Director of Child Protection Litigation v D & Anor [2016] QChC 20

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v D & Anor [2016] QChC 20 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (applicant) v D & ANOTHER (respondent) FILE NO/S: 5088/2016, 5090/2016, 5091/2016, 5092/2016 DIVISION: Childrens Court PROCEEDING: Appeal ORIGINATING COURT: Childrens Court at Ipswich DELIVERED ON: Ex tempore reasons 23 December 2016 DELIVERED AT: Brisbane HEARING DATE: 23 December 2016 JUDGE: Smith DCJA ORDER: 1. The orders made in the Childrens Court are stayed. CATCHWORDS: FAMILY LAW AND CHILD WELFARE- applications for care and protection- where Childrens Court Magistrate refused to make a temporary custody order in favour of the Department- where evidence of violence by the father towards the children- whether orders should be stayed pending appeal Child Protection Act 1999 (Q) ss5, 5A, 5B, 5D, 5E, 9, 10, 59, 61, 119 Aldridge v Keaton [2009] FamCAFC 106 COUNSEL: Ms Stewart for the applicant Mr Tannock for the father Mother is self-represented SOLICITORS: Director of Child Protection Litigation for the applicant Hodgson Lawyers for the father [1] This is an application by the Department for the stay of the decision of a magistrate in the Childrens Court at Ipswich made on 20 December 2016 whereby she refused to make temporary custody orders concerning DA, born 23 March 2005, DE, born 17 June 2007, H, born 9 July 2010, and HA, born 9 July 2010. -- 1 of 6 -- 2 [2] In deciding whether or not to grant a stay it seems to me that the principles expressed in Aldridge v Keaton [2009] FamCAFC 106 are applicable. That is, it is a discretionary application which should be determined on its merits. The onus is on the applicant for the stay. It’s not necessary to demonstrate exceptional circumstances, but a person who has obtained a judgment is entitled to the benefit of that judgment and to presume the judgment is correct. [3] The mere filing of an appeal is insufficient to grant a stay. A stay may be granted on terms that are fair all parties, which involves weighing the balance of convenience, and the competing rights of the parties, weighing the risk that an appeal may be rendered nugatory if a stay is not granted, a preliminary assessment of the strength of the proposed appeal that is, whether the appellant has an arguable case, the desirability of limiting the frequency of any change in the child’s living arrangements, the period of time in which the appeal can be heard, and whether existing satisfactory arrangements may support the granting of the stay for a short period and, of course, the best interests of the child the subject of the proceedings are a significant consideration. [4] Also bearing in mind these proceedings, I specifically record that the main principle for administration of the Act is that the safety, wellbeing and best interests of the child are paramount. I specifically, of course, have regard to ss 5B, 5D and 5E of the Act in reaching my decision. [5] Section 119 of the Act reposes in the court a discretion to stay the decision to secure the effectiveness of the appeal, and a stay may be given on reasonable conditions the court considers appropriate, for a period fixed by the court. The Act provides for various types of child protection orders. Of course before an order is made, one must be satisfied there is a risk of harm – harm being specifically defined in s 9 of the Act, and the child must be in need of protection, s 10 of the Act. I have had regard to those sections in reaching my decision today. [6] Turning back to this case, as I indicated on the 20th of December 2016 the magistrate refused the Department’s application. The background to this was that there was a temporary custody order made in November 2016, so the children had been in a foster care placement by reason of the Department’s actions and by reason of that order, since 11 November 2016. They were returned to Ms D as a result of the magistrate’s order on the 20th of December 2016. Originally, as I understand the situation, the 20th of December was, really, to be a mention. The hearing was to be on 17 January 2017 and, indeed, originally there was to be a consent by the parties that the children remain in the care of the Chief Executive until the hearing of that matter, although events on the 20th overtook that situation, but I think that’s an important consideration in this case. [7] The notice of appeal alleges that the magistrate erred in failing to give sufficient weight to the evidence before the court, evidencing physical abuse of DA, DE, H and HA, in particular, HA being whipped with a computer cord for 30 minutes by Mr M, and HA being hit with wire on his arm resulting in skin coming off, DE being whipped on the back and having to hold a brick over her head for long periods of time and being hit three times with a cord to her eye because she got the timetables wrong, and H having to hold the brick over her head as punishment. -- 2 of 6 -- 3 [8] There was failure to give sufficient weight to the child’s safety assessment of significant physical and emotional harm, excessive physical and cruel discipline, in particular, after Mr M had left the home, which included the punishment of holding a brick above their heads, and evidence before the court of Ms D’s knowledge and lack of insight in failing to prevent this harm. [9] It is alleged the magistrate erred at law by placing too much weight on the submissions by the child advocate of the Office of Public Guardian. It is alleged the magistrate erred at law in placing weight on irrelevant considerations, namely reunification for Christmas, and further in not providing adequate reasons for not granting temporary custody. [10] Turning to the material, the Department relied on an affidavit of Ms Chattaway sworn 16 December 2016. That affidavit disclosed that a temporary custody order was made on 11 November 2016. It refers to the court history and discloses that the children