W v Watson [2002] TASSC 38

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Briscoe v Turner 128/1997; Perkins v County Court of Victoria & Ors [2000] VSCA 171; (2000) 2 VR 246, applied.

Children, Young Persons and their Family Act 1997 (Tas), ss21, 42(3) and (4), 48(1), 49, 54.

Magistrates Court (Children's Division) Act 1998 (Tas), ss12(1) and 20(3)(a).

Judgment Number: [2002] TASSC 38

1 The applicant appeals against an order varying a care and protection order made by a magistrate exercising the jurisdiction of the Magistrates Court (Children's Division) under the Children, Young Persons and their Family Act 1997, ("the Act"). The applicant's 15 year old child is the subject of the order. In these reasons I variously refer to the applicant's son as the child, the boy or the son. Consistent with the restrictions placed on the reporting of these proceedings by the Magistrates Court (Children's Division) Act 1998, s12(1) and s20(3)(a), in preparing these reasons I have endeavoured to avoid identifying people or matters in a way which might lead to the identification of the child.

2 The variation order which is the subject of this appeal was made on 13 November 2001. The relevant terms of the order as varied are:

(a) that the child be placed under the guardianship of the Secretary of the Department of Health and Human Services ("the Secretary") and the child's mother until he attains the age of 18 years;

(b) that during the period of the order, the child reside at the rehabilitation facility designated in the order ("the Launceston rehabilitation facility") or at such accommodation as may be approved by the Secretary;

(c) that the applicant have contact with the child on alternative Sundays between 10am and 3pm and on Mondays to Fridays inclusive for a total of five hours;

(d) that contact between the applicant and the child be supervised in a manner determined by the guardians in consultation with the applicant and by a person or persons who are determined by the guardians in consultation with the applicant; and

(e) that the applicant not attend at the Launceston rehabilitation facility during the period of the order.

3 A precondition to the making of a care and protection order is a finding that the child who is the subject of the order is at risk and the order was necessary to secure his or her protection. Such a finding was made in relation to the applicant's son when a care and protection order was made with the consent of the parties on 15 June 2001. In summary, the variations to the order then made which precipitated the applicant's appeal are:

* the extension of its duration from six months to until the child attains the age of 18;

* the removal of the applicant as a guardian of the child, the joint guardians now being the Secretary and the child's mother. Previously the Secretary and the child's parents were the joint guardians, with the Secretary deciding upon any matters in dispute between the parents as to the care, health, welfare or education of the child; and

* a prohibition on the applicant attending the Launceston rehabilitation facility, together with associated changes in the orders as to the applicant's contact with the child.

4 The varied order which is the subject of this appeal, was a culmination of a number of hearings initiated on 25 September 2000 by an authorised officer of the Secretary for an assessment order pursuant to the Act, s21. The transcript of the hearings that then ensued runs to 335 pages. In the course of the hearings, 16 affidavits were either exhibited or confirmed by deponents who gave evidence in person. These affidavits, together with their annexures, run to about 450 pages. What follows is extracted from this material.

5 In early 1997 the child suffered severe head injuries when struck by a motor vehicle whilst riding his bicycle. Five months after the accident, Mr John Liddell, a neurosurgeon, expressed the view that the child remained profoundly disabled and although young, was quite likely to remain severely disabled to the extent that he would almost certainly require nursing home placement for the rest of his life. In December 2000, Dr David Burke, a consultant rehabilitation medicine physician, reported that following the accident the child needed a long period of tracheostomy management of his airway and eventually required tracheal reconstruction surgery. He also developed significant problems with spasticity, particularly in his right arm and leg, with significant lower limb contractures. This required the intervention of an orthopaedic surgeon who performed a bilateral tendo-Achilles lengthening operation. The child had at that time also been diagnosed with a progressive spinal deformity. As to the child's then current status, Dr Burke said he had severe physical, speech and language cognitive deficits. Physically, he was not able to walk and he was fully wheelchair-dependent. His right arm was severely disabled and essentially non-functional, but he had reasonable function of his left upper limb although it was not normal, being affected to some degree by spasticity and tremor. He had rather more motor control of his left leg than his right; in fact he had a severe spastic paralysis of his right leg with no useful motor function. He was able, however, to undertake standing transfers using his left leg, but required the support of two people to accomplish this transfer at that time. He was able to control his electric wheelchair quite satisfactorily with his left upper limb, with the left-sided control on the wheelchair, but he tended to veer to the right in the wheelchair and occasionally he drove into the gutter if out on the street. He was somewhat impulsive in the use of his wheelchair although he had demonstrated the ability to propel the wheelchair around quite efficiently inside his residence. With respect to speech, the child was not able to speak at all except for an occasional sound. He had no useful verbal communication. His receptive function was fair but not anywhere near normal. He seemed to be able to follow commands reasonably well. He had limited ability to communicate using his computer equipment. This enabled him to communicate by speech through the computer to some extent and also to type communications. His ability to communicate, even with sophisticated equipment, was really quite limited. The child's cognitive function was clearly severely impaired. There was evidence of severe global cognitive deficits and it then being 3½ years since the child's injury, no further recovery in this function could be expected.

6 Prior to the accident the child had for several years been in the custody of the applicant. The applicant and the child's mother married in 1982, when the applicant was 49 and she was 30. They initially enjoyed a fruitful marriage, the child, who is the subject of these proceedings, being the youngest of their several children. After about 10 years of marriage there was conflict between the applicant and his wife over where they lived. Her parents were in Melbourne and she wished to move to Melbourne. The applicant refused to leave Tasmania. In 1991 the applicant's wife moved to Melbourne to live and work. The children remained with the applicant and their mother had regular access to them. In early 1995 she, without the applicant's knowledge, sought to take their children to Melbourne. She says this was because of allegations of sexual abuse made against the applicant by her eldest daughter, the applicant's step-daughter, who was then aged 14 years. The Department of Health and Human Services or its forebear ("the Department") became involved. Litigation ensued. The allegation against the applicant was not established and the applicant was awarded sole custody of his natural children. Whilst his wife returned to Melbourne, she continued to enjoy regular access to the children. Upon the child, who is the subject of these proceedings, being injured in early 1997, his mother returned from Melbourne to the family home in a rural area out of Launceston and she and the applicant immersed themselves in attending to the child's needs.

