to meet the child’s ongoing protection and care needs. [99] For these reasons, I am not satisfied that the learned magistrate has erred in the proper exercise of the discretion and deciding the interim application for a temporary custody order. It seems inherent in her remarks that she was cognisant of safety, wellbeing and best interests of the child as the paramount consideration. [100] On my own review of the whole of the evidence (including fresh evidence adduced on appeal), I conclude that a temporary custody order is not warranted pending determination of the child protection application. Order [101] For these reasons, I dismiss the appeal. [102] I will hear the parties about appropriate orders in accordance with this decision. Judge D P Morzone DCJ 41 Chidiac v R (1991) 171 CLR 432 at 443-4 per Mason CJ, at 452-3 per Dawson J, at 459 per Gaudron J; Knight v R (1992) 175 CLR 495 at 503 per Mason CJ, Dawson and Toohey JJ. 42 Cf. Morris v R (1987) 163 CLR 454 at 463-4, 466 per Mason CJ, at 473 per Deane, Toohey and Gaudron JJ, at 477-9 per Dawson J. 43 Example to s 5A of the Act. 44 Obrenovic and McCauley (1985) FLC 91-655 at p.80,274 446 per Gee J citing Hogan J in Brown and Brown (1979) 6 Fam LR 352 at 353-354. -- 18 of 18 --