CAR & Anor v Department of Child Safety [2010] QCA 27 [2011] 2 Qd R 70

SUPREME COURT OF QUEENSLAND CITATION: CAR & Anor v Department of Child Safety [2010] QCA 27 PARTIES: CAR (first applicant) CAS (second applicant) v DEPARTMENT OF CHILD SAFETY (respondent) FILE NO/S: Appeal No 1179 of 2010 DC No 101 of 2010 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 23 February 2010 DELIVERED AT: Brisbane HEARING DATE: 19 February 2010 JUDGES: Muir and Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court each concurring as to the orders made ORDERS: 1. Grant the applicants an extension of time until 8 February 2010 to enable them to appeal to this Court against the orders made in the Childrens Court constituted by a judge of the District Court on 8 January 2010, allow that appeal, set aside those orders, and instead make the following orders. 2. Grant the respondent Department an extension of time until 4 pm on Friday 26 February 2010 within which to file a notice of appeal in the Childrens Court constituted by a judge of the District Court from the orders made in the Childrens Court constituted by a Magistrate on 8 January 2010. 3. Order that: (a) The order made in the Childrens Court constituted by a Magistrate on 8 January 2010 which refused the application by the respondent Department for an interim order pursuant to s 67 of the Child Protection Act 1999 (Qld) granting temporary custody of the child KVS to the Chief Executive be stayed. -- 1 of 9 -- 2 (b) Temporary custody of the child KVS be granted to the Chief Executive. (c) The applicant father not have any contact, direct or indirect, with the child, and the applicant mother not have any contact, direct or indirect, with the child other than in the presence of a person approved by the Department. (d) The orders in paragraphs (a), (b) and (c) are to remain in force until 4 pm on Friday 26 February 2010 or until such other time as may be ordered in the Childrens Court, being a time which is no later than the determination of the Department’s appeal to the Childrens Court constituted by a judge of the District Court. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATED TO CARE AND PROTECTION – PARENT’S AND CHILDREN’S RIGHT TO BE HEARD – where the Chief Executive was granted custody of the applicants’ child under a temporary assessment order – where a Magistrate of the Childrens Court refused an interim order granting the Chief Executive temporary custody – where the Department appealed against the order made by the Magistrate in an oral ex parte application in the Childrens Court constituted by a District Court judge – where the judge allowed the Department’s appeal and granted temporary custody to the Chief Executive – where the applicants appealed against the orders of the judge – where the applicant parents were not notified of the appeal – whether in the circumstances it was in the best interests of the child for the child’s parents to be given notice of proceedings – whether the applicants were denied natural justice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATED TO CARE AND PROTECTION – JURISDICTION OF THE COURTS – where the appeal is against the decision of the Childrens Court constituted by a District Court judge heard ex parte – whether s 117(2) Child Protection Act 1999 (Qld) or s 118(3) District Court of Queensland Act 1967 (Qld) provides for an appeal to the Court of Appeal from a decision of the Childrens Court – whether the applicants have a right of appeal to the Court of Appeal against the decision of the Childrens Court constituted by a judge Child Protection Act 1999 (Qld), s 6, s 26, s 29, s 46, s 58, s 61, s 67, s 99, s 104, s 105, s 117(2), s 118 District Court of Queensland Act 1967 (Qld), s 118(3) -- 2 of 9 -- 3 Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5, cited CAO v Dept of Child Safety & Ors [2009] QCA 169, followed Cousins v HAL & Anor [2008] QCA 49, followed FY & Anor v Dept of Child Safety [2009] QCA 67, cited Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17; [2003] QCA 298, cited KAA & Anor v Schemioneck & Anor (No 2) [2007] QCA 449, cited SBD v Chief Executive, Department of Child Safety [2008] 1 Qd R 474; [2007] QCA 318, cited The Commissioner of Police v Tanos (1958) 98 CLR 383; [1958] HCA 6, cited COUNSEL: The applicants appeared on their own behalf P Munro (sol) for the respondent SOLICITORS: The applicants appeared on their own behalf Crown Law for the respondent [1] MUIR JA: I agree with the reasons of Fraser JA and with his proposed orders. [2] FRASER JA: The Chief Executive of the respondent Department was granted custody of the applicants’ child KVS under a temporary assessment order made on 22 December 2009, the day that child was born. I will identify the evidence upon which the Department relied in forming the view that it was in the best interests of the child that her parents not have custody of her after I have first discussed the subsequent steps in the litigation up to this point, a preliminary point taken by the Department, and the applicants’ contention that they were denied natural justice in the Childrens Court. The proceedings before the Magistrate and in the District Court [3] On 8 January 2010 Magistrate Ryan constituting the Childrens Court in Toowoomba adjourned until 26 February 2010 the Department’s application for a child protection order seeking that long term guardianship of the child be granted