7 For four months following the accident the child was treated as an in-patient at the Royal Hobart Hospital. He was transferred from there to Rehabilitation Tasmania where he remained for a further three months. From there he moved to the Launceston rehabilitation facility which is designated as the place where the child is to reside in term (b) of the order which is the subject of this appeal. In February the child was transferred from that facility to a rehabilitation unit in a Launceston suburb ("the rehabilitation unit") where he lived alone with a full-time carer. On 23 April 2001 the child returned to the Launceston rehabilitation facility where he has resided since that date.

8 The applicant's intense interest in and attitude towards his son's treatment is well illustrated by the following extracts:

* from a letter the applicant wrote on 9 January 2001:

"After many test, MRI's, X-rays etc & 3 weeks in ICU on life support the prognosis of Dr John Liddell, Neurosurgeon & his vast army of support team was that my son would always remain in a vegetative state.

I did not accept this prognosis & set about a daily routine of exercises & massage with (my child), this invariably led to minor clashes with nurses at RHH & later at Tas Rehab where he was moved to about July 97. As a result of my routine of massaging arms, legs, feet, hands and face on the lst of Sept, 6 mths after the accident I was blessed with his first voluntary movement, 'A little smile', what joy. In the next few weeks this little smile grew to a great big smile & voluntary movements began in his left arm & leg, again I repeat 'what joy'.

October 1997, saw my son move to (the Launceston rehabilitation facility), where while he received very good personal care the vast army of OT's, Physio's, case workers etc remained pessimistic about his future, they saw a vegetable so they treated a vegetable.

It took me some months to break away from this system where the only hands on treatment my son was getting was from myself, from the army of case workers came assessments, lots of talk & many plaster casts to his arms & legs as a result of these casts he received no benefit but did get nasty pressure sores on ankles & elbows."

* from a letter dated 9 May 2000 from the applicant to Dr David Burke, with whom the applicant was in dispute about the appropriateness of a form of therapy which the applicant wanted his son to undertake:

"I now ask that you accept my credentials as a parent who has 1196 days attending my son who became an AB1 patient in 1997. I was advised then that he would always be vegetative, since those first days I have sorted & sifted all advice from the experts dismissing most of it (thank goodness), in their place I have gathered a small team of hands on people (not one letter after their name) together we have seen great progress, progress that has astounded our own GP and indeed all who know him. Progress both, physically and mentally, we are not there yet, but we will always be striving."

As can be seen from the above, the applicant has an unstinting concern for his son and is willing to challenge and look beyond any conventional treatment being offered to his son and has considerable confidence about the effectiveness of the treatment he initiated.

9 The child's mother also has an unstinting concern for his welfare. She consistently visited him whilst he was in hospital and at Rehabilitation Tasmania and visited him almost daily at the Launceston rehabilitation facility and the rehabilitation unit. In order to gain an understanding of his disabilities and be able to care for him she, in 1997, enrolled in a TAFE course where she studied disability services. She has since been employed part-time as a disability support worker. Whilst, from the outset, the child's mother has been most interested in her son's treatment, until the child became the subject of orders under the Act, the applicant made all decisions about the child's treatment without involving the child's mother.

10 Dr Andrew Jackson, general practitioner, regularly attended on the child following the accident. In October 2000 he provided a report to the Department in which he commented on the applicant's contribution to the child's progress and the applicant's attitude to some therapists in the following paragraphs:

13 As a result of extremely intensive therapy, (the child) has shown gradual but marked improvement.

14 (The child's) prognosis on transfer in 1997 would be best described as grim. All doctors including myself were pessimistic about his prospects. It was believed that (the child) would remain severely disabled, requiring 24 hours a day care. It was also believed that he would require a permanent tracheostomy, permanent feeding through a tube placed through the abdominal wall, that he would never be able to walk nor adequately communicate, and that his cognitive function had probably been reduced close to the level of vegetative functioning.

15 Two persons believed that such a pessimistic outlook was inappropriate. One was the then case manager at (the Launceston rehabilitation facility), and the other was (the child's) father.

16 A program of very intensive therapy involving multiple therapists and specialists was commenced, and we are now three years down the track.

17 (The child's) recovery has been dramatic. It is true that he remains largely confined to a wheelchair, and is dependent on others for daily care and feeding, but in every other way he has improved.

18 He is now able to communicate appropriately through non-speech vocalisation, he has a sense of humour, he is able to respond appropriately to a range of questions and stimuli, he is no longer dependent on a tracheostomy tube nor a feeding tube, and more recently I have seen him 'walk' albeit with the heavy assistance of his father. (The child) sufficiently improved such that he was able to be discharged from (the Launceston rehabilitation facility), into a suitably modified (rehabilitation unit).

19 My professional opinion is that these improvements have largely occurred as a result of the persistent unflinching devotion of the father to his child.

20 In the face of almost universal pessimism, the father has never given up hope, and has seen that his child as far as I am aware has attended all specialists, and all therapists, and then some, required for (the child's) rehabilitation.

23 (The father) early on developed strong views particularly in relation to non-medical therapists, about who may or may not have been appropriate to treat his son. However, I did not regard the development of these views as being antagonistic or detrimental to (the child's) overall rehabilitation. Rather, when (the father) felt that therapists were not doing a good enough job, or were providing therapy that appeared to be serving no useful purpose, then (the father) would say so. In some cases I agreed with (the father's) views and at other times I did not.

24 I have since come to regard (the father's) view on various therapists as something that occurs not unusually in the parents of children who have developed severe acquired brain injury. Often the parents become singularly and totally devoted to the wellbeing and care of their injured child, as has been the case with (the father). These parents self educate themselves extensively in the area of acquired brain injury, and often make recommendations and express views, which do not seem in accord with conventional medical thinking. The reason for this is not that they are not acting in the best interest of their child, but rather that they lack comprehensive medical training and experience necessary to properly evaluate the multitude of therapies and treatments available to the brain injured child."

