Department of Families, Seniors, Disability Services and Child Safety v The Parents of Baby Healy (a pseudonym) [2025] QChCM 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: Department of Families, Seniors, Disability Services and Child Safety v The Parents of Baby Healy (a pseudonym) [2025] QChCM 1 PARTIES: DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES (Applicant) v JANET HEALY (a pseudonym) (Respondent Mother) and MICHAEL KONIG (a pseudonym) (Respondent Father) FILE NO/S: CCM-00004080/25(4) PROCEEDING: Application to a Magistrate for a Temporary Assessment Order ORIGINATING COURT: Beenleigh HEARING DATE: 28 February 2025 MAGISTRATE: E. Mac Giolla Ri ORDER: Application Refused APPEARANCES: Applicant: R. Proctor, OCFOS (by phone) Mother: NLR (by phone) Father: NLR (by phone) [1] There is an application for a Temporary Assessment Order (TAO) before me in chambers in relation to Baby Healy. The order, if granted, would last 3 business days. [2] Baby Healy was born within the last week and is currently stable in the hospital where she was born. The child is likely to be able to be discharged this evening or sometime over the next few days. [3] The concerns raised in the application are predominantly in relation to the mother. There is evidence, that I accept, that in 2019 the mother was assessed as having significant issues with her emotional regulation. At that time, the State took custody of three of her children. She subsequently had two other children taken into the care -- 1 of 5 -- 2 of the State. All five of her other children are on orders granting long term guardianship to the Chief Executive. [4] If the application for a TAO is successful, the Chief Executive proposes placing the child with the same carer who is currently caring for the youngest of the mother’s other five children. I make no finding as to whether such a placement is necessary or whether the father would be able to care adequately for the child. [5] The Chief Executive alleges, and the mother broadly accepts that she has not engaged in any therapy or other activities that might assist her with emotional regulation. Significantly, she asked for the hearing to be conducted in a way that would reduce her likelihood of becoming dysregulated. [6] There are other legitimate concerns about the mother, that I need not detail here. The mother on one hand opposes the application but agreed during the application that the child would be best placed with his sibling’s carer as proposed by the Chief Executive. [7] The father, Mr Konig, is not yet on a birth certificate but there is no doubt on the material that he is the father and I find that he is the father and the Chief Executive had good reason to believe that he was the father since at least 14 January 2025 when he spoke to a CSO as part of the Chief Executive’s investigation. By 25 February 2025, there could not have been the slightest doubt that he was the father and it is inexplicable to me how he was not included as a respondent to this application until he was telephoned to take part in proceedings by me today. [8] There is evidence, which I accept, that the mother, who has said definitively that Mr Konig is the real father, has threatened to name another man as the father on the birth certificate as revenge because Mr Konig hadn’t “stepped up” in some way. [9] The father is 25 years old and has no criminal history or domestic violence history. He has stable accommodation and coparents a two year old daughter on a week on week off basis without ever coming to the attention of Child Safety, still less of being any concern. [10] The father consents to the child being placed with that carer pending the Chief Executive’s investigation and has already engaged positively with the Chief Executive in relation to DNA testing and other matters. I find that the father would consent to any matter required for the investigation. [11] I further find that the Chief Executive has never asked the father to consent to the things that are necessary for the conduct of the investigation and that it was at all times reasonably practicable to ask the father for his consent. [12] Similarly, I find that the Chief Executive has never asked the mother to consent and that it was practicable at all times to ask for the mother’s consent. However, the -- 2 of 5 -- 3 mother does not consent to the child being placed other than with her (the mother) and I find would not have consented if asked. [13] The difficulty for the applicant is that my jurisdiction to grant a TAO depends on the absence of consent from a parent: Section 24(2) A temporary assessment order is made to authorise actions necessary as part of an investigation to assess whether a child is a child in need of protection, if the consent of a parent of the child to the actions has not been able to be obtained or it is not practicable to take steps to obtain the parent’s consent. (emphasis added) Section 27(2) However, in deciding the application, the magistrate must also be satisfied reasonable steps have been taken to obtain appropriate parental consent to the doing of the things sought to be authorised under the order or it is not practicable to take steps to obtain the consent. Appropriate parental consent is defined to include: … the consent of at least 1 child’s parents (Section 27(3)(a)) [14] In the present case not only has it been practicable to take steps to obtain consent, 1 parent, the father would, in fact, consent. Moreover, no attempt has been made to obtain the consent of either parent.1 Where the jurisdiction to make a TAO rests on the Chief Executive not being able to obtain consent or on it not being practicable to take steps to obtain the parents’ consent, a real question arises as to whether I have jurisdiction to make an order, even though the Applicant asserts that the making of an order in these circumstances is routine. [15] In relation to the question of consent, the application asserts the following: “REASONABLE STEPS HAVE BEEN TAKEN TO OBTAIN APPROPRIATE PARENTAL CONSENT TO THE DOING OF THINGS SOUGHT TO BE AUTHORISED UNDER THE ORDER OR IT IS NOT PRACTICABLE TO TAKE STEPS TO OBTAIN THE CONSENT- s27(2) (Emphasis in original) 42. It is not practicable or appropriate to enter a voluntary agreement such as an Assessment Care Agreement at this time. Before considering entering an