AF & MJ v Department of Communities, Child Safety and Disability Services & Ors [2016] QChC 7

CHILDRENS COURT OF QUEENSLAND CITATION: AF & MJ v Department of Communities, Child Safety and Disability Services & Ors [2016] QChC 7 PARTIES: AF (first appellant) and MJ (second appellant) v CHILD SAFETY OFFICER (first respondent) and DIRECTOR GENERAL OF DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES (second respondent) and SEPARATE REPRESENTATIVE (third respondent) FILE NO/S: APPEAL NO: 95/15 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Childrens Court, Atherton DELIVERED ON: 14 September 2016 DELIVERED AT: Cairns HEARING DATE: 27 January 2016, 12 February and 11 March 2016. JUDGE: Morzone QC DCJ ORDERS: 1. Appeal dismissed. -- 1 of 26 -- 2 2. The decision and orders made by the Atherton Magistrates Court on 28 May 2015 are affirmed. 3. I further direct the registrar of the Magistrates Court to redact from the court record the notifier details contained in: paragraph 80 of the affidavit of the first appellant made on 12 January 2015; paragraph 108 of the further affidavit of the first appellant made on 26 February 2015; and paragraph 5(c) of the report of Patricia Woodcock dated 3 May 2014. 4. Costs reserved. CATCHWORDS: CRIMINAL LAW – appeal pursuant to s 117(2) of the Child Protection Act 1999 (Qld) – mode of appeal – credit findings – whether factual errors or defects – whether appellants afforded procedural fairness and disclosure – whether erroneous or irrelevant matters or failure to take account of material considerations – whether exercise of discretion miscarried – whether decision supported by evidence and reasonable. Legislation Justices Act 1886 (Qld), ss 222, 223(1) & 227 Child Protection Act 1999 (Qld) Child Protection Regulation 2000 (Qld) Childrens Court Act 1992 (Qld) Childrens Court Rules 1997 (Qld) Cases Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Coulton v Holcombe (1986) 162 CLR 1 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Warren v Coombes (1979) 142 CLR 531 Chidiac v R (1991) 171 CLR 432 Knight v R (1992) 175 CLR 495 Morris v R (1987) 163 CLR 454 House v The King (1936) 55 CLR 499 Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Norbis v Norbis (1986) 161 CLR 513 COUNSEL: W Pennell for the third respondent -- 2 of 26 -- 3 SOLICITORS: The appellants were self-represented Crown Solicitor for the first and second respondents McDonald Leong Lawyers for the third respondent [1] The appellants plead for the return of their son to their full-time care by challenging the long- term guardianship order made by the Childrens Court on 28 May 2015. Background [2] The appellants’ son first came to the attention of the Department of Communities, Child Safety and Disability Services (“the Department”) on 13 February 2013. The Department received information about bruising to the child’s face (on the cheek area) as well as other concerns. No further action was taken after an investigation.1 [3] On 20 February 2013 the child (then two months old) was taken by ambulance to hospital. He was assessed as having sustained life-threatening injuries including thirty-six fractures to his ribs and long bones and a significant brain injury.2 The appellants deny any responsibility for the child’s injuries and the cause of the injuries is unknown to them.3 [4] On 27 February 2013 a Temporary Assessment Order was made by the Childrens Court at Mareeba granting custody to the Chief Executive of the Department, 4 which continued pursuant to a Court Assessment Order made 5 March 2013.5 [5] The first respondent then applied on 2 April 2013 for a Child Protection Order. The application was amended on 23 July 2013 to seek short-term guardianship of the child for a period of 12 months. A conference was held on 16 December 2013.6 At the final hearing on 20 May 2014 the appellants’ then solicitor indicated the appellants’ consent to that application. Accordingly, the Court made a Child Protection Order granting short-term guardianship of the child for a period of 12 months.7 [6] The appellants appealed on the ground that, inter alia, they did not understand the type of order sought by the application. The appeal was allowed on 4 September 2014 and remitted to the Childrens Court. Interim custody of the child remained with the Chief Executive. [7] On 13 January 2015 the first respondent further amended the application, from one seeking guardianship for 12 months, to one for long-term guardianship until the child turns 18 years old.5 The application as amended proceeded to final hearing over the period of 25 to 28 May 2015. The appellants appeared unrepresented. [8] On 28 May 2015, the Court allowed the application and made a Child Protection Order granting the guardianship of the child to the Chief Executive until the child reaches 18 years of age. 1 Decision, T2/22-29 and LTG; Exhibit 9 – Affidavit of Wulf dated 2 April 2013, paras 12-15. 2 Exhibit 1 – Affidavit of Lamont dated 3 February 2014, exhibit A. 3 Decision, T2/34-35. 4 Exhibit 9 – Affidavit of Wulf dated 2 April 2013, exhibit JW-3. 5 Exhibit 9 – Affidavit of Wulf dated 2 April 2013, exhibit JW-5. 6 Child Protection Act 1999 (Qld), s 59(1)(c). 7 Exhibit 9 – Affidavit of Wulf dated 2 April 2013, para 5. 5 Exhibit 9 – Affidavit of Wulf dated 2 April 2013, exhibit A. -- 3 of 26 -- 4 [9] The appellants now appeal against that decision. Mode of Appeal [10] The appellants’ right to appeal exists pursuant to s 117(2) of the Child Protection Act 1999 (Qld) (“the Act”). [11] Pursuant to s 120 of the Act the appeal must be decided on the evidence and proceedings before the Childrens Court, although the appellate court may order the appeal be heard afresh in whole or part. [12] By s 121 of the Act, this Court is empowered 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 [13] The appellants’ grounds of appeal in the Notice of Appeal are: 1. We, the parents of [the child] object to the order and have at no time consented to granting the Director General of Department of Communities, Child Safety and Disability Services guardianship for any period of time; and 2. A thorough appeal application will be done in due course. [14] The appellants seek the following orders in the appeal: 1. Appeal allowed; 2. Decision of Childrens Court, Coats, Magistrate, CCM-3052/13 dated 28 May 2015 to be set aside (sic); and 3. Seek leave of the Court for a period of three (3) months to obtain Legal Representation. [15] The appellants have, since filing the Notice of Appeal, filed lengthy and comprehensive written submissions on the appeal. The submissions provided contain the arguments pursued on the appeal, which are supported by a detailed analysis of hospital and medical records and other evidence. [16] It seems to me that the appellants rely upon a combination of factual errors or defects in the trial to demonstrate that the trial magistrate’s exercise of discretion miscarried by: 1. mistakenly finding that the appellants’ consented to the short-term guardianship order; -- 4 of 26 -- 5 2. failing to provide procedural fairness to the appellants by disabling them access to subpoenaed material; 3. allowing erroneous or irrelevant matters to guide or affect her, and thereby mistaking the facts and failing to take into account some material considerations; and 4. coming to a decision that was unreasonable and not supported by the evidence. Preliminary Matters [17] I wish to deal with a preliminary matter about the scope of evidence at the hearing and on appeal. [18] During the case management of the appeal, the appellants issued numerous subpoenas with a view to applying for leave to adduce fresh evidence, including expert evidence, on the appeal. The appellants were provided access to the subpoenaed documents, except those documents subject of a claim of privilege. It remained for them to identify any relevant subpoenaed documents which did not form part of the evidence before the trial magistrate. [19] On 19 November 2015 His Honour Judge Harrison refused