ASW & ECW v Director General, Department of Communities (Child Safety) [2011] QChC 23

CHILDRENS COURT OF QUEENSLAND CITATION: ASW & ECW v Director General, Department of Communities (Child Safety) [2011] QChC 023 PARTIES: ASW (First Appellant) and ECW (Second Appellant) v DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES (CHILD SAFETY) (Respondent) FILE NO: 1/2011 DIVISION: Appeal PROCEEDING: Appeal from Child Protection Order ORIGINATING COURT: Childrens Court, Rockhampton DELIVERED ON: 20 October, 2011 DELIVERED AT: Childrens Court, Rockhampton HEARING DATE: 10 October, 2011 JUDGE: Dearden DCJ ORDER: Appeal dismissed CATCHWORDS: APPEAL OF CHILD PROTECTION ORDER - order granting custody of appellants' 5 children to the Director General, Department of Communities (Child Safety) for 2 years - appellants contend there was an error at law and that there was insufficient evidence to ground a finding that the children were at risk of harm - discussion of "child in need of protection", "harm" and "significant harm" - where the appeal was dismissed - no error of law or fact LEGISLATION: Child Protection Act 1999 (Qld) ss. 5, 5A, 5B, 5C, 9, 10, 59, 61, 102, 104, 105, 117, 120, 121 Justices Act 1886 (Qld) Child Protection Bill 1998 (Qld) CASES: CAO v Department of Child Safety & Ors [2009] QCA 169 CAR & CSA v Department of Child Safety [2010] QCA 165 -- 1 of 14 -- 2 CAR & Anor v Department of Child Safety [2010] QCA 27 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 Cousins v HAL & Anor [2008] QCA 49 Department of Communities (Child Safety Services) v CAR & Anor [2010] QCA 105 Drew v Makita (Australia) Pty Ltd [2009] QCA 66 Dunnett v Gebers & Anor; ex parte Dunnett [1997] QCA 56 FY & Anor v Department of Child Safety [2009] QCA 67 House v R (1936) 55 CLR 499 Humberside County Council v B [1993] 1 FLR 257 In the marriage of R (1998) 23 Fam LR 456 KAA & Anor v Schemioneck & Anor (No. 2) [2007] QCA 449 M v M (1988) 166 CLR 69 MA, SA & HA v MA & Ors [2009] EWCA Civ 853 SBD v Chief Executive, Department of Child Safety [2007] QCA 318 Youngman v Lawson [1991] 1 NSWLR 439 COUNSEL: The First and Second Appellants appeared self represented Mr C Munro for the Respondent SOLICITORS: The First and Second Appellants appeared self represented Crown Solicitor for the Respondent Introduction [1] On 15 December 2010, the learned acting Magistrate at the Rockhampton Children‘s Court made orders pursuant to the Child Protection Act 1999, granting the Director General, Department of Communities (Child Safety) custody of the five children of the appellants, FKW (DOB 3 May 1998), ERW (DOB 28 May 2000), CBW (DOB 13 December 2002), AMW (DOB 31 December 2005) and RJW (DOB 21 January 2008), for a period of two years. Grounds of Appeal [2] The first and second appellants seek to appeal the decision of the learned acting Children‘s Court Magistrate on the following grounds:- (1) That the learned Magistrate (sic) erred at law in granting a child protection order of two years duration to the Department of Child Safety (sic), and (2) That the evidence as a whole was insufficient to find that the children were at risk of harm if placed with the parents. -- 2 of 14 -- 3 [3] The first and second appellants seek that the order of the learned acting Magistrate be quashed and that the five named children be returned to the first and second appellants forthwith, or in the alternative, that the child protection order made by the learned acting Magistrate be quashed, and in substitution a protective supervision order (pursuant to the Child Protection Act s.61(c)) be substituted, with provisions that the children live with the first and second appellants, but be supervised by the Department of Communities (Child Safety), and that the children consult and be supervised by a psychologist, Dr Glenyse Conrade, on a weekly basis. [4] Subsequent to the notice of appeal being lodged, the second appellant was charged with rape of the child FKW, and is subject to bail conditions which include a "no contact" provision.1 Given that charge is still proceeding through the criminal justice system, the first and second appellants concede that any order made on appeal, if the learned acting Magistrate‘s decision was set aside, could not include a provision returning the child FKW to their custody.2 Fresh Evidence [5] The issue as to whether leave should be granted to permit fresh evidence to be admitted on the appeal was considered by another District Court judge on 1 August 2011, and was refused. The ruling, however, was erronously based on Justices Act 1886 s.223, rather than Child Protection Act s.120. Child Protection Act s.120(2) provides:- "An appeal against another decision must be decided on the evidence and proceedings before the Childrens Court." Child Protection Act s.120(3) provides:- "However, the appellate court may order that the appeal be heard afresh, in whole or part." This