CHILDRENS COURT OF QUEENSLAND - archive.sclqld.org.au
Transcript of CHILDRENS COURT OF QUEENSLAND - archive.sclqld.org.au
CHILDRENS COURT OF QUEENSLAND
CITATION: Jennifer Glover, Separate Representative v Director, Child
Protection Litigation & Ors [2016] QChC 16
PARTIES: JENNIFER GLOVER, SEPARATE REPRESENTATIVE
Appellant
v
DIRECTOR, CHILD PROTECTION LITIGATION
First Respondent
&
LA
Second Respondent
&
SL
Third Respondent
&
TL
Fourth Respondent
FILE NO/S: 1720/16
DIVISION: Childrens Court of Queensland
PROCEEDING: Appeal
DELIVERED ON: 4 November 2016
DELIVERED AT: Southport
HEARING DATE: 20 October 2016, at Brisbane
JUDGE: Bowskill QC DCJ
ORDER: The appeal is allowed. Orders proposed, as set out in
paragraph [101] of the reasons. The appellant is to provide
an order in those terms, subject to any party wishing to be
heard in relation to the wording of the orders.
CATCHWORDS: APPEAL – STANDING– CHILD PROTECTION ACT 1999
– whether a separate representative appointed under s 110 of
the Child Protection Act 1999 has standing to bring an appeal
against a decision on an application for a child protection order
under s 117 of that Act
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APPEAL – ERROR OF LAW – CHILD PROTECTION ACT
1999 – where the Childrens Court constituted by a magistrate
granted leave to amend an application from previously seeking
long term guardianship of two children, to seeking short term
custody, of one year and two years, respectively, and then
made child protection orders in those terms – where the
applicant Department and mother consented to the orders
being made without hearing further evidence, but the separate
representative did not – whether the learned Magistrate erred
in failing to give adequate reasons for the decision to make the
orders – whether the learned Magistrate failed to take into
account material considerations
APPEAL AND REHEARING – NATURE OF THE APPEAL
– CHILD PROTECTION ACT 1999 – whether the Childrens
Court constituted by a judge, exercising appellate jurisdiction,
may hear the matter afresh – whether the matter ought be
remitted to the same or a different magistrate
Child Protection Act 1999, ss 5A, 5B, 59, 61, 67, 104, 110,
117, 120, 121
Childrens Court Act 1992, ss 5, 11, 14, 18
Anderson v State of New South Wales [2016] NSWCA 86
ASD v Chief Executive, Department of Communities,
Disabilities and Child Safety Services & Anor [2013] QDC
168
Builders Licensing Board v Sperway Constructions (Syd) Pty
Ltd (1976) 135 CLR 616
CDJ v VAJ (No. 1) (1998) 197 CLR 172
Cousins v HAL & Anor [2008] QCA 49
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 29
Engelbrecht v Director of Public Prosecutions (NSW) [2016]
NSWCA 290
Fox v Percy (2003) 214 CLR 118
FY v Department of Child Safety [2009] QCA 67
GKE v EUT [2014] QDC 248
Harris v Caladine (1991) 172 CLR 84
JP v Department of Communities, Child Safety and Disability
Services [2015] Q ChC 4
KAA & Anor v Schemioneck & Anor (No 2) [2007] QCA 449
3
Pettitt v Dunkley [1971] 1 NSWLR 376
RWT v BZX [2016] QDC 246
SB v Department of Communities [2014] QChC 7
The Waterways Authority v Fitzgibbon (2005) 221 ALR 402
ZXA v Commissioner of Police [2016] QDC 248
COUNSEL: B P Dighton for the Appellant
M R Green for the First Respondent
S Jenkins, solicitor, for the Second Respondent
SOLICITORS: Legal Aid Queensland for the Appellant
Director, Child Protection Litigation for the First Respondent
Antigone Legal for the Second Respondent
Introduction
[1] On 12 April 2016 child protection orders were made under s 59 of the Child Protection
Act 1999 by the Childrens Court constituted by a Magistrate, at Beenleigh, in relation
to two children, SH (aged 9 at the time) and CH (aged 8 at the time), who are brother
and sister. The orders granted custody of SH to the chief executive for one year, and
custody of CH to the chief executive for two years.
[2] The appellant, who was appointed as the separate representative for the children under
s 110 of the Child Protection Act, has appealed against those orders, on the grounds
that:
(a) ground 1: the learned Magistrate erred in failing to give adequate reasons when
finally determining the application for a child protection order in relation to each
child; and
(b) ground 2: the learned Magistrate erred in failing to take into account material
considerations in exercising the discretion conferred by s 59 of the Child
Protection Act:
(i) by refusing to hear further and relevant evidence;
(ii) by failing to consider the medical and psychological evidence concerning
the best interests of the children;
(iii) by failing to consider the primary attachments and long term emotional
security of the children;
(iv) by failing to consider the therapeutic needs of the children and their
diagnosed disabilities.
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Standing to appeal
[3] As a preliminary issue, the second respondent, who is the children’s mother, challenged
the standing of the separate representative to bring an appeal.
[4] I dealt with this at the commencement of the hearing, and gave the following ex tempore
reasons for finding that the separate representative does have standing to bring an appeal
under s 117 of the Child Protection Act.
Ex tempore reasons given on 20 October 2006
[5] I am satisfied that the separate representative does have standing to bring this appeal.
My reasons are as follows. By notice of appeal filed on 9 May 2016, Jessica Dean, in
her capacity as separate representative, seeks to appeal against a decision and orders
made on 12 April 2016 in the Childrens Court at Beenleigh constituted by a Childrens
Court magistrate. The order made on that date was made under s 59 of the Child
Protection Act 1999 and was a child protection order concerning two children.
[6] The second respondent to the appeal, who is the mother of the children, has raised, as a
preliminary issue, the standing of the separate representative to bring this appeal. The
argument is put on the basis that under s 110 of the Child Protection Act, which is the
provision empowering the Childrens Court, if it considers it necessary in the child’s
best interests for the child to be separately represented by a lawyer, to order that the
child be separately represented by a lawyer. The submission put on behalf of the second
respondent relies upon subsection 110(6) which provides that:
“The separate representative is not a party to a proceeding on the application
but –
(a) must do anything required to be done by a party; and
(b) may do anything allowed to be done by a party.”
[7] The particular emphasis is on the opening words which expressly state that the separate
representative “is not a party to a proceeding on the application”. The second
respondent then submits that, relevantly, under section 117(2) of the Child Protection
Act, it is only:
“A party to the proceeding for an application for … a child protection order
for a child [that] may appeal to the appellate court against a decision on the
application.”
[8] In this case, because the decision was made by the Childrens Court, constituted by a
magistrate, the appellate court is appropriately this court, constituted by a judge.
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[9] The second respondent also directed my attention to the definition of “party” in schedule
3, which is in terms that:
“party, to a proceeding on an application for an order for a child, means the
child, the applicant or a respondent to the application…”
[10] However, in my view, although the separate representative is not a party to the
proceeding, as is made plain by section 110(6), it is also clear, particularly from
subsection (6)(b), that the separate representative may do anything allowed to be done
by a party. I cannot see any reason, on the basis of construction of the Child Protection
Act, why that would not include commencing an appeal under section 117(2). That is
something allowed to be done by a party. The separate representative is expressly
permitted to do anything allowed to be done by a party.
[11] That conclusion seems to be reinforced by the following things. Firstly, subsection
110(8) of the Act provides that:
“The separate representative’s role ends when -
(a) the application is decided or withdrawn; or
(b) if there is an appeal in relation to the application - the appeal is
decided or withdrawn.”
