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

2

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.

4

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.

5

[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.

6

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.

7

[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

8

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).

9

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.

14

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,

26

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.

27

[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

28

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.