issue was raised at the commencement of the hearing of this appeal, and I held that although the District Court judge who dealt with the "fresh evidence" had formed a conclusion based on incorrect legislation, the "conclusion seems to me to be unassailable, and for the record I form the same conclusion pursuant to s.120 of the Child Protection Act 1999".3 Accordingly, the appeal proceeded on the basis of the material placed before the learned acting Magistrate at the hearing. Legislative Provisions [6] Child Protection Act s.104 provides that ―the Children‘s Court must have regard to the principles stated in ss. 5A to 5C, to the extent the principles are relevant‖. Child Protection Act s.5A provides that ―the main principle for administering [the Child Protection Act] is that the safety, wellbeing and best interests of a child are paramount.‖ Child Protection Act s.5B sets out a series of 14 general principles,4 1 Exhibit SG3, p. 3, Affidavit of Shani Granger sworn 7 October 2011. 2 Appeal transcript, pp. 1-13, 1-14. 3 Appeal hearings transcript p. 1-5. 4 Child Protection Act 1999 s.5B(a)-(n). -- 3 of 14 -- 4 while Child Protection Act s.5C sets out additional principles for Aboriginal or Torres Strait Islander Children, which are not applicable to this appeal. [7] In a proceeding before the Children‘s Court for a child protection order, the Court is ―not bound by the rules of evidence, but may inform itself in any way it thinks appropriate‖,5 and the satisfaction required in respect of any matter by the Court is ―on the balance of probabilities‖.6 [8] Child Protection Act s.10 provides that ―a child in need of protection is a child who – (a) Has suffered harm, is suffering harm, or is at unacceptable risk of suffering harm; and (b) Does not have a parent able and willing to protect the child from the harm.‖ [9] Child Protection Act s.9 provides that harm ―to a child, is any detrimental effect of a significant nature on the child‘s physical, psychological or emotional wellbeing‖7 and that it is ―immaterial how the harm is caused‖.8 [10] Child Protection Act s. 9(3) provides that ―harm can be caused by – (a) Physical, psychological or emotional abuse or neglect"; or (b) "Sexual abuse or exploitation‖, whether that be ―a single act, omission or circumstance‖9 or ―a series or combination of acts, omissions or circumstances.‖10 [11] The Children‘s Court, before a making a child protection order, must be satisfied by the applicant of the requirements of Child Protection Act s.59(1)-(6) which relevantly provide:- ―Making of child protection order s. 59 (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— 5 Child Protection Act 1999 s. 105(1). 6 Child Protection Act 1999 s. 105(2). 7 Child Protection Act 1999 s. 9(1). 8 Child Protection Act 1999 s. 9(2). 9 Child Protection Act 1999 s. 9(4). -- 4 of 14 -- 5 (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. (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.‖ -- 5 of 14 -- 6 Child in Need of Protection [12] Despite extensive searches, there does not appear to be any authoritative judicial consideration in Queensland of the phrase ―a child in need of protection‖. It is therefore useful to have regard to the Explanatory Notes11 which state: ―Clause 10 [Child Protection Act s. 10] defines the concept of ‗a child in need of protection‘ which is used particularly in Chapter 2, Part 4. A court must find a child ‗in need of protection‘ before making a child protection order in relation to the child. The intention of the words ‗does not have a parent able and willing to protect the child from harm‘ is to limit the circumstances when the State can remove children from the custody and guardianship of their parents. If the child‘s protection can be achieved by the parents (possibly with support and help from the State), it is not warranted to make an order for the State to assume custody or guardianship of the child. This definition includes situations where the risk of harm is caused by the child‘s own actions or someone outside the home. It includes circumstances where, despite a parent's conscientious efforts and through no neglect or action on their part, the child remains exposed to risk of harm. It also includes circumstances where the parent does not have the capacity to care safely for the child despite a desire to do so, and circumstances where a child has no parent or family available to them. 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 other children indicates risk to the current child. It also includes circumstances where a child is abandoned, or where actions of the child or parent expose the child to risk of harm by others. 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.