[12] So clearly it is contemplated that the separate representative’s role will continue until
the end of any appeal against a decision. Although for the second respondent it is
submitted that that ought to be interpreted only to permit the separate representative to
participate in a passive way if there is an appeal instituted by one of the parties to the
proceeding, that is inconsistent, in my view, with the express provision in subsection
110(6)(b).
[13] It is also relevant, in my view, to bear in mind that the purpose and the object of enabling
the court to appoint a separate representative for a child under section 110 is where the
court has formed the view that it is necessary in the child’s best interests for that to
occur. If that view has been formed and the appointment has been made under s 110, it
is difficult, in my view, to see why there would be justification in reading down the
terms of subsection 110(6)(b) such as to prevent that separate representative from
instituting an appeal from a decision, should she or he form the view that that is the
appropriate thing to do in a particular matter. In the circumstances, I am satisfied that
the separate representative does have standing to bring this appeal.
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Outline of the procedural history
[14] A brief outline of the procedural history of this matter is necessary to understanding the
basis for the appeal.1
[15] In March 2013 the first respondent2 made an application to the Childrens Court for a
child protection order granting long-term guardianship of the two children, SH and CH,
to their kinship carer, under s 61(f)(i) of the Child Protection Act. I was advised, in the
course of the hearing before me, that SH and CH have been cared for by their mother’s
sister, under a series of short term and interim custody orders, in CH’s case, for the
whole of his life, and in SH’s case for all but 6 months of her life.
[16] The matter was first listed for final hearing on 10 March 2014; and following a series
of adjournments and vacated hearing dates, the first day the hearing commenced was
20 April 2015 – some 2 years after the application was made.
[17] On that date, 20 April 2015, the first respondent was granted leave to amend the
application, to instead seek an order granting long term guardianship of the children to
the chief executive under s 61(f)(iii) of the Act (rather than the kinship carers). This
had apparently been preceded, in July 2014, by an affidavit filed by the first respondent,
proposing an amendment to seek guardianship orders granting custody to the chief
executive for 18 months; although in August 2014 that was changed to seeking long-
term guardianship (consistent with the amendment permitted in April 2015).
[18] There was a full day of hearing on 20 April 2015, and the matter was then adjourned
for further hearing to 10 and 13 July 2015. The matter was further heard on 10 July,
but the next date, 13 July, was vacated on the basis that more than one day would be
needed for the remainder of the evidence.
[19] The hearing then continued on 4, 5, 25 and 26 November 2015, and after that was
adjourned for further hearing to 23, 24, 25 and 26 February 2016 (which would be
approaching 3 years from the date the application was made).
[20] So prior to 23 February 2016, there had effectively been 6 days of hearing, spread over
a considerable period of time.
1 In this regard, I rely on the chronology set out in the appellant’s outline of argument, as supplemented by
the first respondent’s outline of argument. 2 When this proceeding was first commenced, in March 2013, it was on an application by Adam Waring,
Child Safety Officer, Department of Communities (Child Safety and Disability Services), as an “authorised
officer” (see s 54 of the Child Protection Act, prior to its amendment in 2016, which provided for an
authorised officer to make an application for a child protection order). In 2016, Parliament established
the role of Director, Child Protection Litigation (DCPL) (s 7, Director of Child Protection Litigation Act
2016, which commenced on 1 July 2016), whose functions include preparing and applying for child
protection orders, and conducting child protection proceedings (ss 9 and 10). By operation of s 45(2), once
that Act commenced, the Director was substituted as a party to any existing child protection proceeding,
in place of the “authorised officer” (the original applicant). But for ease of reference, in these reasons I
will simply refer to the first respondent or the DCPL as the relevant party for all purposes.
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[21] When the matter came on for further hearing on 23 February 2016, counsel for the first
respondent advised the Magistrate that the day before “the Department and the mother
reached an agreement in relation to the orders that the Department would seek and that
the mother would consent to, effectively, without admission”. The orders agreed to by
those parties were orders granting custody of SH to the chief executive for one year;
and of CH for two years. The first respondent therefore made an application to amend
his application to seek orders in those terms; and sought to have the orders made without
further hearing, subject to a further adjournment to enable a “case plan” for each child
to be prepared. The mother (the second respondent) agreed with that course (“without
admission”).
[22] The children’s separate representative objected to that course, on the basis that the
notion of consent between parties as to the appropriate orders to be made has little
relevance to any final disposition in the child protection jurisdiction because, regardless
of any agreement, a child protection order can only be made where the court is satisfied
the relevant statutory criteria under s 59 of the Act are met.
[23] The separate representative submitted that notwithstanding two parties’ agreement, the
issue to be first determined was whether the court had heard the necessary evidence in
order to make the correct and preferable decision in the exercise of the discretion
conferred by s 61 of the Act. In that regard, it was the separate representative’s position
that the court had not heard all the necessary evidence, because there were four critical
witnesses the court had not yet heard from, three of whom were experts who had
provided reports (some of which were by then quite dated), and the fourth being the
mother herself. As to the evidence of the mother, the separate representative submitted
that a significant issue in the proceeding concerned the mother’s capacity to parent
children with the developmental and behavioural challenges faced by SH and CH, and
a critical part of assessing that issue would be hearing the evidence of the mother in
responding to the concerns raised on the evidence and identifying how the health and
stability of her children could be assured while in her care.
[24] The separate representative also raised concerns about what she described as a
“fundamental shift” in the first respondent’s application – from originally seeking long
term guardianship, to now seeking custody for 1 year in relation to SH, and 2 years in
relation to CH – where there had been no evidence about:
“a. The reasons why the applicant has now assessed that an order granting
long term guardianship of the subject children to the chief executive is no
longer appropriate and desirable for the children’s protection;
b. The reasons why the applicant has now assessed that the term of the
proposed orders are appropriate and desirable to meet the children’s
protection;
c. The reasons why the proposed orders are appropriate and desirable to
meet the children’s protection despite the recommendations of the expert
reports filed by Mr Thomson, Ms Prendergast and Ms Lauren Davies, all
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of whom support an order granting long term guardianship of the children
to the chief executive;
d. The reasons why, in the applicant’s assessment reunification of the subject
children to the respondent mother’s care can be achieved within the length
of the orders now sought when reunification has been unable to be
achieved during the past nine years, during which these children have
been subject to a succession of short term and interim custody orders.”3
The Magistrate’s ruling on the application for leave to amend
[25] The Magistrate gave the following reasons for granting leave to the first respondent to
amend his application, to seek the orders agreed with the mother:
“Well, I could just tell you – I mean, I’m taken a little bit by surprise today
because, you know, the – because we’ve had a lot of evidence and the department
has been very committed to their long-term application, but during the whole
course of this application and the trial, going back to 2014, you know, orders have
been made very regularly increasing contact. That’s been my view from the very
beginning – that the mother had demonstrated that additional contact was going
to be useful in this family relationship, and I’m only – I’m not prepared for
this at the moment, but I’m just giving you my feelings.
I have felt from the evidence that I have heard over a very long time that there
has been lots of concessions made with respect to the evidence as it’s unfolded,
and even the cross-examination that you’ve conducted, Mr Dighton [counsel for
the separate representative] – the responses there have – and I think that they even
led you to making further inquiries – that there were lots of flaws in the material
that the department has relied on, and I got the feeling from what – your line of
questioning and the answers that you received that you may have also had that
feeling from the evidence as it was coming out, but I could be mistaken…
[The Magistrate made some observations about the evidence of the “team leader”
who came to give evidence, who “was not even familiar with the case”.]
[The Magistrate also made some observations about the evidence of Mr Waring
[the applicant], describing him as being “very confused”.]
