Director of Child Protection Litigation v JT [2025] QChC 15

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v JT [2025] QChC 15 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (appellant) v JT (respondent) FILE NO: BD 40/2025 PROCEEDING: Appeal ORIGINATING COURT: Childrens Court (magistrate) at Beenleigh DELIVERED ON: 16 October 2025 DELIVERED AT: Brisbane HEARING DATE: 28 August 2025; 19 September 2025; written submissions received 26 September 2025 JUDGE: Rafter SC DCJ ORDERS: 1. Order pursuant to r 31(2)(a) of the Childrens Court Rules 2016 that service of a copy of the notice of appeal on the respondent be dispensed with. 2. Appeal allowed. 3. Set aside the decision of the Childrens Court (magistrate) at Beenleigh on 11 December 2024. 4. Order pursuant to s 121A(2)(c)(ii) of the Child Protection Act 1999 that the matter be remitted to the Childrens Court (magistrate) that made the decision. CATCHWORDS: FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – PARENTAGE - JURISDICTION OF COURTS – where the Director of Child Protection Litigation (DCPL) made an application in the Childrens Court (magistrate) seeking a child protection order be granted to the chief executive for the long-term guardianship of the child – where the DCPL sought an order by the Childrens Court (magistrate) authorising the medical examination of the child for the purpose of DNA parentage testing - where the DCPL was unable to contact the respondent mother to obtain her consent for the DNA testing of the child - where the Childrens Court magistrate held that the Childrens Court (magistrate) did not have jurisdiction to make an order authorising a medical examination of the child for the purpose of DNA parentage testing - whether the Childrens Court -- 1 of 15 -- 2 magistrate erred at law in refusing to make an order pursuant to s 68(1)(b) of the Child Protection Act 1999 authorising a medical examination of the child for the purpose of DNA parentage testing. Child Protection Act 1999 (Qld) s 4, s 5A, s 5B, s 59, s 68, s 97, s 110, s 118, s 121A, sch 3 Childrens Court Rules 2016 (Qld) r 31 COUNSEL: N A Miller, Director of Child Protection Litigation for the appellant No appearance for the respondent SOLICITORS: Director of Child Protection Litigation for the appellant No appearance for the respondent Introduction [1] The Director of Child Protection Litigation (DCPL) appeals against a decision made on a child protection application by the Childrens Court (magistrate) at Beenleigh on 11 December 2024 refusing to make an order pursuant to s 68(1)(b) of the Child Protection Act 1999 (the Act) authorising a medical examination for the purpose of DNA parentage testing. [2] The grounds of appeal are: “That the learned magistrate erred at law in refusing to make an order authorising the medical examination of the child on the adjournment of the proceeding for the purpose of DNA parentage testing: ● The Court erred at law in finding that the Court does not validly hold jurisdiction to make an order for DNA parentage testing under section 68(1)(b); ● The Court erred at law in finding that section 68(1)(b) ‘does not include testing of this kind for this particular purpose, as it is neither an examination nor a treatment’.” [3] For the reasons that follow, the grounds of appeal are established and orders should be made that: 1. Order pursuant to r 31(2)(a) of the Childrens Court Rules 2016 that service of a copy of the notice of appeal on the respondent be dispensed with. 2. Appeal allowed. 3. Set aside the decision of the Childrens Court (magistrate) at Beenleigh on 11 December 2024. -- 2 of 15 -- 3 4. Order pursuant to s 121A(2)(c)(ii) of the Child Protection Act 1999 that the matter be remitted to the Childrens Court (magistrate) that made the decision. Non-service of the notice of appeal [4] The subject child was born on 15 January 2024. [5] The respondent is the child’s mother. [6] There is no other respondent to the child protection application as the child’s father is presently undetermined. There is no father listed on the child’s birth certificate and there are no other parenting presumptions arising under the Status of Children Act 1978.1 [7] The appellant is required by s 118(2) of the Act to serve a copy of the notice of appeal on the other persons entitled to appeal against the decision. [8] The appellant seeks an order pursuant to r 31(2)(a) of the Childrens Court Rules 2016 (the Rules) dispensing with service. The evidence establishes that the respondent is aware of the substantive child protection proceeding but has not been an active participant. The appellant has made reasonable attempts to effect service of the notice of appeal but the respondent has not been located. It is therefore appropriate to dispense with the requirement to serve the notice of appeal on the respondent. In those circumstances the court, having dispensed with the requirement for service, may hear the appeal in the absence of the respondent pursuant to s 121A(1)(b) of the Act. Factual background [9] On the day the child was born a Childrens Court magistrate at Beenleigh made a temporary assessment order which included taking him into, and keeping him in, the chief executive’s (Child Safety) custody. The order was to end on 18 January 2024. [10] On 17 January 2024 the respondent identified to Child Safety that Mr TH was the child’s father. 