‖ Significant harm [13] The term ―significant harm‖ has been the subject of judicial decisions and academic discussion in the United Kingdom and Australia. A useful starting point is the decision of Booth J (High Court, Family Division (England and Wales) in Humberside County Council v B [1993] 1 FLR 257, to this effect:- ―Significant harm was defined by Miss Black [counsel for the first respondent], in accordance with dictionary definitions, first as being harm that the court should consider was either considerable or noteworthy or important. Then she expressed it as harm which the 11 Explanatory notes – Child Protection Bill 1998, p. 11. -- 6 of 14 -- 7 court should take into account in considering a child‘s future. I think that is a very apt and helpful submission. … The submission is made on behalf of the appellant that whether or not a child may be likely to suffer significant harm must be seen in the context of all the circumstances of the case and in relation to the particular child with whom the court is concerned. The child may be exceptionally vulnerable in one way or another. For example, if a child suffers from brittle bones then a push or a slap might be of great significance, whereas in the case of a child who does not so suffer it may be a minimal incident.‖12 [14] In assessing the likelihood of a child suffering significant harm, it was held in MA, SA & HA v MA & Ors,13 that it is necessary to demonstrate that there is ―a real possibility of significant harm‖14 and the ―harm‖ must be ―significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. It must be significant enough to enable the court to make a care order or a supervision order if the welfare of the child demands it.‖15 [15] In the Australian context, the High Court, in M v M (1988) 166 CLR 69, considered the concept of ―risk of serious harm" in an appeal from the Family Court, and held that ―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‖ … [citations deleted]. … In devising these tests the courts have endeavoured, in their efforts to protect the child‘s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the 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.‖16 [16] As the Full Court of the Family Court explained in In the marriage of R (1998) 23 Fam LR 456:17 ―There is nothing which limits that concept [contact cases alleging possible abuse as referred to in M v M (1988) 166 CLR, 69] to abuse cases, and it is a useful test in many circumstances. The court is required to chart a course which it perceives will best advance the child‘s interests. Almost invariably one would expect such a course 12Humberside County Council v B [1993] 1 FLR 257, 263 and see Chalmers v Johns [1998] ADR.L.R 09/23, para 22 (per Lord Justice Otton). In the matter of T&P (care order, residence order, sexual abuse, standard of proof) 5 April 2002, the High Court, Family Division (United Kingdom). 13 [2009] EWCA Civ 853. 14 MA, SA & HA v MA & Ors [2009] EWCA Civ 853, para 52 (per Lord Justice Ward). 15 MA, SA & HA v MA & Ors [2009] EWCA Civ 853, para 54 (per Lord Justice Ward). 16 M v M (1988) 166 CLR 69, para 25. 17 In the marriage of R (1998) 23 Fam LR 456. -- 7 of 14 -- 8 to avoid any unacceptable risk to the child‘s welfare, irrespective of how that risk might manifest itself. The risk of sexual abuse is an obvious example. However lesser risks can still be measured by the same test.‖18 [17] As Phillip Swain pointed out in an article entitled "The significance of 'significant' – when is intervention justified under child abuse reporting laws?"19, "The concept of ‗significance‘ recognises the competing interests of parent, child and community in ensuring that intervention for trifling concerns does not occur."20 Swain concludes his helpful article by setting out a series of considerations which he describes as ―critical‖ namely: (a) "the concept of ‗significant harm‘ means, in essence, that the harm be not insignificant or trivial – it needs to be shown that on the balance of probabilities there are substantial deficits in the care or development of the particular child, which are likely if unchallenged to lead to serious and long standing effects on that child; (b) there needs to be probative evidence upon which risk can be assessed, in the absence of which intervention cannot be justified even if broad welfare considerations would suggest that the child might be ‗better off‘ in an alternative care arrangement; (c) the need for probative evidence is even more acute where the concern is for the future risk to the child based on allegations that abuse or neglect has occurred in the past; (d) risk is to be assessed at the point at which protective intervention was initiated, and (e) where the issue is risk to the development of the child, an appropriate reference point is the 'similar child', but such a consideration needs to be cognisant of the particular child within his or her intellectual, social and cultural context."21 [18] In an article entitled ―Unacceptable Risk – A Return To Basics‖, John Fogarty AM observed [with reference to the High Court decision in M v M (1988) 166 CLR 69] that:- ―it essentially directs the courts to an assessment of the 'chances' of the risk occurring and the magnitude of potential harm if it did occur, and requires a balancing exercise of advantages and detriments. That is, it requires the court to identify the nature of the risk in the particular case, the degree of risk that may occur and the harm that 18 In the marriage of R (1998) 23 Fam LR 456, para 87. 