BA v Department of Children, Youth Justice and Multicultural Affairs & Anor (No 2) [2022] QChC 22

[2022] QChC 22 CHILDRENS COURT OF QUEENSLAND LOURY KC DCJ DC No 7/22 BA Appellant v DEPARTMENT OF CHILDREN, YOUTH JUSTICE Respondent AND MULTICULTURAL AFFAIRS and WMJ (No 2) Second Respondent BRISBANE THURSDAY, 20 OCTOBER 2022 JUDGMENT [1] LOURY KC DCJ: The appellant appeals against the making of a Temporary Assessment Order (“TAO”) under the Child Protection Act 1999 (Qld). She seeks a stay of that order. Given that the order was made on 12 October 2022 and has now ended there is little utility in granting a stay of the order. Rather I have decided the appeal on its merits. [2] At 12.15 pm on 7 October 2022 whilst sitting in Kingaroy, I made an order allowing an appeal against the making of a TAO for the appellant’s four year old daughter. See the published decision of BA v Department of Children, Youth Justice and Multicultural Affairs & Anor [2022] QChC 21. That order resulted in the child being returned to the appellant at 3 pm that day. No explanation for the delay in returning her has been provided. -- 1 of 6 -- 2 [3] On 12 October 2022 Ms Faith Bennett made a further (third) application for a TAO in relation to the same child. It is of some concern to me that this application was not made to the resident Magistrate who is familiar with the matter, or that the application was not brought before me whilst I was still sitting in Kingaroy. The application was made to and ordered by a Magistrate in Richlands at 7.54 pm. [4] The appellant appeals against the making of that TAO on the basis that the Department, in obtaining the order, was attempting to relitigate the same substantive matter which came before me and over which I had made orders on 7 October 2022 and that therefore the order of the learned Magistrate was ultra vires. Alternatively, the appellant argues that the Magistrate could not have been satisfied of the tests under section 27 of the Child Protection Act 1999 (Qld). [5] A sworn application was provided to the learned Magistrate who made the order. That application set out details of a conversation an unknown person had with the child whilst she was still in the custody of the department (unlawfully) in the afternoon of 7 October 2022. The application states that the child made disclosures (which were not audio recorded) that someone had touched her vagina. The appellant was spoken to by departmental officers and she stated that she did not believe that her child had experienced abuse. She further said that her child was not exposed to unsafe persons because Mr [LR] (who resided with the appellant) had been cleared by the resident Magistrate. [6] On 12 October 2022 the child was interviewed by a trained police officer at 12.20 pm. The child made no disclosures. Ms Faith Bennett and Ms Amanda Parnell then had a conversation (also not audio recorded) with the child in which she apparently made disclosures that she did not want to go back to her mother’s home because “they touched me on the noo noo and were annoying me on the toilet”. Noo-noo is her word for vagina. [7] At 2 pm on 12 October 2022 the same trained police officer conducted a further interview with the child. The child made the following statements: “Dad, Mum Uncle [M] touch me on my noo noo” “Daddy touches my noo noo – he uses his finger” -- 2 of 6 -- 3 “He touches from the inside using a finger” “He does it in the toilet room”. “Uncle [M] does it in the toilet” [8] The child also described that it hurt. [9] The reference to “daddy” is understood to be a reference to Mr [LR]. [10] The appellant was advised about the child’s disclosures to police, by the officer who interviewed the child. [11] The above information as to the events of 12 October 2022 was not evidence before me in the earlier appeal. [12] The sworn application of Ms Bennett goes on to provide what is described as the litigation history. It reveals that on 10 September 2022 an application was made for a TAO to a Magistrate in Maroochydore. He refused to make the application. On 14 September 2022 an application was filed by the Director of Child Protection Litigation seeking an order for the child to be placed in the custody of the Chief Executive for a period of two years. At an interim hearing on 28 September 2022 to determine if the child should be placed in the interim custody of the Chief Executive, the resident Magistrate did not make an order placing the child in the custody of the Chief Executive. [13] The application prepared by Ms Bennett describes in detail the notification that was made on 28 September 2022. That is the notification which I found in the earlier appeal was simply without any foundation. The details, as extracted from my earlier judgment are as follows: [17] The sworn application which was filed in support of the TAO includes the following details. 