Director of Child Protection Litigation v YDO & Ors [2017] QChC 1

[2017] QChC 1 CHILDRENS COURT OF QUEENSLAND JUDGE SHANAHAN, President Appeal No. 5088/2016 Appeal No. 2090/2016 Appeal No. 5091/2016 Appeal No. 093/2016 DIRECTOR OF CHILD PROTECTION LITIGATION Appellant and YDO and OTHERS Respondents BRISBANE 11.46 AM FRIDAY, 10 FEBRUARY 2017 JUDGMENT RESTRICTED ACCESS TRANSCRIPT PROCEEDINGS IN CAMERA THE PRESIDENT: These are appeals by the director of child protection litigation against decisions made in the Children’s Court. The decisions relate to four children: WPQ, whose date of birth is the ----; XYA, born on the ----; YAD and ZWB, both born on the ----. The appeals are against a decision of the stipendiary magistrate on the 20th of December 2016. The learned magistrate decided not to grant temporary custody of the children to the chief executive of the Department of Communities, Child Safety and Disability Services under an interim order pursuant to section 67(1)(a)(ii) of the Child Protection Act of 1999. As I understand it, it was not under section 59 of that Act and the appropriate section is – section 67. There had been an interim order made on the 29th of November 2016 granting custody to the chief executive, and, on the day in question, the 20th of December 2016, the matter had been listed for a mention or an interim hearing and the magistrate refused to continue that order. -- 1 of 7 -- 2 The grounds of appeal are: (1) that the learned magistrate gave insufficient weight to evidence before her. In summary, that relates to extreme physical discipline on each of the children by the second respondent, a lack of insight by the first respondent in her knowledge of the physical discipline and inability to stop it, including times after the second respondent no longer lived at the family home, denials by the first respondent of the physical discipline and assertion that the children were lying about those allegations. The second ground is that the magistrate erred in law by giving too much weight to submissions of an officer of the Public Guardian about the views of the children, in particular, XYA and YAD, that they wanted to return home. That was in conflict with other evidence then before the court. The third ground is the magistrate erred in law by placing weight on irrelevant considerations, namely, that the children should be reunited with their mother for Christmas. And, fourthly, that the learned magistrate erred in law by not providing adequate reasons for not granting temporary custody to the chief executive. The history of the matter is this: on the 11th of November 2016, an application for a temporary custody order in relation to each child was made, pursuant to section 51AC of the Child Protection Act. The grounds of that application were: (a) the physical abuse perpetrated by the second respondent against the children, (b) the children’s disclosure of ongoing physical abuse that resulted in psychological harm and emotional harm, (c) the children’s disclosure of the first respondent’s knowledge of the abuse and her failing to protect the children from that abuse. The children had been taken into custody, pursuant to section 18 of the Child Protection Act. On the 16th of November 2016, applications for child protection orders were filed seeking the orders for two years, not only in relation to these children, but in relation to their younger siblings. On the 29th of November 2016, the matter was first mentioned in the Children’s Court. The learned magistrate on that occasion granted temporary custody to the chief executive in relation to the four children in this matter. The magistrate declined to make such an order in relation to the younger children. The matter was adjourned to the 20th of December for an interim hearing. On the 20th of December, there had been consent between the parties to adjourn the proceedings to the 17th of January 2017, however the learned magistrate proceeded on an interim hearing to review the custody position of the four children. At the end of that hearing, she declines to make temporary custody orders in favour of the chief executive. She ordered custody to the mother and directed that the second respondent only have supervised contact with the children. It is against those orders that the department has appealed. On the 22nd of December, the appellant filed notices of appeal and an application for a stay. On the 23rd of December, that application for a stay was heard and granted. At the time, the department was also granted leave to adduce further evidence for the consideration of the stay application. -- 2 of 7 -- 3 I have read the transcripts of the proceedings before the magistrates and the judgment of Smith DCJ in relation to the stay proceedings. The appeal procedures are set out in sections 120 and 121 of the Child Protection Act 1999. The appeal is by way of a re-hearing and the court may consider new material if it gives leave. I have given leave to consider new material in the form of affidavits: the first, the affidavit that was before Judge Smith in relation to the stay application, and the second, a further affidavit by the same deponent in relation to occurrences since that time. The first affidavit related to the reaction of each of the four children to being