19 (2000) 14 Australian Family Law Journal 1. 20 (2000) 14 Australian Family Law Journal 4. 21 (2000) 14 Australian Family Law Journal 9. -- 8 of 14 -- 9 may be caused if it does occur. It requires an evaluation of all the risks and advantages and realistic options; all to be done in the context of the best interests of the child. Where the possible harm is serious (such as sexual abuse, physical assaults or gross neglect) a minimal risk that it will occur would usually be sufficient to regard that outcome as unacceptable. And this is so even if that conclusion produces detriments such as a loss of, at least, unsupervised access between a parent and child. Where, however the apprehended detriment is of a more moderate nature (and particularly if that is combined with a low level of that risk occurring) it may be appropriate to treat that risk, against the background of other factors in the case, as ‗acceptable‘ (often subject to safeguards) because other detriments (no access; wishes of the child) outweigh it and a practical solution can be arrived at which caters in a reasonable way with all these factors. The advantage of the phrase ‗unacceptable risk‘ is that it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case, whereas words such as ‗serious‘, ‗real‘ etc may suggest a fixed standard into which the case must be placed.‖22 [19] It is clear that the relevant risk to the child (in particular where the child is not in the custody of a parent or guardian at the time of the child protection application) can be an anticipated risk rather than an actual risk. In Youngman v Lawson [1991] 1 NSWLR 439, Street CJ stated: ―It is not difficult to envisage a child being at current and immediately existing stated risk if the guardianship is incompetent or improper by reason of, inter alia, the conditional attitude of the person who has the legal dispositive power and authority over the child. I can see no necessary inconsistency between the existence of the present state of risk to the child from incompetent or improper guardianship and a current factual state of the child being, as was the child in the present case, in the immediate care of the Balmain Hospital.‖23 [20] In assessing risk, however, there should be ―something more … than a bare possibility … that some treatment, not necessarily curative, has 'to an extent' been neglected before the court takes a child from the care of the person‖ who has been a long term care giver.24 22 Fogarty, J ―Unacceptable risk – a return to basics‖ (2006) 20 AGFL 249 p.3. 23 Youngman v Lawson [1981] 1 NSWLR 439, 446. 24Dunnett v Gebers & Anor; ex parte Dunnett [1997] QCA 56 (per McPherson JA), p.4. -- 9 of 14 -- 10 Appeals [21] The appeal against a child protection order ―must be decided on the evidence and proceedings before the Childrens Court‖25 although ―the appellate court may order that the appeal be heard afresh, in whole or part.‖26 [22] This court, in deciding an appeal from a Childrens Court magistrate, may – ―(a) confirm the decision appealed against; or (b) vary the decision appealed against; or (c) set aside the decision and substitute another decision; or (d) set aside the decision appealed against and remit the matter to the magistrate or Childrens Court that made the decision.‖27 [23] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission28 the High Court held that:- ―Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision making process [Norbis v Norbis (1986) 161 CLR 513, 518-519]. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v R (1936) 55 CLR 499 in these terms: ‗If the judge acts upon a wrong principle, if he allows extraneous 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.‘"29 [24] The right to appeal exists pursuant to Child Protection Act s. 117(2) and (given the substantive hearing occurred before a Children‘s Court Magistrate) this appeal is required to be conducted by a Children‘s Court Judge.30 No further appeal is available from the decision of a Children‘s Court Judge sitting on appeal in respect of a child protection order made by a Children‘s Court Magistrate.31 25 Child Protection Act 1999 s.120(2). 26 Child Protection Act 1999 s.120(3). 27 Child Protection Act 1999 s.121. 28 (2000) 174 ALR 585. 29 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] 174 ALR 585, 592 para 21 (per Gleeson CJ, Gaudron and Hayne JJ). 30 Child Protection Act 1999 s. 102(1). 