the appellants’ application for leave to adduce fresh evidence and ordered that the matter proceed on the evidence before the trial magistrate. [20] At the commencement of the appeal hearing I dealt with the requirements of ss 106 and 109 of the Act.9 [21] During the course of the hearing it became apparent that the appellants may have proceeded on a misapprehension that the evidence before the trial magistrate included all the documents produced to the Magistrates Court by various third parties under subpoenas. It is clear that the trial magistrate alerted the appellants to the delivery of subpoenaed documents and invited them to inspect them, but the offer was declined on the basis they already had the subpoenaed medical records.10 The hearing proceeded predominantly by affidavit and cross-examination, although the appellants elected not to testify or adduce further documentary evidence at the hearing. That was their forensic choice. However, there was no exchange which clearly communicated to the self-represented appellants that in the usual course of a trial subpoenaed documents do not form part of the evidence unless and until an active party tenders the relevant document and it becomes an exhibit. [22] Therefore, I provided the appellants with the further opportunity to consider, sort and bundle any subpoenaed documents and provide them to the other parties to consider. I granted the appellants leave to adduce any further documentary evidence which was not in evidence before the trial magistrate. In accordance with my directions the further documents were filed in distinct bundles and marked as exhibits in the appeal: 1. Exhibit 1 – Documents that were part of the subpoenaed material in the Magistrates Court; 2. Exhibit 2 – Documents that were part of evidence before the trial magistrate; 3. Exhibit 3 – Documents that were produced under subpoena in the appeal proceedings. 9 Appeal, T1-4 to T1-6. 10 Appeal, T1-20. -- 5 of 26 -- 6 [23] I am satisfied that the appellants have now had every opportunity to produce all documents which they perceive to be relevant to the issues. All parties were afforded the opportunity to address the fresh evidence in their final outlines of argument. [24] I am satisfied that the appellants understood the nature, purpose and legal implications of the appeal proceeding, the orders and rulings made throughout the management and hearing of the appeal, and have had a reasonable opportunity to obtain legal representation for the appeal, a course they declined to take. Relevant Law [25] 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.6 [26] The onus is upon an applicant (here the first and second respondent) to satisfy the court on the balance of probabilities7 of the matters are set out in s 59 of the Act, which provides as follows: 59 Making of child protection order (1) The Childrens Court may make a child protection order only if it is satisfied— (a) the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and (b) there is a case plan for the child— (i) that has been developed or revised under part 3A; and (ii) that is appropriate for meeting the child’s assessed protection and care needs; and (c) if the making of the order has been contested, a conference between the parties has been held or reasonable attempts to hold a conference have been made; and (d) the child’s wishes or views, if able to be ascertained, have been made known to the court; and (e) the protection sought to be achieved by the order is unlikely to be achieved by an order under this part on less intrusive terms. (2) Before making a child protection order, the court may have regard to any contravention of this Act or of an order made under this Act. (3) When deciding whether a case plan is appropriate under subsection (1)(b)(ii), it is not relevant whether or not all persons who participated in the development or revision of the plan agreed with the plan. 6 Child Protection Act 1999 (Qld), s 53. 7 Child Protection Act 1999 (Qld), s 105. -- 6 of 26 -- 7 (4) The court must not make a child protection order unless a copy of the child’s case plan and, if it is a revised case plan, a copy of the report about the last revision under section 51X have been filed in the court. (5) Also, before making a child protection order granting custody or guardianship of a child to a person other than the chief executive, the court must have regard to any report given, or recommendation made, to the court by the chief executive about the person, including a report about the person’s criminal history, domestic violence history and traffic history. (6) In addition, before making a child protection order granting long-term guardianship of a child, the court must be satisfied— (a) there is no parent able and willing to protect the child within the foreseeable future; or (b) the child’s need for emotional security will be best met in the long term by making the order. (7) Further, the court must not grant long-term guardianship of a child to— (a) a person who is not a member of the child’s family unless the child is already in custody or guardianship under a child protection order; or (b) the chief executive if the court can properly grant guardianship to another suitable person. (8) Before the court extends or makes a further child protection order granting custody or short-term guardianship of the child, the court must have regard to the child’s need for emotional security and stability. (9) This section does not apply to the making of an interim order under section 67. [27] In exercising its jurisdiction or powers, the Court must have regard to the paramount and other principles stated in ss 5A to 5C to the extent they are relevant, and the Court must state its reasons for the decision.8 The main principle for administering this Act is that the safety, wellbeing and best interests of a child are paramount.9 In doing so the rules of evidence and procedure should serve and not thwart that purpose.10 “A child in need of protection” [28] A court must find a child "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. 8 Child Protection Act 1999 (Qld), ss 5A, 5B, 5C and 104. 9 Child Protection Act 1999 (Qld), s 5A. 10 Dale v Scott ex parte Dale [1985] 1 Qd.R. 406 at 413-4 per Kelly J. -- 7 of 26 -- 8 [29] "Harm" is defined in s 9 of the Act: (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. [30] The legislation is purposefully broad.11 The provisions apply whether there is the requisite risk of harm or the harm is caused despite a parent’s conscientious efforts, or through no neglect or action on their part, the child remains exposed to risk of harm. They also include circumstances where a parent does not have the capacity to sufficiently care for the child despite a desire to do so. The risk of harm includes circumstances where no harm has yet occurred but is likely to occur if no action is taken to protect the child. This may include circumstances where past evidence relating to the child indicates current or future risk to the child. [31] When determining whether a child is "a child in need of protection", the main focus of the court is upon the child’s needs and whether an order is required to meet them, rather than upon the parents’ actions, omissions or incapacity which may have led to the harm or risk of harm. [32] The concept of “significant harm” connotes harm that the court considers as considerable, noteworthy or important.12 The concept of “unacceptable risk” was considered by the High Court in In the marriage of M and M (1988) 166 CLR 69. At 76-78 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. 