1 Status of Children Act 1978, s 24 (parentage presumptions arising from marriage), s 26 (parentage presumption arising from court finding), s 27 (paternity presumption arising from acknowledgments) and s 28 (paternity presumption arising from cohabitation). -- 3 of 15 -- 4 [11] Child Safety made enquiries with Queensland Corrective Services which revealed that Mr TH may have been incarcerated at the likely time of conception. However, the date of conception is by no means clear. If the child was born beyond full-term (after 40 weeks), Mr TH would not be excluded as the father. [12] On 18 January 2024 an application for a court assessment order was made by Child Safety in the Childrens Court (magistrate) at Beenleigh. On the making of the application, the temporary assessment order granting custody of the child to Child Safety was continued under s 99 of the Act. [13] On 30 January 2024 the court made the court assessment order which included granting custody of the child to Child Safety while the order was in force. The order was to end on 27 February 2024. [14] On 2 February 2024 a child safety officer spoke to the respondent about the timeframe of Mr TH’s incarceration. The respondent then identified Mr MO as the potential father of the child. Mr MO had previously been identified to the Queensland Police Service as being the child’s father when they attended a serious domestic violence incident on 21 May 2023. The information provided to Child Safety by the Queensland Police Service included that the respondent and Mr MO had been in an on and off relationship and the respondent was possibly pregnant with Mr MO’s child. [15] Child Safety has been unable to locate Mr MO. [16] In October 2024 Mr TH advised Child Safety from prison that he was the child’s father and would like to have contact with him. [17] The matter came before the Childrens Court (magistrate) at Beenleigh on 22 October 2024. The respondent did not appear. The court was advised that Mr TH had identified himself as the child’s father. The court noted that Mr MO had been identified as the child’s father and adjourned the proceeding to 26 November 2024. [18] On 30 October 2024 a child safety officer advised the DCPL that the prison where Mr TH was being held would allow a DNA test. Subsequently, the child safety officer advised that they had been unable to contact the respondent to obtain her consent for a DNA test of the child. Accordingly, the DCPL decided to seek an order upon the -- 4 of 15 -- 5 adjournment of the proceeding authorising a medical examination of the child for the purpose of DNA parentage testing. [19] On 26 November 2024, which was the sixth mention of the proceeding, there was no appearance by the respondent. The DCPL sought an order authorising a medical examination of the child for the purpose of DNA parentage testing. The magistrate sought further submissions on the court’s power to make such an order in circumstances where the mother had not provided consent and the matter was adjourned to 10 December 2024. The court also ended the court assessment order and made an interim child protection order pursuant to s 67(1)(a)(ii) of the Act granting custody of the child to Child Safety. [20] On 10 December 2024 the DCPL again made application seeking an order authorising a medical examination of the child for the purpose of DNA parentage testing. After hearing submissions on behalf of the DCPL the magistrate adjourned the matter to the following day. The magistrate’s reasons [21] On 11 December 2024 the magistrate refused to make an order for DNA testing of the child. The magistrate concluded that s 68(1)(b) of the Act did not empower the court to order DNA testing of a child for the purpose of ascertaining parentage. The magistrate distinguished the situation where a child might require DNA testing due to a possible genetic condition. The magistrate was fortified in his view because the Supreme Court has power under s 10 of the Status of Children Act 1978 to make a declaration of parentage. In such a proceeding the Supreme Court can make a parentage testing order under s 11 of the Status of Children Act 1978. [22] The magistrate’s reasons for refusing the medical examination are as follows: “[T]he DCPL says that I have power under section… 68(1)(b). That power is directed at treatment and – medical treatment or medical examination of a child. Medical examination and treatment is defined in the … schedule, in the definitions. [M]edical examination is defined: ‘medical examination means a physical, psychiatric or psychological or dental examination, assessment or procedure and includes forensic examination or an examination or assessment normally carried out by a health practitioner.’ -- 5 of 15 -- 6 So it covers examination, assessment or procedure and it specifically includes a forensic examination. The term forensic examination there seems to me to apply to examining the child for the purposes of gathering evidence for court proceedings. However, it seems to me to be a reference to taking swabs of perhaps other peoples’ DNA and examination to see if violence or abuse has occurred against the child. It seems to me that … it was open to the drafters of the legislation to include specific reference to DNA testing. The testing here would not be – if I could put it this way – for the benefit of the child. And not all the things covered by the definition of medical examination are for the benefit of the child, particularly with a forensic examination. But it seems to me that a DNA procedure is something quite specific. I am also informed by, in my statutory interpretation, by section 97 subsection (8), which refers to the chief executive’s powers once a child is in their custody. And the medical … treatment under that provision is extended, it seems to me, to include vaccination. Now, that could simply be a clarifying feature. But vaccination has clearly been contemplated by the legislature and no one has turned their mind to the specifics of DNA. A vaccination would, I imagine, be much closer to a treatment than a DNA examination. I certainly do not say for a moment that … a DNA treatment would be prohibited, if it was necessary, for example, for treatment. So there is a suspicion that the child might have a genetic condition and therefore any necessary DNA testing … could occur as part of that treatment. Here, though, there is something quite different, it seems, is trying to be achieved. We are not trying to detect … particular abuse. We are not trying to treat the child and we are not examining the child to see whether treatment is needed. I am also concerned that this power exists elsewhere. So the power exists in two other places. The first is in the Status of Children Act 1978 at section 11. The Supreme Court can make an order requiring – or directing a named person to submit themselves or a child to … parentage testing. There is some limitations on that: a … parentage testing procedure cannot be carried out for a child … in this child’s circumstance, … that is the child is under 16 – without the consent of the parent. [A] parent or guardian or person exercising parental responsibility in relation to the child. It seems to me that the DCPL has an avenue. And that would be go to the Supreme Court and apply for an order that the child be tested. And they could then, as a person exercising parental responsibility, consent to the carrying out of the procedure. Alternatively, it seems to me that at section 97 of the Act, the chief executive has equivalent powers to the powers of the DCPL is asking the court to exercise to subject the child to DNA testing because the child is in custody. So … the definition there obviously is extended somewhat … by subsection (8), which I have already alluded to. But -- 6 of 15 -- 7 there is nothing in [section] 86(1) in terms of my powers that is any greater than … the powers in section 97. Therefore, it seems to me that an order is not necessary. [I]f the DCPL is correct in their interpretation, an order from me is not necessary. I should not, on that basis alone, decline jurisdiction to make the order. I am told that it is easier to get funding to do it if I do make the order. And I therefore should not, simply because there is another basis, decline to exercise the jurisdiction that I think I validly hold. However, I do not think I validly hold a jurisdiction. I have concerns that the statute does not include testing of this kind for this particular purpose, as it is neither an examination nor a treatment. And … in circumstances where the Parliament has specifically given a power of this precise kind that can be exercised by the chief executive under the Status of Children Act. And in those circumstances, … I find … when it comes to statutory interpretation, there is a specific power in our body of law. It usually applies within … an Act, but I do not think there is any prohibition on looking at this question of … the specific being ousting … a general power. And I think here we have an exact example of that, where there is a very specific power in the legislation open to the chief executive and I should not interpret my general powers as extending beyond their ordinary meaning in these circumstances. And so for that reason, I decline to make the order requiring DNA testing. And I will simply make an order adjourning the matter for the chief executive and the DCPL to consider their next steps. It seems to me – and it is part of my reasons – that it is also far from clear to me, from the affidavit material, that we are at the limit of what can be achieved in terms of identifying parentage without DNA testing. It is a matter … for other people, perhaps. But timings, evidence from