11 The Motor Accidents Insurance Board ("the Board") which bears the substantial majority of the costs of the child's treatment, is heavily involved in the treatment the child receives. In early 2000 the applicant approached the Board about case management for his son. The Board engaged Ann Cloudsdale, an occupational therapist employed by CRS Australia, to consider the child's management. On 1 May 2000 the child was referred to her for a period of six months' case management. Her task included reporting on the child's rehabilitation to that time and making recommendations as to the child's further rehabilitation priorities.

12 In the course of her review, Ms Cloudsdale spoke to the child's mother and the applicant. The mother complained to Ms Cloudsdale that the applicant had not consulted with the mother in relation to their son's treatment and that she had been unable to contribute to decisions regarding his health and education. The mother said that she had not been made aware of the outcome of medical consultations attended by the child and had not been informed in relation to impending surgery. The mother told Ms Cloudsdale that she was seeking legal advice about going to the Family Court to get the custody order in relation to the child changed.

13 At this time the child was residing in the rehabilitation unit and his parents were residing at their home in a rural area which I estimate is about an hour's drive from Launceston. The applicant visited his son daily at the rehabilitation unit. In July 2000 the Board advised the applicant that it would no longer pay him a petrol allowance in respect of these visits. In response, the applicant wrote to the Board on 20 July 2000 and advised that as a consequence of the Board's decision, the child would be moved to the family home immediately. In his letter he referred to the need for suitable accommodation for his son to be provided at the family home, the increased cost of service providers travelling to attend on the child, and other negatives arising from the decision. He commented that the child would need to travel once and sometimes twice a day to Launceston for treatment and said that due to the time spent travelling it would be "near impossible to set a proper rehabilitation program for the child". He observed that the consequences would be quite draconian. This letter casts the applicant in an unfortunate light. Whilst the Board's decision to cut off the payment of petrol money to the applicant was undoubtedly a hardship to him, and was potentially detrimental to the child insofar as it impacted on the applicant's contact with the child, the applicant's response to that decision seems to have been motivated more by his own interests than those of the child. Plainly, it would not have been in the best interests of the child to move him to the applicant's home.

14 At about this time the applicant was also in conflict with the Board about its refusal to support him in taking his son to Queensland to obtain treatment from Mr Bernard Eppich, a man the applicant described as "the guru of therapists". The Board's refusal was based on detailed written advice it had obtained from Dr Burke who did not recommend the treatment offered by Mr Eppich for neurological disorders such as those of the child. Notwithstanding Dr Burke's advice, and the Board's refusal to support the treatment, the applicant pressed on and took the child to Queensland for a period of about four weeks in August/September 2000 to see Mr Eppich. On 7 August 2000 the applicant wrote to the Board advising that upon his son's return from Queensland he "will NOT be returning to the (Launceston rehabilitation centre) but will be returning home". After the applicant and the child had departed Tasmania to see Mr Eppich, a note, said to have been produced by the child on his computer, was located at the child's rehabilitation unit. The note contained a complaint that the applicant had touched the child's penis with his hand. The child's mother referred the note to the Department. Shortly after the applicant and the child returned from Queensland, the child's mother says she came upon the applicant masturbating the child at the rehabilitation unit. The mother immediately reported this incident to the Department. The police were contacted and they interviewed the applicant who denied masturbating the child and said that what his wife had observed was him cleaning up his son after his son had masturbated himself. Whilst no allegation in respect to the applicant's sexual misconduct referable to the child was ultimately pursued before the learned magistrate, I have referred to this allegation as it precipitated these court proceedings and goes some way towards explaining the antipathy between the applicant and his wife and the conflict between the applicant and some members of the Department. I should say there were a number of very sound reasons for not pursuing the allegation of sexual misconduct. They included independent evidence which clearly established that the child was able to masturbate himself without outside assistance and that this was an activity in which the child not infrequently indulged.

15 Upon the masturbation allegation being reported to the Department, the Secretary, via an authorised officer, applied to the court for an assessment order pursuant to the Act, s21, so as to enable the Department to interview the child in the absence of the applicant and protect the child's welfare.

16 On 26 September 2000 an interim assessment order was made with respect to the child which included an order that the custody of the child be granted to the Secretary. On the following day the applicant's wife vacated the family home taking with her their remaining children. Since that date relations between the child's parents have been most difficult and acrimonious. Court proceedings between them resulted in the wife obtaining a restraint order against the applicant which included a term that he not contact his wife.

17 The interim assessment order, as extended, was due to expire on 27 November 2000. On 23 November 2000 the Secretary, by an authorised officer, applied under the Act, s42, for a care and protection order in respect of the child for a period not exceeding 12 months. Under the cover of that application an interim order was made extending the grant of custody of the child to the Secretary until 23 March 2001. The application for a final care and protection order was heard on 14 and 16 March 2001. The following provisions of the Act are relevant to an application for a care and protection order:

"42 (3) On the application of the Secretary, the Court may make a care and protection order if -

(ii) that a care and protection order should be made to secure the care and protection of the child.

(4) A care and protection order may contain one or more of the following orders:

(a) an order requiring the child or a guardian of the child, for a specified period not exceeding 12 months, to do any specified thing or to refrain from doing any specified thing;

(b) an order granting custody of the child, for a specified period not exceeding 12 months, to one of the following persons:

(iii) the chief executive officer of a non-Government organisation that provides facilities for the residential care of children, or a person who holds a position similar in nature to that of chief execution officer in such an organisation;

(v) any other person that the Court considers appropriate in the circumstances;

(c) an order placing the child, for a specified period not exceeding 12 months, under the guardianship of the Secretary or one or 2 other persons as the Court considers appropriate in the circumstances;

(d) an order placing the child, until the child attains 18 years of age, under the guardianship of the Secretary or one or 2 other persons as the Court considers appropriate in the circumstances;

(e) an order providing for access to the child;

(f) an order providing for the way in which a person who has custody or guardianship of the child under an order of the Court is to deal with matters relating to the care, protection, health, welfare or education of the child;

(g) any other order the Court considers appropriate.

