Director of Child Protection Litigation v SUN & Anor [2023] QChC 15

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v SUN & Anor [2023] QChC 15 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (appellant) v SUN (first respondent) and TLC (second respondent) FILE NO: DC 2099/23 DIVISION: Childrens Court of Queensland PROCEEDING: Appeal ORIGINATING COURT: Mt Isa Childrens Court DELIVERED ON: 4 August 2023 DELIVERED AT: Brisbane HEARING DATE: 27 July 2023 JUDGE: Richards P ORDER: Appeal is allowed. The order is set aside. Until further order, custody of the child DE, born [redacted] 2013 is granted to the Chief Executive, Department of Child Safety, Youth Justice and Multicultural Affairs pursuant to s 67(1)(a)(ii) of the Child Protection Act 1999. The matter is remitted back to the Mt Isa Childrens Court for further hearing on 29 August 2023. CATCHWORDS: APPEAL - FAMILY AND CHILD WELFARE – TEMPORARY PROTECTION ORDER – where an order was made granting temporary custody of the child to the Chief Executive and to provide the child’s paternal aunt contact with the child for twenty-four hours per day seven days per week – where the child is of Aboriginal descent and has significant disabilities - whether there was a discretionary error by the court below in granting temporary custody LEGISLATION: Child Protection Act 1999 (Qld) s 5C, s 5F, s 5G, s 5H, s 67, s 68, s 83, Schedule 1 CASES: Director of Child Protection Litigation v SP and ZC [2018] QChC 19 Jennifer Glover, Separate Representative v Director Child Protection Litigation & Ors [2016] QChC 16 -- 1 of 8 -- 2 COUNSEL: Mr N Miller for the appellant Mr A Prihar for the first respondent No appearance for the second respondent SOLICITORS: Director of Child Protection Litigation for the appellant Aboriginal and Torres Strait Islander Legal Service for the first respondent Introduction [1] This is an appeal from a temporary protection order made on 18 July 2023 where custody of the child, DE was ordered to the Chief Executive, Department of Children, Youth Justice and Multicultural Affairs together with an order that TB, the paternal aunt of the child, have contact with the child 24 hours per day, seven days per week. The basis of the appeal is that there has been a discretionary error in that the Court erred in interpretation and application of s 68(1)(c) of the Child Protection Act 1999 (Qld). [2] The subject child is currently nine years and 10 months old. He and his parents are of Aboriginal descent and therefore the special considerations pursuant to ss 5C, 5F, 5G, 5H and 83 of the Act must be considered together with the Charter of Rights for a Child in Care.1 [3] At the time the Department of Child Safety intervened in DE’s living arrangements he was in the fulltime care of his mother. On 30 November 2022, Child Safety commenced an intervention with parental agreement to support her in the care of this young boy. That intervention was not particularly successful as the child and his mother went to the Northern Territory for a significant period soon after the agreement was reached. [4] On 5 April 2023, DE and his mother were subject to a significant incident of domestic violence involving the mother’s current partner (not DE’s father). As a result, Child Safety commenced an investigation and they entered into an assessment care agreement on 6 April 2023 until 5 May 2023. The child was placed in a residential placement in Mt Isa on 14 April 2023 and he has remained there. A temporary custody order was made on 5 May 2023 and then an application was filed on 10 May 1 Schedule 1 of the Child Protection Act 1999 and in particular item (f) of Schedule 1. -- 2 of 8 -- 2 2023 by the Chief Executive, Department of Children, Youth Justice and Multicultural Affairs seeking short-term custody of the child for two years. [5] DE has a number of significant disabilities. He has been diagnosed with attention deficit hyperactivity disorder, foetal alcohol spectrum disorder, speech and language delays, learning difficulties, constipation with soiling, divergent squint, Erb’s palsy with sural nerve graft and anomalous left upper pulmonary vein drainage. He is largely non-verbal. His mother has alcohol dependency and is not particularly stable. She has been subject to domestic violence from both her current partner, who is currently in custody for assaulting her, and her older son. She loves DE and had relocated to Mount Isa to enable him to access the services he needs. There is no real information at this stage about the maternal family other than DE’s older brother who has been domestically violent towards his mother. [6] The child’s father was not aware of the existence of the child until he was about five years of age. He has an intellectual disability. Currently there is no medical evidence of the extent of that disability. He does not have any history of domestic violence and has a minor criminal history, not involving offences of violence. [7] The paternal grandmother lives in Darwin, however, was present for the hearing of this matter. The paternal aunt, TB, lives in Queanbeyan. She has three children of her own, one who is older and with a disability of his own which she has managed well, according to the evidence before the court. She is willing to take on DE’s care. If she does take over DE’s care, his mother will relocate to be closer to the child. [8] It is accepted that the task of the Court when considering interim orders pursuant to s 67 of the Act is to determine whether, on the basis