Director of Child Protection Litigation v FGE & FPA (No 2) [2018] QChC 17

[2018] QChC 17 CHILDRENS COURT OF QUEENSLAND LYNHAM DCJ DC No 1247 of 2018 DC No 1248 of 2018 DC No 1249 of 2018 DC No 1250 of 2018 DIRECTOR OF CHILD PROTECTION LITIGATION Appellant and FGE Respondent and FPA Respondent TOWNSVILLE THURSDAY, 10 MAY 2018 JUDGMENT LYNHAM DCJ: The applicant appeals, pursuant to section 117 of the Child Protection Act 1999, against a decision of the Childrens Court not to make an interim order granting temporary custody of a child to the chief executive of the Department of Child Safety, Youth and Women, such application having been brought pursuant to section 67, subsection (1), subsection (a), subsection (ii) of the Child Protection Act 1999. -- 1 of 10 -- 2 The appeal relates to four children. The application was heard and dismissed in the Magistrates Court on the 5th of April 2018. The following day, a temporary stay was granted in the Childrens Court of Queensland in respect to that order. That temporary stay was subsequently extended by me on the 10th of April 2018, and the appeal adjourned for hearing today, being the 10th of May 2018. At the time of granting the stay, a temporary custody order to the chief executive in relation to each of the four children was made. The grounds of appeal are identical in respect of all four of the children. To be clear, the appeal relates to all four children, although in a technical sense, separate applications were made on behalf of each of the children. There are eight grounds of appeal. They generally relate to grounds asserting that the Magistrate erred at law in failing to have regard to particular matters, not having sufficient regard to particular matters in findings that were made or findings that were not made, and finally in relation to the reasons of the Magistrate not being adequate in support of his decision. In the stay application, I set out in full the Magistrate’s reasons for decision. They encompassed three paragraphs. It might be said that they were relatively succinct in nature. As a consequence of hearing submissions today, I indicated to the parties my concerns as to whether or not the reasons for decision of the Magistrate were adequate given the volume of material and the complexity of issues which were raised by both parties -- 2 of 10 -- 3 before the Magistrate prior to a decision being made to not grant temporary custody of the children to the department. My concerns were raised because it is clear from the grounds of appeal that in order for the applicant’s application to have been dismissed by the Magistrate, one of the things that would have needed to have been determined was whether or not, on the evidence before the Court, there was a prima facie basis as to whether or not the children the subject of the applications were in need of protection. That is consistent with the fundamental tenets of the legislation, including that the best interests of a child is the paramount consideration, as well as the matters set out in section 10 of the Act, which would guide a decision-maker hearing such an application as to the matters that regard must be had to in so far as the application is concerned. Whilst it is accepted that the Act itself does not speak of a requirement for a Magistrate to be satisfied on a prima facie standard of the need for a child to be protected, it is not in dispute that for the purposes of this application, that is really the test that the Magistrate needed to apply so far as determining whether or not the application should have been granted. The applicant again, as is consistent with the grounds of appeal, has raised in the course of submissions on this appeal that on the face of it, the reasoning of the Magistrate did not advert at all to allegations raised in the affidavit material concerning the mother -- 3 of 10 -- 4 having mental health issues and its relevance to an assessment of the best interests of the children and whether the mother’s mental health issues impacted upon her capacity or her ability to care for the children. The applicant submits that it is clear from the Magistrate’s reasons he did not advert to that at all. It is also submitted that there was evidence of the mother of the children obtaining drugs for the father, as asserted in the affidavit material, that there may have been some additional corroborative evidence supporting that allegation, but again, this was not a matter that was adverted to by the Magistrate in determining whether or not to grant the application. Finally, it is also said that the Magistrate failed to have regard to some allegations in the materials as to the mother not providing proper medical care or attention to the children, and the assertion again in the materials as to warnings given to the mother that if proper medical attention were not provided, that that might have had a detrimental impact on the children. It is said on behalf of the applicant that the three paragraphs of reasons, whilst adverting to some of the matters which the Magistrate was required to have regard to, that having regard to the matters raised in the affidavit material, the Magistrate did not have regard to some of the more specific and what the applicant says concerning aspects of the -- 4 of 10 -- 5 evidence before the Court concerning what went to the issue of the best interests of the children and whether the order should be made. In the course of submissions, I raised with the parties my concerns, as I have noted already, of the adequacy of the reasons. There is an abundance of appellant Court authority as to the obligations on decision-makers to give adequate reasons for arriving at a decision. Recently, the Victoria Court of Appeal in the decision of Lam v Lam [2017] VSCA 173, had an opportunity to review those principles. From paragraphs 106 to 113, the Court summarised in a succinct fashion the principles that should be applied in determining whether the reasons for a decision are adequate. The Court observed a number of principles: first, that reasons are a necessary incident of the judicial process and are important not simply as a means of enabling appeals to be properly conducted and determined, but also so as to enable parties to perceive that justice has been done in their case, enable the public generally to perceive that justice is being done in case before the Courts, as a means of providing for judicial accountability and because judgments perform an important educator function. The Court observed that where factual matters are concerned, the reasons ought not leave the reader to wonder which of a number of possible routes have been taken