to the Chief Executive under s 61 of the Child Protection Act 1999 (Qld). The Magistrate made an order for the appointment of a separate representative for the child and for a social assessment report. Relevantly to the applicants’ proposed appeal to this Court, the Magistrate refused the Department’s application for an interim order under s 67 of the Act granting the Chief Executive temporary custody of the applicants’ child for the period of the adjournment. The effect of that refusal under s 99 of the Act was to end the Chief Executive’s entitlement to custody of the child under the earlier temporary assessment order. [4] Later on 8 January, the Department made an oral, ex parte application by way of appeal in the Childrens Court constituted by a District Court judge against the Magistrate’s decision to refuse the Department’s application for temporary custody. The application was made ex parte on the ground that the applicants had earlier absconded interstate with one of their children contrary to an order made for the guardianship of that child in Western Australia. The application was heard over the telephone during the evening, so the Department’s solicitor informed this Court. Martin DCJ considered that it was appropriate to proceed ex parte, he heard and -- 3 of 9 -- 4 determined the matter, and found that the Magistrate’s decision was against the weight of the evidence and that it was not in the best interests of the child. The judge therefore allowed the Department’s appeal, set aside the decision of the Magistrate, and made the orders which the Department had originally sought, namely orders granting temporary custody of the child to the Chief Executive, directing that the child’s father not have any contact with the child, and directing that the child’s mother not have any contact with the child other than when accompanied by a person authorised by the Department. Those interim orders remain in effect until the hearing in the Childrens Court on 26 February 2010. [5] On 8 February 2010 the applicants filed an application in this Court for the necessary extension of a few days within which to appeal against those orders. The applicants seek to have the Magistrate’s decision reinstated. They also seek numerous other orders, including orders designed to ensure that extensive material said to be held by the Department and others is produced, that witnesses provide evidence personally or by video rather than by telephone, and that the applicants be granted permanent custody. I should say immediately that there is no basis for this Court considering the appropriateness of those numerous other orders, none of which could practically have been granted in the interlocutory proceedings in the Childrens Court. [6] What is in issue in this proposed appeal are the judge’s orders concerning the temporary custody of the child pending the hearing in the Childrens Court of the Department’s application for a child protection order. The effect of those orders is, however, significant. They might remain in force for a lengthy period: we were informed by the Department’s solicitor that it is contemplated that this matter will be mentioned 26 February 2010 but that the final hearing of the Department’s application will likely not occur for some considerable time after that mention. Is the applicants’ proposed appeal to this Court competent? [7] The respondent Department takes a preliminary point that the proposed appeal is incompetent. The Department’s application to the Magistrate for an order granting temporary custody was an application for a “child protection order”, the definition of which in Schedule 3 of the Act includes “an interim order under section 67 in relation to a proceeding for a child protection order”. The right of appeal is given by s 117(2), which provides for an appeal to “the appellate court” against a decision on such an application. The term “appellate court” is defined in Schedule 3 to mean, relevantly: “(i) if the decision was made by the Childrens Court constituted by a judge – the Court of Appeal; or (ii) if the decision was made by the Childrens Court constituted in another way – the Childrens Court constituted by a judge …”. [8] A series of decisions in this Court (SBD v Chief Executive, Department of Child Safety [2008] 1 Qd R 474 at [18]-[21]; KAA & Anor v Schemioneck & Anor (No 2) [2007] QCA 449 at [21]; FY & Anor v Department of Child Safety [2009] QCA 67 at [8]; CAO v Dept of Child Safety & Ors [2009] QCA 169 at [12]) has established that an appeal to this Court as “the appellate court” lies only where the decision on the original application for a child protection order is made by the Childrens Court constituted by a District Court judge. The Act contemplates only one level of -- 4 of 9 -- 5 appeal from a decision upon such an application. Further, in CAO v Dept of Child Safety & Ors, at [16] – [17], this Court concluded that s 118(3) of the District Court of Queensland Act 1967 (Qld) does not afford an avenue of applying for leave to appeal to this Court from a decision of the Childrens Court. The applicants contest that proposition. They invoke the statement by Keane JA in SBD v Chief Executive, Department of Child Safety at [21] that, “if it is the intention of the legislature that there should be no further appeal, even by way of leave under s 118(3) of the District Court of Queensland Act 1967 (Qld) from the