Director of Child Protection Litigation v PNS & Anor [2025] QChC 23

1 CHILDRENS COURT OF QUEENSLAND CITATION: DCPL v PNS & Anor [2025] QChC 23 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (appellant) v PNS (first respondent) WLF (second respondent) LYRENE WIID (separate representative) FILE NO: 2477/25 & 2478/25 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Gladstone DELIVERED ON: 28 November 2025 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 28 November 2025 JUDGES: Farr SC DCJ ORDER: 1. The appeal is allowed. 2. The decision appealed against made on the 5 th of August 2025 be set aside. 3. The matter is remitted to the Magistrates Court at Gladstone for reconsideration of the matter the subject of the appealed order, to be determined according to law. 4. No order as to costs. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CUSTODY – ORDERS – where the appellants appeal against an interlocutory decision of the Acting Magistrate, namely the return of an exhibit and an adjournment of proceedings – where the adjournment was partially due to pending criminal proceedings against the respondent father – whether the Acting Magistrate erred in making such an order -- 1 of 10 -- 2 LEGISLATION: Child Protection Act 1999 (Qld) Evidence Act 1977 (Qld) CASES: Cousins v HAL & Anor (2008) QCA 49 Jennifer Glover, Separate Representative v Director of Child Protection Litigation & Ors [2016] QChC 16 COUNSEL: R. Slade Jones for the separate representative. SOLICITORS: Office of the Director of Child Protection Litigation for the appellant. The first and second respondents are self-represented. -- 2 of 10 -- 1 [1] This is an appeal brought by way of Notice of Appeal filed on the 2 nd of September 2025 by the Director of Child Protection Litigation. On the 22nd of September 2025, an amended Notice of Appeal was filed by the appellant to rectify a typographical error which had identified the Children’s Court at first instance as being at Cleveland, rather than Gladstone. Nothing turns on that correction. [2] The appeal relates to a decision of the Children’s Court Magistrate at Gladstone on 5 August 2025 to make an order for adjournment of the Child Protection proceedings, and directing that “the first respondent return exhibit 3 to the affidavit of a Ms Dianna Anderson to the Director of Child Protection Litigation from all copies in her possession, and that she may return all copies of the entire affidavit of Ms Dianna Anderson to the Director of Child Protection Litigation so that the Director’s Office may redact that exhibit from her copy in accordance with this direction.” [3] The Director of Child Protection Litigation appeals this decision as an issue of public importance and submits that it raises a concern as to the proper scope of the powers able to be exercised by the Childrens Court across Queensland in child protection jurisdiction under the Child Protection Act 1999 (Qld) (‘the Act’). The basis of the appeal is that the learned Acting Magistrate made a discretionary error in that the court erred in the interpretation and application of section 103 of the Act when making the order the subject of this appeal. The appellant seeks an order allowing the appeal on the basis of a discretionary error in making the order, and that there be no order as to costs. [4] There are two children the subject of these proceedings: one is 16, almost 17; and the other is 11, almost 12. The first respondent is the mother of the children, and the second respondent the father of the children. By way of brief relevant history, on the 23rd of May 2024, concerns were reported to the Department of Child Safety in relation to the father allegedly sexually assaulting one of the children for a period of six months in early 2022. As a consequence, an investigation was commenced. That investigation resulted, ultimately, in the father being charged with child sex offences. Those offences have yet to be determined. The matter has proceeded through the Magistrates Court committal stage, and I understand is currently with the Office of the Director of Public Prosecutions. [5] Understandably in the circumstances, on the 12 of July 2024, the appellant made Child Protection Applications in relation to both children for Child Protection Orders. It sought -- 3 of 10 -- 2 orders granting long term guardianship of the children to the Chief Executive until the end of the day before each child attains 18 years of age. It also sought Interim Child Protection Orders granting temporary custody of each child to the Chief Executive pursuant to section 67(1)(a)(i) of the Act. Court Assessment Orders were continued under section 99(2) of the Act after being taken out. The Child Protection Applications were listed for first mention in the Children’s Court at Gladstone on the 9th of August 2024. Various mentions and other administrative steps were taken in the months that followed. [6] On the 28th of February 2025 it was confirmed that the respondent parents opposed the applications, and the court ordered that a conference be convened between the parties on the 2nd of April 2025. The applications were adjourned to the 11th of April 2025. On the 11th of April 2025, the applications were timetabled for a final hearing over three days from the 5th of August 2025 as no agreement was reached at the aforementioned conference. On the 18th of June 2025, the appellant filed subpoenas that were later served on the Queensland Police Service and the Director of Public Prosecutions. At that time, no material was before the Director of Public Prosecutions office. Material, however, was returned from the Queensland Police Service regarding the issue and the appellant sought to rely on the material at the hearing. [7] On the 5th of August 2025, the applications were listed for the first day and on that occasion, the hearing was adjourned for further mention on the 12th of December 2025, with the following orders having been made after hearing submissions: 1. An Interim Child Protection