ASD v Chief Executive, Department of Communities, Disabilities and Child Safety Services & Anor [2013] QDC 168

1 DISTRICT COURT OF QUEENSLAND CITATION: ASD v Chief Executive, Department of Communities, Disabilities and Child Safety Services & Anor [2013] QDC 168 PARTIES: ASD (Appellant) v CHIEF EXECUTIVE, DEPARTMENT OF COMMUNITIES, DISABILITIES AND CHILD SAFETY SERVICES (First respondent) SEPARATE REPRESENTATIVE (Second respondent) FILE NO/S: 18/12 DIVISION: Childrens Court PROCEEDING: Appeal ORIGINATING COURT: Childrens Court (Magistrate) at Toowoomba DELIVERED ON: 30 July 2013 DELIVERED AT: Stanthorpe HEARING DATE: 4 March 2013, final submissions received 8 May 2013. JUDGE: Kingham DCJ ORDERS: 1. The appeal is dismissed. 2. The order of Magistrate Carroll made on 2 February 2012 is confirmed. CATCHWORDS: APPEALS – CHILD PROTECTION – LONG TERM GUARDIANSHIP ORDER – CHANGE OF PLACEMENT - where the learned Magistrate emphasised the security and stability of the child‟s placement – where the child now resides with different carers – whether the change in carers justifies departure from the learned Magistrate‟s order. APPEALS – CHILD PROTECTION – ASSESSMENT OF WITNESS‟ CREDIT – where the appellant alleged that the child‟s previous carer committed criminal offences – where the learned Magistrate rejected that evidence and drew an adverse inference as to the appellant‟s credit – where the -- 1 of 10 -- 2 learned Magistrate‟s decision involved the weighing of multiple competing factors – whether the learned Magistrate placed excessive weight on the appellant‟s credibility. Child Protection Act 1999 (Qld) ss 5A, 59, 61, 62, 65, 118, 120, 121, 139 & 140. Dale v Scott ex parte Dale [1985] 1 Qd R 406, applied. Edward s v Noble (1971) 125 CLR 296, applied. Gronow v Gronow (1979) 144 CLR 513, applied. TD v ASD & Anor [2011] QChCM, considered. COUNSEL: The appellant appeared on her own behalf. P. Munro (Sol.) for the First Respondent. R. Davies for the Second Respondent. SOLICITORS: The appellant appeared on her own behalf. Crown Law for the First Respondent. Forest Glen Lawyers for the Second Respondent. Background [1] ASD is the biological mother of BRT, the child. His biological father passed away some time ago. The child is currently 14 years of age and lives with carers approved by the Department of Communities. He is residing with the carers because a Magistrate granted a long term guardianship order to the Chief Executive of the Department of Communities on 2 February 2012.1 In practical terms, this order has the effect of appointing the Chief Executive as the child‟s guardian, until he reaches the age of 18.2 [2] In making his decision, the learned Magistrate concluded the child did not have a parent able and willing to protect him within the foreseeable future. He considered his mother could not do so, because of adverse findings he made about her in relation to issues of domestic violence, drug use and mental health. ASD lodged a notice of appeal in this court on 29 February 2012. Grounds of Appeal [3] The mother‟s Notice of Appeal alleged various errors of law or fact by the learned Magistrate: 1. Not finding that the BRT‟s return to his mother was in BRT‟s best interests; 1 TD v ASD & Anor [2011] QChCM. See also Child Protection Act 1999 (Qld) s 61(f)(iii). 2 Child Protection Act 1999 (Qld) s 62(2)(c). -- 2 of 10 -- 3 2. Finding that BRT had suffered harm whilst living with ASD; 3. Ignoring BRT‟s wishes, failing to give appropriate reasons for doing so and basing his decision, on this point, on inexpert evidence; 4. Finding that the child was in need of protection and failing to address s 10(a) of the Child Protection Act 1999 (Qld), by addressing the mother and her character; 5. Finding that the mother was not a person willing and able to protect BRT; 6. Failing to find a less intrusive order which could equally provide the protection sought, namely, a two year short term order; 7. Failing to find that BRT would be protected upon returning to his mother after a two year short term order, given ASD‟s 16 months without domestic violence; 8. Not accepting the expert evidence of Ms Ledger that a short term protection order was open to the court. Although Ms Ledger preferred the long term order, the learned Magistrate should have imposed the less- intrusive, two-year order; 9. Failing to include in his summary of the risks of making a long term order the evidence of Ms Ledger to the effect that there is a poor general result for children placed in long term care; 10. By not finding that ASD was: a. Not suffering from a mental condition; b. Not in a domestic violence relationship; and c. Immediately capable of looking after the child. 