remained with the carers, Mr and Mrs CO. They were on holidays and further carers, the CUs, were provisionally approved to care during that period. A number of police interviews were conducted on 11 November 2016. H was interviewed that day and reported that herself and HA had been hit with what she described as the cord of a phone charger. [11] HA was interviewed and he said he was not allowed to tell anybody about what was happening and reported that he’d be smacked with a belt. He reported on 11 November in a further interview that he was slapped with a belt. He held a brick, or at least he referred to DE having to hold a brick, and they had to hold a brick two hands high. And when he was asked, “Tell me one thing that doesn’t make you feel safe,” he responded, “He just slaps me.” He didn’t respond later to direct questioning. He was further interviewed and disclosed that he had been slapped on his arm and was told to hold two bricks. He was hit with a belt, holding bricks, having a brick thrown at him. He reported prior incidents but he said his father had gone away for a while and didn’t hit him since he’d come home. He reported being hit with a ruler. He said he didn’t want to go home. He reported having his leg broken. He said he wasn’t allowed to tell anybody about being slapped. He was happy at home if his dad didn’t hit him. [12] DE was interviewed also by police on 11 November 2016 and she said she didn’t feel safe from Mr M. She said that he slapped them with his hands and then a cord. He went to the judge, he said he wouldn’t do it ever again, but he’s continued. Now, that relates to events of March 2016 in which allegations were made of similar sorts of conduct, and in particular there was an admission to hospital of HA. Photos had been attached which clearly showed bruising and whip-marks on his body. As a result of that Mr M was charged with assault and torture. The torture charge was discontinued. He pleaded guilty to assault and I’ve been informed he received 12 months’ probation in June 2016. But it is of concern of course that DE alleges that despite that the violence has been continued. [13] She talked about HA being struck and said that the day prior to the police interview she had been struck by him, and she tried to contact the police with her aunt’s mobile phone but he took the phone from her. She reported she had been completing her timetables with HA and wasn’t able to remember the sums and was struck as a result. Since Mr M had gone and spoken with the judge he had returned home and hit DA, -- 3 of 6 -- 4 DE, HA and H, and they used to talk about what they should do to stop dad. She reported she had been told by both Mr M and Ms D not to tell people about the abuse, but her aunt advised her to tell the truth. She said her mother was aware of the hitting and she didn’t feel good at home. There was a further interview, Exhibit G, and she also reported having to hold the brick. They held a brick in their hands straight one to two hours as a form of punishment it seems. [14] DA was interviewed as well, and he said he wanted to talk to the police because it’s not okay to feel unsafe at home and he reported that the punishment became serious. For example, he reported that HA had to hold the brick up for 2-3 hours. He reported that HA was the child who had to hold the brick most times. Before Mr M got into trouble with the police he used to slap people with the cord. The new punishment was to hold the brick. Other members of the family saw this. HA was crying because when he held the brick it hurt him. About three weeks prior there had been an incident where the brick was held and DE was made to hold the brick. HA was hit with a cord and after July she had to hold the brick. He did not consider the punishment fair and reasonable. [15] There was an interview with Ms D on 29 November 2016. The officer advised she had concerns about being forced to hold up the brick, Ms D alleging the children were lying. And she denied that DE had been hit on 10 November 2016. She wanted to talk with a lawyer present. She denied that Mr M had been living in the family home, although she conceded that he could come. She wanted the officer to speak to her lawyer and alleged that the same stuff kept coming up since March and she didn’t want to speak about it. The officer advised she was concerned for the small children, as they had seen their siblings distressed, holding up bricks for long periods of time, but Ms D did not, according to the witness, respond to her concerns. She advised Ms D it appeared to her that Ms D was overwhelmed with the care of the seven children and inappropriate discipline had been used, but she denied this. [16] There were records obtained from Mercy Family Counselling. On 24 November 2016 DA had attended a counselling session and disclosed the abuse, in particular against HA and himself, and DE also disclosed such abuse. There was a further counselling session with DE on 1 December 2016 where such abuse was disclosed. Departmental records dated 8 December 2016 disclosed that DE positively spoke about residing with the COs, and she did not wish to return living with her parents because she was being hit and was made to hold the brick. [17] There was an interview with DA, DE, HA and H on 28 November 2016 which confirmed the alleged punishments and generally indicates the children were happy with the placement. There are some school records referred to at para 48. Some conduct from HA dated 2 December 2016 is of concern. There’s also a report from the community visitor dated 6 December 2016 which supports the contentions made by the Department. There’s a report from Uniting Care dated 14 December 2016. From para 55 and on, details of the suspected child abuse and neglect are discussed, in particular the March 2016 admission of HA to the hospital with multiple bruises on his body. He had been struck for a 30 minute period, possibly with a cord. [18] H was examined in March of 2016 by