… As I say, I’m not actually prepared for a – the situation as it’s unfolded
just at the moment. However, my feeling is that we have heard a substantial
amount of evidence in this matter that a lot of the matters upon which the
department was relying have been more or less discredited to a degree.
The mother did say, I think right at the very beginning – I think even before Ms
Bertone [the legal representative for the mother] was involved in the matter – that
3 Written submissions on behalf of the separate representative, dated 23 February 2016 (MFI “A” in this
proceeding).
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she would consent to short term orders. There has uncovered lots of family
difficulties in this matter which may not have been handled in a way that they
could now be handled in because of everything happened being uncovered and
being dealt with in an academic way rather than just an emotional way. It’s
accepted that emotions do run very high in these matters when the mother
unrepresented or with a long history, having been a child herself of the system
and then not getting along with Child Safety officers or people not dealing with
the mother in a way which now she might – may, in fact, be handled in a different
way because there are some very specialised problems, that – [SH] actually
wanting to be with her mother.
The incident which stands out for me is the incident where she’s – mother was
accused, virtually, of letting her [SH] run onto the road, which, really, during
cross-examination that’s nowhere near what had happened. I mean, a child on a
road is a very big concern, but that really wasn’t what happened there. The Child
Safety officer was there as well. There were other people involved. It’s come at
– after contact and, you know, it – it’s certainly not just the mother letting the
child run out on the road.
So my feeling was that as it was unpacked, the mother – and did have two other
children in her care. The mother does need support, but I think with support then
there would be a healthy relationship which could unfold. I had the feeling very
early on listening to the evidence and – that a long term order would not be
the least intrusive order that could be made in all of the circumstances, and
I’m just sharing my views with you now because I’m just working off notes.
As I said, this has come to me as a surprise.
Accepting that the department is prepared to amend their application to a two year
and a one year order actually is something I would think would be a sensible
conclusion to this matter, so I don’t have any problem in allowing an
amendment to their application. The mother has said early on she would accept
two year orders, and I think that that’s a very sensible position if the mother can
now work with the department upon a framework which will see her treated in
some special category, which I’m sure her solicitors will help her achieve.
Therefore, having been asked what – would I accept a change in the department’s
application, I actually have – I don’t have any hesitation in that. I have looked at
the separate representative’s position, but I think it does have to be moderated in
some way because so much evidence has been heard, and the situation seems to
be as clear as it can be in these difficult matters, and subject to a case plan that
would fit the orders or – and fit the particular needs of the children, I would
think that that would be the least intrusive way and the most sensible way
forward from here. I must say I think I envisaged that way back making
unsupervised contact and hoping things would improve for the family with some
10
quality time, so, yes, Mr Green [counsel for the applicant], I don’t have any… I’ll
grant you leave.”4
[26] There was then an exchange between Mr Green of counsel, for the first respondent, and
the Magistrate, in which Mr Green essentially said “I can address your Honour further
and take you to some evidence on the need for an order, but if your Honour’s satisfied
in that regard I won’t take it further”. The Magistrate responded “I’m satisfied”, “But
I won’t stop you if you want to put it on the record”.5
[27] It was made clear the Magistrate was not being asked to make the orders on that day,
“because there is no plan”, being a reference to the case plan that is required under s
59(1)(b) of the Act.
[28] Mr Green of counsel went on to make submissions about some (but not all) of the
requirements under s 59, as well as the considerations under s 5B (general principles
for ensuring the safety, wellbeing and best interests of a child). Ms Bertone, on behalf
of the mother, confirmed that whilst the mother did not necessarily concede the need
for care and protection, there was a willingness to accept the orders then proposed. Mr
Dighton of counsel, for the separate representative, did not seek to add anything further
to his written submissions (the effect of which is summarised above).
[29] The following exchange then occurred:
“BENCH: Now, does that mean I’m adjourning the matter now ---
MR GREEN: I think so, your Honour.
BENCH: --- for the purpose of case planning?
MR GREEN: If – I think – just for the record, I take it your Honour is
entertaining a willingness to make the orders that have been sought and that you
have indicated – perhaps, just for the record, if you could confirm that you are
satisfied of all the matters in section 59, but for the case plan ---
BENCH: I am.
MR GREEN: --- so that that will then alleviate the need for any further
submissions to you on any of those matters. The only submissions will need to
be on the appropriateness of the case plan, and that can be a discrete hearing that
will occur following a further family group meeting to develop that case plan.
BENCH: I think that’s a good idea, Mr Green, and I am satisfied, for the
reasons I’ve tried to summarise – that I am satisfied of all of the matters of
section 59 with respect to the children, [SH] and [CH], and that there is – they
are, at the moment, children in need of care and – except for the case plan, which
4 Transcript of proceedings on 23 February 2016 at pp 1-10 to 1-12. Emphasis added. 5 Transcript of proceedings on 23 February 2016 at p 1-16.
11
– the matter will have to be adjourned, so that the proper case planning procedures
can be undertaken.”6
[30] The matter was then adjourned, to 12 April 2016, and a further interim temporary
custody order made.
Orders made on 12 April 2016
[31] When the matter came back before the Magistrate on 12 April 2016 the representative
of the first respondent said to the Magistrate:
“I believe we’re in a position for the final orders to be made today. Those
orders will be short-term custody for [SH] to the Chief Executive for a
period of one year, and for [CH], short term custody to the Chief Executive
for a period of two years.”
[32] There was an issue raised about the mother signing the children’s passport applications,
which seems to have been unrelated to the orders being sought.
[33] A draft order was handed up by the first respondent’s representative. The representative
of the mother appearing on that day indicated “it’s by consent”. The separate
representative had not yet seen a copy of the order, and was given one after it was
handed to the Magistrate. The Magistrate said to her “I know. You don’t consent”.
[34] The Magistrate made an enquiry directly to the mother, asking “how are things going?”,
to which the mother responded “Good”. Following that, the Magistrate said “I’m happy
to sign those orders”, and that was the end of the matter on that day.
[35] There was no mention of a “case plan” for SH or CH. It is not clear to me whether or
not a case plan was filed, or was annexed to the order in relation to each child that was
handed up – but even if it was, there is nothing in the transcript to indicate the Magistrate
considered the case plan(s) – there is just no mention of such plan(s) at all.
Ground 1 of the appeal – failure to give reasons
[36] The first ground on which the appellant appeals the decision made by the Magistrate,
on the application for a child protection order in relation to each of SH and CH, is that
the learned Magistrate erred by failing to give adequate reasons when finally
determining the applications on, or at any time before, 12 April 2016.
[37] On this appeal, the first respondent accepts that the Magistrate made an error of this
kind, and that this constitutes an error of law justifying setting aside the orders made on
12 April 2016 “and a rehearing of some description”, a matter I will address later in
these reasons.
6 Emphasis added.
12
[38] The second respondent, the mother, contends no such error was made, and that her
Honour’s reasons are able to be discerned from what her Honour said on 23 February
2016.
[39] In my view, the appeal must be allowed on this ground.
[40] Section 104 of the Child Protection Act provides that:
“(1) In exercising its jurisdiction or powers, the Childrens Court must
have regard to the principles stated in sections 5A to 5C, to the
extent the principles are relevant.
(2) When making a decision under this Act, the Childrens Court must
state its reasons for the decision.”7
[41] Section 5A states that the “main principle for administering this Act is that the safety,
wellbeing and best interests of a child are paramount”. Section 5B sets out a number
of “general principles for ensuring the safety, wellbeing and best interests of a child”.
Section 5C sets out additional principles for Aboriginal or Torres Strait Islander
children, which are not said to be relevant in this case.
