Department of Communities, Child Safety and Disability Services v S & Anor [2013] QChC 33

DISTRICT COURT OF QUEENSLAND CITATION: Department of Communities, Child Safety and Disability Services v S & Anor [2013] QChC 33 PARTIES: DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES (Appellant) v S AND ANOTHER (Respondents) FILE NO/S: 3344/2013 and 3345/2013 DIVISION: Childrens Court PROCEEDING: Appeal ORIGINATING COURT: Childrens Court (Magistrate) in Brisbane DELIVERED ON: Ex tempore 13 December 2013 DELIVERED AT: Brisbane HEARING DATE: 13 December 2013 JUDGE: Samios DCJ ORDER: 1. Appeal allowed in both matters 2. Order as per draft CATCHWORDS: COURTS AND JUDGES - Bias - where the appellant was not present when the learned Magistrate saw and spoke to the respondents and their child - whether the absence of the appellant from the meeting with the learned Magistrate created an apprehension of bias Legislation Child Protection Act 1999 (Qld) s 105 Cases Johnson v Johnson (2000) 174 ALR 655; (2000) 301 CLR 488 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 COUNSEL: Mr J Linklater-Steele for the appellant No appearance on behalf of the respondents SOLICITORS: Crown Solicitor for the appellant -- 1 of 11 -- 2 No appearance on behalf of the respondents [1] HIS HONOUR: On the 5th of August 2013 and again on the 13th of August 2013, the learned Childrens Court Magistrate, her Honour Ms O’Shea declined to disqualify herself from hearing an application brought by the Department of Communities, Child Safety and Disability Services on the 24th of July 2013. There are two appeals before me. One relates to the events before the learned Magistrate on the 5th of August 2013 and the second relates to the events before the learned Magistrate on the 13th of August 2013. Nothing follows from there being two appeals. On the 5th of June 2013, the Department brought an application for Court assessment order in relation to the child BSJ, born 6 May 2013. That application came on for hearing before the learned Magistrate on the 20th of June 2013. [2] Having considered the grounds of the application, the learned Magistrate was satisfied that an investigation was necessary to assess whether the child was a child in need of protection and that such investigation cannot be properly carried out unless the orders were made. The Court assessment orders were made, authorising an authorised officer or police officer to have contact with the child, authorising a medical examination or treatment of the child and authorising an authorised officer or police officer to enter and search any place the officer reasonably believes the child is to find the child. The assessment order was ordered to continue in force until Wednesday, the 3rd of July 2013. [3] The evidence before me shows that the learned Magistrate met the parents of the child, who were the first respondent and second respondent to the relevant application. The learned Magistrate, when hearing the application on 20 June 2013, appeared aware of -- 2 of 11 -- 3 the circumstances of the child, B, and also that the first respondent and second respondent had been the subject of applications by the Department in the past. Notwithstanding the evidence, the learned Magistrate made the orders she made and did not give custody to the Department, but rather allowed the child to remain in the custody of the first respondent and the second respondent. The learned Magistrate noted that the problem had been that while there had been no physical abuse with respect to the subject child, the problem was the child was not putting on weight. [4] The transcript of the proceedings on the 20th of June 2013 show that the learned Magistrate was mindful of the Department’s position but expressed that she was going to give the first respondent and the second respondent an opportunity to have custody of B. The first respondent, who had appeared in the application, expressed that she was in agreement with this arrangement. The learned Magistrate expressed that there would be a meeting at some time in the future to just show “that the baby’s fine”. At page 1-9, at about line 30 of the transcript, an unidentified speaker states, “Yep. We can do that,” and then the learned Magistrate is recorded as saying, “Okay. You don’t have to be here. That’s fine. Thursday afternoon next week, come and show me the baby and we’ll just make sure that everything’s going well. There’s a lot now – you know, the Kumara people will help you.” [5] As the evidence before me shows from the transcript of the proceedings before the learned Magistrate on the 5th of August 2013, the learned Magistrate accepted that this meeting between the first respondent and the second respondent, who were the parents of B, and B took place. On the 5th of August 2013, the Department applied to the learned Magistrate that the learned Magistrate disqualify herself from hearing an -- 3 of 11 -- 4 application the Department had filed on the 24th of July 2013 for a child protection order. The transcript of the 5th of August 2013 proceedings records the learned Magistrate as saying that she believed the meeting had not been ex parte and that she certainly did not think she said “or not attend again” on the 20th June 2013 proceedings. [6] At page 1-5 of the transcript, at line 45, the learned Magistrate is recorded as saying: Now, the transcript – my usual comment to the Department in these sort of situations is that they can attend if they wish. Now, at that stage, I had an application that I had made a finding on. I did make findings – satisfied with the orders I made. I think they wanted me to see the child and, in my opinion, if parents indicate that they would like to show the Childrens Court Magistrate the child, the Childrens Court Magistrate – the child is actually a party to the proceedings. The Childrens Court Magistrate can see the child if they wish. [7] The learned Magistrate accepts that she held the baby and that the visit was at most for about five minutes. The learned Magistrate also said on the 5th of August 2013 that she did speak to the parents, the first respondent and the second respondent, about the Department being involved and how they were to “respond and not argue the point on their own