11. Relying upon ASD‟s history of domestically violent relationships and ignoring her current domestic violence-free relationship; 12. Making a decision which was wrong in law and fact; and 13. Failing to order that custody of BRT be granted to the chief executive for a period of two years, when it was open to the learned Magistrate to do so. [4] The primary relief the mother sought was to set aside the decision of the learned Magistrate no order as to BRT‟s guardianship. In the alternative, she asked the Court to set the decision aside and impose an order granting custody of BRT to the chief executive for a period of two years from the date of the original decision.3 Nature of the appeal hearing [5] Although ASD did make written submissions which bore upon some of the matters raised by her grounds of appeal, at the hearing ASD did not directly address any of them. Instead she gave unsworn evidence from the bar table about her present circumstances.4 In effect, she sought a reconsideration of the learned Magistrate‟s decision on that basis. Although the mother may apply to revoke the long term guardianship order, the proceeding she has instituted is an appeal brought under the Child Protection Act 1999 (Qld).5 Unless otherwise ordered, it must be heard on the evidence before the original court. 3 Child Protection Act 1999 (Qld) ss 61(d)(ii) & s121. 4 Transcript 1-4[47] – 1-6[15]. 5 Child Protection Act 1999 (Qld) s 118. -- 3 of 10 -- 4 [6] On rehearing, an appellate court should not set aside a finding of fact or an inference drawn by a trial judge unless it is convinced the finding or inference is wrong. It is not enough for the appeal court to have been prepared to make a different finding, if the finding in dispute was reasonably open on the evidence before the trial judge.6 Where the trial judge‟s decision involves the exercise of a discretion, it should not be disturbed unless the judge‟s exercise of discretion was plainly wrong, or based on incorrect facts.7 [7] The Court does have the power to order the appeal is heard afresh, either in whole or in part.8 Prior to the hearing, no orders were sought or made about the nature of the hearing and it commenced as a re-hearing on the evidence before the original court. However, when ASD addressed the Court, it became apparent there had been a significant change of circumstances which warranted the Court receiving limited further evidence. [8] In making his decision about what was in the best interests of BRT, the learned Magistrate considered the care arrangements then in place. The child was living with Ms L who had been his foster carer, on and off, for about 4 years. When the matter was heard (October to December 2011), BRT had been with her continuously for more than a year (since July 2010). She was willing to care for the child until he turned 18. His Honour considered BRT was living in a safe, secure and stable environment. [9] At the appeal hearing, the Court was advised that the child was no longer in Ms L‟s care, it seems because she had been convicted of a drug related offence. This is significant for two reasons: firstly, in considering what is in the best interests of the child; and secondly because his Honour formed an adverse view of the mother because she alleged, he thought falsely, that Ms L was engaged in drug related activities. The paramount principle – current arrangements for care [10] The main principle in administering the Child Protection Act is “that the safety, wellbeing and best interests of a child are paramount”9 (the paramount principle). [11] His Honour relied on the stability of BRT‟s then-placement as one of a number of reasons for deciding that the child‟s best interests were served by granting the long term guardianship order. The change in placement does not challenge his assessment, made at the time of the decision on the material then available to him. [12] However, this Court was asked by both the Chief Executive and BRT‟s Separate Representative to confirm his Honour‟s decision. In exercising its appellate function, this Court is bound by the paramount principle. The rules of 6 Edwards v Noble (1971) 125 CLR 296, 304 per Barwick CJ. 7 Gronow v Gronow (1979) 144 CLR 513, 519-20 per Stephen J. 8 Child Protection Act 1999 (Qld) s 120. 9 Child Protection Act 1999 (Qld) s 5A. -- 4 of 10 -- 5 procedure should serve and not thwart that purpose.10 Given the importance his Honour placed, rightly in my view, on BRT‟s placement, it is appropriate for the Court to receive fresh evidence about the current arrangements for his care, in considering whether to confirm the learned Magistrate‟s decision. [13] At the hearing, I ordered the Department of Communities (Child Safety), as it then was, to provide an updated report on BRT‟s foster placement. Which addressed:  The level of attachment between BRT and his foster carers;  BRT‟s wishes and an opinion as to BRT‟s competency to express an informed opinion; and  An assessment of the long term viability and stability of this placement. [14] A report was prepared by Nikole Lynch, a well qualified social worker in private practice who provided a thoughtful and comprehensive report to the Court on 5 April 2013. The parties were given the opportunity to make further written submissions after the report was filed. The mother and the Chief Executive did so. The child‟s Separate Representative did not wish to add anything to her written submissions. i.) Level of Attachment between BRT & his carers [15] BRT‟s current carers, Mr and Mrs M, were his respite carers when he was placed with Ms L. Although, initially, Mr and Mrs M considered BRT was unsure about whether he could trust them, when Ms Lynch interviewed them they said he had been welcomed into their extended family and enjoyed spending time with them on special occasions.11 They described him as an „affectionate‟ young person who „will seek out cuddles regularly.