11 Explanatory Notes to the 1999 Bill. 12 Cf. Humberside County Council v. B [1993] 1 FLR 257 at 263 per Booth J, in the context of the English analogy. -- 8 of 26 -- 9 … 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.) [33] 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 is 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.18 [34] It seems to me that the concept should be broadly considered such that risks can be actual or potential abuse or neglect. Each area of abuse must be considered on the basis of whether the current and future risk is unacceptable and this requires a consideration of the child's exposure to actual and potential risk in the context of the particular case. [35] The types and the duration of orders which can be made are set out in ss 61 and 62 of the Act. Relevantly, the court may make a long-term guardianship order in favour of the Chief Executive or, in cases where the criteria are met, to a suitable person and such order can last until the child turns 18 years. In that regard, I note the additional consideration in s 59(6) of the Act that the court must be satisfied that there is no parent able and willing to protect the child within the foreseeable future and that the child’s need for emotional security will be best met in the long-term by making the order. [36] I note that the appellants’ trial material raises arguments that the Commonwealth and State parliaments are corporations registered in Washington and as such their laws are not binding on them. The assertions are confused and confusing,19 are wrong at law, and do not identify any error of fact or law relevant to this appeal. [37] The appellants do not now complain that the magistrate erred in law by acting upon a wrong legal principle that governed the relevant issues and relevance of the evidence. Instead, the appeal turns on factual and procedural considerations in the proper exercise of the discretion. Proper Exercise of Discretion [38] This Court ought not interfere with the magistrate’s decision unless there is some demonstrated error in the decision-making process.20 18 Dunnett v Gebers and the Director-General, Department of Families, Youth and Community Care ex parte Dunnett (unreported Court of Appeal, 21 March 1997) at 2 per McPherson JA. 19 See for example Exhibit 12 – Affidavit of the first appellant dated 12 January 2015, para 110; Affidavit of the first appellant dated 26 February 2015, para 150; Exhibit 10 – Affidavit of Evert dated 22 May 2013, exhibits C, E, I; Exhibit 10 – Affidavit of Evert dated 4 September 2013, exhibit F; Exhibit 3 – Affidavit of the first respondent dated 4 February 2014, exhibit D – document ATE09. 20 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 at [21] per Gleeson CJ, Gaudron and Hayne JJ. -- 9 of 26 -- 10 [39] The well-established principles in relation to judicial discretions are provided by the High Court in House v The King:21 "It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." [40] A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.22 Ground 1: Mistaking the appellants’ consent to a short-term guardianship order [41] The first ground of appeal in the Notice of Appeal (read with the orders sought) seems to arise from a reference in Her Honour’s reasons indicating the appellants’ consent to a short-term guardianship order. [42] In her ex tempore decision, Her Honour stated that:23 “Both parents have opposed the Court making this order, although they have indicated this morning that they would consent to a short-term guardianship order to the Department. The reasons for them opposing the order is their concern, which is accepted by the Court, that they would lose the power to make decisions about the baby. That they would be – their views would be put to one side and they would lose contact with the baby that they have now come to really be attached to. … I accept that that view is reasonably held and is valid in the circumstances.” [43] The respondents argue that Her Honour’s reference to a “short-term guardianship order” was a mere slip and that Her Honour intended to say “short-term custody order”. It is further submitted that the slip has no impact of consequence on the decision. [44] There is no doubt that the guardianship proceeding was contested.24 At an early stage of the hearing, the following exchange occurred (emphasis added): 25 21 House v The King (1936) 55 CLR 499 at 504-505. 22 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. 23 Decision, 2/14-22. 24 T1-8/25-34; T1-18/1-18. 25 T1-8/25-34. -- 10 of 26 -- 11 “BENCH: All right. So what is it that you want to in this particular hearing? You’re opposing the granting of a long-term order - - - AF: Yes. BENCH: - - - absolutely. Is there any other order that you would consent to? Have you thought about that? AF: No, not [indistinct]” [45] The appellants’ attitude was affirmed after the trial magistrate invited discussions at the close of the respondents’ respective cases. The following exchange occurred at that time (emphasis added):13 “RESUMED [10.30 am] BENCH: Well, we’re back in the same matter, baby [the child]. Yes, Mr Parnell. MR PARNELL: Thank you, your Honour. Can I just firstly say to you, that thank you for the opportunity to talk to the parents - - - BENCH: Yes. MR PARNELL: - - - about the situation. The parents have explained to us their current – why they’ve reached their current decision and basically it’s in these particular terms, your Honour, it’s that they have – although they would consent to a short term order being made - - - BENCH: I see. MR PARNELL: - - - they would not consent to a long term guardianship order being made as per the applicants. And the reasons, I believe – from what they’re telling me – is that the reason behind is because they feel that if that order is made, then they would not be given the consultation, the information and the guidance by the department about what’s occurring with [the child] and their contact with him would decrease over time and that it would be difficult for them to maintain a relationship with him. BENCH: Yes. MR PARNELL: And spend time with him. And their thoughts and their reports would not be – would not be listened to or any weight placed on them whatsoever. BENCH: Yes. MR PARNELL: That is – yes. BENCH: Well, I understood that that was their position from what they’d said and what they’d indicated. 13 T3-6/35 to T3-7/34; T3-10/23-44. -- 11 of 26 -- 12 MR PARNELL: Yes. But they understand that [the child]’s – is in need of – that we need to move this matter forward. BENCH: Yes. MR PARNELL: And move on from where we are at the moment – and they understand all that, except that they – from what I just said to your Honour, that is the crux of why they don’t feel - - -14 … BENCH: All right. Mum and Dad, what do you want to do now? AF: Well, we still don’t want to consent to a guardianship order. BENCH: Okay. All right. Well, then I’ll make a decision. AF: We’re happy for a custody order, but we want to be informed and kept in the loop more than what we have been, to make the right decisions medically for our - - - BENCH: Well, you understand that a custody order now in a final stage will remove your rights as a parent – I’ve explained that to you, haven’t I? Yes? Yes? AF: Yes. BENCH: Okay. And it takes away your power. See, initially the department was only seeking a one year order, because they were hopeful that perhaps if you engaged initially – and this happens, even in circumstances where babies are hurt and injured, that the parents can get over the initial difficulties and work together and then that then overwhelmingly persuades the department to give them a go”. [46] So the transcript records the third respondent’s counsel informing the Court that the appellants indicated a preparedness to accept a short-term custody order, but that they opposed any form of guardianship order. In that context, Her Honour received the parties’ submissions and proceeded to deliver her decision ex tempore on 28 May 2015. [47] In my view the reference by Her Honour to a “short-term guardianship order” in the ex tempore reasons was clearly a slip and should be read as a reference to a “short-term custody order”. Even so, the erroneous reference does not bear upon the real dispute in the proceeding for a long-term guardianship or upon the Court’s decision. There is no substance in this ground of appeal. Ground 2: Procedural fairness and