31 CAR & CSA v Department of Child Safety [2010] QCA 165, para 14; Department of Communities (Child Safety Services) v CAR & Anor [2010] QCA 105, paras 17 and 18 (per Chesterman JA) CAR & Anor v Department of Child Safety [2010] QCA 27, para 8 per Fraser JA); CAO v Department of Child Safety & -- 10 of 14 -- 11 [25] In summary, a "child in need of protection"32 is a child who has suffered, is suffering or is at risk of suffering harm,33 whether physical, psychological, emotional,34 or from sexual abuse,35 which is significant,36 and does not have a parent able and willing to protect the child from harm.37 [26] "Significant harm" requires probative evidence, on the balance of probabilities,38 of not insignificant or trivial harm, sufficient to justify the intervention of the State to remove a child from the custody and guardianship of their parents. The risk needs to be assessed at the point at which protective intervention was initiated, and where the child is not in the parent/guardian's care at the child protection hearing, requires an examination of the anticipated risk,39 which must be more than a bare possibility of significant harm40. A child may still be exposed to a significant risk of harm "where the parent does not have the capacity to care safely for the child despite a desire to do so."41 [27] In short, a court assessing a child protection application needs to assess the nature and degree of the risk, in the context of the harm that may be caused,42 and decide whether, in the light of that assessment, the State should intervene and remove a child from the custody and guardianship of the parent(s). The hearing [28] The learned acting magistrate had before him 19 affidavits from 14 separate witnesses for the respondents and (by consent) the learned acting magistrate heard oral evidence from 10 of the 14 deponents. [29] The appellants filed affidavit material from each of them, as well as four other witnesses, and in addition to their own oral evidence (from each of the appellants), five other witnesses were called to give oral evidence, including two employees of the respondents. [30] The learned acting magistrate noted that ―the applications seemed to rely upon things such as parental alcohol abuse, excessive physical discipline, anger management, providing clear, consistent appropriate and safe parenting behaviours, lack of supervision, mismanagement and poor understanding of boundaries, consequences and positive reinforcements. Limited understanding of sexuality and setting boundaries and appropriately addressing the children‘s sexual odd Ors [2009] QCA 169, paras 16 and 17 (per Keane JA); FY & Anor v Department of Child Safety [2009] QCA 67, para 8 (per Keane JA); Cousins v HAL & Anor [2008] QCA 49, pp 7-9 (per Fraser JA); SBD v Chief Executive, Department of Child Safety [2007] QCA 318, para 18 (per Keane JA); cf KAA & Anor v Schemioneck & Anor (No. 2) [2007] QCA 449, para 21 (per Daubney J). 32 Child Protection Act 1999 s. 10. 33 Child Protection Act 1999 s. 10(a). 34 Child Protection Act 1999 s. 9(1) & (3)(a). 35 Child Protection Act 1999 s. 9(3)(b). 36 Child Protection Act 1999 s. 9(1). 37 Child Protection Act 1999 s. 10(b). 38 Child Protection Act 1999 s. 105(2). 39 Youngman v Lawson [1981] 1 NSWLR 439, 446. 40 Dunnett v Gebers & Anor; ex parte Dunnett [1997] QCA 56, p.4. 41 Explanatory notes – Child Protection Bill 1998, p. 11, Clause 10. 42 Fogarty, J ―Unacceptable risk – a return to basics‖ (2006) 20 AGFL 249 p.3. -- 11 of 14 -- 12 behaviours; parental mental health concerns, aggression towards Child Protection Services.‖43 [31] The learned acting magistrate concluded that ―it‘s sufficient for me to say that I‘m satisfied that these children are in need of care because of the emotional abuse …‖ and then posed the question ―who is able to provide that care for these children?‖44 [32] The learned acting magistrate stated that: ―important evidence which I have, and it was the same type of evidence that I had on a previous occasion [a reference to the learned acting magistrate having previously decided a temporary protection order application in relation to the same children] was that of Dr John [clinical psychologist], and Dr John‘s evidence is to the effect that the parents are not sufficient and effective in their parenting ability. On the last occasion when the matter came before the court, I think that was the deciding factor in this matter, where I found that because – through the evidence of Dr John that the parents weren‘t able to provide that proper ability to look after their children, that I made the order, and I am satisfied that that really is the case here today as well. I don‘t think the parents have improved to any great extent in their abilities to look after the emotional needs of the children. They may well have done some course back in 2008 and there may have been some other courses done to help them, but I don‘t know that it takes matters very far. There may be issues, such as alcohol and attending ATODS, I don‘t think that helps the parents very far at all. In fact, if anything, it doesn‘t help ASW at all because after having attended the ATODS, she simply broke out in relation to a drinking episode after that. I am not satisfied that the parents are able to provide the proper and adequate care and support for the children. As I have indicated, the children are in need of care.