[42] Section 59(1) of the Act confers a discretion on the Childrens Court to make a child
protection order only if it is satisfied of the following things:
“(a) the child is a child in need of protection and the order is appropriate
and desirable for the child’s protection; and
(b) there is a case plan for the child –
(i) that has been developed or revised under part 3A; and
(ii) that is appropriate for meeting the child’s assessed
protection and care needs; and
(iii) for an order granting long-term guardianship of the child –
that includes living arrangements and contact arrangements
for the child; and
(c) if the making of the order has been contested –
(i) a conference between the parties has been held or reasonable
attempts to hold a conference have been made; or
(ii) because of exceptional circumstances, it would be
inappropriate to require the parties to hold a conference; and
7 Emphasis added.
13
(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.”
[43] I note also ss 59(3), (4) and (8), which provide:
“(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.
…
(8) Before the court extends or makes a further child protection order
granting custody or short-term guardianship of the child, the court
must have regard to the child’s need for emotional security and
stability.”
[44] The express requirement in s 104(2) for the court to state its reasons when making a
decision under the Child Protection Act reflects a fundamental obligation of the exercise
of a judicial function.8
[45] In terms of the sufficiency of reasons, the relevant principles were summarised in Drew
v Makita (Australia) Pty Ltd [2009] 2 Qd R 29 (in the reasons of Muir JA, Holmes JA,
as her Honour then was, and Daubney J, agreeing):
“[57] A court from which an appeal lies must state adequate reasons for
its decision. The failure to give sufficient reasons constitutes an error of
law.
[58] The rationale for the requirement that courts give reasons for their
decisions provides some guidance as to the extent of the reasons required.
The requirement has been explained, variously, as necessary: to avoid
leaving the losing party with ‘a justifiable sense of grievance’ through not
knowing or understanding why that party lost; to facilitate or not frustrate
a right of appeal; as an attribute or incident of the judicial process; to
afford natural justice or procedural fairness; to provide ‘the
8 Wainohu v State of New South Wales (2011) 243 CLR 181 at [55], [57] and [58] per French CJ and Kiefel
J and at [92] per Gummow, Hayne, Crennan and Bell JJ.
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foundation for the acceptability of the decision by the parties and the
public’ and to further ‘judicial accountability’.
[59] The extent to which a trial judge must expose his or her reasoning
for the conclusions reached will depend on the nature of the issues for
determination and ‘the function to be served by the giving of reasons’. For
that reason, what is required has been expressed in a variety of ways. For
example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:
‘… And, in my opinion, it will ordinarily be sufficient if – to adapt
the formula used in a different part of the law … by his reasons the
judge apprises the parties of the broad outline and constituent
facts of the reasoning on which he has acted.’
[60] McHugh JA’s view was that reasons sufficient to meet the above
requirements do not need to be lengthy or elaborate but ‘… it is
necessary that the essential ground or grounds upon which the decision
rests should be articulated’.
[61] In Strabak v Newton, Samuels JA said:
‘… What is necessary, it seems to me, is a basic explanation of the
fundamental reasons which led the judge to his conclusion.
There is no requirement, however, that reasons must incorporate an
extended intellectual dissertation upon the chain of reasoning which
authorises the judgment which is given.’
[62] Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v
Wraith, said that the decision maker:
‘… should set out his understanding of the relevant law, any
findings of fact on which his conclusions depend (especially if those
facts have been in dispute), and the reasoning processes which led
him to those conclusions.”
[63] Meagher JA in Beale v Government Insurance Office of NSW stated
these propositions:
‘… there are three fundamental elements of a statement of
reasons, which it is useful to consider. First, a judge should refer
to relevant evidence. There is no need to refer to the relevant
evidence in detail, especially in circumstances where it is clear that
the evidence has been considered. However, where certain evidence
is important or critical to the proper determination of the matter and
it is not referred to by the trial judge, an appellate court may infer
that the trial judge overlooked the evidence or failed to give
consideration to it: North Sydney Council v Ligon 302 Pty Ltd
15
(1995) 87 LGERA 435. Where conflicting evidence of a significant
nature is given, the existence of both sets of evidence should be
referred to.
Secondly, a judge should set out any material findings of fact and
any conclusions or ultimate findings of fact reached. The
obvious extension of the principle in North Sydney Council is that,
where findings of fact are not referred to, an appellate court may
infer that the trial judge considered that finding to be immaterial.
Where one set of evidence is accepted over a conflicting set of
significant evidence, the trial judge should set out his findings as to
how he comes to accept the one over the other. But that is not to
say that a judge must make explicit findings on each disputed piece
of evidence, especially if the inference as to what is found is
appropriately clear: Selvanayagam v University of the West Indies
[1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be
necessary to make findings on every argument or destroy every
submission, particularly where the arguments advanced are
numerous and of varying significance: Rajski v Bainton (Court of
Appeal, 6 September 1991, unreported).
Thirdly, a judge should provide reasons for making the relevant
findings of fact (and conclusions) and reasons in applying the
law to the facts found. Those reasons or the process of reasoning
should be understandable and preferably logical as well.’
[64] Whilst, in my respectful opinion, it would be inconsistent with
authority to apply the three ‘fundamental elements’ rigidly, and I do not
understand his Honour to be suggesting otherwise, they provide useful
guidance for a determination of the sufficiency of reasons in the general run
of cases.”9
[46] In relation to expert evidence, Muir JA at [65] endorsed with approval observations in
earlier authorities as to the need for a judicial officer to be “more explicit in giving
reasons”, requiring that they enter into the issues canvassed before them and explain
why they prefers one case over the other.
[47] In this matter, the learned Magistrate expressed no reasons at all when making the
decision, on 12 April 2016, to make the orders agreed to between the first respondent
(applicant before her Honour) and the second respondent (mother). In particular, as I
have mentioned, there was no reference made, on 12 April 2016, to whether a case plan
had been filed in the court in relation to each child; and no reference at all to whether
any case plan that may have been filed was considered, by the Magistrate, to be
appropriate for meeting the child’s assessed protection and care needs.
9 Footnotes omitted.
16
[48] Although it was argued, on behalf of the second respondent, that the Magistrate gave
sufficient reasons on 23 February 2016, such a conclusion is not, in my view, supported
by analysis of the transcript.
[49] What the Magistrate was asked to consider on 23 February 2016 was an application for
leave to amend the application, so that it no longer sought long-term guardianship
orders; but instead sought a temporary order, of 1 year in the case of SH and 2 years in
the case of CH. Her Honour did give reasons for giving leave for that amendment to
be made (which are set out at paragraph [25] above). Her Honour did, in giving those
reasons, express some views (articulated as “feelings”), which may be said to indicate
a predisposition to making the orders sought by the amended application. But she did
that in the same context as expressing surprise, and saying she was “not actually
prepared for this at the moment”, which is perfectly understandable, given the
amendment was sought to be made after 6 days of hearing extending over 3 years,
seemingly with no prior notice to her Honour.
[50] But for that very reason, that was not the occasion on which the orders were to be made
(nor could they be, because a case plan for each child was yet to be prepared).
Following that grant of leave, submissions were made, on behalf of the applicant, at the
end of which, there is the simple exchange referred to above, in which Mr Green of
counsel asked the Magistrate “just for the record” to confirm that she was satisfied of
“all the matters in section 59, but for the case plan”, to which she responded “I am”,
adding that was “for the reasons I’ve tried to summarise”, which I take to be a reference
to the reasons given for granting leave to make the amendment.
[51] That is insufficient to constitute reasons for making the decision – which was made on
12 April 2016 – to make the child protection orders in relation to SH and CH.
[52] The fact that two of the parties – the applicant and the mother – agreed on the order
sought to be made by the Magistrate, did not relieve the Magistrate of the requirement
to be satisfied of the matters in s 59(1); to take into account the factors in ss 5A and 5B;
and the obligation to give reasons imposed by s 104(2).