disclosure [48] The appellants assert that they were denied procedural fairness with no access to subpoenaed material available at the hearing. The appellants did not otherwise complain of any need for time to obtain legal representation and there is no complaint that they misunderstood the nature, purpose and legal implications of the proceeding and of any order or rulings [49] The record of the proceedings shows that: 14 T3-6/35 to T3-7/34. -- 12 of 26 -- 13 1. the trial magistrate established that the appellants understood the nature of the proceedings and the type of order being sought by the application under s 106 of the Act;15 2. the appellants were provided with the opportunity to consider legal representation;16 3. the appellants also got the opportunity to place before the Court all of the material they sought to rely on in the presentation of their objection to the application;17 4. the appellants made the assessment to cross-examine and elected to cross-examine critical witnesses,18 including Dr Anthony Lamont, consultant radiologist,19 the first respondent, Child Safety Officer,20 Dr Catherine Skellern, paediatrician,21 Dr Owen Gilles, paediatric rehabilitation specialist,35 Dr Lisa Copeland, paediatric rehabilitation consultant,36 Dr Tim Warnock, paediatrician,37 Dr Alison Tigg, staff specialist paediatrician,22 and Janine Wulf (Department Child Safety Officer);23 5. they were invited to call and give any evidence in support of their case;24 6. at the conclusion of the other parties’ cases, the magistrate invited the appellants to consider how they wished to proceed, including explaining to them the process of calling and giving evidence for their respective cases (including being cross-examined),25 and encouraged discussion to explore resolution;26 and 7. the trial magistrate ensured all the material the appellants sought to rely on was placed into the record27 before seeking the appellants’ views about giving oral evidence and admitting to evidence the first appellant’s written summary before the appellants close their case.28 Furthermore, in doing so, Her Honour was particularly concerned to ensure that each appellant confirmed into the record that the Court had received all the documents, affidavits and faxes they wished to put before the Court.29 [50] It is also noted that, whilst the magistrate admitted evidence from the appellants, they elected not to make themselves available for cross-examination. The respondents did not cavil with the admission of the entirety of the appellant relevant evidence. 15 T1-3/29-35; T1-4/21 to T1-7/24; T1-17/37 to T1-18/33; T1-19/19-22; T1-35/12-25; T1-38/22-30; T2/21-34; T2- 64/22 to T2-65/45; T2-67/1 to T2-68/9; T2-68/11 to T2-69/24; T2-82/5-43; T3-14/28 to T3-15/38; T3-21/25-28. 16 T1-4/24-26; T1-15/17-18. 17 T1-7/25 to T1-8/25; T1-21/40 to T1-31/8 – noting that at T1-21/46 to T1-22/9 and T1-27/35-39; T1-29/1-16; T1- 31/32-35. 18 T1-13/24 to T1-17/35; T1-19/23-36. 19 T1-51/25. 20 T1-86/35. 21 T1-104/22; T1-104/44. 35 T2-12/12; T2-14/16. 36 T2-1/10. 37 T2-6/31. 22 T2-43/31. 23 T2-52/43. 24 T2-64/22 to T2-65/45; T2-68/11 to T2-69/24. 25 T2-79 to T2-83. 26 T3-4/4 to T3-7/29. 27 T3-11/39 to T3-12/41; Exhibit 12, see Annexure A. 28 T3-12/44 to T3-13/43. 29 T3-12/7-41. -- 13 of 26 -- 14 [51] It seems to me that the trial magistrate well satisfied the requirements of ss 106 and 109 of the Act,30 and this was demonstrated by the appellants’ competent conduct of the case. I conclude that the parties were afforded procedural fairness and disclosure. Therefore, this ground will fail. Ground 3: The magistrate allowed erroneous or irrelevant matters to guide or affect her and thereby mistook the facts and failed to take into account some material considerations [52] The appellants take issue with the identification number (unit record number or “URN”) ascribed to the child. This issue was explained by Dianne Carroll, team leader, Patient Information for Atherton Hospital, Queensland Health, in her witness statement.31 Put shortly, the child’s URN is irrelevant to any issue in this appeal. There can be no doubt about the child’s identification and him being the subject of the medical evidence in the proceeding.49 [53] The appellants’ belief that the child was normal until this treatment with Baclofen has no evidentiary credit.50 Prior to being placed on Baclofen, the child was taking Dilantin.51 Dr Copeland explained the prescription and administration of Baclofen for the child and there is no moment in it being “off label” and not being available in “oral suspension form”.52 The evidence of and the need for medication was uncontroverted and not sustainably challenged. It was open for the magistrate to accept the expert evidence that Baclofen was the appropriate medication for the child. [54] The appellants also contend for different interpretations and nuances in the medical evidence. They also argue that Dr Lamont perjured himself, that the Child Safety Officers perjured themselves, and that Pat Woodcock was untruthful. I deal with this point in the context of other witnesses. [55] Dr Anthony Lamont was a consultant paediatric radiologist at Townsville Hospital and Clinical Associate Professor of Radiology at James Cook University School of Medicine and Dentistry. Dr Lamont had practiced as a radiologist for 37 years, including 26 years as a full time paediatric radiologist.53 The appellants’ criticism relies upon selective extracts of the transcript of Dr Lamont’s testimony.54 This approach is flawed and the whole of Dr Lamont’s testimony should be considered in its proper context. As to this witness the magistrate remarked: “This excellent report received (sic) by the Court was most definitely received by the doctor who gave evidence before the Court. He was an extremely impressive, direct, and credible witness”.55 [56] Dr Catherine Skellern was a registered specialist paediatrician and held a consultant position at the Royal Childrens Hospital and District Health Service in the Child Advocacy Service and had been a paediatric specialist in Child Protection since June 2000. Dr Skellern had appeared 30 T3-17/6-37; T1-4/24-26; T1-15/17-18. See also Wade v Director-General, Families, Youth & Community Care Queensland and Acevedo (unreported Children’s Court of Queensland, Appeal No. 3311, Robertson P, 18 December 2000). 31 Cf. Exhibit 12. 49 Exhibit 12 – Letter to the Registrar of the Childrens Court at Atherton dated 9 September 2013 at 4-5; Letter to the Registrar of the Childrens Court at Atherton dated 10 September 2013; Affidavit of the first appellant, paras 3, 69- 73 and exhibit A, pp 12-20; Affidavit of the first appellant, paras 3, 16-19, 97-100. 50 Exhibit 12 – Affidavit of the first appellant dated 12 January 2015, para 46. 51 At para 66. 52 Exhibit 6 – Affidavit of Copeland dated 16 September 2014, particularly pp 2-18 to 2-21/4. 53 Exhibit 1 – Affidavit of Lamont dated 3 February 2014, exhibit A, paras 2-9. 54 T1-50/43; T1-51/27. 