‖45 [33] In order for the appellants to succeed on this appeal, it is necessary for them to identify either legal or factual error on the part of the learned acting magistrate.46 [34] Neither in their written outline of submissions (which is a lengthy discursive overview of various factual matters and ongoing disputes with the respondent Department), nor in the oral submissions made at some length before me, have the appellants been able to identify any legal or factual error in the decision of the learned acting magistrate. [35] The learned acting magistrate reached his decision having considered the extensive written evidence contained in affidavits, as well as some 2½ days of oral evidence. 43 Decision p.3-6 44 Decision p. 3-7 45 Decision pp. 307 – 3-8. 46 House v R (1936) 55 CLR 499. -- 12 of 14 -- 13 [36] The learned acting magistrate correctly noted his obligation to consider the principles of the Act as referred to in Child Protection Act s.5;47 considered the issue of ―harm‖ pursuant to Child Protection Act s.9(3)(a)48, and took into account the relevant provisions of Child Protection Act s.59 (Making a Child Protection Order)49. The learned acting magistrate considered the types of child protection orders available pursuant to Child Protection Act s.6150. [37] The learned acting magistrate was satisfied that a case plan had been provided in respect of the children pursuant to Child Protection Act s.59(i)(b) and that he had been made aware of the children‘s wishes.51 [38] The learned acting magistrate then considered, pursuant to Child Protection Act s.59(1)(e), what were ―the least intrusive terms‖ upon which an order could be made, and accepted the respondent's submission that a protective supervision order would not give the respondent adequate ability to ensure the proper care of the children.52 He then went on to conclude that ―the least intrusive way (to ensure the proper care of the children)" was by making an order in terms of Child Protection Act s.61(d)(ii) ―granting custody of the children to the Chief Executive [Department of Communities (Child Safety)].‖53 The learned acting magistrate was not satisfied that 12 months was a sufficient period of time for that order and accordingly made an order for a period of two years in respect of each of the five children the subject of the application.54 [39] I have no difficulty in accepting the proposition that the appellants love their children, and have been deeply distressed throughout the period in which the children have been in the care of the respondent. So much is plain from the proceedings before the learned acting magistrate, and in the appeal proceedings before me. [40] I have considered all the material placed before the learned acting magistrate, and the full transcript of the hearing. After perusing all that material, I am satisfied that each of the children ―has suffered harm‖, and ―is at unacceptable risk of suffering harm‖ if returned to the custody of the appellants55, such harm being, in particular, detrimental effects ―of a significant nature‖ to each of the children‘s ―psychological or emotional well being.‖56 Given the unacceptable risk that each of these children will suffer harm in the future, and although I accept that the appellants are each parents who are quite willing to protect the children from harm57, it is clear that the learned acting magistrate was not persuaded (and I accept there was no error that he was not so persuaded) that neither of the appellants are currently ―able‖58 to protect their children from harm as defined in Child Protection Act s.9. 47 Decision p.3. 48 Decision p.3. 49 Decision p.3. 50 Decision p.3. 51 Child Protection Act 1999 s.59(1)(d); Decision p. 3-8. 52 Decision p.3-8. 53 Decision p.3-9. 54 Decision p.3-9. 55 Child Protection Act 1999 s.10. 56 Child Protection Act 1999 s.9(1). 57 Child Protection Act 1999 s.10(b). 58 Child Protection Act 1999 s.10(d). -- 13 of 14 -- 14 [41] The learned acting magistrate has not, in my view, committed any error of law in reaching his conclusion. He could usefully have traversed the facts, and his findings in respect of the facts, in more detail, but the relatively brief reasons do not amount to a failure to provide reasons. 59 Conclusion [42] It follows that the appeals by each of the appellants must be dismissed in respect of each of the five children the subject of the appeal. 59 Drew v Makita (Australia) Pty Ltd [2009] QCA 66, para's 57-64 (per Muir JA). -- 14 of 14 --