Order granting temporary custody of each child to the Chief Executive pursuant to section 67(1A)(2) of the Act; 2. Directions that: i. the parties have leave of the court to appear via telephone at the mention on 12 December; and ii. all parties and participants in the proceeding return all material copied from the material returned under subpoena from the Commissioner of Police pursuant to section 66(4) of the Act; -- 4 of 10 -- 3 3. the first respondent return exhibit 3 to the affidavit of Ms Dianna Anderson filed 8 August 2024 to the Director of Child Protection Litigation from all copies in her possession. The first respondent may return all copies of the entire affidavit of Ms Dianna Anderson filed 8 August 2024 to the Director of Child Protection Litigation so that the Director’s Office may redact that exhibit from her copy in accordance with this direction; 4. the Director of Child Protection Litigation is to issue a subpoena to the Director of Public Prosecutions in relation to the second respondent’s current charges; and 5. the matter be listed for a subpoena return mention at a date agreed by the parties. [8] Section 117(2) of the Act sets out that a party to an application for a Child Protection Order may appeal to the appellate court against a decision on the application. Section 121 of the Act sets out the powers of the appellate court which includes setting aside the decision and substituting another decision, or setting aside the decision appealed against and remitting the matter to the Childrens Court that made the decision. The Act provides that an appeal of this nature must be decided on the evidence and proceeding by way of a rehearing, with the appellate court able to order that the appeal be heard afresh in whole or part. The approach of the appellate court in matters of this nature is well settled. Submissions were made identifying the well-known decision of her Honour Judge Bowskill, as she then was, in Jennifer Glover, Separate Representative v Director of Child Protection Litigation & Ors [2016] QChC 16, which I will not repeat. [9] As is clear and without dispute, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence, the order that is the subject of the appeal is the result of some legal, factual, or discretionary error. Of course, as I have indicated, the decision that is the subject of this appeal would properly be described as a decision of an interlocutory issue and would ordinarily not be the subject of a separate appeal. But again, that is an issue which has been decided in matters of this nature and the decision upon which significant reliance has been placed, and quite properly so, is that of Cousins v HAL & Anor (2008) QCA 49. Again, I will not go through the details, but the court there held that an Interim Custody Order was one which was made on an application for a Child Protection Order, and that was a decision on the application. -- 5 of 10 -- 4 [10] It is clear that a decision on the application is not limited to a decision on the substantive application. Whilst that is an unusual outcome for most matters, it is not when one considers that this matter involves considerations of the safety of children. To restrict an appeal process to only decisions on the substantive applications in such matters could have significant adverse consequences for a child or children, and therefore would be inconsistent with the stated aim of the legislation which, of course, has as a paramount principle the safety, wellbeing, and best interests of the child. [11] It is submitted on behalf of the appellant that a discretionary error has occurred as a consequence of the Acting Magistrate’s interpretation and application of section 103 of the Act. Section 103 states: (1) The Childrens Court jurisdiction is not affected merely because a criminal proceeding is pending against: (a) the child concerned; or (b) a parent of the child; or (c) another party to the proceeding in the court; or (d) anyone else. (2) Subsection (1) applies whether or not the criminal proceeding has arisen out of the same or similar facts as those out of which the proceeding in the court has arisen. [12] Section 4 of the Act provides for the protection of children and highlights that it is for the purposes of promoting their safety and, to the extent that is appropriate, to support families caring for children. Section 5A of the Act provides that the main principle for administering the Act is that the safety, wellbeing, and best interests of a child, both through childhood and for the rest of the child’s life, are paramount. Section 5B then goes on to include other general principles of potential relevance, and I will not detail those. [13] The submission here is that the court made a discretionary error in the interpretation and application of section 103. Reference has been made to the transcript of proceedings -- 6 of 10 -- 5 from page 19 to page 30 regarding an exchange between the bench and the parties with respect to the first respondent’s knowledge of the allegations against the second respondent, as contained within a police record of interview with the complainant child, otherwise known as a section 93A Evidence Act 1977 (Qld) interview. Upon the Acting Magistrate identifying that the first respondent had provided a statement to police in the criminal proceedings, he stated: “All right. This shouldn’t go on until after the criminal – yes, the criminal matter because instructions will need – will be needed in relation to the 93A which then ultimately may taint the first respondent’s evidence before a criminal hearing. If she is unaware of what is said in the 93A, her evidence shouldn’t be tainted”. [14] The Acting Magistrate’s attention was then drawn to section 103, but his Honour then said shortly thereafter: “But what we’re talking about is very specific, very specific allegations by the child and there are criminal matters afoot where she is a witness. And I don’t know what her statement says, I don’t know if she’s a preliminary