Department of Child Safety v SBJ and Anor [2019] QChC 44

CHILDRENS COURT OF QUEENSLAND CITATION: Department of Child Safety v SBJ and Anor [2019] QChC 44 PARTIES: DEPARTMENT OF CHILD SAFETY (Applicant) v SBJ AND ANOR (Respondent) FILE NO/S: 3544/19 DIVISION: Children’s Court of Queensland PROCEEDING: Appellate ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 21 October 2019 (ex tempore reasons given) DELIVERED AT: Brisbane HEARING DATE: 21 October 2019 JUDGE: Farr SC DCJ ORDER: 1. The appeal is allowed; 2. The decision of the learned Magistrate not to make the Court assessment order granting custody of the child to the Chief Executive is set aside; 3. A Court assessment order granting custody of the child, to the Chief Executive pursuant to section 45(1)(c)(ii) of the Child Protection Act 1999 is substituted therein, and 4. Such order shall end at 11:59pm on 22 October 2019. CATCHWORDS: CRIMINAL LAW – APPEAL – PARTICULAR GROUNDS OF APPEAL – where the appellant brought an application in the Magistrates Court at Brisbane seeking a Court assessment order in order to assess the risks of placing the subject child in care of either parent – where the learned Magistrate dismissed the application and effectively granted custody to the second respondent – where the appellant submits that the learned Magistrate erred in law by making that order – whether the order was ultra vires the Magistrates powers under the Child Protection Act. COUNSEL: J Selfridge for the appellant SOLICITORS: Office of Child and Family Official Solicitor for the appellant -- 1 of 6 -- 2 [1] HIS HONOUR: The appellant brought an application in the Magistrates Court at Brisbane on the 1st of October 2019, seeking a Court assessment order in order to assess the potential risk in placing the subject child in the care of either of his parents. The child is aged 10 and-a half years. The child’s mother consented to the order sought. The child’s father did not. The effect of the learned Magistrate’s decision was to dismiss the application and then effectively grant a custody order in favour of the second respondent, that is, the child’s father. That decision is the subject of this appeal. [2] On the 4th of October 2019, the appellant brought an application for a stay, which came on before his Honour Judge Morzone QC of this Court, and his Honour made the order sought at that time, which effectively retained the status quo of circumstances for the subject child pending the appeal outcome, and it provided as well for an agreed opportunity for the second respondent to engage with the Department and undertake an assessment as to his capacity to care for the subject child, and I understand that has – is underway at the moment. [3] The standard of proof relevant to the judicial consideration of a matter to be determined by the Childrens Court in a child protection proceedings is provided for in section 105 of the Child Protection Act 1999, which expressly states that: If a court needs to be satisfied of a matter, it only need be satisfied on the balance of probabilities. [4] The applicant has submitted that the threshold needed for a temporary custody order pursuant to section 67 of the Child Protection Act is a prima facie case on the balance of probabilities and referred the Court to the case of the Director of Child Protection Litigation v SP and ZC.1 Insofar as an appeal is concerned, section 117(2) of the Child Protection Act provides that a party to an application for a Court assessment order for a child may appeal a decision on the application. Pursuant to section 121 of the Act: The appellate Court is empowered to (a) confirm the decision appealed against, or (b) vary the decision appealed against, or (c) set aside the decision appealed against and substitute another decision, or (d) set aside the decision appealed against and remit the matter to the Magistrate or Childrens Court that made the decision. [5] I should have said at the start of this, it was in the Magistrates Court sitting in this Childrens jurisdiction, of course, when this matter was first brought on before the Court. Pursuant to section 120(2) of the Act: An appeal against a decision must be heard on the evidence in the proceedings before the Court. [6] Insofar as the background of this matter is concerned, the subject child is 10 and-a half years of age. The first respondent is his mother. The second 1 [2018] QChC 19. -- 2 of 6 -- 3 respondent is his father. The child has a maternal half-sibling who is two years of age. Both children were in the care of the first respondent when the Department intervened due to a number of ongoing risks. A temporary assessment order was sought in respect of both children by the Department on the 6th of September 2019, and such an order was granted that day. [7] An application for a Court assessment order was then subsequently filed on the 11th of September. It was mentioned on the 24th of September and dealt with, as I have said, on the 1st of October. Both children had previously been placed in a departmentally approved placement with the maternal grandmother since the 9th of September 2019. That grandmother had also previously cared for the children as part of a prior safety plan enacted by the Department. The child the subject of this application currently remains in the care of that same grandmother along with his younger sister. [8] The grounds of the appeal are as follows: (a) the learned Magistrate erred in law by making a decision to dismiss the