55 Decision, 5/23-25. -- 14 of 26 -- 15 as an expert in child protection matters since that time.56 In relation to the doctor’s evidence, the magistrate said: “I accept [it] absolutely. Her final conclusion is – and this is her forensic view”,57 and “I absolutely have no hesitation in accepting Dr Skellern’s report.”58 [57] Dr Lisa Copeland worked as a paediatric rehabilitation consultant for six years and was the visiting paediatric rehabilitation consultant to Cairns Hospital.59 The magistrate equated this witness’ evidence with Dr Gillies’, saying: “….we have the excellent evidence given by Dr Owen Gillies”,60 and “I accept absolutely the evidence of Dr Lisa Copeland, as I do accept the evidence of Dr Gillies”.61 [58] The magistrate also accepted the report of Dr Warnock, a local consultant paediatrician.62 [59] Dr Alison Tigg was a staff specialist paediatrician with Cairns Hospital and had seven years’ experience as a consultant general paediatrician.63 With respect to Dr Tigg’s evidence Her Honour said, “I accept absolutely the evidence… Dr Tigg, unfortunately, disclosed in her evidence-in-chief that the parents – she had difficulty in contacting the parents. She requested – after a reasonable time, she wanted to meet with them. She said the parents were aware of [the child]’s condition”.64 [60] Lauren Davis was a registered psychologist with over ten years’ experience and at the time of preparing her reports was a partner with PsyCare with a lead role in its investigative and medico-legal services division. She has experience in preparing family, social and mental health assessment reports for Childrens Court and Family Court proceedings.65 As to Ms Davis Her Honour said, “I accept her recommendations. I found Ms Davis to be direct, open and honest. I have no hesitation in accepting her view, which she outlines at page 14, paragraph 11.41”.66 Her Honour continued, saying, “I accept the evidence of Lauren Davis…[and] Patricia Anne Woodcock. She clarified her two reports that she’d provided to the Court. It was her 10 recommendation that guardianship be made for the [child] for long-term, until he turns 18….I certainly accept that the views as held by Ms Woodcock and Ms Davis are reasonable views based on the evidence. I accept both of those as mature, truthful and credible witnesses for this Court.”67 [61] About the witnesses the first respondent, Janine Wulf and Peta Evert, Her Honour said, “I accept the evidence of these three departmental officers as honest, professional, truthful, and show a deep commitment to reconciliation between [the child] and his parents and involve their extended family in his day to day life – a matter so important with a child suffering such difficult medical disabilities.”68 56 Exhibit 1 – Affidavit of Skellern, exhibit A, T2. 57 Decision, 5/40. 58 Decision, 6/23. 59 Exhibit 6 – Affidavit of Copeland, para 1. 60 Decision, 6/25-25. 61 Decision, 7/23-24. 62 Decision, 7/26. 63 Exhibit 8 – Affidavit of Tigg, para 1. 64 Decision, 8/14-17. 65 Exhibit 2 – Affidavit of Davis, exhibit A, appendix B. 66 Decision, 9/5-7. 67 Decision, 10/11,17-19. 68 Decision, 3/25-32. -- 15 of 26 -- 16 [62] More generally, the magistrate had no hesitation accepting the respondents’ witnesses over the appellants’ evidence, saying: “The expert medical evidence received in this matter revealed to this Court’s complete satisfaction that these notions held by the parents are fanciful and without any medical or scientific basis.”69 And later: “All the medical practitioners’ evidence I accept. I’m impressed by all these – that all these doctors showed such professional diligence and commitment to the ongoing care of [the child]. I find all their evidence cogent, truthful, insightful, and credible”.32 [63] In stark contrast, the magistrate rejected the appellants’ evidence for many reasons. She said: “Now, the father and the mother have filed a number of affidavits. There’s an affidavit filed by the mother and the father and a number of material, including things obtained from the internet. Some of those – that material is a complete denial that they had any responsibility in relation to that injury – those injuries – those substantial injuries that I outlined in the material outline by Dr Lamont. They have ill-informed views, not based on any scientific documents. Their views are informed by the internet. They are immature, irresponsible, and I don’t find reasonably-held. Perhaps I can understand some of the issues that they had in relation to not engaging with the Department in the initial phase. It certainly wasn’t in the child’s best interests when he was so sick. And he will continue to be sick and require hospital treatment for the entirety of his short life.”33 [64] In Devries v Australian National Railways Commission,34 Brennan, Gaudron and McHugh JJ said: “More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’” [65] Similarly, in Fox v Percy,73 with approval to earlier cases,35 Gleeson CJ, Gummow J and Kirby J referred to the correct approach of an appellate court where findings of fact based on credibility are challenged: “[28] … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (References omitted.) 69 Decision, 2/45-47. 32 Decision, 3/25-27. 33 Decision, 10/21-31. 34 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. 73 Fox v Percy (2003) 214 CLR 118 at [26]-[30]. 35 Including Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. -- 16 of 26 -- 17 [66] This is not an exhaustive formula. The Court went on to recognise that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where for example the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said: [29] … In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. [30] It is true … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.” (References omitted.) [67] The magistrate had the advantage of seeing, hearing and assessing all the witnesses first hand. [68] In addition, the magistrate’s findings of fact based on inference ought also be taken as correct unless and until the contrary is demonstrated. In Warren v Coombes,75 the majority of the High Court reiterated the rule that: “[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”. [69] I’ve had the limited advantage of considering all the transcribed and documentary testimony of the witnesses, the relevant medical files and collateral material. It seems to me that the assertions made by the appellants about Dr Lamont, the Child Safety Officers and Pat Woodcock fall well short of the test to warrant interference. In my view, and having regard to my discussion that follows, I see no basis on which to interfere with Her Honour’s conclusions about the witnesses’ credit. 75 Warren v Coombes (1979) 142 CLR 531 at 551, affirmed in Fox v Percy (2003) 214 CLR 118 at [25] per Gleeson CJ, Gummow J and Kirby J. -- 17 of 26 -- 18 Ground 5: Whether unreasonable and unsupported [70] I have also made my own independent examination of the evidence, including the credit of witnesses, subject to what I said above,76 to make an assessment of both the sufficiency and quality of the evidence in relation to the relevant issues.77 [71] In doing so, it ought be remembered that the “Court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate”78 and the level of satisfaction required by the Court in respect of any matter is “on the balance of probabilities”.36 The paramount purpose of these proceedings is to determine what is in the best interests of the child and the rules of evidence and procedure should serve and not thwart that purpose.37 Hearsay evidence is admissible in the proceedings.38 When the evidence conflicts between the child’s safety, well- being and best interests and the interests of a parent caring for the child, that conflict must be resolved in favour of the child.39 The court should exercise due caution and adopt a course which exposes the child to the least risk.40 Child in need of protection [72] The first respondent asserted that the child was taken into care in February 2013 as a result of sustaining significant injuries, “a total of thirty-six (36) fractures to his ribs and long bones, brain injury and retinal haemorrhages while in the care of [the appellants]”.83 [73] In relation to the child’s injuries, the magistrate remarked: “Because of a vast number of physical injuries both to [the child]’s ribs, limbs, and head – such injuries being caused by unknown persons whilst in the care of his young parents – [the child] has now developed dystonic quadriplegic cerebral palsy of a function classification of level 5, the most severe form. The parents, subsequent to their baby’s injuries, historically developed an antagonistic attitude to their baby’s medical treatment and a hostile attitude, initially, to the Department. This was an unfortunate history. They blamed a number of external factors, which I will simply list as these: that the high forceps delivery caused these injuries; jaundice was responsible; it was exposure to formaldehyde in the nursery; that the child had brittle bone syndrome; and that there was a wrong diagnosis of shaken baby syndrome.”41 [74] And later, the magistrate said: “I am satisfied that, at this point, there is no parent who could – that [the appellants] are not able to protect the child within the foreseeable future. I base that view on the 76 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. 