assessment care agreement, the Chief Executive must be satisfied about the matters outlined in section 51ZB. These are, that the parents are able and willing to work with the Chief Executive ('CE') to meet the child's interim protection needs while the investigation is 1 The Applicant suggested that because the Court, during the chambers application, asked the parents whether they do in fact consent or whether they would have consented had the Chief Executive asked, that I should find that reasonable steps have been taken to ask for the parents’ consent. I am not prepared to make that finding because the legislation clearly anticipates that it is for the Chief Executive to take reasonable steps to obtain consent. -- 3 of 5 -- 4 carried out and that the CE cannot reasonably believe it is likely that, if the child's parents withdraw their agreement to the intervention for the child, the child will be at immediate risk of harm. 43. As a result of the operation of both s51ZB(2) and s51ZE(1 )(b}, the CE is unable to enter a care agreement.” [16] To the extent that it is necessary to so find, I find that there is no possibility that the father would withdraw his consent to any reasonable request but, in any event, the applicant’s reliance on sections 51ZB and 51ZE is misplaced because they do not relate to an investigation, which is the only matter contemplated by a TAO. [17] Sections 51ZB and 51ZE apply only to an “intervention”. An intervention is defined at s51ZA as: “The intervention for the child is the action taken by the chief executive to give the help, including ongoing help, that the child needs. Examples— • giving support services to the child and his or her family • arranging for the child to be placed in care under a care agreement” [18] The Applicant submits that I should read s27(2) in a way that is consistent with the limitations on the Chief Executive to enter into agreed interventions with parents. The submission is that where s27(2) says “or it is not practicable to take steps to obtain the consent”, I should read those words as meaning: “Where a child will be safe for the period of the adjournment if a parent consents to certain actions in relation to the child but the Chief Executive (not the Magistrate) is satisfied a parent who would give consent might withdraw that consent and might thereby place the child in danger, the Chief Executive is excused from asking for the parent’s consent.” [19] In my view the words of s27(2) cannot bear that meaning, nor is there any inconsistency between s27(2) or any other provision in relation to TAOs and ss51ZB or any provision that relates to the Chief Executive’s powers to enter into voluntary interventions because neither has anything to do with the other. [20] The provisions of the Act in relation to TAOs do not mention the safety or wellbeing of a child other than stating that the purpose of the part is to “authorise actions necessary as part of an investigation to assess whether a child is a child in need of protection, if the consent of a parent of the child to the actions has not been able to be obtained…” [21] In my view, the TAO provisions are focused on the types of investigations that cannot take place if a parent will not consent, for example, an interview with the child or a physical or medical examination. I note that section 97 of the Act allows for the medical examination of a child in only limited circumstances, one of which is if the child is in the chief executive’s custody, see section 97(1)(b). In my view, a Magistrate only has jurisdiction to make a TAO to the extent that is necessary to conduct parts of the investigation to which a parent will not consent and require conferring custody onto the Chief Executive for the purpose. This interpretation is also consistent s27(3)’s definition of appropriate parental consent as being from only -- 4 of 5 -- 5 one parent, as medical practitioners and schools will habitually act on the consent of one parent. [22] The Applicant’s desired interpretation does not sit well when TAO provisions are compared with Court Assessment Order (CAO) provisions where s45(1) provides: (c) if the court is satisfied it is necessary to provide interim protection for the child while the investigation is carried out— (i) granting temporary custody of the child to the chief executive; and (ii) authorising an authorised officer or police officer to take the child into, or keep the child in, the chief executive’s custody while the order is in force; [23] In response to my suggestion that the Applicant may have brought the wrong application and that the outcome the Chief Executive sought could, if warranted, have been obtained under a Temporary Custody Order (TCO), the applicant’s submission was that there was too much work to do to in the three days allowed by a TCO. [24] It seems the practice is to obtain custody under a TAO and then apply for a Court Assessment Order. If the application is made before the expiry of the TAO, the Chief Executive’s custody of the child would continue until at least the date the registrar gives for the hearing which is, in the ordinary course, at least some additional days if not weeks in the future, depending on Court arrangements. [25] The Applicant submits that the difficulty with a TCO is that it can only be made if the applicant satisfies a Magistrate that the DCPL or the Chief Executive will: “…be able, within the term of the temporary custody order [3 days], to decide the most appropriate action to meet the child’s ongoing protection and care needs and start taking that action…”2 [26] The Applicant contends that because the stated period in the order can be no more than 3 days, that is not enough time to finalise the investigation. It seems the advantage of the TAO is that there is no obligation to satisfy a Magistrate that an investigation can be conducted promptly. It seems to me to be an extremely poor reason to seek a TAO rather than a TCO. [27] The powers exercised by a magistrate under the TAO provisions are extraordinary. It is possible for the Magistrate to make an order removing a child from its parents’ physical custody and care, by force if necessary, and without notice to them (s26). It seems to me to fall into the category of powers that ought not to be interpreted too broadly. [28] I refuse the application. 2 Section 51AE (b) -- 5 of 5 --