4 (1) For the purposes of this Act, a child is at risk if -

(a) the child has been, is being, or is likely to be, abused or neglected.

3 (1) In this Act, unless the contrary intention appears -

(b) physical or emotional injury or other abuse, or neglect, to the extent that -

(i) the injured, abused or neglected person has suffered, or is likely to suffer, physical or psychological harm detrimental to the person's wellbeing; or

(ii) the injured, abused or neglected person's physical or psychological development is in jeopardy -

and 'abused or neglected' has a corresponding meaning.

49 (4) The Court should not, as a general rule, consider making an order ... placing a child under guardianship until he or she attains 18 years of age unless satisfied that no other order would be appropriate in all the circumstances of the case.

54 In any proceedings under this Act, the Court must -

(a) consider the best interests of the child to be the paramount consideration;"

Consistent with the above provisions, and subject to the overriding consideration that the best interests of the child was the paramount consideration, for the court to make the care and protection order sought it had to be satisfied that the child had been, was, or was likely to be physically or emotionally injured, abused or neglected to the extent that he had been, was, or was likely to suffer physical or psychological harm detrimental to his well-being or his psychological development was in jeopardy.

18 Prior to the hearing on 14 March 2001 the solicitors for the Secretary provided the following particulars of the Secretary's case to the applicant's solicitor:

"The Secretary says that (the child) has suffered abuse or neglect as defined in that (the child) has suffered and/or is likely to suffer physical and psychological harm detrimental to his well being and further we say that (the child) has so suffered because his physical and/or psychological development is in jeopardy.

As to the particulars of those concerns I note the following matters:

1 We contend that (the father's) management of (the child) has resulted in their existing a degree of dependence upon your client which is not in (the child's) interests and that (the father's) management of (the child) has meant that (the child) has been denied the opportunity to be as independent in his life and affairs as he is capable of being.

2 (The father's) management of (the child) has resulted in (the child's) suffering social isolation.

3 (The father's) management of (the child) has been characterised by an over emphasis on (the child's) physical rehabilitation (eg walking) and a lack of emphasis on (the child's) needs in terms of education, socialisation etc.

4 (The father's) management of (the child) has meant that (the child's) educational requirements have not been properly met and nor has (the child) been given the benefit of the educational opportunities open to him.

5 (The father's) management of (the child) has been characterised by his failure to accept and/or seek relevant expert professional advice, input and assistance eg:

a Refused to allow a speech therapist to properly and fully assist (the child);

b (The father's) decision to terminate the services of (the child's) physiotherapist;

c (The father's) decision that (the child) undertake a gym program when that program was not planned or conducted by a properly qualified and experienced person;

d Failure to pursue, or adequately pursue, toilet training for (the child).

e Failure to accept advice regarding the splintage of (the child's) lower limbs in 1998 and (the father's) subsequent failure to splint (the child's) legs;

f Failure to accept conventional expert opinions as to treatment/rehabilitation for (the child) as contrasted with his acceptance or alternative therapy/treatment when it was unreasonable do to so.

g Refusal to agree to assessments being conducted to assist in the provision of a rehabilitation program for (the child)."

19 The parties before the learned magistrate were the Secretary, the applicant, the applicant's wife and the child, who was represented by a legal practitioner pursuant to the Act, s15(1)(a). When the hearing began, counsel for the Secretary tendered five affidavits sworn by Claire Gray, the attachments to which included reports from Dr David Burke, Susan Brown, a speech pathologist, Maggie McKenzie, a physiotherapist, Ann Cloudsdale, Dr Andrew Jackson and Linda Barker, an occupational therapist. An affidavit sworn by the child's mother was also tendered. Counsel for the Secretary foreshadowed calling a number of witnesses to give evidence in person. Of the foreshadowed witnesses, the following had given evidence by the time the hearing was adjourned on 16 March 2001: Susan Brown, Dr Andrew Jackson, Dr David Burke and the child's mother. Following a break in the hearing on 16 March 2001, the learned magistrate was informed that as a consequence of fruitful discussions between the parties' lawyers, there was every likelihood that the matter would settle. The hearing was adjourned until 23 March 2001 to enable the precise terms of the proposed settlement to be worked out and in order that the Court Advisory Group of Child and Family Service (North) could consider the proposal. As I understand it, this is a group of people brought together by the Department to advise the Secretary in relation to proceedings under the Act.

20 Upon the commencement of the hearing on 23 March 2001, the applicant's counsel withdrew and the learned magistrate was informed that the applicant was no longer content with the proposed settlement. There being no time then available to resume a contested hearing, the matter was adjourned until 15 June 2001. An interim care and protection order was made which included the following relevant terms:

"a) An order granting custody of the child to the secretary

c) That in the event of any disagreement between (the child's parents) as to the care, health, welfare or education of (the child) then (the child's parents) shall forthwith refer the issue or issues to the Secretary for decision and the parents are required to put into effect any decision of the Secretary as to the dispute forthwith.

d) That (the child) reside at (the Launceston rehabilitation facility) or at such other accommodation as may be approved from time to time by the Secretary.

e) That (the child's parents) not attend to (the child's) toileting, hygiene or related personal care.

f) That (the child's) general medical practitioner be a registered medical practitioner who is independent of both parents and who is first approved of by the Secretary.

g) That any medical practitioner, occupational therapist, speech pathologist, physiotherapist, neuropsychologist or other person involved in the care of (the child) upon request provide the Secretary with any information or written report as is requested as to any examination, assessment or treatment of (the child)."