77 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. 78 Child Protection Act 1999 (Qld), s 105(1). 36 Child Protection Act 1999 (Qld), s 105(2). 37 Dale v Scott ex parte Dale [1985] 1 QdR 406 at 413-14 per Kelly J. 38 SRG v PGB and Another (1988) 12 Fam LR 225 at 228 per McPherson J. 39 Child Protection Act 1999 (Qld), Example to s 5A. 40 Obrenovic and McCauley (1985) FLC 91-655 at 80, 274 & 446 per Gee J citing Hogan J in Brown and Brown (1979) 6 Fam LR 352 at 353-354. 83 Exhibit 3 – Affidavit of the first respondent, sheet 12. 41 Decision, 11/27-31. -- 18 of 26 -- 19 overwhelming harm that was caused to this child by persons or persons unknown while this child was in the primary care of their parents – its parents.”42 [75] The evidence overwhelmingly supported these conclusions. [76] Dr Lamont opined that:43 “A total of 36 fractures were demonstrated in ribs and long bones. In addition extensive periosteal reactions were seen on the long bones. Significant brain injury is demonstrated. The range of injuries, spread through many areas of the body, the different ages of the fractures, the posterior rib fractures and the corner fractures, when considered together are very strong evidence of non-accidental injury. … From the bone injuries I estimate that three separate episodes of injury occurred: i. Less than one week prior to presentation ii. About a week prior to presentation iii. Around two weeks prior to presentation From the MRI of brain I estimate that an injury occurred more than 6 hours and no more than 2 days before the MRI scan. The brain injury is highly likely to leave the child with some residual defect of cognition or cerebral function, only time will show how severe the final result will be. Had the child not received treatment at Cairns Base and subsequent intensive treatment at Townsville Hospital, there is a high probability that he would have died from his injuries to the brain.” [77] Dr Tigg remarked about the continuing impact of the injuries as follows: “I last saw [the child] on 11/12/2013. He has spastic quadriplegic cerebral palsy. He is unable to sit up without support and unable to hold his head up if sitting. He cannot roll and cannot take any weight on his legs when held in a standing position… The likely prognosis is that [the child] will at best require a wheelchair for anything other than short distances. [The child] takes baclofen (an antispasm drug) to assist with his stiff muscles which otherwise cause discomfort and difficulty with movement. He attends to noise but has inconsistent vision and is undergoing regular reassessment of his vision and hearing. He is likely to have significant visual impairment. He is unable to feed sufficiently by mouth to meet his growth requirements and is currently requiring nasogastric tube feeds. He urgently needs a gastrostomy tube replacement (a tube 42 Decision, 2/33-43. 43 Affidavit of Corcoran, exhibit A, p 7. -- 19 of 26 -- 20 directly into the stomach through the skin of the abdomen) in order to alleviate the discomfort of having the tube in his nose which he keeps pulling out… [The child] needs regular physiotherapy, occupational therapy and speech therapy in order to maximize his development and to this end he needs to be engaged with disability services Queensland”.44 [78] The appellants deny any blame for the child’s injuries whilst in their care and they reject the allegation that the cause and effect of the child’s severely impaired state lies with them. They provided several exculpatory hypotheses, including that: that the brain injury may have been done at birth when the forceps were used; that the injuries were incurred during the transportation of the child through the various hospitals; that the medication, Baclofen, has caused the brain damage with the resultant developmental lags and that the child once off the Baclofen will regain normalcy.89 When, on 14 February 2013, the appellants were confronted about bruising to the child’s left cheek, they explained that the bruising was caused when the child rolled on to his pacifier. In relation to another small bruise on the child’s upper forehead, the parents said it had been caused by the child pressing on his mother’s neck pendant.90 [79] Even if the appellants’ views are genuinely and honestly held, they are devoid of any evidentiary foundation. At best, they are vacuous conjecture and wildly speculative. Indeed, these hypotheses are negatived on the evidence. The magistrate accepted the appellants’ affidavits even though the appellants declined to give oral testimony. In those circumstances, inferences about the child’s day-to-day care could more readily be drawn where any deficiency in the evidence could have been filled by their testimony.91 [80] As to the child’s retinal and optic nerve sheath haemorrhages, Dr Lamont opined that the “likely mechanism of injury is severe shaking or shake impact causing the brain to shift violently within the skull cavity causing bleeding and brain damage”.92 [81] During cross-examination, Dr Skellern was asked: “If the baby was shaken, wouldn’t it get a neck injury as that’s the weakest part of their body?” The doctor replied: “So that’s a good question and obviously you might be aware that there has been a paper that was written by a guy called Bandak that proposed, in a hypothetical way, that when he was attempting to run a calculation on how much force was required he wondered whether there needn’t be a neck injury. There’s a huge amount of research that says exactly the opposite, that, in fact, shaking does not cause the head to [indistinct] off on children. And, in fact, when we look really hard – and for example doing particular types of scans and it’s not specifically done in clinical care but in research testing – where we look more closely at the neck muscles and the craniocervical junction we can actually often demonstrate some temporary abnormalities to the neck as a result of the hyperextension and extension after a shaking mechanism has been used.”93 [82] In respect of the brain injuries, Dr Skellern said: 44 Exhibit 8 – Affidavit of Tigg dated 4 February 2014, pp 3-4. 89 Exhibit 11 – Affidavit of Woodcock, p 16. 90 Exhibit 9 – Affidavit of Wulf, exhibit B, p 9. 91 Cf. Jones v Dunkel and Anor (1959) 101 CLR 298 at 8, 308, 312, 319–321. 92 Exhibit 1 – Dr Lamont Report 26 September 2013: Dr Lamont Affidavit, exhibit A, para 39. 93 T1-105/1-12. -- 20 of 26 -- 21 “Biochemistry of bone metabolites and appearance from x-rays of bone density have not identified any abnormalities to suggest an intrinsic condition in this infant that would predispose him to bone fracture in the context of very low force such as would arise from handling/caring for an infant. The alkaline phosphatise is raised because of the extensive bone healing taking place from the multiple fractures in his body. None of the fractures found in this child would be caused from birth or from his subsequent transfer via aerial retrieval for neonatal care. The follow-up skeletal survey on 02.08.13 further supports the absence of any intrinsic bone condition involving bone fragility, given that no new fractures were seen”.45 … “The facial bruising from the forceps delivery and caput or cephalohaematoma to the scalp is of no relevance to the findings later found at 8 weeks of age. Caput and cephalo- haematoma are common in newborn infants. Facial bruising can arise in those requiring instrumentation as occurred in this case for delivery, and does not having any association with any clinical intracranial haemorrhage that would need treatment at birth or at a later time. The facial bruising may have contributed to the jaundice which