and to wait until they came to court to have any – they were brought back to the court to have any arguments about whatever steps the Department wanted to make”. The learned Magistrate did not disqualify herself on the 5th of August 2013. The matter was approached again on the 13th of August 2013. Again, the learned Magistrate did not disqualify herself. However, Ms Birrell, a child safety officer, has sworn an affidavit and in it she swears that the application for a Court assessment order was finalised on 20 June 2013 and Magistrate O’Shea advised the parents that the Department would not need to attend the court on 27 June 2013 or again at any stage in regards to this matter. -- 4 of 11 -- 5 [8] Further, Ms Birrell swears that on the 28th of June 2013, when she visited the family home, amongst other things, the parents of B said they had met with Magistrate O’Shea on 27 June 2013, that Magistrate O’Shea held and cuddled B for half an hour, that they were nervous about meeting with Magistrate O’Shea, however, informed Ms Birrell that they “had fun” and Magistrate O’Shea advised the first respondent and the second respondent words to the effect of B appeared to be doing well and she did not believe the Department needed to be concerned for B. Then Ms Birrell swears that there were conversations with Ms S regarding the meeting with Magistrate O’Shea on the 27th of June 2013 during a home visit on 12 July 2013 and during the telephone call on 24 July 2013. [9] Ms Birrell says that Ms S advised words to the effect of feeling supported by Magistrate O’Shea. On this date, Ms S also referred to Magistrate O’Shea’s decision to return B to her care and her belief that the Department do not need to worry about B’s safety and wellbeing. Ms S also stated words to the effect that it would get herself into trouble – the Ms Birrell would get herself into trouble with the Court for making an application for a child protection order as Ms Birrell could not let go of this matter. In the telephone call, Ms Birrell says that Ms S stated words to the effect that she felt supported by Magistrate O’Shea and she did not believe that Magistrate O’Shea will be happy with the Department’s application for a child protection order for B. [10] Clearly, there is a conflict between what the learned Magistrate says happened in the meeting on the 27th of June 2013 and what apparently the parents of B say happened. I have not had the benefit of any submissions from the parents of B because they did not wish to respond to the appeal and were not opposing the appeal. I have also not -- 5 of 11 -- 6 had the benefit of any submissions that might’ve been made on behalf of the learned Magistrate. If it needs to be stated, the Department was not represented at the meeting on the 27th of June 2013 between the learned Magistrate and the parents of B and B. While what the learned Magistrate said on the 20th of June 2013 does not determine what she may have said to B’s parents on the 27th of June 2013 meeting, nevertheless when I read the transcript of the proceedings on 20 June 2013 the transcript of those proceedings seem to bear out what the learned Magistrate expressed she did, which is recorded in the transcript of the 5th of August 2013 proceedings. [11] That is, that there would be a meeting and that if the Department wanted to take the child from the parents, then her advice to them was to let the Department take the child and not to fight then and there and that the matter would be brought back to Court and that the parents should go and see their legal representatives and bring it back to Court so that “we can hear the story”. That seems to be exactly what the learned Magistrate intended on the 20th of June 2013 and I see no reason why the learned Magistrate would’ve changed from that intention on the 27th of June 2013. That is, I accept the learned Magistrate would have said in her advice to the parents to just let things happen, allow the Department to take the child and then come back to court to sort it out. [12] On the 5th of August 2013 that is what the learned Magistrate said her recollection was about what happened on the meeting on 27th of June 2013. However, the matter is a little difficult because I'm not so sure that it can be said it was up to the Department whether it attended the meeting. That is because in the transcript of proceedings on 20 June 2013 at page 1-9 at about line 30 I see the learned Magistrate is recorded as -- 6 of 11 -- 7 having said, “You don’t have to be here”. I take the learned Magistrate to be referring to the Department. Therefore, even though in my opinion the learned Magistrate should be accepted as to what she says was said at the meeting on 27th June 2013, the fact remains the Department was not present. [13] Certainly, I accept that would not have been intended, however, that is what happened. I should also say that it is accepted by the Department that this is a case where it is not being claimed there was actual bias, what is being claimed is that there has been an apprehension of bias from these circumstances. Those circumstances also include that while there may have been no proceeding on foot when the meeting took place on the 27th of June 2013, it seems to me the learned Magistrate reasonably anticipated proceedings taking place in the future. The learned Magistrate was aware of the concerns of the Department and was recommending to the parents that if anything occurred in terms of any steps by the Department that they should not resist, and bring the matter back to the Court so the whole story could be heard. [14] While that anticipation was referred to on the 20th of June 2013, the learned Magistrate again seemed to confirm that in the transcript of the proceedings of the 5th of August 2013 at page 1-6 at about line 5 where the learned Magistrate said that she had spoken to the parents about the Department being involved and how they were to respond and not argue the point on their own and wait until they came to the Court to have any – they were brought back to Court to have any arguments about whatever steps the Department wanted to take. Therefore, it was reasonably anticipated that there might be future proceedings involving the child and of course