returned to the first respondent after the order of the 20th of December. Each of them, in some degree, evinced a fear of the father in that process. The second affidavit includes material as to various things that have occurred since. It raises other concerns, particularly in relation to sexualised behaviour of two of the children and places before the court the circumstances that now the second respondent has been arrested on serious charges, which are unconnected with this matter and remanded in custody. It seems to me, considering the welfare nature of this jurisdiction, that leave to rely on that material and place it before the court, is appropriate. The appellant here is required to establish a factual or discretionary error at first instance. That can be a failure to take into account some material consideration or a failure to give such a consideration the appropriate weight. In exercising the jurisdictions and powers under the Child Protection Act, the court must have regard to the principles stated in sections 5A to 5C of that Act. The main principle is that the safety, well-being and best interests of the child are paramount. This is particularly the case where there is an appreciable risk of significant harm to each child and each child is in need of protection. The evidence placed before the magistrate, and again before me, indicates that the children are at significant risk of harm. In my view, it is an unacceptable risk. Harm is defined as any detrimental effect of a significant nature on a child’s physical, psychological or emotional well-being. Here it is alleged that the second respondent was physically abusive to the children, in terms of excessive discipline. There is also material to indicate that the first respondent played a somewhat minor role in that and was certainly present for some of the instances. Each of the four children had been interviewed by the police in November and made allegations concerning mistreatment by the second respondent. Those are yet to be tested, however they do raise significant concerns, particularly in the light of the fact that the second respondent pleaded guilty to an offence of assault occasioning bodily harm re: one of the children on the 4th of July 2016. He was sentenced to 12 months’ probation as a result. The learned magistrate also found that the incidents of mistreatment by the second respondent had occurred and that the first respondent was aware of those incidents and allowed them to happen, transcript day 1, page 3. -- 3 of 7 -- 4 There is also material in the evidence that the second respondent denied the allegations in relation to the incidents after the 4th of July 2016 and the first respondent has also said that they are untrue. There is also evidence in the material that the children have been told to lie about anything that has occurred. As I say, that evidence is yet to be tested. The assessment by child safety is that each child suffered or is at risk of significant physical and emotional harm and there is an unacceptable risk of future harm if returned to the first respondent. The position in relation to the first respondent is that she is unable to sufficiently guard against the misconduct by the second respondent. I am of the view that the learned magistrate gave inappropriate weight to evidence led before her or to submissions made to her by the adult guardian about the wishes of each child to return home. My analysis of those submissions indicates it was only in relation to two children anyway, however, it seems to have persuaded the learned magistrate that the children should be returned to the custody of their mother. In that regard, I also take into account the new material placed before me as to the reaction of each of the three children, particularly YAD, WPQ and XYA, after the order was made on the 20th of December in relation to their return to their mother. They were concerned that their father would be present and continue to abuse them. The material also discloses ongoing behavioural concerns in relation to at least one of the children and reports of sexualised conduct by two of them. Those also need proper investigation. In my view, the hearing itself was somewhat unusual in that the learned magistrate indicated at one stage that she proposed to leave custody with the chief executive but order that the children be returned to the mother on for daily care. When informed that that was a decision for the chief executive, if the chief executive had been granted custody, she changed her order to allow custody in the child’s mother. It seems to me that indicates an awareness on the learned magistrate’s part that there was a risk involved in this. I’m satisfied the appeal should be allowed. As I say, the second respondent is now in custody in relation to unrelated matters. Whether he achieves bail or not is a moot point and is a matter for other tribunals. I am satisfied the learned magistrate failed to give sufficient weight to the evidence of the prospect of significant harm being caused to each of the children. That was clearly established on that evidence that there was an unacceptable risk of suffering significant harm, both physical and emotional. The evidence also indicates that it was clear that the mother was not in a position