[53] Even if all parties had agreed to the making of the orders, it is to be expected that
something more would be said. But here, there were two parties, the children,
represented by the separate representative, appointed under the Act, that were not
consenting to the proposed orders, and who had raised important issues, as outlined in
the submissions made (in writing and orally) to the Magistrate on 23 February 2016.
Although it may be assumed, from the outcome, that the Magistrate rejected the
submissions made by the separate representative, those matters ought to have been
addressed, expressly, by the Magistrate, to expose her Honour’s reasoning process. For
example, given the issues in this matter, her Honour ought to have considered (and
explained her reasoning in relation to) whether:
(a) in the face of what appears to have been a large body of evidence already heard,
including from a number of experts, about the specific needs of SH and CH, her
Honour was satisfied the orders proposed were appropriate and desirable for each
17
child’s protection, particularly in circumstances where the children had been
diagnosed as having intellectual impairments and behavioural problems;10
(b) there was a need to hear any further evidence, including from experts who had
provided reports, which were by then quite dated, but had not yet been cross-
examined;
(c) significantly, there was a need to hear oral evidence from the mother, whose
ability and capacity to care for her two young children was plainly the subject of
serious concern and challenge in the evidence before the Magistrate;
(d) reunification of each child with their mother, in the periods of time contemplated
by the orders, could be achieved;
(e) separation of the two children, from one another, was in their best interests (in
circumstances where, as the appellant points out, there was evidence before the
Magistrate as to the “significant detrimental and harmful effect on both of them”
of being separated11); and
(f) the children’s need for emotional security and stability was met by the short term
orders then proposed.
[54] Accepting that her Honour need not necessarily have given lengthy or elaborate reasons,
and was not required to refer at length to all the evidence that was before her, she was
nevertheless required to give a basic explanation of the fundamental reasons why she
was satisfied it was appropriate to make the orders; to make reference to the matters s
59 of the Child Protection Act requires the court to be satisfied of before making a child
protection order, and explain why they were satisfied (including the reasons why one
body of evidence was preferred over another, if that is the case); and to make reference
to the principles in ss 5A and 5B, again, explaining why they support the making of the
decision.
[55] Even if a more generous view could be taken of the “reasons” given on 23 February
2016, the failure to make any reference at all on 12 April 2016 to whether there was a
case plan(s) for each child, let alone whether it was appropriate for meeting each child’s
assessed protection and care needs, is a fundamental omission.
[56] The appellant is entitled to have the decision of the Magistrate set aside on this basis.
Ground 2 of the appeal – failure to take into account material considerations
[57] By ground 2, the appellant contends that the learned Magistrate erred in failing to take
into account material considerations in exercising the discretion conferred by s 59 of
the Child Protection Act:
10 Appellant’s submissions at [24]-[25]. 11 Appellant’s submissions at [26].
18
(a) by refusing to hear further and relevant evidence;
(b) by failing to consider the medical and psychological evidence concerning the best
interests of the subject children;
(c) by failing to consider the primary attachments and long term emotional security
of the subject children; and
(d) by failing to consider the therapeutic needs of the subject children and their
diagnosed disabilities.
[58] In my view, this ground is also made out (at least in so far as (b), (c) and (d) are
concerned). As is made clear in the passage quoted above from Muir JA’s reasons in
Drew v Makita, particularly at [63], where evidence is important to the proper
determination of the matter, and it is not referred to by the decision-maker at first
instance, an appellate court may infer that the decision-maker overlooked it or failed to
give consideration to it; similarly, where findings of fact are not referred to, an appellate
court may infer that the trial judge considered such findings immaterial.
[59] Because the learned Magistrate was bound, by s 104(2) of the Act, to state the reasons
for arriving at the decision reached, the reasons actually stated are to be understood as
recording the steps that were in fact taken in arriving at that result.12 Accordingly,
where no reference is made to evidence, or matters about which the court is required to
be satisfied before a child protection order may be made, it is open to infer the evidence,
or the matters, were not considered.
[60] The Magistrate may well have been cognizant of all the evidence her Honour had heard;
and may well have had in mind the principles in ss 5A and 5B, as well as the matters
preconditioning the exercise of the discretion under s 59 – but in the absence of reasons,
which her Honour was expressly required to give, by s 104(2), that cannot be
established; nor, importantly, can the decision be tested, on appeal.13 Because no
reasons were given, it is not possible to assess whether the actual decision made was
attended by error or not. This appeal must be allowed because an error of law has been
made, by the failure to give reasons for making the decision; it is an error affecting the
judicial process.
[61] Whether the learned Magistrate erred by failing or refusing to hear “further and relevant
evidence” may be another matter. The appellant has not pressed that as a ground in its
own right – as opposed to pressing it as part of this ground 2, which makes a different
point (namely, that it is open to infer the Magistrate failed to take into account certain
matters, because of the insufficiency of reasons given). Given the view I have taken
about ground 1, and what I understand to be the crux of ground 2, it is unnecessary for
me to say more about this.
12 The Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at [130]; Anderson v State of New South Wales
[2016] NSWCA 86 at [62]. 13 Pettitt v Dunkley [1971] 1 NSWLR 376 at 388.
19
[62] The appeal will be allowed.
What are the appropriate orders to be made?
[63] The appellant seeks orders setting aside the decision made on 12 April 2016, and that
the matter be “remitted”, not to the Childrens Court that made the decision (being the
Childrens Court constituted by the particular Magistrate that made the decision, or the
Childrens Court constituted by another magistrate), but to this Court (the Childrens
Court constituted by a judge), in its original jurisdiction.
[64] The first respondent submitted that I could, and ought to, proceed by way of what was
called a “bifurcated hearing”, dealing with the appellant’s appeal, first, under s 120(2),
by way of an appeal in the strict sense and, if satisfied (as the first respondent conceded
I should be) an error of law has been made, then proceeding to “hear the appeal afresh”
under s 120(3) – effectively, hear the matter afresh.14
[65] The second respondent opposed the decision being set aside, but submitted that if I was
to allow the appeal, and set the decision aside, the matter ought to be remitted to the
same Magistrate, for further hearing.
[66] In order to address these competing arguments, it is necessary to analyse the relevant
provisions of the Child Protection Act.
The nature of an appeal under s 117
[67] Section 117 of the Child Protection Act sets out who may appeal from various types of
decisions or orders. The appellate court to which an appeal lies depends on the nature
of the decision, and who made it.15 For a decision on an application for a child
protection order, if the decision was made by the Childrens Court constituted by a judge,
the appellate court is the Court of Appeal;16 but for such a decision made by the
Childrens Court constituted in another way (relevantly, by a Childrens Court
magistrate17), the appellate court is the Childrens Court constituted by a judge.
[68] Section 120 of the Child Protection Act provides for the “hearing procedures” for
appeals under s 117, as follows:
14 The first respondent handed up a draft order which indicated how it intended this could be achieved, which
includes the filing of an amended application for a child protection order for each child, and orders for the
filing by each party of a list of the evidence already filed below that is relied upon, identification of the
parts of the transcript of oral evidence below relied on, and any further material relied on. 15 See the definition of “appellate court” in schedule 3 to the Child Protection Act. 16 There is settled authority to the effect that this only applies to such a decision made at first instance by a
Childrens Court constituted by a judge; not to such a decision made on an appeal to a Childrens Court
judge: see SBD v Chief Executive Department of Child Safety [2007] QCA 318; [2008] 1 Qd R 474; CAO
v Department of Child Safety [2009] QCA 169 at [12]-[14]. 17 Section 5(3) of the Childrens Court Act 1992 contemplates a Childrens Court (which is not required to be
constituted by a judge) being constituted by a Childrens Court magistrate or, if one is not available, any
magistrate or, if one is not available, 2 justices of the peace. However, under s 102(2) of the Child
Protection Act, the Childrens Court cannot be constituted by justices of the peace, when exercising its
jurisdiction to decide applications for child protection orders.