required phototherapy treatment.”46 … “This infant has multiple injuries caused by various applied force mechanisms at different points in time that remain unexplained by any described traumatic event from his parents or other carers. From radiological dating of when the injuries occurred, these injuries have been sustained well after birth and after discharge into his parents care on 13.01.13. Since being taken into foster care no new trauma has occurred.”47 [83] Dr Skellern also negatived the appellants’ explanations about the child’s bruising, saying: “Of relevance is the bruises seen on the infant’s chest, cheeks on 20.02.13 and at an earlier time described by a notifier to DChS and observed by the Child Safety Officer on 14.02.13 on the left cheek. This 8 week old is not independently mobile and therefore is not exposed to forces through independent movement. Population studies of non-mobile infants have found bruising to be suspicious of harm. In particular the location of a bruise on the face and forehead indicate applied force to the head and face from either impact or excessive pressure mechanisms. Forces experienced by handing in routine care of an infant are minimal with appropriate handing/care and would not be expected to bruise an infant. Similarly infants of this age cannot be bruised from simply rolling onto a pacifier.”48 [84] Having regard to the evidence, the inescapable conclusion is that the child was and is exposed to intolerable risk in the appellants’ care and he needs protection. 45 Affidavit of Corcoran, exhibit B, p 21. 46 Affidavit of Corcoran. exhibit B, p 17. 47 Affidavit of Corcoran, exhibit B, p 22. 48 Exhibit 1 – Affidavit of Skellern, exhibit A, p 19. -- 21 of 26 -- 22 No parent able and willing to protect the child within the foreseeable future. [85] During the crucial time, since the appellants were responsible for the primary care of the child, the strong inference is that the harm to the child occurred by their hand, under their watch or due to inadequate supervision.98 [86] In the marriage of M and M (1988) 166 CLR 69 provides some assistance in assessing whether there is an unacceptable risk. The Court held that: “In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. 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 effect on the child’s welfare. … [T]he test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. In the present case Gun J. was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.”99 [87] In In re O and N (Minors) (Care: Preliminary Hearing); Re B (A Minor) [2003] UKHL 18, Lord Nicholls of Birkenhead said: “20. … The interpretation of the ‘attributable’ condition adopted by the House is necessary to avoid the unacceptable consequence that, otherwise, if the court cannot identify which of the child’s carers was responsible for inflicting the injuries the child will remain wholly unprotected. … 27. Here, as a matter of legal policy, the position seems to me straightforward. Quite simply, it would be grotesque if such a case had to proceed at the welfare stage on the footing that, because neither parent, considered individually, has been proved to be the perpetrator, therefore the child is not at risk from either of them. This would be grotesque because it would mean the court would proceed on the footing that neither parent represents a risk even though one or the other of them was the perpetrator of the harm in question. 98 In re O and another (Minors) (Care: Preliminary Hearing) In re B (A Minor) [2003] UKHL 18. 99 In the marriage of M and M (1988) 166 CLR 69 at 77. -- 22 of 26 -- 23 28. … The preferable interpretation of the legislation is that in such cases the court is able to proceed at the welfare stage on the footing that each of the possible perpetrators is, indeed, just that: a possible perpetrator. As Hale LJ said in In re G (Care Proceedings: Split Trials) [2001] 1 FLR 872, 882, para 44: ‘the fact that a judge cannot always decide means that when one gets to the later hearing, the later hearing has to proceed on the basis that each is a possible perpetrator…’ This approach accords with the basic principle that in considering the requirements of the child’s welfare the court will have regard to all the circumstances of the case. [88] Patricia Woodcock commented in her updated Social Assessment Report that: “Of greatest importance is whether or not [the child’s] many medical and therapeutic needs could be sufficiently addressed by the parents. Even with support. [The child’s] needs are complex and require a great deal more than typical parenting. Not only does [the child] require several trips each week to Cairns, he also requires daily therapeutic and specific stimulative engagement, feeding requirements and health-care requirements…The parents would not, in all likelihood be able to engage [the child] therapeutically without considerable training by medical staff…The parents current non- acceptance of medical diagnosis could dampen their motivation to carry out medical and therapeutic requirements with [the child]. Furthermore their lack of distrust for government agencies could further impinge upon their motivation to believe what government agencies recommend.”100 [89] Lauren Davis also reported that this case was a difficult and complex matter and that in her view there were two key issues to be considered, namely the harm caused to the child leading to departmental involvement and secondly the child’s current and future care and treatment needs.101 Ms Davis reported that: “As such is not possible at the present time to state with certainty whether one, both or neither of [the child] parents were the perpetrator of physical harm towards him. However, it is clear that at a minimum, [the appellants] provided a care environment in which severe non-accidental harm occurred to [the child]. It is important to note that without knowing the specific circumstances surrounding [the child’s] injuries (i.e. exactly who hurt [the child], when and why he was hurt) it is not possible to identify the specific risk factors and consider whether these factors might be able to be addressed and ultimately reduced through specific intervention. It is my opinion that [the child] would be at an unacceptable risk of harm should he be returned to the care of [the first appellant] and/or [the second appellant].”102 … “[The child] has severe disabilities, namely severe mixed spastic, dystonic quadriplegic cerebral Palsy secondary to an acquired brain injury and post- traumatic brain injury/cortical vision impairment. With regard to [the child’s] need, it is noted that early intervention is the key to getting the best outcomes for children with Cerebral Palsy. … Due to [the child’s] high needs he requires caregivers who are cognisant of his medical needs and disabilities and are committed to ensuring that he receives all necessary 100 Social Assessment Report of Woodcock, p 7. 101 Report of Davis dated 16 December 2014, para 11.3. 