21 Term (d), that the child reside at the Launceston rehabilitation facility, reflected evidence put before the learned magistrate that it was in the child's interests to move him to that facility, where he would receive social stimulation and interaction from the company of others. The same level of interaction was not available to the child at the rehabilitation unit where he resided with a full-time carer. The child had returned to that unit after his visit to Queensland to see Mr Eppich, notwithstanding the applicant's statement at that time that upon their return the child would be taken to the applicant's home. The learned magistrate canvassed the terms of the interim order he proposed making with the parties. Whilst the applicant expressed concern that the order left a lot of questions to be answered, he did not challenge the appropriateness of any particular term of the interim order.

22 When the contested hearing resumed on the morning of 15 June 2001, the learned magistrate was once again informed that the parties had agreed on a proposed settlement. The terms were outlined to the learned magistrate and the hearing adjourned until 4.15pm that day to allow time for the Court Advisory Group to consider the proposed terms and to enable the terms to be formalised. When the hearing resumed, a memorandum of the proposed order was produced which included some terms which differed from those canvassed earlier in the day before the learned magistrate. The differences included the addition of the Secretary as a joint guardian of the child, together with the child's parents, and the extension of the duration of the order from 6 months to 12 months. These differences and other aspects of the proposed order were discussed. The applicant contributed to that discussion. Changes were canvassed and agreed to. The learned magistrate would not agree to the term of the order being 12 months rather than 6 months. Eventually all parties, including the applicant, agreed to the terms of the proposed care and protection order. Upon the terms being set out in a memorandum and signed by each party, the learned magistrate made the requested order, its terms being:

"(a) That (the child) be under the joint Guardianship of (the child's parents) and the Secretary.

(b) That in the event of any disagreement between the parents of the child as to the care, health, welfare or education of (the child), the Secretary shall decide upon the matter or matters in dispute and the parents are required to put into effect any decision of the Secretary.

(c) That (the child) reside at (the Launceston rehabilitation facility) or at such other accommodation as may be approved by the Secretary.

(d) That (the child's parents) not attend to (the child's) toileting, hygiene or related personal care.

(e) That (the child's) general medical practitioner be a registered medical practitioner who is independent of both parents and who is first approved by the Secretary.

(f) That any medical practitioner, occupational therapist, speech therapist, physiotherapist, neuropsychologist or other person involved in the care, treatment or rehabilitation of (the child) upon request provide the Secretary with any information or written report as is requested as to any examination, assessment, or treatment of (the child).

(g) That (the child's parents) follow the daily recommendations of any rehabilitation plan which is decided upon pursuant to order (b) above.

(h) That (the child's) therapy is only to be done or in the presence of a professional therapist who has been first approved of by the parties.

(i) That each parent have contact with (the child) as follows:

(I) On Monday to Saturday inclusive for a maximum of 15 hours over the course of those days as co-ordinated by the Secretary's delegated officer

(II) On each alternative Sunday between 10.00 am and 3.00pm.

(III) Any contact with (the child) away from (the Launceston rehabilitation facility) be negotiated with and decided upon the Secretary's delegated officer.

(IV) at any other time to be agreed between the parties.

(j) That there be liberty to apply reserved to the parties."

23 This order is of particular importance. It was agreed to by all those who had an interest in the welfare of the child, that is, his parents, the Secretary and the lawyer representing the child. Implicit in their consent to the making of the order is an acknowledgment that the child was at risk within the meaning of that term in the Act and that the order should be made to protect the child. The evidence which had been adduced before the learned magistrate by the time he was requested to make the order included evidence to the effect that during the period when the applicant had largely taken over the management of the child, his treatment and care had been deficient in a number of ways which were detrimental to the child's welfare. Instances are evidence that:

* his feeding skills had not been adequately progressed;

* the computer system provided to facilitate his communication with others had not been sufficiently used in an interactive sense in day to day communications and defects in the system were negatively affecting the child's independence; and

* the applicant had been attempting to get the child to walk with auxiliary crutches, an activity that Maggie McKenzie, a physiotherapist, described as unsafe and inappropriate.

Concern was expressed that the child's exercise programme was not being supervised by a physiotherapist and that the equipment used was in some instances not appropriate and was not properly adjusted. The exclusion of the child's mother from participation in decisions on the child's welfare and treatment was also referred to adversely. Another matter of concern was the applicant's threat on several occasions to move the child to the applicant's home, a move which would have been highly detrimental to the child's well-being. The expert evidence emphasised the need to develop and implement a rehabilitation programme for the child. In his report dated 7 December 2000, Dr Burke said it was regrettable that the child had not received as much of an active rehabilitation programme as was required for one with such a severe multiple disability and said it was undoubted that the child would benefit from the activities of a skilled physiotherapist, occupational therapist and speech pathologist. As to the exercise programme the child was then undertaking, Dr Burke expressed the opinion that it would be a very minor part of any ongoing programme and should be under the supervision of a skilled physiotherapist. As to the ongoing programme, he said that the child should embark on an active rehabilitation programme involving specialist paediatric physiotherapy, occupational therapy and speech pathology. He expressed the opinion that there was a possibility that with a rehabilitation programme combined with other matters to which he referred, the child's function ability could be significantly improved in the future.

24 The evidence before the learned magistrate showed that the applicant had, to an extent, resisted the efforts of Ann Cloudsdale and others to develop and implement a rehabilitation programme for the child. In August 2000, the applicant told Ann Cloudsdale that there was no need for a plan which went beyond what was already intended.

25 In the light of the evidence that had been adduced, coupled with the parties' consent to the order sought, the learned magistrate had no choice but to accept that the child was at risk and that the order sought was needed to protect the child. In these circumstances it was inevitable that the order was made.