Court assessment order application and then making a subsequent order that custody of the child go to the respondent father, (b) the learned Magistrate erred at law by ordering that the child be placed in his father’s care, as this is ultra vires powers conferred by the Child Protection Act 1999, (c) the learned Magistrate erred in failing to give sufficient weight to the evidence before the Court in prematurely determining that there was sufficient evidence to make a finding that the father was a parent willing and able and that the assessment was no longer necessary, (d) the learned Magistrate erred in law by making statements to the father that he is to refrain from returning to work, must remain living with his mother and must facilitate contact between the child and the mother and between the child and his siblings, (e) the learned Magistrate erred in law by failing to have regard for the safety, wellbeing and best interests of the child as the paramount consideration. An assessment of all the evidence, having regard to these factors, would satisfy a learned Magistrate that it is necessary to provide interim protection for the child, whilst an assessment of the parents’ ability to care for the child on an interim and long-term basis is finalised, and (f), the learned Magistrate erred in failing to give adequate reasons for her decision. [9] I turn, firstly, to the ultra vires argument. There is no express power under the Child Protection Act to grant custody of a child to a parent. The appellant has referred the Court to the following explanatory note to the Child Protection Bill of 1998, which provides: Clause 64 enables the Court to make interim orders to apply during a period of adjournment. For the period of the adjournment, these orders have the same effect as the corresponding child protection orders (see clause 58). However, custody of a child during adjournment for a Court assessment order cannot be given to anyone other than the Chief Executive because of the purpose and short length of those orders. [10] The appellant acknowledges that the above explanation in the explanatory notes specifically refers to interim orders, but it is submitted that the intent is clear in relation to the purpose and short length of Court assessment orders. The child the subject of this matter was removed from the care of his mother, -- 3 of 6 -- 4 and the evidence to date shows that he has primarily resided with his mother and that his relationship with his father has been inconsistent. [11] It is submitted that the parent from whom the child is removed and that person’s behaviour provides the statutory basis for the Department’s initial intervention with the family. In this case, the mother had lawful possession of the child prior to the Department’s involvement, and it is submitted that if the Department’s involvement ceases it is appropriate that the child be returned to that parent’s care. [12] It is further submitted that a change to the status quo of ongoing parenting arrangements for the child should only occur with permission of the custodial parent and, failing that, a parenting order under the Family Law Act 1975 or an order under the Child Protection Act 1999. Without such orders, it is submitted that it is within the rights of the custodial parent to collect the child at any time, which would place the child the subject of this appeal at risk or at the potential risk of immediate harm. It is submitted that the protective needs of the child are not secured in such a process. [13] The appellant submits that a Childrens Court cannot award parental responsibility in child protection proceedings, and departmental offices have no power of placement outside of the provisions contained within the Child Protection Act. And it is submitted that in the absence of an appropriate order, the protective parent may be regarded as willing but not legally able, as per the provisions contained within the Family Law Act, and it is submitted that that is because in the absence of a Family Court order the non-protective parent can take the child at any point in time. [14] And the Court must determine, of course, pursuant to section 45(1)(c) of the Child Protection Act, whether it is satisfied that it is necessary to provide interim protection for the child while an investigation is carried out. In making that determination, the Court must have regard to the fundamental principle of the Act. That is namely, that the safety, wellbeing and best interests of the child are paramount. On the evidence before the Court in this matter, the subject child has never resided in the primary care of the second respondent, and there is no established evidence in relation to his ability to meet the child’s needs. [15] Submissions were made at the hearing below by both the first respondent and the appellant that at that time the second respondent had been unreliable and inconsistent in his commitment to the child and in his engagement with the Department. Prima facie, it would appear therefore that in the absence of any materials placed before the Court by the second respondent the learned Magistrate nevertheless proceeded to enter into a discussion with the father or the second respondent wherein she sought his assurances that he would be available to the child and provide a stable home for him, which would include the father – or the second respondent managing reasonable contact with the first respondent and the child’s half-sibling. [16] Now, the powers of