20
“(1) An appeal against a decision of a magistrate on an application for a
temporary assessment order or a temporary custody order is not
restricted to the material before the magistrate.
(2) An appeal against another decision must be decided on the evidence
and proceedings before the Childrens Court.
(3) However, the appellate court may order that the appeal be heard
afresh, in whole or part.”
[69] A right of appeal is a creature of statute; the nature of the appeal right conferred
therefore depends on construction of the statute concerned. A useful summary of the
distinction between the different senses in which the word “appeal” might be used is
found in the following passages from the reasons of McColl JA, in Engelbrecht v
Director of Public Prosecutions (NSW) [2016] NSWCA 290:
“59 An ‘appeal’ is always a creature of statute. The words ‘appeal’ and
‘rehearing’ may be used in a number of senses. Further, the word
‘rehearing’ has been used in statutes, or employed in construing
statutes, to indicate, in differing senses, the nature of the task to be
performed by an appellate court. The variable usage of these terms
is such that the precise nature of the statutory remedy of appeal
afforded to a dissatisfied litigant, and the procedures attendant upon
it, will ultimately depend upon the provisions of the statute creating
the right of appeal. However, the context of the term, the history of
the legislation and the surrounding circumstances will also be
relevant.
60 Broadly speaking, there is a recognised distinction between first,
appeals in the strict sense – in which the court has jurisdiction to
determine whether the decision under appeal was or was not
erroneous on the evidence and the law as it stood when the original
decision was given, secondly, appeals de novo – where the court
hears the matter afresh, may hear it on fresh material and may
overturn the decision appealed from regardless of error (appeal de
novo), and, thirdly, appeals by way of rehearing – where the court
conducts a rehearing on the materials before the primary judge in
which it is authorised to determine whether the order that is the
subject of the appeal is the result of some legal, factual or
discretionary error and, in some cases, has power to receive
additional evidence (error based appeal). In the latter case, although
the appeal is described as being ‘by way of rehearing’, it does not
call for a fresh hearing or hearing de novo [and] the court does not
hear the witnesses again.
61 One of the indicia of a rehearing function is the conferral of a
discretion on an appellate body to admit further evidence. Such a
21
power is of a remedial nature conferred ‘to facilitate the avoidance
of errors which cannot be otherwise remedied by the application of
the conventional appellate procedures’.”18
[70] There are a number of decisions of this Court, and of the District Court of Queensland
in relation to a provision in similar terms, s 168 of the Domestic and Family Violence
Protection Act 2012,19 which have held that what is contemplated by s 120(2) is an
appeal in the nature of a rehearing, on the basis of the evidence before the Childrens
Court magistrate, subject to the discretion to hear the evidence (or some of it) again, or
to receive further evidence, which is conferred by s 120(3).20
[71] Counsel for the first respondent drew my attention to the fact that a relevant factor in
the interpretation of s 168 of the Domestic and Family Violence Protection Act was the
fact that, by s 142(2) of that Act, the Uniform Civil Procedure Rules 1999 apply to
appeals under that Act; and the effect of r 785 and r 765 of the UCPR is that an appeal
to the District Court from the Magistrates Court is by way of rehearing. That was the
basis on which McGill SC DCJ concluded, in GKE v EUT [2014] QDC 248 at [2]-[3],
that an appeal to the District Court under the Domestic and Family Violence Protection
Act is an appeal by way of rehearing.
[72] There is no equivalent provision in the Child Protection Act. In so far as an appeal to
the Childrens Court constituted by a judge is concerned, part 11 of the Childrens Court
Rules 2016 contains procedural provisions regulating how to start and prepare an
appeal, but says nothing about the nature of the appeal. Those rules do not apply to the
Court of Appeal (see rr 3 and 121). Where the Court of Appeal is the appellate court
for the purposes of s 117 of the Child Protection Act, chapter 18 of the UCPR would
apply, as it does in relation to other appeals to the Court of Appeal (including r 765(1),
the effect of which is that such an appeal is by way of rehearing).
[73] Despite the fact that the word “rehearing” is not used in s 120, and that on an appeal to
this Court, under s 117 of the Child Protection Act, the general provisions of the UCPR
do not apply, in my view the construction of s 120(2) and (3) as conferring a right of
appeal to this Court by way of rehearing is the correct one.
[74] If s 120(2) were being construed in isolation, perhaps it might be concluded that what
was contemplated was an appeal in the strict sense. But it is necessary to construe s
18 References omitted. 19 The wording of s 120(3) of the Child Protection Act is also reflected in s 168(2) of the Domestic and Family
Violence Protection Act 2012, s 79(2) and s 123ZH(2) of the Police Powers and Responsibilities Act 2000
and s 246(2) of the Adoption Act 2009. 20 See for example, in relation to s 120 of the Child Protection Act, ASD v Chief Executive, Department of
Communities, Disabilities and Child Safety Services [2013] QDC 168 at [5]-[6] per Kingham DCJ; SB v
Department of Communities [2014] QChC 7 at pp 3-4 per Samios DCJ; JP v Department of Communities,
Child Safety and Disability Services [2015] Q ChC 4 at [7] per Smith DCJA. In relation to s 168 of the
Domestic Violence and Family Protection Act 2012, see GKE v EUT [2014] QDC 248 at [2]-[3] per McGill
SC DCJ; RWT v BZX [2016] QDC 246 at [2] per Devereaux SC DCJ; ZXA v Commissioner of Police [2016]
QDC 248 at [9]-[10] per Kent QC DCJ.
22
120(2) in its context, including s 120(3), which confers a discretion on the appellate
court to order that the appeal be heard afresh, in whole or in part.
[75] The discretion conferred by s 120(3) is very broad; but not such as to conclude that what
is intended is that the appellate court proceed by way of a hearing de novo.21 In a
hearing de novo, even if it be called an appeal, the court exercises original jurisdiction.22
In FY v Department of Child Safety [2009] QCA 67 the Court of Appeal (Keane JA (as
his Honour then was), Muir JA and Daubney J agreeing) rejected an argument that
proceedings before a Childrens Court judge, on an appeal under s 117, were proceedings
de novo in the Childrens Court, rather than proceedings in the “appellate court”
constituted by the judge (at [12]-[13]). In that case Keane JA observed that, in hearing
the appeal, the Childrens Court judge had not made an order under s 120(3) that “the
appeal be heard afresh”, but said “even if she had, it would not follow that her Honour
would have ceased to be the appellate court for the purposes of s 117 of the Child
Protection Act” (at [13]).23
[76] In my view, the proper construction of s 120(2), having regard to s 120(3), is that an
appeal governed by s 120(2) is an appeal by way of rehearing, with the court having a
discretion, if an application is made in this regard, to order that some or all of the
evidence be heard afresh, or for further evidence to be relied on. The very presence of
that discretion is one of the indicia that the appellate court is given a rehearing
function.24
[77] The sense in which “rehearing” is used here is that the appellate court rehears the matter,
as at the date of the appeal, not in the sense of a completely fresh hearing, but on the
basis of the record of the evidence before the court below, subject to the discretion
conferred by s 120(3).25 The appellate court is obliged to give the judgment which in
its opinion ought to have been given at first instance, observing the natural limitations
that exist in the case of any appellate court proceeding wholly or substantially on the
record.26 Within those constraints, the appellate Court is required to conduct a real
21 See also Cousins v HAL & Anor [2008] QCA 49 at p 8 per Fraser JA. 22 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620; Harris v
Caladine (1991) 172 CLR 84 at 96 per Mason CJ and Deane J, 124 per Dawson J and 164 per McHugh J. 23 Although the same form of words is used in ss 79N and 123ZH of the Police Powers and Responsibilities
Act, the context may suggest that the nature of the appeal hearing under these provisions is different. Both
of these provisions relate to appeals to the Magistrates Court against a decision of the commissioner, made
under various provisions concerned with the release of an impounded or immobilised motor vehicle. Such
a decision may appropriately be described as a decision of an administrative authority, in respect of which
different considerations apply, in determining the nature of the appeal right created by the statute, as
explained by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR
616 at 621. The Magistrate has power to confirm the decision appealed against, or set it aside and
substitute another decision that is considered appropriate; but no power to remit the matter to the original
decision-maker (s 79O and s 123ZI). So in these cases it may be appropriate to conclude that the appeal
calls for an exercise of original jurisdiction, or for a hearing de novo. I note that s 79N was the subject of
detailed consideration in Quickshelf No. 1 Pty Ltd v Queensland Police Service [2014] QMC 22. 24 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [61], and the cases there
referred to. 25 Fox v Percy (2003) 214 CLR 118 at [22]. 26 Fox v Percy at [23].