102 Para 11.3.2, p 13/10. -- 23 of 26 -- 24 services and interventions in accordance with medical/ allied health advice to improve his quality of life.”103 [90] The child was placed with approved foster carers between 26 March 2013 and 31 December 2015.104 The magistrate accepted that the placement supported his cultural identity in accordance with s 5C of the Act.105 It is undisputed that the child was placed with his paternal grandparents from 31 December 2015. This is consistent with the general principle that a child removed from family should be placed in the care of kin as the first option pursuant to s 5B(h) of the Act. [91] There was no application before the Court for an order in favour of another suitable person. [92] The Department did not seek to have an order made that the child’s carers be granted his long- term guardianship.107 There were no submissions made by any other family members seeking such an order. In her affidavit the first appellant comments about the paternal grandparents and paternal aunty. The appellants informed the Department that they no longer wished for the paternal grandmother to be kinship carer for the child,108 notwithstanding earlier support.109 [93] The first appellant proposed two alternate carers for the child but those people were not proposed for guardianship should a guardianship order be made.110 There was insufficient evidence of any knowledge or insight into the child protection concerns.111 [94] Ms Davis did not recommend any alternative suitable person to whom guardianship should have been granted.112 The second respondent has been unable to identify any suitable person to whom the Court could have properly granted guardianship.113 Neither Ms Davis nor Ms Woodcock (both social assessment report writers) recommend the child’s long-term guardianship be granted to another member of the child’s family. [95] The child has been in his current placement since mid-2013. It is stable and meets his complex and ongoing medical needs and both have a good understanding and commitment to his needs.117 His carers testified that: “During the time [the child] has been in our care we have been dedicated to caring for him and supporting his medical needs. When [the child] came into our care he was extremely sensitive to noise and movement. He was very unsettled and his sleep pattern was inconsistent. His behaviour was not consistent with other babies we have had experience caring for, including our two daughters. He screamed and cried hysterically for some time each day and night and we cradled him, reassured and comforted him with gentle touch, soft singing and soothing words and continual loving cuddles. He continually arched his back and extended his legs, tensed his body and fisted this hands 103 Paras 11.3.3, 11.3.4. 104 Exhibit 10 – Affidavit of Evert, para 12; Exhibit 14, para 10. 105 Decision, 11/10-14. 107 Hearing exhibit 14, para 70(f). 108 Exhibit 10 – Affidavit of Peta Evert dated 15 July 2013, exhibit K. 109 Exhibit 10 – Affidavit of Peta Evert dated 4 September 2013, para 3. 110 Exhibit 10 – Affidavit of Peta Evert dated 22 May 2013, para 41(viii). 111 Exhibit 10 – Affidavit of Peta Evert dated 22 May 2013, para 41(vi). 112 Exhibit 10 – Affidavit of Peta Evert dated 22 May 2013, para 41(vi). 113 Exhibit 3 – Affidavit of the first respondent dated 16 January 2015, para 81. 117 Exhibit 11 – Affidavit of Woodcock, p 18. See also para 11.3.4 of Davis Assessment. -- 24 of 26 -- 25 when he was distressed. We believe that he was experiencing pain and we tried swaddling him, warm bathing, gentle massage and even gave him baby paracetamol 2 or 3 times.”116 [96] Ms Davis observed the child in his placement and recorded the following: “[The child] presented as a neatly dressed young boy with obvious severe physical disabilities. He had a nasogastric tube held to his cheek with tape. The interactions between [the child] and all members of the carer family were observed to be warm and appropriate. The family members were observed to be appropriately loving and affectionate towards [the child]. [The child] responded to the family members in a positive manner, by smiling and touching their face. The family members were observed to be highly responsive to [the child’s] cues and were observed to meet his needs in a timely manner. The family members demonstrated a high degree of understanding of [the child’s] preferred activities (for example feeling wind on his face) and had appropriate toys available to keep [the child] occupied and happy (for example a small fan with soft blades). [The child] was observed to be held by each of the family members at different times. [The child] appeared comfortable and happy in their care as evidenced by his smiling and giggling and seeking proximity to each family member. [The child] was observed to be particularly happy when spoken to softly by Ms Wheate. [The child] did not exhibit signs of distress in the presence of the family members.”119 [97] The appellants have demonstrated an inability or unwillingness to make significant decisions in the child’s best interests.120 The appellants do not believe that the child has severe disabilities,125 or complex medical needs.126 They perceive there to be “nothing wrong with him” and that they can take care of all of his needs once he ceases taking Baclofen.127 They have no credible long-term plan for how they would ensure the child is able to access his medical appointments if in their care.121 They appear to lack insight and do not fully understand the severity of the child’s medical needs and his high level day-to-day care needs.122 They also engaged minimally in the case plan outcomes and have not demonstrated adequate skills learnt in relation to meeting the child’s medical needs.123 For two years the appellants failed take appropriate steps to develop their knowledge and skills related to caring for the child.124 [98] The appellants failed to promptly act on the advice of Dr Tigg and to sign the consent for the child to engage with Disability Services Queensland. He needs very specific, skilled care in regard to his day-to-day functioning.128 As suggested by Dr Lamont the “maximum window for improving development is in the first 2 years of life”.129 116 Affidavit of Wheate, sheets 2 and 3. 119 Paras 6.2-6.4. 120 Exhibit 3 – Affidavit of the first respondent, sheet 28, para 79(a). 125 Exhibit 11 – Affidavit of Woodcock dated 5 May 2014, exhibit F, pp 15-16. 126 Exhibit 3 – Affidavit of the first respondent dated 4 February 2014 - Summary of Medical/Therapeutic Appointments. 127 Exhibit 11 – Affidavit of Woodcock of 5 May 2014, p 11. 121 Sheet 28, para 79(b). 122 Sheet 28, para 79(c). 123 Sheet 29, para 79(e). 124 Sheet 30, para 79(f). 128 Exhibit 11 – Affidavit of Woodcock of 5 May 2014, p 16. 129 Exhibit 8 – Affidavit of Tigg dated 4 February 2014, p 4. -- 25 of 26 -- 26 [99] It seems to me that the appellants pose an unacceptable risk to the child if he is returned to their care. Conclusion [100] I am unable to find any discernible error or any miscarriage of justice that would warrant interference with the magistrate’s decision. [101] On my own review of the whole of the evidence (including fresh evidence adduced on appeal), I conclude that the requisite elements of s 59 of the Act are well satisfied. [102] The evidence overwhelmingly demonstrates that the child suffered harm, was at an unacceptable risk of harm and does not have a parent able or willing to protect him from harm.130 In circumstances where his parents repudiate both causation and his continuing state, he is a child in need of protection. An appropriate case plan131 and the most recent review report for the last revised case plan was before the Court.132 A court-ordered conference had been held prior to the hearing below.133 The child is too young to express any views in relation this application.134 The relief and orders sought were the least intrusive orders to achieve the protection sought.135 [103] Since the relief is for long-term guardianship of the child, I am also satisfied that there was no parent willing or able to protect the child within the foreseeable future.136 The child’s need for emotional security was best met by the order.137 It was appropriate to grant the order in favour of the chief executive, as there is no other person to whom guardianship could be granted in the circumstances.138 [104] It seems to me that the decision was reasonable and supported by the evidence, and according to law. Order [105] For these reasons, I will dismiss the appeal and I confirm the decision of the magistrate made 28 May 2015. [106] I will also direct the registrar of the Magistrates Court to redact from the court record the notifier details contained in various documents contained in the record. 130 Exhibit 14, para 70(a). 131 Exhibit 14, para 70(b). 132 Exhibit 14, para 70(b). 133 Exhibit 14, para 70(b). 134 Exhibit 14, para 70(d). 135 Exhibit 14, para 70(e). 136 Exhibit 14, para 70(e). 137 Exhibit 14, para 70(h). 138 Exhibit 14, para 70(f). -- 26 of 26 --