a paediatrician, had a broken right front tooth and train track mark to her right forearm. A and J were examined. They were clear of injuries. The Department of Education information noted the school was highly -- 4 of 6 -- 5 concerned for the safety and emotional wellbeing of the children throughout the year. And certainly by 19 October 2016 HA was very upset at school and since May of that year had 54 behaviour incidents. Paragraph 58 relates to the disclosures to the QPS in November of 2016. There are further investigations as to whether Mr M will be charged regarding the current investigation and investigating officers are of the opinion that neither parent was able to protect these children. Investigating officers were of the belief that Mr M was returning to the residence and having contact, and Ms D appeared very protective of him. There’s reference to the contact between Ms D and the subject children at para 62 and on and with Mr M para 69 and on. It’s ultimately concluded that the children the subject of today’s application are assessed as having suffered physical harm and have suffered emotional harm, and in particular the details of that are set out in para 77(a) through to the end of that paragraph. [19] Also, today, has been placed before me a further affidavit, Exhibit 9, of Indiana Chattaway. She returned the children to Ms D on 20 December 2016. She alleges that as they drove up the driveway, HA became very distressed and said he didn’t want to go home, he would miss his carers. He was not excited to see Ms D. The court processes were explained to him and he did not want to talk to his father and he asked how they’d know if dad comes over. DE was crying. Her lip was being bitten, her voice shaking. She said, “He’ll be there. I know it.” H didn’t respond. She felt good. DE was concerned about being hit again. She was concerned about being made to hold bricks. DA appeared withdrawn and wanted to know why there were going home so quickly. It was explained the intention was Mr M would not be home, but he said, “He came home when the judge told him not to.” He talked about being hit on the hand by Ms D. They went into the car with their belongings. HA began to appear to panic. He refused to get into the car to start with. When they got to the family home A met them at the door and they were happy to see him and they hugged Ms D hello, that is DE, H and HA. The case note regarding this is attached. [20] On the other hand, Ms D, today, has played some recordings to the court which I’ve listened to. The difficulty with those are they are hard to hear and one does not know the full context in which those statements were made. That remains to be seen. I’ve also had regard to Ms D’s written statement, Exhibit 10, which sets out reasons why it is safe for the children to come back. She talks about supportive measures in place and wishes to collaborate and comply with the department. She says, contrary to the Department’s material, the children all wanted to come home from the carers, and she says the church and her family would be there for support to make the kids feel safe. [21] In submissions today, Ms Stewart stresses the alleged errors by the magistrate, stresses that the children were happy with the placement with the foster carers, has taken me through the allegations regarding each of the children, which I’ve referred to, and heavily relies on the further affidavit as to the children’s reactions to return. Mr Tannock has appeared as a friend of the court for Mr M, and the court is obliged to him for taking on that role. He tells me that whilst it is true there was an agreement of temporary custody until 17 January, the reality is that events have moved on, bearing in mind the magistrate’s decision dated 20 December 2016. He tells me Mr M is happy to stay away from the house and from the children unless supervised. Apparently he’s doing well on probation and there’s a course he wishes to undergo at the end of January and concerns are being addressed. He correctly points out the -- 5 of 6 -- 6 undesirability of changing the residence of the children again, which is very unsettling and tumultuous. [22] Ms D, aside from her written submissions, disputes that which is contained in Ms Chattaway’s most recent affidavit and says the children were happy and not crying and says the recordings support that. She has told me about the seven children being together and she submits, ultimately, this is not an appropriate case for a stay. By way of reply, Ms Stewart submits that the problem with this case is that the mother has not stopped the father from coming over, they’re no longer at school now so that protective mechanism has disappeared before the hearing, the neighbours who provided protection have moved out and the church is no longer a protective factor, and ultimately significantly relies on the new affidavit. [23] I’ve considered all matters in this case and the submissions and the evidence. In my view, bearing in mind the magistrate’s finding that there was whipping of children with cords and the holding of bricks above the heads, the Department has a reasonable argument that error occurred here. I’m not pre-judging the issue, of course. There will have to be full submissions made and potentially evidence adduced by the respondents, but it does seem to me reasonably arguable that that finding is then ultimately inconsistent with the ultimate decision to return the children home. [24] Bearing in mind also the serious nature of the allegations, the evidence that despite limiting orders, the children have been struck, also that the appeal is not that far away, and bearing in mind, of course, that there was an agreement that the Department have temporary custody until 17 January 2017, I’ve determined in the exercise of my discretion to grant the stay sought by the Department, but I do want to add a condition to that stay in accordance with the Act that there be contact on Christmas day. -- 6 of 6 --