23
review of the evidence and proceedings below, and the Childrens Court magistrate’s
reasons, and make its own determination of relevant facts in issue from the evidence,
giving due respect and weight to the Magistrate’s conclusions.27 The powers of the
appellate court are, however, exercisable only where the appellant can demonstrate that,
having regard to all the evidence now before the appellate court, the order that is the
subject of the appeal is the result of some legal, factual or discretionary error.28
[78] As to the principles governing the exercise of the discretion under s 120(3), I note that
Shanahan DCJ, now the President of the Childrens Court, has previously observed that
“[t]he clear intention of the legislation is that an appeal is to be heard on the record
unless there is good reason shown for the Judge to order that it may be heard afresh”.29
[79] Some examples of cases in which the discretion, or the equivalent discretion under s
168(2) of the Domestic and Family Violence Protection Act, has been exercised
favourably are:
(a) ASD v Chief Executive, Department of Communities, Disabilities and Child Safety
Services & Anor [2013] QDC 168, an appeal under the Child Protection Act, in
which Kingham DCJ permitted some “limited further evidence” when it became
apparent “there had been a significant change of circumstances” since the
Magistrate’s decision (at [7]);
(b) TJA v TJF [2014] QDC 244, an appeal under the Domestic and Family Violence
Protection Act, in which, although it was ultimately unnecessary to decide, in
relation to an application to adduce fresh evidence on the appeal, Farr SC DCJ
foreshadowed the application of well-established principles that fresh evidence
should only be received in the most exceptional circumstances (referring to
Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at [44]), such as where the interests
of justice unequivocally demand it (referring to Ratten v The Queen (1974) 131
CLR 510 at 519);
(c) CR v CM [2015] QDC 146, also an appeal under the Domestic and Family
Violence Protection Act, in which Smith DCJA permitted fresh evidence on the
hearing of an appeal, on the basis that it was important, was obtained after the
trial, and was appropriate in the interests of justice that it be admitted (at [62]);
and
(d) DMK v CAG [2016] QDC 106, also an appeal under the Domestic and Family
Violence Protection Act, in which Morzone QC DCJ similarly dealt with an
application to admit new evidence on the appeal on the basis of “well settled
principles” (at [20]), that this ought to be reserved for special circumstances,
where the new evidence could not have been obtained with reasonable diligence
27 Fox v Percy at [25]; Rowe v Kemper [2009] 1 Qd R 247 at 253-4. 28 Allesch v Maunz (2000) 203 CLR 172 at [23] and [44]; see also Shambayati v Commissioner of Police
[2013] QCA 57 at [23] and the authorities there referred to. 29 Referred to in KAA & Anor v Schemioneck & Anor (No 2) [2007] QCA 449 at [29].
24
for use at the trial hearing; would probably have an important influence on the
result of the case, even though not decisive; and must be apparently credible
though not incontrovertible.
[80] Although it is not a matter necessary to decide in this case, I would add, for
completeness, that in considering the exercise of a statutory discretion such as is
conferred by s 120(3), it may not be appropriate to confine that to the common law rules
governing the admission of fresh evidence on an appeal; the exercise of the discretion
is appropriately governed by the subject matter, scope and purpose of the provision,
within its broader context in the Act under which it is conferred.30 This would include
the need to apply the principle as to the paramountcy of the safety, wellbeing and best
interests of the child, in considering the exercise of the discretion.31
[81] On the basis of this analysis, I do not accept the submission on behalf of the first
respondent, that it would be appropriate for me to deal with the “appeal”, under s 120(2),
and having allowed the appeal, then go on, in the exercise of the discretion conferred
by s 120(3), to hear the matter afresh. That is not what is contemplated by s 120.
Powers of this court, on an appeal under s 117
[82] Section 121 of the Child Protection Act provides that, in deciding an appeal, the
appellate court may:
(a) confirm the decision appealed against;
(b) vary the decision appealed against;
(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.
[83] In this matter, because the appeal has been brought on the basis of an error of law
affecting the judicial process – the failure to give reasons – whilst I have been asked to
set aside the decision, I have not been asked to substitute another decision (other than
by the first respondent, albeit as part of the “bifurcated process”, which I have rejected).
That is entirely appropriate because, in order to determine the appeal, it has not been
necessary to delve into, and the parties have not endeavoured to take me to, the
substance of the evidence given below.
[84] The appropriate order is, in addition to the decision being set aside, that the matter be
remitted for further hearing and determination.
30 See, by analogy, CDJ v VAJ (No. 1) (1998) 197 CLR 172 at [52]-[55] per Gaudron J; at [97], [102] and
[108] per McHugh, Gummow and Callinan JJ; and at pp 233-235 per Kirby J. 31 CDJ v VAJ, ibid, at [87] per McHugh, Gummow and Callinan JJ.
25
[85] In my view, s 121 does not give this court, in its capacity as the appellate court under s
117, power to “remit” the matter, effectively, to itself – that is, to the Childrens Court
constituted by a judge, albeit in its original jurisdiction. That is what the appellant asks
the court to do and, in a practical sense, is the effect of what the first respondent has
asked this court to do.
[86] The power under s 121(d) is to remit the matter “to the magistrate or Childrens Court
that made the decision”. Both that form of words, and the use of the word “remit”
(which, in this context, ordinarily bears the meaning of sending, or transferring, the
matter back to the body that made the decision appealed from, whether constituted by
the same, or a different decision-maker of that body) indicate that the purpose of s
121(d) is to enable the appellate court, where that is this Court, in an appropriate case,
to return the matter to the magistrate that made the decision, or the Childrens Court,
constituted by a different magistrate, for further hearing and determination according to
law.
[87] The reference in s 121(d) to “the … Childrens Court that made the decision” is, in my
view, apt to refer to either the Childrens Court constituted by a judge, or the Childrens
Court constituted by a magistrate – depending on which court is the “appellate court”.
If the appellate court is the Court of Appeal – the Childrens Court that made the decision
will be the Childrens Court constituted by a judge. But in a case such as this one, the
Childrens Court that made the decision is the Childrens Court constituted by a
magistrate.