appellate court being the Childrens Court constituted by a judge, then it would be desirable for the position to be put beyond doubt by the legislature”. That statement preceded the Court’s decisions cited above, which have made the position in that respect clear. Keane JA’s statement provides no support for the applicants’ argument. There is no reason to re-visit the consistent line of decisions in which this Court has held that there is no right of appeal to this Court in the circumstances discussed in those decisions. [9] However those decisions apply only where there has been an appeal from a Magistrate to a District Court judge constituting the Childrens Court. In this case the applicants were not given any notice of the proceeding before the judge. It would be quite remarkable if the applicants were deprived of any right of appeal from the judge’s decision, which reversed the Magistrate’s decision in their favour, after the hearing of an appeal of which the applicants were not given any notice. Nevertheless, the Department contended that this very surprising result necessarily followed from the legislation. The applicants were denied natural justice [10] The principle “audi alteram partem”, that a person against whom a claim or charge is made should be given a reasonable opportunity of appearing and presenting that person’s case in opposition to the claim or charge, has been described as a “fundamental” and “deep-rooted” principle of natural justice which is applicable to all courts: whilst that principle may be displaced by legislation, it will be displaced only by clear words.1 [11] Unsurprisingly, the cases in which the legislature has displaced that fundamental principle of natural justice are rare. One example is found in s 26 of the Act, which empowers a Magistrate to decide an application for a temporary assessment order without notice to the child’s parents. There is, however, no similar provision in the section which creates the appeal from a Magistrate’s decision on an application for temporary custody. That is perfectly understandable since, unlike temporary assessment orders which should ordinarily remain in force for no more than three days (see s 29), under s 67(2) interim temporary custody orders persist for the undefined period of any adjournment of the application for the child protection order. As I have mentioned, this might be a lengthy period. [12] Section 118 of the Act gives no encouragement to the Department’s argument. It provides that an appeal is started by filing a written notice of appeal with the registrar of the appellate court. The section goes on to provide that the appellant must serve a copy of the notice on the other persons entitled to appeal, which of 1 Cameron v Cole (1944) 68 CLR 571 per Rich J at [589]; The Commissioner of Police v Tanos (1958) 98 CLR 383 per Dixon CJ and Webb J at [395] - [396]. See also Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17 at [136] -[137]. -- 5 of 9 -- 6 course here included the applicant parents of the child. The Department was unable to identify any source of power in the judge to overlook the apparently mandatory requirements in s 118. We were referred to s 58, but it concerns only the hearing and decision of applications for child protection orders. It is not concerned even with the requirements for making an application of that kind, much less the requirements for starting an appeal. [13] The Department also invoked the statutory command in s 104 that in exercising its jurisdiction or powers the Childrens Court must regard the welfare and best interests of the child as paramount. That argument is circular since that section applies only where the court has the relevant jurisdiction or power. In any event, it is surely ordinarily in the interests of a child to ensure that the child’s parents are given notice of a proceeding concerning the custody of that child, so that their perspective and any evidence they may wish to adduce, if that is permitted under the rules, may be taken into account. There may be exceptions to that view, but the Department’s solicitor did not argue that this case was exceptional in that respect. [14] I think it quite clear that the there has been no effective appeal to the Childrens Court constituted by a judge such as to invoke the decisions of this Court upon which the Department relies for its preliminary point. That preliminary point should be rejected. Leave to appeal and the appeal [15] However, the judge’s orders concerning temporary custody of the child, which the applicants seek to challenge in their proposed appeal, were “child protection orders” since, as I have mentioned, the definition of that term encompasses interim orders under s 67. The orders the judge made were therefore amenable to appeal to this Court under s 117(2) of the Act. [16] Section 118(3) of the Act required the applicants’ notice of appeal to this Court to be filed within 28 days after the decision in the court below, subject to any discretionary extension granted under s 118(4). The applicants filed their application only a few days later, a delay which may be attributed to their status as unrepresented litigants. The Department did not advance any ground, other than the preliminary point I have rejected, for denying the applicants the short extension of time they required to bring their appeal as of right under s 117(2) the Child Protection Act 1999 (Qld). Accordingly, and for the reasons I have already given, the applicants should be given the short extension of time they require for an appeal under the Act, that appeal should be allowed, and the orders made in the Childrens Court constituted by a District Court judge on 8 January 2010 should be set aside. What orders should this Court now make? [17] The remaining question concerns what, if any, interim orders this Court should now make pending the further progress of the proceedings in the Childrens Court. [18] The judge was prepared to hear the Department’s application on an urgent basis and in circumstances in which the respondents had not been notified because of what the judge found to be “a real concern that upon notice being given the respondents may take the child out of the jurisdiction” and because s 104 of the Act required the Court to regard the welfare and the best interests of the child as paramount. -- 6 of 9 -- 7 Although I have concluded that the judge erred in determining the appeal without notice to the applicants, the evidence certainly justified the judge’s concern that the best interests of the child were served by an interim order which preserved the Chief Executive’s custody, at least pending the hearing of an appeal on notice to the applicant parents. [19] The affidavit evidence filed on behalf of the Department before the Magistrate, a copy of which was said by the District Court judge to have been given to him at the ex parte hearing of the appeal, identified in very considerable detail the numerous bases for the concerns which had provoked the Department’s application. That material included evidence to the following effect: the three older children of the applicants had been placed in care, one in Western Australia, one in South Australia, and one in this State; the applicant mother suffered a long standing mental illness which had been manifested in recent stress and "breakdowns", including thoughts of suicide; the applicant father has a very extensive criminal record which includes violent offences including violent sexual offences, offences of dishonesty, the use of false names, drug offences, escaping legal custody, and breaching a restraining order; the applicants’ relationship had been volatile and sometimes violent; though their relationship had persisted for a long time it was punctuated by the female applicant leaving the male applicant for very short periods; and at one stage the applicant mother in breach of an order made in Western Australia, took one of their children to another State, where the applicants were found with the child only when there was a report to authorities of an alleged domestic violence incident. The Department contended that these and numerous other considerations justified the view that there was an unacceptable risk that the child might suffer physical and emotional harm and neglect if left in the care of the applicants. [20] As against the Department’s extensive and detailed evidence, the only material filed on behalf of the applicants was a short affidavit, which in broad terms expressed their intention vigorously to defend their family and generally denied the assertions made against them, and a bundle of papers that the applicants argued demonstrated that they were capable of caring for their child with appropriate assistance. The applicants also undertook to work with the Department to provide care and protection for the child, and they undertook to allow Departmental officers and police to enter their residence and allow for access to the child for the purposes of supervision and protection. After the Magistrate’s decision the applicants entered into written undertakings to the same effect. However, the necessary co-operation by the Department in those undertakings was said by the Department to be impracticable, particularly because of the refusal of departmental officers to have any contact with the male applicant in view of his alleged aggressive conduct in the past. [21] The applicants argue that the Department’s evidence was hearsay, unreliable, and incorrect. However, hearsay was admissible under s 105 of the Act and there was nothing to suggest that the Department’s evidence was unreliable. The male applicant, who presented most of the oral argument for the applicants in this Court, forcefully made many additional points. It is not easy to summarise his argument, which was powerfully presented with earnestness and vigour, though in many respects the argument lacked reference to evidence which supported his assertions. I understood the principal points to be these: a previous domestic violence order as between the applicants had been revoked by a Magistrate with each of the -- 7 of 9 -- 8 applicant’s consent; there was no evidence that either applicant had ever harmed one of their children; neither had been charged with any such offence; whilst the applicant mother had on one occasion broken a condition of an order which prevented her from taking one of their children out of Western Australia, no harm came to the child and there were mitigating circumstances; what the Department asserted amounted to domestic violence between the applicants on one occasion was instead merely the result of particular difficulties suffered by the applicant mother, which had since resolved; and the applicant father had not incurred any significant conviction in the preceding decade. He