the dad, who is happy to be tested, … there are other ways to prove parentage. But certainly, there is other ways to get DNA too. And for those reasons, … I do not interpret the legislation as empowering me to make the orders sought.” Consideration [23] The issue raised by the appeal is whether a “medical examination” includes a DNA test of a child for the purpose of determining parentage.2 [24] The task of construction of the relevant provisions requires consideration of the ordinary meaning of the statutory words in their context and having regard to the 2 The term “medical examination” is defined in the dictionary in Schedule 3 of the Act. -- 7 of 15 -- 8 purposes of the Act.3 The interpretation that best achieves the purpose of the Act is to be preferred to any other interpretation.4 [25] The determination of a child’s parentage in a child protection proceeding is a fundamental concept in the Act. A “child” is defined as an individual under 18 years.5 A child in need of protection is a child who has suffered significant harm, is suffering significant harm, or is at an unacceptable risk of suffering significant harm; and they do not have a parent able and willing to protect them from the harm.6 A parent of a child includes the child’s mother, father or someone else (other than the chief executive) having or exercising parental responsibility for the child.7 [26] The purposes of the Act are set out in s 4 which provides: … “4 Purposes of Act The purposes of this Act are— (a) to provide for the protection of children; and (b) to promote the safety of children; and (c) to the extent that it is appropriate, to support families caring for children.” [27] The paramount principle for administering the Act is contained in s 5A which provides: “5A Paramount principle The main principle for administering this 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.” [28] Section 5B sets out other general principles which include: “5B Other general principles The following general principles are relevant to making decisions relating to the safety, wellbeing and best interests of a child— 3 R v A2 (2019) 269 CLR 507 at 520-522, [32]-[36] (Kiefel CJ and Keane J), 545 [124] (Bell and Gageler JJ); Palmanova Pty Ltd v Commonwealth of Australia (2025) ALJR 1362 at [4]-[5] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ). 4 Acts Interpretation Act 1954, s 14A(1). 5 Child Protection Act 1999, s 8. 6 Child Protection Act 1999, s 10 (emphasis added). 7 Child Protection Act 1999, s 11. -- 8 of 15 -- 9 (a) a child has a right to be protected from harm or risk of harm; (b) a child’s family has the primary responsibility for the child’s upbringing, protection and development; (c) the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family; (d) if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child; (e) in protecting a child, the State should only take action that is warranted in the circumstances; (f) if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests; (g) if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care; …” [29] Accordingly, the purposes of the Act and the applicable principles provide that whilst a child’s family has primary responsibility for their care, if there is no parent who is able and willing to protect the child from harm, then the State has that responsibility. [30] A child’s parents are respondents to an application for a child protection order.8 [31] Section 59(1)(a) of the Act provides that the Childrens Court may make a child protection order only if it is satisfied that the child is a child in need of protection and the order is appropriate and desirable for the child’s protection. This necessarily involves an assessment of whether the child has suffered significant harm, is suffering significant harm or is at an unacceptable risk of suffering significant harm; and does not have a parent able and willing to protect them from the harm. [32] Section 68 of the Act sets out the powers of the Childrens Court on the adjournment of a child protection proceeding. Relevantly for present purposes it provides: 8 Child Protection Act 1999, s 57. -- 9 of 15 -- 10 “68 Court’s other powers on adjournment of proceedings for child protection orders (1) On the adjournment of a proceeding for a child protection order, the Childrens Court may also make 1 or more of the following orders— (a) … (b) an order authorising a medical examination or treatment of the child and requiring a report of the examination or treatment be filed in the court; Note— Section 97 applies to the medical examination or treatment. …” [33] Section 97 provides: “97 Carrying out medical examinations or treatment (1) This section applies if— (a) an authorised officer or police officer— (i) takes a child into the chief executive’s custody; and (ii) seeks medical examination of, or treatment for, the child; or Note— Under section 18(7), an authorised officer or police officer may arrange for a child’s medical examination or treatment. (b) a child is in the chief executive’s custody under this