7. At 3:30 pm on 28 September 2022, a notifier contacted the South West Regional Intake Service and provided the following information, which was recorded as a Notification: a. The mother presented with the child to [a medical practice] on the 21/09/2022. -- 3 of 6 -- 4 b. [the child] stated “my noo noo is sore” which is her description of her vagina. c. [the child] added “I think I’m not wiping myself properly.” This was perceived as an unusual thing for a 4 year-old to say. d. Greenish discharge or substance was observed coming out of [the child’s] vagina. A swab was taken. It was negative for STDs. A dip stick of [the child’s] urine was taken and it came back negative for drugs. e. The swab came back positive for Cocci – classed as being an infection caused by pelvic inflammatory disease. This disease is caused through sexual contact. f. [the child’s] physical examination revealed that the vagina appeared normal which indicates that the sexual contact was digital penetration. g. It is also believed that [the child] has been digitally raped because the infection is so high up in the vagina. h. [the child] said that her bellybutton hurt from the inside i. [the child] said that a man named [X] visits the home and they eat brownies and she doesn’t like it. [The child] stated that [X] touches her bellybutton from the inside. j. Doesn’t like the brownies, makes her feel sick and sleepy. k. The mother wanted a letter from the medical clinic which stated that [the child’s] infection was caused by the multiple detergents she uses to clean [the child’s] clothes. [18] The intake form which sets out the details of the notification made to the Department at 3.30pm indicates that the notifiers were from the medical practice where the child had been taken on 21 September. There were two notifiers who together provided the details set out in paragraph [16] of the judgment. The medical records however, which are contemporaneous notes taken by the medical professionals who saw and treated the child on 21 September (who were not the notifiers), do not support some of the statements that were made in that notification. Importantly, the reference to the statement by the child “I think I’m -- 4 of 6 -- 5 not wiping myself properly” as being something unusual, is not something reported by the doctor or the nurse to whom the child spoke. [19] The medical notes also do not reveal that the doctor was at all concerned that the positive cocci result was caused by pelvic inflammatory disease caused through sexual contact. The medical notes do not reveal that the doctor’s impression or opinion was that there had been sexual contact by way of digital penetration, nor do the records reveal that the child had been digitally raped because the infection was so high up in the vagina. The records also do not indicate that the child said that her bellybutton hurt from the inside or that [X] visited the home and ate brownies and touched her bellybutton from the inside. [13] Ms Bennett was well aware that the matters set out in paragraph 20 of her sworn application of 12 October 2022 were incorrect. Despite that knowledge she has included that material in detail. That tends to suggest to me that Ms Bennett was attempting to prejudice the learned Magistrate with information that she knew to be wrong. Ms Bennett was making an ex-parte application to a Magistrate. The result of the application was to remove the child from the care of her mother. Ms Bennett, in making such an ex-parte application had a duty to make full and proper disclosure to the court of any fact which might tend against the application. She was under a duty to make full and fair disclosure of all material facts.1 She did not do so. A failure to make full disclosure on an ex-parte application does not, without more, justify the setting aside of the order. There remains a discretion. [14] Section 27 of the Child Protection Act 1999 (Qld) provides that a Magistrate can make a TAO only if satisfied that: (a) An investigation is necessary to assess whether the child is a child in need of protection; and (b) The investigation cannot properly be carried out unless the order is made. [15] The application does reveal that a properly trained police officer interviewed the child on 12 October 2022. The child has made disclosures consistent with her having been sexually abused. She is very young. The police officer had concerns that she had been coached. The seriousness of those disclosures are matters that I am satisfied 1 Williams (as liquidator of Willhara Pty Ltd (in liq)) v Kim Management Pty Ltd [2013] 1 Qd R 387 [47]- [51]. -- 5 of 6 -- 6 required investigation to determine if the child was a child in need of protection. Those disclosures as indicated were not the subject of my earlier judgment. I am not satisfied that the learned Magistrate’s order was beyond his power. The Child Protection Act 1999 (Qld) does not limit the making of multiple applications for TAO’s. [16] The statements that the appellant made, that the child was not exposed to unsafe persons and that Mr [LR] had been cleared by the resident Magistrate are such that I am satisfied that the investigation could not be properly carried out unless the order was made. [17] As long as two years ago, the appellant raised concerns with the child’s doctor that she had been subjected to some sexual abuse. That adds to the concerns that this is a child about whom an investigation is necessary to determine if the child is a child in need of protection. [18] Accordingly, my order is the appeal is dismissed. -- 6 of 6 --