‟12 [16] Ms Lynch observed positive interaction between the carers and the child, and spontaneous affection between him and his foster mother. BRT told her that he likes his placement, his carers are nice to him and that his placement is “really homely.” [17] Ms Lynch also spoke to Mr Downey, a Foster Care Worker at Mercy Family Services. He has supported BRT‟s carers for approximately 6 months and visits their home once a month. He considered BRT‟s carers were legitimately concerned for the child‟s wellbeing. Mr Downey described the placement as “a loving and caring home” and that the carers adore the child.13 Mr Downey described BRT‟s gentle nature as being a perfect match for his carers. [18] Overall, Ms Lynch assessed the child‟s relationship with his carers as positive and affectionate. His carers speak with a notable affection for him. BRT feels safe and appears comfortable with his carers. She considered they were both highly aware of his requirements and desires. Ms Lynch agreed with Mr 10 Dale v Scott ex parte Dale [1985] 1 Qd R 406. 11 Report of Nikole Lynch, 2 April 2013, p 7[28]. 12 Report of Nikole Lynch, 2 April 2013, p 8[42]. 13 Report of Nikole Lynch, 2 April 2013, p 11[65]. -- 5 of 10 -- 6 Downey‟s assessment that the child and his carers are well matched in personality and temperament. ii.) BRT’s Wishes & Competency to Express an Informed Opinion [19] Ms Lynch reported that BRT‟s first preference was to return to live with his mother.14 His carers reported that the child had strongly told them that he wanted to go home.15 However, if returning to his mother‟s care was not possible, BRT said wanted to remain with his current carers.16 [20] Ms Lynch reported that BRT presented as “an intelligent and articulate young man who was coherent and had strong opinions and clearly stated his views and wishes.”17 She concluded he is competent to express an opinion about where he would like to reside, although Ms Lynch noted that the reasons he provided for wanting to return to his mother‟s care were limited. Ms Lynch was also concerned about the amount of accurate information available to BRT about his mother‟s current circumstances and the, understandable, influence of emotion on his decision-making process. iii.) Long Term Viability & Stability of Placement [21] Ms Lynch concluded there has been an improvement in BRT‟s mental state under the new placement. He made some concerning statements to them early in the placement.18 This led the carers to arrange fortnightly counselling sessions with a psychologist. BRT participated willingly and enjoyed the sessions, which ceased about three weeks before the interview.”19 [22] Ms Lynch reported that BRT had settled into his placement and had shown emotional, social and academic improvement. She assessed the placement as a “stable and positive” one, which is providing BRT with the safety, direction and care that he needs. The carers are able to care for BRT until he is eighteen and “would be very happy to do so”.20 The carers are willing to arrange contact between the child, his mother and other family members. Conclusion about the new placement [23] BRT presently resides with carers who can provide him with a safe and secure environment until he turns 18. Respectfully, I agree with and adopt the learned Magistrate‟s view that it is in the child‟s best interests to have certainty and security of care.21 Although he is now under a different placement, I am satisfied that it is a safe, positive and stable environment. Accordingly, I find 14 Report of Nikole Lynch, 2 April 2013, p 9[51]. 15 Report of Nikole Lynch, 2 April 2013, p 7[35]. 16 Report of Nikole Lynch, 2 April 2013, p 9[51]. 17 Report of Nikole Lynch, 2 April 2013, p 9[50]. 18 Report of Nikole Lynch, 2 April 2013, p 7[30]. 19 Report of Nikole Lynch, 2 April 2013, p 7[30]. 20 Report of Nikole Lynch, 2 April 2013, p 9[50]. 