to protect the children. In those circumstances, I am of the view that the learned magistrate misdirected herself and the orders should not stand. In those circumstances, it’s unnecessary to consider the other grounds of appeal. The appeal is allowed. The orders I’m proposing, Ms Stewart, are these: that interim custody of each of the four children be granted to the chief executive until the conclusion of the hearing for a temporary custody order and that the second respondent not have any contact, either directly or indirectly, unless in the presence of a person approved by the chief executive. -- 4 of 7 -- 5 Are you comfortable with those? MS STEWART: Your Honour, just in relation to the interim custody until the conclusion on a final basis, is that the order that you’re proposing to make? THE PRESIDENT: Well, as you say, I suppose, administratively, the children may be able to be returned to the mother prior to that and such an order would preclude it, I suppose. MS STEWART: No, because even while the department have custody, under – I think it’s 82(2), they can make an administrative decision - - - THE PRESIDENT: Even in the face - - - MS STEWART: - - - to put the children - - - THE PRESIDENT: - - - of an order if I make it not until the decision is – I mean, until the hearing is determined. What do you suggest the form of the order should be, then? MS STEWART: That interim custody rest with the chief executive until the matter is finally determined. THE PRESIDENT: Which is what I’ve basically said, isn’t it? MS STEWART: There’s just been this – a recent decision about interpretation of the meaning “period of adjournment”. THE PRESIDENT: All right, so until the matter is finally determined. MS STEWART: Yes, your Honour. THE PRESIDENT: And I take it you don’t oppose the second aspect of the order. MS STEWART: No, your Honour. THE PRESIDENT: Mr O’Meara, is there anything you wanted to say about that or the forms of the order? MR O’MEARA: Well, yes, your Honour. THE PRESIDENT: Yes. MR O’MEARA: I see no reason as to why, if it is going to go be until finally determined or until otherwise determined by the chief executive, if my friend says - - - THE PRESIDENT: By the magistrate, I think she’s talking about. MR O’MEARA: Yes, by the magistrate. -- 5 of 7 -- 6 THE PRESIDENT: Well, there is an application before the court at the moment. What happened was on a mention day the interim custody was revised by the magistrate but - - - MR O’MEARA: Yes. THE PRESIDENT: - - - I don’t think anyone had applied for that to occur but she took it upon herself to do it, so I would have thought at any mention then the particular order is reviewable but if I were to make it until the final determination, it wouldn’t be reviewable, at least by the magistrate. It may be administratively reviewed and changed by the chief executive - - - MR O’MEARA: Yes. THE PRESIDENT: - - - because it’s in his power to do that. What’s your point? MR O’MEARA: Well, only that it does seem to fetter the further discretion of the magistrate, bearing in mind what further evidence may come to light, even on the interim basis, case conference, departmental attitudes. THE PRESIDENT: No, I think I’ll keep it as this – there’s been enough uncertainty and chopping and changing in this one, Mr O’Meara. MR O’MEARA: I have nothing further to say - - - THE PRESIDENT: It needs to be resolved as a matter of urgency, I would have thought. MR O’MEARA: Yeah, well, the difficulty with that, your Honour, is that - - - THE PRESIDENT: I appreciate the workload of the court. MR O’MEARA: Notwithstanding the best of intentions, often what happens at Ipswich is that the first day of the hearing is set down and then the later days come later, with the words see if it can be resolved on the first day. In any event, I understand the date for the case conference might be a public holiday in Ipswich. It’s their show day. Sorry? THE PRESIDENT: You’d best raise that with the department, I would have thought. MR O’MEARA: I’ve just been told now. I haven’t had an opportunity to raise it before. THE PRESIDENT: Well, there’s obviously some time left in this yet. All right. MR O’MEARA: Sorry, your Honour, I was - - - THE PRESIDENT: I don’t know where that’s coming from. MR O’MEARA: Neither do I, but anyway - - - THE PRESIDENT: All right. MR O’MEARA: Well, I can – it’s not mine, your Honour, that’s all I need to say. -- 6 of 7 -- 7 THE PRESIDENT: All right, thank you. MR O’MEARA: No, thank you. THE PRESIDENT: YDO, you understand what my order is going to be? INTERPRETER: Yes. THE PRESIDENT: You really need to work with the department. I think everybody would like to see the family reunited but there needs to be safeguards. All right, thank you. My orders that interim custody of each of the four children be granted to the chief executive until the matter is finally determined. I further order that the second respondent not have any contact, either directly or indirectly, with each of the children unless in the presence of a person approved by the chief executive. Are there any other orders required? MR O’MEARA: No. MS STEWART: No, thank you. MS OAKLEY: No, your Honour. MR O’MEARA: No, your Honour. THE PRESIDENT: All right. Thank you for all your assistance and we’ll adjourn to next month. -- 7 of 7 --