to the conclusion expressed. It noted that a Judge should refer to the relevant evidence, make material findings and explain the reasons for findings and the application of the law to -- 5 of 10 -- 6 the facts as found. The Court also referred to its earlier decision in Hunter v The Transport Accident Commission [2005] VSCA 1 at paragraph 21, where Justice of Appeal Nettle said as follows: While the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which are being raised, include findings on material questions of fact, refer to the evidence of other material upon which those findings are based and provide an intelligible explanation of the process of reasoning that has led the Judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the Judge has rejected, the Judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that are being raised, explain why that evidence or material has been rejected. There may be exceptions, but ordinarily, where a Judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. -- 6 of 10 -- 7 Similarly, while it is not incumbent upon the Judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all, the Judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law. I adopt those principles helpfully expressed by the Victorian Court of Appeal in Lam v Lam as correctly setting out the argument here as to why the reasons given for the decision were not adequate. I have noted already it is appeal ground 8 that raises the adequacy of reasons. As I expressed in the course of oral submissions on this appeal, it seems to me that the other complaints raised by the appellant to some extent fall for consideration under ground 8 the adequacy of reasons. By that, I meant that whether or not particular aspects of the material which the applicant sought to rely upon to persuade the magistrate to grant the temporary custody order were not adverted to would be readily disclosed in the reasons themselves. And that in turn in essence raised an issue as to the adequacy of reasons. I accept that the matters expressly raised by the appellant in terms of some of the more serious aspects of the affidavit material relating to whether or not it was in the best interests of the children to remain in the care of the respondents, and in particular issues -- 7 of 10 -- 8 relating to the mother’s mental health, those relating to her failure to obtain or accept medical advice and those relating to the obtaining of drugs, as well as in a broad sense whether or not the magistrate adequately took into account the history of domestic violence between the respondent mother and the respondent father, have not been adequately dealt with, at least in a transparent way in the reasons given by the magistrate in determining the matter. For that reason, I am satisfied, having regard to the principles I have outlined with respect to the advocacy of reasons, that the appeal should be allowed on the basis that adequate reasons were not provided. I foreshadowed my concern to the parties. In the end, the parties entered into negotiations for the purposes of settling upon orders that might be made in respect of this appeal. It is now conceded by Mr Pack on behalf of the respondents that this appeal should be allowed. Of course, the fact that the parties may say to the Court that the appeal should be allowed does not determine the matter. I must independently review all the material and make that determination for myself. Of course, for the reasons that I have already given, in my view, the reasons of the magistrate, as brief as they were, did not adequately deal with all of the complex and relevant issues that were raised by the parties. Now, I of course make clear that the adequacy of reasons does not affect only one party. In a matter such as this, both parties have a justifiable sense of grievance that their arguments and the counter-arguments made by the other party were not properly -- 8 of 10 -- 9 considered in the reasons for decision. In other words, whilst the applicant has brought the appeal, and the appeal is based in part on the adequacy of reasons, I do not intend to be seen to be suggesting that all of the respondents’ arguments were also considered by the magistrate. Clearly, they were not. And so the inadequacy of reasons affects both parties. And it is such that the appeal inevitably has to be allowed on that basis. The parties, as I have noted already, have agreed to orders that the Court might make, accepting that the appeal should be allowed. Those orders include that the interim orders granting temporary custody of the children to the Chief Executive should continue. Pursuant to section 121 of the Child Protection Act, there are a number of options available to me where I allow an appeal. The section expressly provides that I might confirm the decision appealed against; vary the decision; set aside the decision and substitute another decision; or, finally, set aside the decision appealed against and remit the matter to the Childrens Court that made the decision. Ultimately, as I expressed in the course of oral submissions, in my view, the matter is best remitted to the Childrens Court for further hearing. My reasons for doing so include that the Childrens Court deals with these kinds of applications on a regular basis. All of the magistrates are very experienced in this jurisdiction. All have considerable experience in determining these matters. And the matter is more properly, in my view, to be determined particularly having regard to the final hearing in respect of the substantive application will also need to be dealt with by a magistrate in due course. -- 9 of 10 -- 10 For those reasons, I am satisfied that each of the matters should be remitted to the Childrens Court for further hearing of the interim custody and the substantive application in due course. For those reasons, I am therefore satisfied that orders should be made in terms of the draft. My orders are: (1) that the appeal be allowed; (2) that, until further order, an interim order granting temporary custody of each of the four children be granted to the Chief Executive under section 67, subsection (1), subsection (a), subsection (ii), of the Child Protection Act; (3) that the matters be remitted to the Childrens Court for further hearing of the interim custody and the substantive applications; and, finally, that there be no order as to costs. Those orders are distilled into the draft orders which have been provided by the parties. I will make orders in terms of the drafts that have been prepared in respect of each child. Those orders will be initialled by me, and they will be placed with the papers. -- 10 of 10 --