complaint. If she is, what it is. But that will taint that jurisdiction. That’s what I’m saying. Anyway, it’s just another fly in the ointment”. [15] The learned Acting Magistrate also then went on to make the following statements in relation to delaying the need for the criminal proceeding in relation to the second respondent taking precedence over the determination of the child protection matter in relation to both children, where he said: “I’m talking about cross-contamination of potentially the first respondent’s evidence … Aren’t we putting the cart before the horse here in relation to having this hearing rather than – shouldn’t this be heard after the criminal matters? Because, effectively, what you’re trying to ask me to make a ruling on is anything relating to the criminal matters even though I’ve asked that to be returned. But what if I did find in your favour as the applicant and he’s subsequently acquitted? But I’m going back to section 103 where you say that the criminal shouldn’t affect, and it says the following parties. But the first respondent isn’t a party to a criminal proceeding, she’s a witness. Therefore, -- 7 of 10 -- 6 that section wouldn’t take effect, would it? Anyway, it’s a moot point. There’s the reality, but what I’m saying is I think Anderson’s exhibit needs to be returned”. [16] The effect of the order of the Acting Magistrate was then to adjourn the matter, at least partly for this reason, and it quite clearly prioritised the potential future conduct of the criminal proceedings over the child protection proceedings and therefore, also the best interests of the children. It is submitted on behalf of the appellant that this outcome fundamentally misinterprets section 103, and is in direct conflict with the paramount principle of the Act as outlined in section 5A. I agree with that submission. [17] I have been assisted, as well, by submissions of the separate representative, who has quite correctly identified that section 103 of the Act invites a balancing exercise about whether it is in the best interests of a given child for the child protection proceedings relating to that child to be heard before or after the relevant criminal proceedings. The mere fact of there being a criminal proceeding is not sufficient to adjourn child protection proceedings. There needs to be an assessment of all relevant considerations, bearing in mind the principles and aims of the Act and the provisions of section 103 which are unambiguously clear. [18] No doubt the right of a person to a fair trial in a criminal proceeding carries some weight, but not to the point where this right conflicts with the best interests or welfare of a child. It may be that there is some balancing exercise to be conducted in every such case, but that exercise must be conducted according to law. In this matter, there was no such exercise conducted, and the discretion therefore miscarried as it was a mistake of law on a significant matter. [19] The fact also is that the Acting Magistrate concerned himself with the potential tainting of a prosecution witness by learning of what the child was alleging in a 93A statement. It is a rather extraordinary consideration for a Magistrate, or an Acting Magistrate, to take into account. It is not for the bench to be considering such issues in the absence of any submissions from any party in that regard. Had the Commissioner of Police had concerns about the release of any of the material, an application to set aside the subpoena could have been brought, and submissions could have been made in an appropriate way. That did not happen. I understand that the appellant is intending to issue identical -- 8 of 10 -- 7 subpoenas now to the Office of the Director of Public Prosecutions seeking the same material and, once again, that same consideration can apply, but such an outcome can only occur when the legislative test is appropriately conducted. [20] Of course, it is the case that it is best for both children that an early and proper consideration of this exercise be conducted. It has not happened to date. And I note that the Act states that, unless appropriate for the child, delay in making a decision in relation to children should be avoided. I refer to section 5B(m) in that regard. Again, no consideration was given to that particular provision. [21] Counsel for the separate representative has submitted that whilst a parent’s rights must be respected, the court cannot permit a child to remain in uncertainty pending that parent’s criminal trial which may take many months to reach closure. I agree entirely with that submission with one proviso - that the criminal trial may take much longer than many months, it may take well into years, and the delay of the child protection proceedings for that reason is most inappropriate. The mere fact that criminal proceedings were pending was not, in and of itself, a reason to adjourn the child protection proceedings, and a careful consideration of the children’s best interest was necessary to make an informed decision in all the circumstances. [22] For that reason, I am satisfied that the decision appealed against was reached as a consequence of a legal error, and that the appeal ought to be allowed. I am not of the view that I am in a position to make the order sought by the appellant, because of the degree of uncertainty as to just what was the subject of exhibit 3, the subject of the appealed order. And for that reason, this matter ought be remitted to the Magistrates Court for determination according to law. [23] The orders of the court are as follows: 1. The appeal is allowed; 2. The decision appealed against made on the 5 th of August 2025 be set aside; 3. The matter is remitted to the Magistrates Court at Gladstone for reconsideration of the matter the subject of the appealed order, to be determined according to law; and -- 9 of 10 -- 8 4. No order as to costs. [24] I place on the record that this matter ought be dealt with as expeditiously as possible. -- 10 of 10 --