[88] The Childrens Court Act establishes one Childrens Court; but makes provision for the
appointment, to that court, of judges of the District Court, as Childrens Court judges (s
11); and magistrates as Childrens Court magistrates (s 14). As to how the court is
constituted, that is dealt with in s 5. Section 5(2) provides that “if an Act expressly
requires the Childrens Court to be constituted by a Childrens Court judge, the court
must be constituted by either” a Childrens Court judge or, if one is not available, a
District Court judge. Section 5(3) then provides that if the Childrens Court “is not
required to be constituted by a Childrens Court judge, it may be constituted by” a
Childrens Court magistrate or, if one is not available, any magistrate or, if one is not
available, two justices of the peace. So it is apparent that, although there is one
Childrens Court, its constitution is different, depending on what is required by any
particular Act conferring jurisdiction on the Court. For that reason, in my view, when
s 121(d) of the Child Protection Act refers to “the … Childrens Court that made the
decision”, it is an appropriate construction of those words, to refer to the Childrens
Court as it was constituted when it made the decision (the subject of the appeal).
[89] Accordingly, under s 121(d), it is appropriate that the matter be remitted to the Childrens
Court constituted by either the same, or a different magistrate.
The same Magistrate? Or a different magistrate?
[90] My preliminary view, at the time of the hearing, was that the matter ought to be remitted
to the same Magistrate who made the decision. Because of the amount of evidence,
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heard over 6 days, it initially seemed to me to be more efficient for her Honour to
continue to deal with the matter, than for a different magistrate to start the matter afresh.
However, upon further reflection, for the reasons discussed below, I have come to the
view that it is preferable that the matter be remitted to the Childrens Court, constituted
by a different magistrate, at the Brisbane Magistrates Court.
[91] This matter has clearly been beset by most unfortunate delays. It was commenced in
March 2013 – some three and a half years ago. In the context of an application for
child protection orders for two young children, that is not just unfortunate, but
inconsistent with s 5B(n) of the Act, which includes as one of the general principles for
ensuring the safety, wellbeing and best interests of a child, that a delay in making a
decision in relation to a child should be avoided, unless appropriate for the child.
[92] The reasons for the delay are not entirely apparent, but in part at least it appears to have
been affected by the court below’s ability to provide hearing dates. It was suggested
to me by counsel for the appellant that this problem may be avoided, in future, if the
matter is remitted to the Childrens Court sitting in the Brisbane Magistrates Court. That
seems a reasonable submission to make. I can see no reason why, in remitting the matter
to be dealt with by the Childrens Court constituted by a magistrate, the matter is required
to be remitted to the Beenleigh Magistrates Court. As provided by s 18(1)(b) of the
Childrens Court Act, the Court may be constituted “at a place where a Magistrates Court
may be held”. Accordingly, I would regard it as open to order that the matter be remitted
to the Childrens Court, constituted by a magistrate, at Brisbane, with the intention that,
on the further hearing of this matter, as far as is reasonably practicable, further delay is
avoided.
[93] In addition, both the appellant and the first respondent indicated that there would be a
need for updated material. The appellant made the point that much of the previous
material is “now almost ancient in the context of child protection” and “couldn’t
possibly be relevant to the application, as it currently stands”, and that fresh evidence
would be necessary. That being the case, a different magistrate would not be
disadvantaged by not having heard the earlier material.
[94] In terms of the evidence already given (both in written form, and orally), there would
be nothing to stop any of the parties from seeking to rely on that, or part of it, on a
further hearing of this matter. The second respondent’s legal representative made
strident submissions about how “consistently poor and consistently woeful” the
witnesses from “the Department” were; how “compellingly bad” their evidence was,
“that in no circumstances would they give again”. It was submitted that to permit this
matter to be heard again, by a different judicial officer, “absolutely disadvantages the
mother”. But as I have said, there is no reason why any party could not refer to, and
rely on, evidence already given before the original Magistrate. If there were important
concessions made, those will be apparent from the transcript. Submissions can also be
made about the effect of that evidence.
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[95] The first respondent also submitted that the matter ought to be remitted to a different
magistrate, because it is open to infer the Magistrate has prejudged the outcome, based
on the expression of her Honour’s “feelings” about the case; her Honour saying she
didn’t have the slightest hesitation about making the orders sought by the first
respondent and agreed to by the mother; and two other passages from the transcript
which were said to support that inference as well. One of those passages I would regard
as nothing more than the Magistrate expressing frustration about an answer given by a
witness in cross-examination (suggesting conflict with a departmental officer could be
domestic violence). However, the other seems to suggest a level of involvement not
consistent with the role of a judicial officer (that her Honour might be able to raise an
issue in relation to this particular matter with the regional director of the department
directly), but I am cautious about putting too much weight on that, as it is possible her
Honour’s comments may be misconstrued. Without being critical of the Magistrate
that made the decision, the point having been raised by the first respondent, on reflection
I think it is fair to conclude that, perhaps understandably, her Honour may be perceived
to have prejudged the outcome of this matter, and therefore that it is preferable it be
remitted to another magistrate.
[96] Lastly, I note that counsel for the first respondent submitted that, given the
establishment of the office of the Director of Child Protection Litigation subsequent to
the making of the orders, and this being the “first time that the Director has looked at
this case and made a decision about how to approach the case”, there could be another
amendment to the application – to seek orders of a different kind, including to seek long
term guardianship once again; and even if this appeal had been dismissed, he indicated
the DCPL may have brought a fresh application, on the expiry of the shorter term
custody orders made on 12 April 2016.
[97] There is something extremely unsatisfactory about the entity – in whichever form it is,
the applicant as he then was (a departmental officer); or now the DCPL – that is seeking,
on behalf of the State, child protection orders in respect of these two young children,
changing its position quite so fundamentally, and regularly. But if that is to be the case,
then clearly that should be made absolutely clear by the DCPL without further delay;
and a fresh application made, rather than proceeding with this existing application.
[98] In dealing with this appeal, I have to assume the existing application will continue –
and the orders made will be in relation to that application – but I urge the DCPL to
clarify its intentions without delay, principally in the interests of the children concerned,
but also in the interests of the second respondent, the separate representative and the
Court.
Interim order
[99] Each of the appellant, the first and second respondents were in agreement that, pending
the further hearing of this matter, the existing care regime in relation to both SH and
CH ought to be maintained, and to this intent, agreed that it was appropriate for me to
make interim orders, under s 67(1)(a) of the Act, that until further order, temporary
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custody of each of SH and CH is granted to the chief executive, on the basis that their
current care arrangements will remain unchanged.
[100] I am satisfied I have the power to do that, on the basis that, as a consequence of allowing
the appeal, setting aside the decision of 12 April 2016, and remitting the matter to the
Childrens Court constituted by a magistrate, at Brisbane, the proceeding will be
adjourned until it next comes before the Court in that capacity. Although I have not
read and considered the evidence, I am satisfied it is appropriate to make these interim
orders, because both SH and CH have been cared for by their current carer for all of, or
almost all of their lives to date, and having regard to all parties’ agreement, I can be
satisfied that their safety, wellbeing and best interests are most appropriately met, at
present, by maintaining the status quo.
Orders
[101] The orders I propose to make are therefore:
(a) The appeal is allowed.
(b) The decision made by the Childrens Court Magistrate on 12 April 2016, in relation
to each of SH and CH, is set aside.
(c) The proceedings concerning each child are remitted to the Childrens Court
constituted by a different magistrate, at Brisbane, for further hearing.
(d) The proceedings concerning each child are adjourned, pending that further
hearing.
(e) Pursuant to s 67(1)(a), until further order, temporary custody of each of SH and
CH is granted to the chief executive, on the basis that their current care
arrangements are maintained.
[102] I will ask the appellant to provide an order in those terms (appropriately reflecting the
names of the parties, and the children), subject to any party wishing to be heard in
relation to the wording of the orders.