of the material before the court, the child is a child in need of protection and that he would be at an unacceptable risk of harm in the care of the parent. I adopt the principles outlined by Smith DCJ in Director of Child Protection Litigation v SP and ZC [2018] QChC 19 in which he outlined four relevant principles in deciding these matters namely: (a) the paramount principle is the safety, wellbeing and best interests of the child;2 2 DCPL v SP and ZC [2018] QChC 19 at [132]. -- 3 of 8 -- 3 (b) where there is a conflict between the child’s safety, wellbeing and best interests and the interests of a parent of the child, then this conflict must be resolved in favour of the child;3 (c) the relevant standard is the civil standard, and4 (d) when considering an interim application; … the court must have regard to the best interests of the child as the paramount consideration. The interests of the child will normally be met by insuring stability pending the full hearing, as a general rule the interlocutory order should provide stability and if the child is living in a well settled environment then stability will usually be promoted by continuing that arrangement. It should also be borne in mind that in interim applications one should be cautious in making findings on disputed issues of fact.5 [9] Her Honour Judge Bowskill (as she then was) in Jennifer Glover, Separate Representative v Director Child Protection Litigation & Ors [2016] QChC 16 discussed the powers of the appellate court when hearing an appeal from a child protection hearing: “[77] The sense in which ‘rehearing’ is used here is that the appellate court rehears the matter, as at the date of the appeal, not in the sense of a completely fresh hearing, but on the basis of the record of the evidence before the court below, subject to the discretion conferred by s 120(3). The appellate court is obliged to give the judgment which in its opinion ought to have been given at first instance, observing the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. Within those constraints, the appellate Court is required to conduct a real review of the evidence and proceedings below, and the Childrens Court magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due respect and weight to the Magistrate’s conclusions. The powers of the appellate court are, however, exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.” [10] In this case there is no suggestion that there has been a legal or factual error. It is submitted that there has been a discretionary error in that the Court erred in its application of s 68(1)(c) of the Act. It is argued that this child has experienced 3 Ibid. 4 Ibid at [133]. 5 Ibid at [134]. -- 4 of 8 -- 4 significant instability in his life which has resulted in his therapeutic needs being unmet. Whilst it is accepted that TB is willing to look after DE and, on the face of the material has the capacity to do so, it was submitted by the appellant that there needs to be some certainty around the likely permanency and suitability of the arrangement. The order was, at least, prematurely made. [11] DE now has a developed management plan in relation to his medical needs and has been referred for speech and language therapy, occupational therapy, physiotherapy and has an appointment with a paediatric cardiologist for a mid-year review of his pulmonary venous drainage. He does have a NDIS package; however, it was under used at the time he was taken into the care of the Department. [12] The management plan detailed in the affidavit of Sarah Fraser filed on 5 July 2023 outlined his behavioural issues including his physical violence towards staff members, difficulties getting him ready for school, his preoccupation with his iPad, difficulty getting him into the shower and soiling himself. The plan noted his triggers and there was safety planning and behavioural support in place. [13] He is currently attending [redacted] Special School and has a youth worker assigned at all times. The Magistrate was concerned that the placement that he was in may fall away because of the behavioural difficulties that the child represents.6 The Principal of the Specialist School has indicated that she would be willing to step in and foster the child. [14] The appellant submits that where the child is finally accessing some treatment and therapy it is a wrongful exercise of the discretion to continue custody in the Chief Executive while sending the child to live 3,000 miles away where the only oversight the Department will have of the child’s care will be remotely or by interstate agreement. The child currently has in place occupational therapy once a fortnight, speech therapy once a fortnight and physiotherapy once a week. Boxing is also part of the therapy. He has a routine for taking Ritalin. He is engaged at school. His carers are still working through the issues in the placement in terms of difficulty getting him to shower and bath. He has paediatric appointments booked to assist with devising a plan for dealing with his incontinence. 