Act and the chief executive seeks medical examination of, or treatment for, the child; or (c) an order for a child authorises the child’s medical examination or treatment. Note— Under section 28(1)(b) a temporary assessment order may authorise the medical examination or treatment of the child. Also, under section 45(1)(b) a court assessment order may authorise the medical examination or treatment of the child. -- 10 of 15 -- 11 (2) A health practitioner may medically examine or treat the child. (3) Subsection (2) applies even though the child’s parents have not consented to the examination or treatment. (4) However, subsection (2) is subject to the rights the child has in relation to the examination or treatment. (5) Also, the health practitioner may only carry out medical treatment that is reasonable in the circumstances. (6) If this section applies because of subsection (1)(a) or (b) or because of an order mentioned in subsection (1)(c) that is an assessment order, the health practitioner must give the chief executive or police commissioner a report about the medical examination or treatment. (7) For the purpose of deciding any liability in relation to the carrying out of the examination or treatment, the health practitioner is taken to have the consent of the child’s parents to the examination or treatment. (8) In this section— treatment includes vaccination.” [34] The term “medical examination” is defined in the dictionary in Schedule 3: “Schedule 3 Dictionary … medical examination means a physical, psychiatric, psychological or dental examination, assessment or procedure, and includes forensic examination and an examination or assessment normally carried out by a health practitioner. …” [35] The Rules provide a framework for case management of child protection proceedings in Part 7. [36] One aspect of case management of child protection proceedings involves identification of who should be a party to, or a participant in, the proceeding.9 The court may identify the issues in the proceeding10 and decide the issues that need to be investigated.11 9 Childrens Court Rules 2016, r 62(c). 10 Childrens Court Rules 2016, r 64(2)(c). 11 Childrens Court Rules 2016, r 64(2)(d). -- 11 of 15 -- 12 [37] The court can have regard to extrinsic materials, including the explanatory note to the Bill,12 to confirm the interpretation conveyed by the ordinary meaning of the provision.13 [38] The explanatory notes to the Child Protection Bill 1998 state that: “Clause 65 (which became s 68 of the Act) enables the court to make procedural orders about actions to be carried out during a period of adjournment. These are actions to assist with the clarification and resolution where possible of issues related to the child’s protection, and may result in reports for the information of the court in deciding the application.”14 [39] An order authorising a medical examination or a treatment of a child made pursuant to s 68(1)(b) of the Act requires a report of the examination or treatment to be filed in the court. An order made pursuant to s 68(1)(b) must state the particular issues the report is to address.15 There is no requirement to file a report of the examination or treatment where the order authorising the examination or treatment is part of a temporary assessment order16 or part of a court assessment order.17 [40] When Child Safety or another person has custody of a child,18 they have the right to provide for the child’s daily care and the right and responsibility to make decisions about the child’s daily care.19 Similarly, when Child Safety or another person has guardianship of a child,20 they have the right to provide for the child’s daily care, the right and responsibility to make decisions about the child’s daily care, and all the powers, rights and responsibilities in relation to the child that would otherwise have been vested in the person having parental responsibility.21 [41] In circumstances where a medical issue is to be determined that goes beyond daily care for a child and Child Safety does not have guardianship of the child, consent 12 Acts interpretation Act 1954, s 14B(3)(e). 13 Acts Interpretation Act 1954, s 14B(1)(c). 14 Explanatory Note, Child Protection Bill 1998, at 29. 15 Child Protection Act 1999, s 68(2). 16 Child Protection Act 1999, s 28(1)(b). 17 Child Protection Act 1999, s 45(1)(b). 18 Whether as a result of a child being taken into the chief executive’s custody under s 18(2) of the Child Protection Act 1999, or the chief executive has custody of a child under a care agreement pursuant to s 51ZG or an order granting custody pursuant to s 61(d)(ii). 19 Child Protection Act 1999, s 12(2). 20 Whether the order grants short term guardianship to the chief executive pursuant to s 61(e) of the Child Protection Act 1999, long term guardianship pursuant to s 61(f) or a permanent care order pursuant to s 61(g). 