26 For sometime prior to the consent order of 16 June 2001, there had been considerable tension between the applicant and others who were also interested in the child's welfare. The applicant and his wife were in conflict. The applicant was resentful of the role that had been played by some staff of the Department in relation to the matter. He was also antagonistic towards some employees of the Board and some staff employed at the Launceston rehabilitation facility. In early 2001 the applicant refused to communicate with the officer the Secretary had authorised to bring the court proceedings. The applicant described this officer as "the angel from hell" and asserted she was sadistic and a malicious liar. The applicant wrote that the Department had waged an unrelenting war against him. The attitude of the applicant to the Department, coupled with the difficulty of achieving any agreement between the applicant and his wife in relation to the child's treatment, prompted the Department to engage an independent mediator to meet with the parents and discuss issues relating to the child's schooling, welfare, health and rehabilitation. This process was to a significant degree frustrated by a term of the restraint order which the applicant's wife had obtained against him which prohibited him from communicating with his wife. In recognition of this difficulty, the applicant's wife applied to the court to vary that order to allow her to communicate with the applicant in relation to the child. The order was appropriately varied over the opposition of the applicant. In subsequent correspondence, the applicant said that he regarded the variation of the restraint order as a last ditch stand to entrap him. The applicant referred to the Board as "this sleazy insurance company" and as to one employee of the Board he wrote that she was a pathological liar with whom he refused to have any communications. Matters such as these led the Court Advisory Group to conclude that insofar as the care and protection order made on 15 June 2001 gave the applicant joint guardianship of the child it was unworkable as the applicant was unable and unwilling to work with anyone else to make joint decisions concerning the child's welfare. In consequence, the Secretary, by an authorised officer, on 12 July 2001, applied to vary the care and protection order made on 15 June 2001 by deleting terms (a) and (b). Ultimately the variations sought involved terms as detailed in par2 of these reasons.

27 At the outset of the substantive hearing of the variation application on 6 September 2001, the learned magistrate sought to identify the issue for his determination by reference to the following observations made by the Court Advisory Group on 31 August 2001 as detailed in an affidavit before the court:

* "That (the child) has made significant gains, particularly with the beginning of regular intervention and therapy by physiotherapists, occupational therapists and speech therapists;

* That no concerns exist in relation to the mother's ability to make appropriate decisions concerning (the child's) care and rehabilitation;

* That there are significant concerns about the father's ability to make appropriate decisions about (the child's) therapy. This has been demonstrated by the significant gains that (the child) has made since the involvement of mainstream therapists who were not involved prior to September 2000 when the father controlled (the child's) rehabilitation;

* That under three-way Guardianship the Department has made every effort to invite the father to express his view about decisions and have a choice in contact arrangements however he has either not responded to these or refused to work together with the Department. It was discussed by the Court Application Group that this lack of involvement from the father since the making of the recent Interim Order, the previous hostility and abuse he directed towards the Department and its employees, and the history of conflict with (the Launceston rehabilitation facility) staff and other agencies and individuals demonstrates that the father is not able to work with others to make decisions about (the child), whether this be the Department, (the child's) mother or another agency.

* In light of this, it was determined that it would not be in the child's interests for his father to continue to have a decision-making guardianship role as it would not promote (the child's) on-going stability and progress in his rehabilitation."

28 After reading the above observations to the applicant, the learned magistrate said:

"That seems to be, correct me if I'm wrong, but that would seem to be the core matter for determination by this Court, that is whether or not you should have an ongoing role in relation to (your son's) rehabilitation. Now the Court's principle concern is to determine what is in (his) best interests. I am principally concerned, my main concern, my overriding concern, my central concern is what is in (his) best interests. Now if it happens to be the case that it is determined that it would be inimical to (the child's) interests for you to be involved in any guardianship matters to have any role in his rehabilitation then you will be excluded from such role because if that is found to be contrary or not helpful to his interests and if it is found to be the case that he would likely benefit from you not being involved then you won't be involved. You understand what is in issue here do you?"

29 Thereafter in the course of the learned magistrate's efforts to clarify the position of the parties in relation to the varied orders sought by the Secretary, it emerged that the applicant's position was that he should have the sole custody and guardianship of the child and no one else should have a say in relation to the child's rehabilitation.

30 The applicant's alleged improper sexual behaviour towards the child was not the subject of the variation application. That allegation had been dropped by the Secretary prior to the application for the care and protection order. Whilst this should have been clear to the applicant from the particulars provided by the Secretary of the basis upon which that application was pursued (see par18), it seems from the applicant's conduct in the course of the hearing of the variation application that he had difficulty accepting that this allegation had been dropped. On several occasions the learned magistrate was prompted to reiterate to the applicant that the allegation was not being pursued.

31 In support of the variation application, counsel for the Secretary relied upon the evidence already referred to and tendered affidavits sworn by Ann Cloudsdale, Helen Marshall, Dale Lutterell, four affidavits sworn by Claire Gray and two affidavits sworn by Leonie Watson, who was Claire Gray's superior. Two medical reports from Mr John Batten, an orthopaedic surgeon, were also tendered. Ms Cloudsdale, Ms Marshall, Mr Lutterell, Ms Watson and Ms Gray were called to give evidence in person.

32 Ann Cloudsdale, the occupational therapist engaged to report on the child's rehabilitation and make recommendations for his future rehabilitation priorities, gave evidence consistent with some of the observations made by the Court Advisory Group referred to in par27.

33 Mary Marshall, the manager of the Launceston rehabilitation facility, gave evidence. She has had 31 years' experience as a registered nurse. She had regular contact with the child following his move from the rehabilitation unit to the Launceston rehabilitation facility. She detailed areas in which the child had improved dramatically following that move. They included improvements in relation to dressing, feeding, drinking, overcoming dribbling, posture, incontinency, relieving his right arm contracture, using his walking frame and general behaviour. With reference to the applicant, she said he was very difficult to deal with. He yelled at staff at the facility and crowded them as he talked to them, frequently using aggressive gestures as he did so. He also inappropriately interfered with the management and care of the child. She said the applicant's behaviour caused a great deal of distress to staff. She said that the applicant denigrated staff in front of the child and gave as an instance him saying that they were nothing but bum wipers. In cross-examining Ms Marshall, the applicant queried the extent to which the child had improved in relation to dressing, but did not otherwise challenge her evidence that the child had dramatically improved following his move to the Launceston rehabilitation facility. The applicant's cross-examination did not diminish the weight of Ms Marshall's evidence about his inappropriate behaviour when he visited the facility.