6 See ll 36-41, p 2 of the decision of the Court 18 July 2023. -- 5 of 8 -- 5 [15] It is unknown at this stage whether Ms TB will be able to be approved as a foster carer. To be a foster carer she will need a blue card and she has a conviction in 2009 for accessory after the fact to either murder or manslaughter. Although this is an old offence, it is a very serious one and it may prevent her from obtaining a blue card. She has had FaceTime contact with the DE since she and the child’s father became aware of his existence, but she has never physically met the child. He has never met her children. [16] There is a school near Ms TB which does cater for children with disabilities but there have not been enquiries made about him attending. He presently attends school with a youth worker but that is not in place in Queanbeyan at this stage. Although it is likely that therapy of a similar nature to that presently in place can be arranged in Queanbeyan, it is unknown what the lead time for that will be as no appointments have been made as yet. [17] Where custody is granted to the Chief Executive, s 12 of the Act provides that the Chief Executive has the right to have the child’s daily care and the right and responsibility to make decisions about the child’s daily care. [18] As the child is to be sent interstate, the Interstate Child Protection Protocol Australia and New Zealand7 (‘the Protocol’) applies. The Protocol sets desired outer limits for assessments to be made. By way of example, assessments of a carer prior to placement should be made within 8 weeks,8 household safety assessments within 4 weeks,9 and casework is limited to 6 months.10 Where a child is sent interstate, Queensland maintains case management and financial responsibility for the child and as much as is possible they would handle case management remotely by phone, email and video conferencing and then, if possible, the state in which the child is placed would do face to face contact if practical.11 [19] The Protocol demonstrates that there is unlikely to be an easy transition from one state to the other such that the Chief Executive, having custody of the child, would have limited ability to inspect and monitor the home situation for DE in Queanbeyan. 7 Ratified in October 2021. 8 Ch 5 of the Protocol. 9 Ch 5 of the Protocol. 10 Ch 6.2 of the Protocol. 11 Ch 6 of the Protocol. -- 6 of 8 -- 6 [20] Ms TB has given evidence that she has connections with therapists because of her work on behalf of her son and she does have a history of cooperating with child protection authorities, however, the availability for therapy and schooling for DE is unknown at this stage. [21] The Magistrate, in deciding to make the order that he did, noted that the decision was finely balanced. He noted that the question over Ms TB’s criminal history was a significant one but that she was clearly a person of some standing in the community now. He noted the principles of the Act dictated that a strong preference should be given to family caring for the child when considering placement principles, particularly for an indigenous child. It was relevant in that regard, he noted, that Ms TB took an active role in connecting with her culture. He noted that she was convincing in terms of being enthusiastic about having the child in her care, she had insight into the types of needs that he may have, and she was not phased by the obstacles that she will face. [22] References were before the Court which spoke to her as a good care giver and as a responsible citizen who takes care of her children well. [23] The Magistrate accepted that there was a risk that she may not cope with the child particularly as she works fulltime and will be dependent on a day care mother who she has used in the past to take care of the child when she is working. [24] On the other hand, the Magistrate noted that the child is, at the moment, being well cared for, accessing therapy, and accessing education. It was found by the Magistrate that he was being well cared for by the Department and the prospects are that that can continue. He noted there was a risk that the placement may be jeopardised by the child’s behavioural issues, but it was a relatively minor risk. [25] I have been told and I accept for the purposes of this appeal that DE’s mother is prepared to move down to be near DE if he is placed with his paternal aunt so contact can continue with the mother. It is noted that this will make it more difficult for the Chief Executive to work with the mother and that may hamper reunification with the mother. [26] The matter has been adjourned to 29 August. When it comes back on it may be possible for the Court to be informed of the availability of the services that the child -- 7 of 8 -- 7 needs in Queanbeyan, whether and when the child can commence school and what sort of support the school can provide for the child. At the moment all those matters are uncertain. [27] Access to therapies, paediatricians and a case plan are all absent at this stage. In my view it is not in the best interests of the child to interrupt those therapies and pause them while he is sent down to Queanbeyan. Those matters can be further examined at the next hearing date. In the meantime, there should be increasing contact with Ms TB, so the child is more familiar with her and the children that live in the house. [28] I accept the submissions of the appellant in this regard. It is not in the best interests of the child to move him without the necessary investigations into these matters being made. For these reasons the appeal should be allowed. ORDER [29] Appeal is allowed. The order is set aside. Until further order, custody of the child DE, born [redacted] 2013 is granted to the Chief Executive, Department of Child Safety, Youth Justice and Multicultural Affairs pursuant to s 67(1)(a)(ii) of the Child Protection Act 1999. The matter is remitted back to the Mt Isa Childrens Court for further hearing on 29 August 2023. -- 8 of 8 --