21 Child Protection Act 1999, s 13. -- 12 of 15 -- 13 should be sought from the child’s parents. However, where consent of a parent cannot be obtained, it may be appropriate for an order to be sought pursuant to s 68(1)(b) of the Act authorising a medical examination of the child. [42] The definition of “medical examination” specifically includes “forensic examination”.22 [43] The term “forensic examination” is not defined in the Act but a dictionary definition of “forensic” is “relating to, connected with, or used in courts of law or public discussion and debate.”23 [44] The magistrate adopted an unduly restrictive interpretation of a forensic examination. His Honour recognised that the term “forensic examination” seemed to apply to an examination of the child for the purpose of gathering evidence for court proceedings, but said that “… it seems to me to be a reference to taking swabs of perhaps other peoples’ DNA and examination to see if violence or abuse has occurred against the child.” His Honour also referred to the fact that the testing would not be for the benefit of the child. The magistrate also placed reliance on the fact that “treatment” is specifically defined to include vaccination.24 While recognising that defining “treatment” to include vaccination may simply be a “clarifying feature” the magistrate considered that a vaccination was “much closer to a treatment than a DNA examination.” [45] In the substantive proceeding the DCPL seeks a child protection order granting long- term guardianship of the child to Child Safety until he turns 18 years of age. In the circumstances, evidence about the identity of the child’s father and whether the child has a parent who is willing and able to protect him from harm clearly relates to an examination for the purposes of gathering evidence for court proceedings. The determination of a child’s parentage for the purposes of considering a child protection application is clearly an issue directly related to the child’s protection. [46] The magistrate’s reliance on the fact that the Supreme Court has jurisdiction under the Status of Children Act 1978 to make orders for parentage testing, was misplaced. 22 Child Protection Act 1999 sch 3 Dictionary. 23 Macquarie Dictionary, (9th ed, 2023). 24 Child Protection Act 1999, s 97(8). -- 13 of 15 -- 14 It was wrong to construe s 68(1)(b) of the Act by having regard to another statute with different objects and purposes. Section 10 of the Status of Children Act 1978 enables certain categories of persons to apply to the Supreme Court for a declaration of parentage. The first category is a person who alleges that any named person is the parent of her child.25 The second category is a person who alleges that the relationship of parent and child exists between the person and another named person.26 The third category is a person having a proper interest in the result who wishes to have determined the question whether the relationship of parent and child exists between two named persons.27 The Supreme Court may make a parentage testing order pursuant to s 11. However, I note that pursuant to s 11(4)(b) a parentage testing procedure must not be carried out on a child under the age of 16 years unless the child’s parent or guardian or a person exercising parental responsibility consents to the carrying out of the procedure. [47] The magistrate’s reliance on s 97 of the Act as the source of the power of the chief executive to exercise “… equivalent powers to the powers the DCPL is asking the court to exercise to subject the child to DNA testing because the child is in custody” is misplaced. Section 97 of the Act applies to health practitioners carrying out medical examinations or treatment. It does not provide Child Safety with a power to carry out such examinations or treatment. [48] The words in the provision in their context and having regard to the purposes of the Act do not require a narrow interpretation of a “forensic examination”. Section 68(1)(b) of the Act clearly provides that a court may order DNA testing of a child to determine an issue of parentage. [49] It follows that the magistrate was wrong to conclude that he did not have jurisdiction to make an order for DNA testing of the child. Disposition [50] The DCPL submitted that if the court concluded that the magistrate erred in holding that the court did not have jurisdiction to make an order for DNA testing, the matter should be remitted to the magistrate who made the decision pursuant to s 25 Status of Children Act 1978, s 10(1)(a). 26 Status of Children Act 1978, s 10(1)(b). 27 Status of Children Act 1978, s 10(1)(c). -- 14 of 15 -- 15 121A(2)(c)(ii) of the Act. In circumstances where the respondent has not been served with the notice of appeal, remitting the matter to the Childrens Court magistrate would provide a further opportunity to notify the respondent of the application for DNA testing. If the respondent does not engage in the proceeding, consideration may be given to the appointment of a separate representative for the child pursuant to s 110 of the Act. [51] In the circumstances, remitting the matter to the Childrens Court magistrate is the appropriate order. -- 15 of 15 --