34 Dale Lutterell, the Chief Executive Officer of the body which runs the Launceston rehabilitation facility, said staff at the facility had been significantly distressed by the applicant's behaviour. He described the behaviour as being aggressive towards staff, yelling at them, intimidating them, criticising them and interfering with the child's treatment. One member of staff had a period off work as a consequence of the difficulties of dealing with the applicant. Following a meeting of staff, Mr Lutterell formed the view that unless the applicant ceased visiting the facility to see his child, the child would have to be moved from the facility. Mr Lutterell advised the Department to this effect and indicated that assistance would be provided to enable the applicant to see the child away from the facility. The applicant's cross-examination of Mr Lutterell did not elicit any information which cast doubt on the reasonableness of Mr Lutterell's view that the applicant should not visit his son at the facility and the means Mr Lutterell proposed for dealing with the difficulties the facility's staff had in dealing with the applicant.

35 Leonie Watson is an employee of the Department and an authorised officer under the Act. She had become increasingly involved in the welfare of the child after the applicant refused to communicate with Claire Gray, the Departmental employee who had been directly involved with the child. Ms Watson detailed difficulties the Department and others had experienced in dealing with the applicant in relation to the child. Her evidence supports the view that the applicant is unable to work with others in making decisions about the child's rehabilitation. The applicant's cross-examination of Ms Watson was directed towards the decision-making processes within the Department and did not challenge the substance of her evidence.

36 Claire Gray, the employee of the Department who had carriage of the child's matter, holds a Bachelor of Social Work. In her affidavits she detailed her dealings with the applicant and attached a number of reports from experts in relation to the child. The overwhelming thrust of the material contained in her affidavits and the evidence she gave in person before the learned magistrate is that the applicant is not able to make appropriate decisions about the child's care and rehabilitation and the applicant is not willing to work with others to make decisions in that regard. The child has made significant gains since being moved to the Launceston rehabilitation facility and it would be detrimental to the child's welfare to move him from the facility. The applicant cross-examined Ms Gray on departmental records which he had obtained in relation to his son. It seems that his objective was to establish a conspiracy detrimental to him between the Department and the applicant's wife. He failed in that objective. The applicant also cross-examined Ms Gray on the source and basis of the information contained in her affidavits and highlighted, what was made plain in her affidavits, that is, that she did not have first hand knowledge of a great deal of the information they contained. The applicant's cross-examination of Ms Gray did not raise any doubts about the substance of her evidence.

37 Upon the close of the Secretary's case, counsel for the applicant's wife and counsel for the child indicated that their clients would not be calling any evidence. The applicant said he would give evidence and would call at least 12 witnesses. On the applicant's request, the hearing was adjourned until 5 October 2001. Upon the resumption of the hearing, the applicant said that he did not wish to go into the witness box. He tendered an affidavit which he had sworn on 2 October 2001. This affidavit does not contain any information which challenges or contradicts in any substantive way the case presented on behalf of the Secretary. The only witness called by the applicant was his wife. She had previously given evidence in person before the learned magistrate on 14 March 2001. It seems from a comment made by the applicant in the course of questioning his wife that he had called her as a witness as he was seeking to establish a conspiracy detrimental to himself between his wife and the Department. None of the responses he elicited from his wife tended to establish the existence of a conspiracy. The applicant did not lead any evidence from his wife which contradicted the case that had been presented on behalf of the Secretary.

38 At the conclusion of the evidence, the learned magistrate received submissions from the parties, including a written submission from the applicant. The learned magistrate reserved his decision and on 13 November 2001, he announced reasons for allowing the application, in the course of which reasons:

"The principal argument is between the Department and the child's father, [the applicant] who hold differing views, on the evidence at times diametrically opposed views, regarding the child's progress while in [the applicant's] care and whilst more latterly under Departmental care and further, differences concerning the best (path) to take to ensure that the child reaches maximum potential within his obviously severely restricted limitations.

Underlying these differences is what is apparently a mutual hostility between Miss Gray [the principal officer charged by the Department with the handling of the matter] and [the applicant]."

* He acknowledged the possibility that the hostility between the applicant and Ms Gray could have resulted in a particular slant being given to the evidence adduced by the Department.

"Nor was I much impressed by [the applicant] who claims the wisdom alone to know what is best for his son.

Expert evidence in certain respects roundly contradicts him as to what might be best for his son."

* He referred to some of the provisions in the Act to which I have referred earlier in these reasons and said:

"It is that latter aspect [of the Act, s3(b)(2)] upon which the Department now proceeds whereby it is alleged that [the child] in the sense in which the terms are defined in the Act falls into that category of a person being, that person, the injured, abused or neglected person whose physical or psychological development is in jeopardy.

The child is separately represented by Mr Briffa of counsel and both he and Mr Patterson of counsel for the mother, effectively support the Department's case which is that this child is abused or neglected within the meaning of the Act which would mean that unless the order be made, means that if [the child's] physical or psychological development is in jeopardy. As to that the whole of the evidence tends towards establishing that [the child] is much in need of a well thought through managed programme capable of being implemented by relevant professionals and that this programme be one that is not subject to the whims or fancies, quite frankly that [the applicant's] management of his son have tended towards involving.

In my view therefore having regard to the whole of that evidence the Department has made out is case."

39 The sole ground upon which the applicant appeals against the orders made on 13 November 2001 is that the learned magistrate erred in law in that he made no sufficient findings of fact and/or provided no sufficient statement of the reasons for his finding that the child was at risk and, his finding that it was in the best interests of the child that a care and protection order be made until the child attains the age of 18 years.