the parents would be parties to those proceedings. -- 7 of 11 -- 8 [15] I have been referred to two authorities, the first Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342. In that case, Gibbs CJ said at paragraph 4, “It is a fundamental principle that a Judge must not hear evidence or receive representations from one side behind the back of the other”. Leaving out reference to the authorities, his Honour then quoted from McInerney J’s judgment where he said: The sound instinct of the legal profession, Judges and practitioners alike, has always been that save in the most exceptional cases there should be no communication or association between the Judge and one of the parties or the legal advisors or witnesses of such a party otherwise than in the presence of or with the previous knowledge and consent of the other party.1 Continuing the quote: Once the case is underway or about to get underway the judicial officer keeps aloof from the parties and from their legal advisors and witnesses and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party, for if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.2 In the same case, Mason J regarding this principle stated that, “In conformity with the principle, every private communication to a Judge made for the purpose of influencing his decision in a case is treated as a contempt of Court because it may affect the course of justice”.3 Leaving out the authorities, “Indeed it is regarded as a serious contempt”.4 And then finally, I refer to the Judgment of Dawson J in this case where his Honour said: It is fundamental in judicial proceedings of the ordinary kind that during the conduct of the case a Judge should not communicate privately with a party or a witness. If it can ever be justified it certainly cannot without the prior knowledge and consent of all parties. The basic principles of natural justice establish the right of each party to put his case and to be heard by an impartial Judge.5 Leaving out parts of the quote, finally Dawson J said: What is suggested by the husband is that he is reasonably entitled to entertain an 1 R v Magistrates Court at Lilydale; Ex parte Ciccone [1973] VR 122, 127. 2 Ibid. 3 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 350. 4 Ibid. 5 Ibid at 371. -- 8 of 11 -- 9 apprehension of lack of impartiality on the part of the Judge. If that is so, then it is enough to vitiate the proceedings because it is established that a Judge ought not to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial mind to the resolution of the questions involved in it.6 [16] Finally, I refer to the High Court’s decision in Johnson v Johnson (2000) 174 ALR 655 where the court said at paragraph 11: It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide. [17] While I accept that I should proceed on the basis, and I do proceed on the basis, that the learned Magistrate’s account of what occurred must be accepted, I do that because I consider that on the evidence before me the parents would not present as reliable people and I consider the likelihood exists here that they have given a slant to what the learned Magistrate has said to suit their purposes. [18] However, even though the learned Magistrate’s account of what happened is to be accepted, as I said, the fact remains the Department was not present. I do not accept they consented to not being present. I take what happened to be that they were told they need not be here. In my opinion, the learned Magistrate should have insisted that they be there for the meeting between the parents when the learned Magistrate wanted to see the child. The learned Magistrate did say in response to the application that she disqualify herself that she saw section 105 of the Child Protection Act 19997 as a basis for doing what she did. 6 Ibid. 7 Child Protection Act 1999 (Qld). -- 9 of 11 -- 10 [19] While that section does provide that the court may inform itself in any way it thinks appropriate and is not bound by the rules of evidence, I do not think that excuses having the Department not present. The learned Magistrate also said that she saw the proceedings as being inquisitorial. While I am not disputing that may be an approach to the work of the Childrens Court, that again does not excuse not having the Department present. Therefore, I conclude that as the Department was not present, and as there was a fair prospect that there would be future proceedings concerning this child, that a fair-minded lay observer might reasonably apprehend that the learned Magistrate might not bring an impartial and unprejudiced mind to the resolution of any question that might arise where the Department was involved as a party. [20] That is even though I accept what the learned Magistrate said happened. The good faith of the learned Magistrate is not in issue. It is not in question. But what is in question is that it appears the Department was not present when it should have been present so that there would not be an opportunity for the parents to claim something was said that had not been said or that there would not be a concern left as to how the Department might be dealt with in a future application concerning this child and this child alone. What I have said only relates to this child and applications concerning this child. The Department’s arguments on the hearing of this appeal also claimed that I should set aside the learned Magistrate’s decision on the ground that the learned Magistrate did not provide adequate reasons for her decisions. [21] I consider her reasons were adequate. It was quite plain that the learned Magistrate was saying that what the parents were saying is not what happened and that what happened only occurred for a short space of time, and that therefore there was no -- 10 of 11 -- 11 reason for her to disqualify herself. However, it seems to me what has been overlooked, unwittingly here, is that the Department should have been present at the meeting and that leaves an appearance that must be corrected. That is, not only should justice be done, it must be seen to be done. Therefore I allow the appeal in both matters that are before me. I’ve got two copies of the draft order and I propose to make orders as per the draft order in each case. -- 11 of 11 --