Tm v Office of Children, Youth and Family Support [2007] ACTSC 5 (13 February 2007)

Last Updated: 13 February 2007

TM v OFFICE OF CHILDREN, YOUTH AND FAMILY SUPPORT [2007]

ACTSC 5 (13 December 2006)

EX TEMPORE JUDGMENT

No. SCA 24 of 2006

Judge: Crispin J

Supreme Court of the ACT

Date: 13 December 2006

IN THE SUPREME COURT OF THE )

) No. SCA 24 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: TM

Appellant

AND: OFFICE OF CHILDREN, YOUTH AND FAMILY SUPPORT

Respondent

ORDER

Judge: Crispin J

Date: 13 December 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal against orders made by the Children's Court on 22 May 2006 in the following terms.

1. That a residence order be made authorising the Chief Executive to determine where the child, Z, resides until she attains the age of 18.

2. That parental responsibility for the day-to-day long-term care, welfare and development of the child be shared between the Chief Executive and the child's father until she attains the age of 18.

3. That the Chief Executive supervise the care and protection of the child in relation to matters mentioned in the Care Plan, subject to variation until the child attains 18 years of age.

4. That the child have contact with the people at the times stated within the Care Plan filed on 11 May 2006 subject to variation from time to time, until the child attains 18 years of age.

5. The application made by the mother filed on 8 May 2006 be dismissed.

2. In dealing with the matter, Magistrate Dingwall noted that on 19 April 2005 the Court had declared Z to be a child in need of care and protection and, by consent, had made final orders for a period of two years placing the child under the Chief Executive's supervision. Orders had also been made for contact with various people at the times stated within the care plan. Dr Jarvis, who appeared for the Chief Executive, sought to have the orders amended to provide for shared parental responsibility between the Chief Executive and the father. The appellant, who is the mother of Z, filed a cross-application in which she sought an order that her daughter would reside with her and that the father have contact by agreement with the child and the mother. She also sought an order that all other orders be negated.

3. Dr Jarvis tendered a number of affidavits which recounted the history of the Department's involvement with the family and the learned Magistrate said that this material had made it clear that the child remained in need of care and protection. His Honour also observed that this had not been an issue in the case as he had understood it and that the real issue had simply been one of residence, that is, an issue as to where the child would reside. Up until November last year, she had resided with her mother. Emergency action, however, was subsequently undertaken after Z made a telephone call to the 000 number and indicated that she was fearful of remaining with her mother. The child was ultimately placed with her father on the South Coast and has been living with him since. After being taken into care and placed with her father, she was interviewed by two psychologists, Ms Henderson and Mr Inatey, and reports from those psychologists indicate that she had clearly expressed a wish to remain with her father. His Honour observed that, somewhat tragically, she had expressed a wish to have no contact with her mother at that stage.

4. Z was also separately represented in the proceedings by Mr Nimmo, who had also represented her and one or more of her brothers in the Family Court. She is now 11 years of age and apparently of average intelligence. The Magistrate concluded, in my view correctly, that she had reached an age at which her feelings about her own wellbeing should carry significant weight. Those feelings were communicated to the Court both by means of the psychological reports to which I have referred and by her own legal representative.

5. The Magistrate made the following findings about her then current position:

The current placement with her father has been thoroughly examined. Indeed, his capacity to care for her has been the subject of a number of considerations over the years. Nothing has been in the material before me that suggests that Z is in any danger residing with her father, either physically or emotionally. All reports indicate that she is happy in her current placement. She is enjoying school, an option she was denied by her mother to attend a regular school, her mother choosing instead to home school her, and I must say on the evidence before me it does not appear to have been a very satisfactory approach to educating her. And as I say, there is nothing in the evidence before me to suggest that placing her with her father places her in any danger whatsoever.

6. His Honour went on to observe that there are situations in which a child may express wishes to reside with one parent but the Court may nonetheless conclude that that person is not a suitable parent and not capable of caring for a child. He said that the appellant's objection to Z living with her father had been supported by a number of allegations concerning his capacity to care for her and his past history, but that those allegations had not been substantiated. She had expressed fear for Z if she were allowed to make her own decisions, but the basis for that fear again had not been adequately established.

7. His Honour also referred to a report of a Mr Inatey in March 2006 in which he said that the applicant presented as a highly anxious mother with significant paranoid beliefs whose capacity to care for her children had been compromised by her socialisation experience as well as some significant mental problems. There is no doubt that she loved her children and wished the best for them, but she had had difficulty in "decentring" from her own needs and focusing primarily on the emotional and psychological needs of the children.

8. His Honour concluded that Z had been forced into a situation in which she had to choose between her parents. That had been unfortunate. His Honour expressed the hope that she would be able to resume contact with her mother in time and he indicated that he was sure that the Chief Executive would attempt to encourage her to do so. His Honour concluded that the orders should be made.

9. Subsection 380(2) of the Children and Young People Act 1999 provides that a party may appeal to the Supreme Court to the making of an order under part 7 of the Act only on a question of law or on a ground of a substantial miscarriage of justice having occurred. In CD v The Chief Executive, Department of Education and Community Services, 2000 ACT SC 81, 6 October 2000, 27 Family Law Reports 19, I referred to the decision of the full court of the Federal Court of Australia in Kelly v Apps, 2000 FCA 687, and suggested that the more general appellate power of the Supreme Court provided by section 20 of the Supreme Court Act 1933 might not be excluded by this provision. Nonetheless, even if that more general power could be invoked in these circumstances, it would, of course, still be incumbent upon the appellant to demonstrate that an appealable error had occurred.

10. The grounds of appeal relied upon by the applicant are stated in the phrase, "Orders are unjust, inhumane, illegal and without consent." During the course of the discussion with the appellant in open court she made a number of submissions, alleging in particular that his Honour had erred in finding that Z had been deprived of adequate education by being taught at home and that the orders had disrupted what she described as a working family unit.

11. She relied also upon ss 10 and 11 of the Human Rights Act 2004. She and suggested that she had been treated in an inhuman and degrading way by the orders, contrary to s 10 of that Act, and further, that his Honour had failed to give sufficient weight to s 11, which provides that the family is the natural and basic unit in society and is entitled to be protected by society. She also referred to the fact that Mr Inatey had described her son K as the eldest child, and that was apparently in error.

12. I have taken into account all of the matters that she put on her behalf, but if I may say so, with respect, it seems to me that none of those are capable of demonstrating that the Magistrate fell into some error capable of vitiating his decision. The reference to home education does not seem to me to have loomed as a major factor in his Honour's decision and, in any event, it involved a factual conclusion not shown to have been erroneous.

13. The learned Magistrate did refer specifically to the provisions of the Human Rights Act, to which the appellant drew to my attention, but observed, properly in my opinion, that he was obliged to consider what would be in the best interests of the child. Indeed, he described that as the paramount consideration. It clearly was.

14. Ultimately, having carefully considered his Honour's decision in the light of the evidence available to him, I have concluded, notwithstanding the appellant's submissions, that no appealable error has been established. Accordingly, the appeal must be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 1 February 2007

Counsel for the plaintiff: Self represented litigant

Counsel for the defendant: Ms A Tonkin

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 13 December 2006

Date of judgment: 13 December 2006