21 TD v ASD & Anor [2011] QChCM [128]. -- 6 of 10 -- 7 no reason to depart from the learned Magistrate‟s order on the basis that BRT‟s placement has changed since the date of the decision. Assessment of ASD’s credit [24] The change in placement is also significant because of the reason for that change. Although there is little evidence before the Court about this, at the appeal hearing the Court was informed that the carer with whom BRT had been previously placed had been convicted of a drug related offence. In her report, Ms Lynch said: “BRT‟s previous placement with Ms L ended in March 2012 due to a Matter of Concern process and the outcome of this was substantiated. Subsequently, Ms L resigned as a foster carer.”22 [25] I take the reference to a Matter of Concern process to be a reference to the process of suspending or cancelling a person‟s approval as a foster carer under the Child Protection Act.23 [26] At the original hearing, the mother made a number of allegations about Ms L‟s involvement in production and supply of drugs. His Honour accepted Ms L‟s denials. He drew an adverse conclusion about ASD‟s credibility as witness, in part because of his view of those allegations. [27] The fact that Ms L was later convicted of a drug related offence could undermine the basis for his Honour‟s critical view of ASD, at least to the extent that it rested on his view the allegations about Ms L were unfounded. It is necessary, therefore, to revisit the basis for his Honour‟s conclusion about ASD‟s credibility and to examine the extent to which that bore, ultimately, upon his decision. [28] ASD alleged Ms L sold amphetamines and had procured ASD to buy telfast gold tablets so Ms L could produce illegal drugs.24 ASD accused Ms L of being her dealer. His Honour rejected that evidence and accepted the carer as an “entirely reliable witness.” [29] This Court cannot find that Ms L was not reliable in denying the allegations, because there is no evidence before the Court about what the offence was (except that it was drug related), when it was committed or when the conviction was recorded. It is not necessary, however, for the Court to determine that matter. The important issue is the extent to which his Honour was influenced in making his decision, by the view he took of ASD because she made those allegations. [30] His Honour was: 22 Report of Nikole Lynch, 2 April 2013, p 5[17]. 23 Child Protection Act 1999 (Qld) ss 139 & 140. 24 TD v ASD & Anor [2011] QChCM [113]. -- 7 of 10 -- 8 “satisfied that [ASD] made these allegations to undermine the credibility of [Ms L]. They also reflect very poorly on [ASD] in that if one accepts her evidence on this point, which I reject, she has sworn that she assisted the carer of her son to engage in illegal drug activity. It is but an example of her lack of insight into the concerns that the applicant has about her inability to protect [BRT] from harm.”25 [31] There are two aspects to this passage in his Honour‟s reasons, which address different matters. Firstly he attributes to ASD the motive of undermining Ms L‟s credibility. That finding is only open if the allegations were, indeed, false. [32] Secondly, assuming ASD‟s allegations were true, he observed that her evidence that she assisted her child‟s carer to engage in the production of illegal drugs reflected poorly on her and demonstrated her lack of insight into concerns about her ability to protect BRT from harm. [33] In his Honour‟s view, then, ASD‟s allegations caused him to have reservations about her ability to protect BRT whether they were false or true. If they were false, she lacked credit as a witness. If they were true, they gave credence to concerns about her ability to protect her child from harm. Assuming, for the purpose of the appeal, that ASD‟s allegations were true, respectfully, I concur with the learned Magistrate‟s view of the implications of her evidence. [34] His Honour made adverse findings about ASD‟s credit as a witness: “Generally, [ASD] was an unsatisfactory witness. At times she lied on oath, her evidence was contradictory and inconsistent. Her allegations about [Ms L‟s] alleged drug activities were bizarre.”26 [35] Because he specifically mentioned the drug allegations, I take the earlier statement about lies, contradictions and inconsistencies to be a reference to other aspects of ASD‟s evidence. The learned Magistrate made numerous observations and findings to support his conclusion that she was an unsatisfactory witness, in his thorough consideration of evidence about the history of domestic violence in ASD‟s life27, her use of drugs28 and her health.29 Whether or not the allegations about Ms L could fairly be described as bizarre, his Honour was entitled to reach the conclusion that ASD was an unsatisfactory witness. [36] It is very clear that his Honour‟s ultimate decision did not stand or fall on his assessment of ASD‟s credibility as a witness. He engaged in a careful balancing process, weighing multiple considerations. He noted the recent progress that ASD had made in remaining abstinent and the period she had maintained a non-violent relationship; also her achievement of various goals set by the department. 25 TD v ASD & Anor [2011] QChCM [116]. 26 TD v ASD & Anor [2011] QChCM [119]. 27 TD v ASD & Anor [2011] QChCM [47], [50], [56] & [57]. 