certainly has an extensive and extremely concerning criminal history involving violence, but he argued that he had reformed and that his wife was now capable of caring for the very young child. He argued that there was now no risk for the child if custody were given to the applicants. He pointed out that he and his wife had not been the subject of recent assessments by the Department or a psychologist retained by the Department. I understood him to deny the Department’s contention that this was a result of any absence of cooperation by the applicants. [22] The latter point is concerning. The Department appears not to have conducted a thorough assessment of the suitability of the applicants as parents for a very long time. It may be that it was justified in that approach by perceived non-cooperation by the applicants, but that topic seems not to have been fully explored in the evidence. [23] The applicants particularly stressed their argument that the Department’s evidence was untested. However, that itself presents a serious difficulty at this stage of the proceeding. On its face the Department’s evidence justified the Department’s expressed concern that allowing the applicants to care for their child would pose unacceptable risks to her welfare and safety. In the absence of compelling evidence from the applicants, the principle, which is reflected in s 104 of the Act, that the Court should regard the welfare and best interests of the child as paramount points to this Court making interim orders which will preserve the status quo under which the Chief Executive has custody of the child until the issue can be more fully ventilated in the Childrens Court. [24] The applicant mother submitted that orders should be made granting interim custody to the applicants so that she might attempt to form a maternal bond with her child and also to enable the applicants to prove whether they are right or wrong in saying that they can look after their child. It is impossible not to sympathise with her terrible plight as a mother whose baby has been taken from her care, particularly after her three older children had also been taken from her care. Even so, her submission that the Court should make orders about the custody of a child for the purpose of creating evidence for use in a subsequent hearing, where she herself acknowledged the risk that the proposed experiment might fail, suggests that she regrettably lacks insight into what is in the best interests of her child. It may be, however, that she simply expressed herself badly because of the pressure she must have been under in making her submissions in this difficult case: for that reason, I will put this unfortunate submission to one side. [25] I have concluded that the Department’s evidence was sufficient justification for urgent, ex parte orders which continued the Chief Executive’s custody of the child, but for the reasons I gave earlier the judge should not have made an ex parte order allowing the appeal. The evidence did justify an ex parte order staying the orders -- 8 of 9 -- 9 made by the Magistrate for a short period to enable the Department’s proposed appeal to proceed on notice to the applicants. It is appropriate to make orders now which reflect that conclusion. The period within which the Department was permitted to appeal from the Magistrate’s orders has now expired, but that situation was contributed to by the applicants’ delay in bring their proposed appeal to this Court. That being so, I would extend time to enable the Department to pursue its intended appeal to the Childrens Court constituted by a judge of the District Court and grant a stay of the operation of the Magistrate’s orders pending the hearing of that appeal. Orders [26] In my opinion the Court should make the following orders: 1. Grant the applicants an extension of time until 8 February 2010 to enable them to appeal to this Court against the orders made in the Childrens Court constituted by a judge of the District Court on 8 January 2010, allow that appeal, set aside those orders, and instead make the following orders. 2. Grant the respondent Department an extension of time until 4 pm on Friday 26 February 2010 within which to file a notice of appeal in the Childrens Court constituted by a judge of the District Court from the orders made in the Childrens Court constituted by a Magistrate on 8 January 2010. 3. Order that: (a) The order made in the Childrens Court constituted by a Magistrate on 8 January 2010 which refused the application by the respondent Department for an interim order pursuant to s 67 of the Child Protection Act 1999 (Qld) granting temporary custody of the child KVS to the Chief Executive be stayed. (b) Temporary custody of the child KVS be granted to the Chief Executive. (c) The applicant father not have any contact, direct or indirect, with the child and the applicant mother not have any contact, direct or indirect, with the child other than in the presence of a person approved by the Department. (d) The orders in paragraphs (a), (b) and (c) are to remain in force until 4 pm on Friday 26 February 2010 or until such other time as may be ordered in the Childrens Court, being a time which is no later than the determination of the Department’s appeal to the Childrens Court constituted by a judge of the District Court. [27] CHESTERMAN JA: I agree with the reasons and orders proposed by Fraser JA. -- 9 of 9 --