the Magistrate in an application of this nature arise via legislation. Sections 37 to 45 inclusive of the Child Protection Act effectively provide for those powers, and upon consideration of the Act it is -- 4 of 6 -- 5 clear that the learned Magistrate’s order placing the child into the custody of the second respondent was ultra vires her powers under the Act. Put simply, she had no legislative power to make such an order. This appeal must succeed on this basis alone. [17] Despite my conclusion in that regard, I should also address at least some of the other grounds of appeal. The Child Protection Act provides several mechanisms to assist departmental officers to investigate allegations of harm and to take action to protect children. One of those mechanisms is provided for in sections 37 to 45 of the Act. That includes, of course, the making of a Court assessment order. The purpose of such an order is to authorise actions necessary as part of an investigation to assess whether a child is in need of protection if the consent of a parent of the child has not been able to be obtained or is not practicable to take steps – practicable, I should say, to take steps to obtain the parent’s consent, and more than three business days is necessary to complete the investigation and assessment. [18] Section 44 provides that a Childrens Court Magistrate can make such an order for a child only if the Magistrate is satisfied: That an investigation is necessary to assess whether the child is a child in need of protection. [19] And: The investigation cannot be properly carried out unless the order is made. [20] Now, in this matter the learned Magistrate determined that she was not satisfied that a Court assessment order was necessary to determine the subject child’s safety prior to placing the child in the primary care of the second respondent. [21] Now, I have already given a brief summary of what occurred in the Court below. What would be evident from that is that no evidence was placed before the Court by the second respondent. It cannot be said that the second respondent’s comments from the bar table constitute evidence that was appropriate, yet the learned Magistrate appeared to place significant weight upon those comments whilst placing no weight on the appellant’s evidence. The failure in that regard was an error when there was no appropriate evidence or material to contradict the appellant’s evidence. Put simply, there was an inadequate factual basis for the conclusion reached. There was no contradictory evidence that was appropriate in the circumstances, and the appellant’s evidence was not demonstrated to be inherently unreliable or improbable. [22] It also necessarily follows, of course, that in the absence of appropriate evidence the learned Magistrate failed to give adequate reasons for her findings that the second respondent had a stable household and that he was a parent willing and able to ensure the child’s safety. That is not to say that the second respondent does not possess those attributes. He may well have. But in the absence of evidence or any supporting material in the face of evidence to the contrary, no such conclusion could reasonably have been reached. -- 5 of 6 -- 6 [23] Now, in reaching this decision, I note the provisions of section 105(1) of the Act, that states: The Childrens Court is not bound by the rules of evidence and may inform itself in any way it thinks appropriate. [24] Whilst a Court may therefore take information from the bar table, to do so in the absence of any other evidence or material in the face of potentially conflicting evidence is not appropriate, in that no great weight can be placed on it, and to do so would fail to afford procedural fairness to the other party or parties who may have wished to challenge the information and who were undoubtedly caught by surprise by the process adopted. [25] The appellant has also submitted that there would be widespread benefit and utility if the issue as to whether the Chief Executive has the power to take a child from a primary carer for safety reasons and place the child with a non- custodial parent who is willing and able to provide a safe home for the child could be determined in this matter. However, resolution of that issue is not necessary in the termination of this appeal, and it would be inappropriate to comment further upon that issue. [26] So for these reasons, either collectively or individually, the order of the Court is as follows: (1) the appeal is allowed, (2) the decision of the learned Magistrate not to make the Court assessment order granting custody of the child to the Chief Executive is set aside, (3) a Court assessment order granting custody of the child to the Chief Executive pursuant to section 45(1)(c)(ii) of the Child Protection Act 1999 is substituted therein, and (4) such order shall end at midnight on 22nd October 2019. Anything else in that regard? [27] MR SELFRIDGE: Your Honour, could I just raise one quick matter with you? [28] HIS HONOUR: Yes. [29] MR SELFRIDGE: It is in terms of the specifics, and my experience has been that different judges adopt a different take on the specifics of the time. My submission generally is that it ends at midnight on that day. Other judges, in my experience, have said it’s 11.59. I am in your Honour’s hands in that regard. [30] HIS HONOUR: Well, to be clear, then, I will make it – it shall end at 11.59pm on 22nd of October 2019. That way there can be no ambiguity about it. -- 6 of 6 --