28 TD v ASD & Anor [2011] QChCM [63], [65] – [67] & [82]. 29 TD v ASD & Anor [2011] QChCM [72]-[73]. -- 8 of 10 -- 9 [37] Ultimately, his Honour was satisfied: “[120]…that [ASD] lacks insight into the causes of domestic violence. She lacks the knowledge and understanding of how to avoid domestically violent relationships. She is prepared to attend domestic violence counselling, but only very reluctantly. In the past she has learned little from attending domestic violence counselling. Her past history of drug use suggest that she may relapse into drug use in the future and the reasons she gave for this not being likely to occur were shallow and unconvincing. [ASD] lacks insight into the harmful effects of using illegal drugs. I am satisfied that [ASD] is not prepared to undertake psychotherapy at a level recommended by Dr Evans and is therefore unlikely to acquire an understanding of the psychological risk factors within herself. [121] In my view [ASD] is unable to prioritise what is necessary to protect [BRT] from harm. I am satisfied that he has suffered harm in the past and he is at an unacceptable risk of suffering harm if he were to be returned to her care. I am also satisfied that [ASD] is not able and willing to protect [BRT] from harm. In my view [BRT] is in need of protection and a long term guardianship order is desirable for his protection.”30 [38] His Honour‟s summary of his findings in relation to ASD demonstrates that his views about the allegations ASD made against Ms L were of little consequence in his overall assessment of her ability and willingness to protect BRT from harm. Remaining issues [39] ASD did not press any of her written grounds of appeal at the hearing. I do not propose to consider the merits of each ground at length. However, I make the following further observations about the decision under appeal, with reference to those grounds. [40] His Honour correctly identified the legal principles relevant to the application. I detected no error of law in his application of those principles to the facts as he found them. [41] Most of the grounds of appeal allege that his Honour made an incorrect finding of fact or failed to give appropriate weight to a particular consideration.31 Having regard to the alleged deficiencies in his reasoning and having examined his Honour‟s written reasons, I am satisfied he did not fail to have regard to any relevant consideration. Further, his findings of fact were open on the evidence before him. None of his conclusions on factual matters were unsupportable or plainly wrong. [42] The remaining grounds involve his finding that there was no parent able and willing to protect BRT in the foreseeable future. This is a pre-condition to making a long term order.32 Necessarily, this required the learned Magistrate to 30 TD v ASD & Anor [2011] QChCM [120]-[121]. 31 Notice of Appeal, filed 29 February 2012, grounds 1, 2, 3, 4, 5, 6, 9, 10, 11. 32 Child Protection Act 1999 (Qld) s 59(6)(a). -- 9 of 10 -- 10 make an assessment for the future on the basis of the evidence then before him. In the passages set out at [37] of this judgement, the learned Magistrate laid bare how he set about assessing ASD‟s capacity in the foreseeable future. He identified relevant risk factors and explained his perception of ASD‟s attitudes to and insight about those factors. I see no error of law in his reasoning process. [43] That is not to say that in the future, the mother could not establish she is able and willing to protect BRT. A forward projection of a person‟s capacity could hardly be expected to be beyond challenge, particularly where circumstances change. That is recognised in the Child Protection Act, which allows a parent to apply to revoke an order such as this one.33 [44] There is no impediment to the mother making an application to revoke the order. It is not precluded by an unsuccessful appeal. Except for the report about BRT‟s current placement, this appeal proceeded only on the evidence before the Magistrate in October and December 2011. [45] ASD told the appeal court that she has continued to remain abstinent, in a positive relationship, is healthy and has furthered her education. The longer the period that ASD can demonstrate she has eliminated or controlled the risk factors identified in her case, the greater her prospect of revoking the order. This would need to be the subject of sound evidence properly presented at a hearing on an application to revoke the order. [46] Although the mother does not agree with his assessment of her ability to protect the child, the learned Magistrate‟s comprehensive and detailed reasons provide her with a clear indication of what evidence she would need to lead on an application to revoke the order. Orders: [47] I order that: 1. The appeal is dismissed. 2. The order of Magistrate Carroll made on 2 February 2012 is confirmed. 33 Child Protection Act 1999 (Qld) s 65. -- 10 of 10 --