40 The course taken by the learned magistrate, coupled with the brevity of his explanation for his decision, warrant my repeating, and wholeheartedly endorsing, the following passage from Briscoe v Turner 128/1997, Underwood J at 6 - 7:

"This Court has previously expressed the desirability of reducing reserved judgments to writing. See Witte v Arnold A84/1996, Burston v Brooks A91/1996. The discipline of writing automatically sharpens the focus on the essentials of the litigation and lends to the proper expression of the necessary findings of fact. I hasten to add that I am well aware that magistrates are required to hear many cases in the course of an average week, and not only would the work load be intolerable, but the whole system would collapse if considered written reasons had to be produced in the majority of cases. I accept without question that most of the cases heard in a court of petty sessions call only for the delivery of ex tempore reasons. However, the present matter was contested vigorously over the course of a day. The applicant was represented by senior counsel and all issues of fact were fully explored. Having decided not to deliver judgment at the end of the hearing, it seems to me unfortunate that even the briefest written reasons were not put together during the period the learned magistrate had the decision under consideration."

41 The obligation of a judicial officer to provide reasons for his or her decision is well established, albeit that not every failure to do so amounts to an appealable error. As to the obligation and the consequences which flow from its breach, I refer to the following passages in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 from the decision of Meagher JA, at 441 - 442:

"The obligation to provide reasons for decision:

It is well-settled that a judge or magistrate at first instance in particular cases has an obligation to provide reasons for the judgment given: Pettitt v Dunkley [1971] 1 NSWLR 376. That obligation arises as a matter of judicial duty: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; but only as a normal, not universal incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. It does not arise from legislation as it does in the field of administrative law:

Perhaps the primary reason for an obligation on courts to provide reasons is the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law. The absence of reasons or insufficient reasons may not allow an appeal court to determine whether the trial judge's verdict was or was not based on an error of law or an appealable error. However, the provision of full reasons has other benefits.

A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost: Clutha Ltd v Risby (Court of Appeal, unreported, 26 March 1996). One reason is obvious: if decisions cannot be understood, a feeling of injustice can arise and, as Justice Brennan of the United States Supreme Court (see P Huxtable, 'A Question-Mark Over The Adversarial System' (December 1995) 30 (No 11) Australian Lawyer 17 at 18) recently perhaps overstated: '... Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down.' Aside from the sense of injustice which can be caused, there is a broader interest in maintaining public acceptance of judicial decisions and the judicial system.

The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability.

The provision of reasons has an educative effect: it exposes the trial judge or magistrate to review and criticism and it facilitates and encourages consistency in decisions. The educative effect does not stop with judges but extends to other lawyers, to government and to the public. Decisions of courts usually influence the way in which society acts and it is trite to point out that it is better to understand why one should act in a particular way.

The provision of adequate reasons will save time for appeal courts both in reducing the number of appeals and in reducing the time taken in considering any appeals."

"What is the result of an inadequate statement of reasons?

It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to these situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words. the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.

Lastly, it is noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: NSW Insurance Ministerial Corporation (formerly Government Insurance Office (NSW)) v Mesiti (Court of Appeal, unreported, 1 December 1994)."

42 Similar observations were made in Perkins v County Court of Victoria & Ors [2000] VSCA 171; (2000) 2 VR 246 by Buchanan JA at 270 - 271, par56, where he said:

"There is no general principle that a court's failure to give reasons is an error of law which vitiates the court's decision. That is not to deny the importance of the giving of reasons to the process of judicial decision-making. Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal, although even where a right of appeal exists, the nature of the decision and the circumstances of the case may require no more than a brief ruling, and, where an appeal is de novo, an absence of reasons for the decision below can have no effect. Moreover, the provision of reasons for decisions affecting persons' rights and liabilities is usually desirable, serving objectives such as candour in decision-making, the accountability of decision-makers, the reconciliation of parties to the results of litigation and promoting the drawing of conclusions which are rational and soundly based on legal principles. Nevertheless, the general desirability of reasons, and in certain cases their necessity, in my view are not sufficient considerations to found an all-embracing principle that failure to state reasons or adequate reasons for a judicial decision constitutes an error of law vitiating the decision."

43 Whilst the matter under appeal related to an extended hearing and involved a substantial quantity of evidence, at the end of the day no substantive issue, which was the subject of contentious evidence, was left before the learned magistrate. The care and protection order which was the subject of the application for varied orders had been made by consent. The parties had thereby acknowledged that the child was at risk and that an order should be made for his protection. The issue raised by the variation application was whether the order should be extended and whether the applicant needed to be removed as a joint guardian of the child as a consequence of his inability to work with others to reach decisions about the child's welfare. The evidence before the learned magistrate as to these matters was overwhelming and uncontradicted. The applicant chose not to give oral evidence, explaining in the affidavit he filed that this was due to his ill health. The applicant did not call any witnesses to refute the Secretary's case. The only witness he called was his wife, and the evidence he elicited from her did not touch on any relevant matter in issue. In the circumstances, it was inevitable that the learned magistrate would make orders along the lines of those made.

44 At any time it is open to the applicant and any other party to apply, pursuant to the Act, s48(1), for variations to or the vacation of any of the orders made by the learned magistrate. For the assistance of the parties in availing themselves of that entitlement, it was desirable that the learned magistrate articulate the reasons for his decision. The applicant was not legally represented and it seems that he did not appreciate the importance of such matters as the parties' consent to the care and protection order made on 15 June 2001 and his failure to give or adduce evidence challenging that adduced on behalf of the Secretary. It might be contended that the learned magistrate's decision being unavoidable, the brief reasons he gave were adequate. This was, however, plainly a case in which the learned magistrate's failure to explain his reasons for decision was highly likely to leave the applicant with a real sense of grievance. Common courtesy and the need to fulfil the court's role as a civilising force in the resolution of disputes called for a much fuller explanation of his reasoning process than that which he gave. It would not have been difficult for the learned magistrate to have referred to the importance of the parties' consent to the care and protection order which was the subject of the variation application and to identify the overwhelming and uncontradicted evidence which justified the varied orders he made. It is, to say the least, regrettable that he did not do so. Nevertheless, this failure does not warrant my allowing this appeal. For the reasons I have given, I consider that the decision made by the learned magistrate was the only conclusion open on the evidence and accordingly no miscarriage of justice arises from the paucity of the explanation he gave for his decision.