Director of Child Protection Litigation v SP & ZC [2018] QChC 19

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v SP & ZC [2018] QChC 19 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (appellant) v SP (first respondent) ZC (second respondent) FILE NO/S: 2488/18 DIVISION: Childrens’ Court of Queensland PROCEEDING: Appeal ORIGINATING COURT: Childrens’ Court at Townsville DELIVERED ON: 3 August 2018 DELIVERED AT: Brisbane HEARING DATE: 30 July 2018 JUDGE: Smith DCJA ORDER: 1. The appeal is allowed; 2. The original decision of the Townsville Childrens Court dated 5 July 2018 is set aside in part. 3. In place of the original decision not to make an inte rim order granting temporary custody to the Chie f Executive I make an interim order granting temporary custody of MC to the Chief Executive pursuant to section 67(1)(a)(ii) of the Child Protection Act 1999 (Q). 4. These orders have effect for the period of the adjournment. 5. The original orders with respect to the appointment of a separate representative pursuant to section 110 of the Child Protection Act 1999 (Q) and service of the Recognised Entity are confirmed. -- 1 of 31 -- 2 6. I will hear the parties as to further orders I should make. 7. There is no order as to costs. CATCHWORDS: FAMILY LAW AND CHILD WELFARE-CHILD WELFARE UNDER STATE LEGISLATION-whether a temporary custody order ought to have been made-whether child in need of care and protection-whether error by court below- extent of reasons needed on interim application- principles associated with making interim custody orders- interests of the parents as compared with interests of the child Acts Interpretation Act 1954 (Q) s 14 Child Protection Act 1999 (Q) ss 5A, 5B, 5C, 9, 10, 59, 67, 104, 105, 117, 120, 121 Allesch v Maunz (2000) 203 CLR 172 Brown v Brown (1980) FLC 90-875 Director-General v E (1998) 23 Fam LR 546 Director of Child Protection Litigation v FGE and FPA (No 2) [2018] QChC 17 Dunnett v Gebers & Anor; ex parte Dunnett [1997] QCA 56 Fox v Percy (2003) 214 CLR 118 In the marriage of Obrenovic (1985) FLC 91-655 In the marriage of R (1998) 146 FLR 267 J v Lieschke (1987) 162 CLR 447 J v W (1999) 25 Fam LR 299 M and M (1988) 166 CLR 69 MB v AR (1999) 25 Fam LR 322 Mbuzi v Torcetti [2008] QCA 237 Re Karen and Rita (1995) 19 Fam LR 528; (1995) FLC 92- 632 SB v The Department of Communities [2014] QChC 007 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 STC v The Director [2016] QChC 19 Taylor v L; ex parte L [1988] 1 Qd R 706 Youngman v Lawson [1981] 1 NSWLR 439 -- 2 of 31 -- 3 COUNSEL: Ms V Deane for the appellant Mr B Dighton for the first respondent Mr W Pennell for the second respondent Ms P Kirkman-Scroope for the separate representative SOLICITORS: Office of the Director of Child Protection Litigation for appellant Connor Pattison Smith for the first respondent Legal Aid Queensland for the second respondent Majella Meehan for the separate representative Introduction [1] This is an appeal by the appellant director against a decision by a Magistrate at Townsville on 5 July 2018 refusing to make a temporary custody order under section 67(1)(a)(ii) of the Child Protection Act 1999 (Q) in respect of the child MC born 13 April 2018. [2] That decision was stayed by Richards DCJ on 6 July 2018 until the hearing of this appeal. I further stayed the decision until today. Grounds of the appeal [3] The grounds of the appeal are: 1. The Magistrate erred at law in failing to give sufficient weight to the evidence before the court establishing that the child would be at unacceptable risk of harm in the parents’ care. 2. The learned Magistrate erred at law by placing significant weight on oral submissions over filed affidavit material. 3. The learned Magistrate erred at law in failing to have regard to the safety, wellbeing and best interests of the child as the paramount consideration. 4. The learned Magistrate erred in failing to give adequate reasons. [4] The appellant seeks that the appeal be allowed and instead this court make an interim order granting temporary custody of the child to the Chief Executive under section 67(1)(a)(ii) of the CPA. Nature of the appeal [5] The appeal is brought pursuant to section 117 of the CPA. [6] Section 120 of the CPA provides: (1) An appeal against a decision of a magistrate on an application for a temporary assessment order or a temporary custody order is not restricted to the material before the magistrate. (2) An appeal against another decision must be decided on the evidence and proceedings before the Childrens Court. (3) However, the appellate court may order that the appeal be heard afresh, in whole or part. -- 3 of 31 -- 4 [7] Section 121 of the CPA provides: In deciding an appeal, the appellate court may— (a) confirm the decision appealed against; or (b) vary the decision appealed against; or (c) set aside the decision 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. [8] It appears this court is to deal with this matter as a rehearing.1 In order to succeed, the appellant would need to satisfy the court there is some legal, factual or discretionar y error.2 Further, this court should conduct a real review of the hearing and of the reasons below. The court is not relieved of the responsibility of weighing the conflicting evidence and drawing its own conclusions giving due weight to the Magistrate’s decision.3 It should also be borne in mind that this court is not restricted to the material before the Magistrate4. Background [9] The application for a child protection order was made before the Childrens Court of Townsville on 5 July 20185. [10] The appellant applied for a child protection order granting custody of MC to the Chief Executive Department of Communities Child Safety and Disability Services for a period of two years. [11] It was alleged in the application that MC was in need of protection in that: (a) She was at unacceptable risk of suffering significant harm. (b) She did not have a parent willing and able to protect her from harm at the present time. [12] It was pointed out in the application that MC was born at 30 weeks gestation and had remained in hospital since birth due to requiring respiratory support and monitor ing. On discharge she would be placed with approved foster carers. [13] MC was the subject of a temporary custody order granted in the Townsville Childrens Court on 5 June 2018. On 8 June 2018 this was extended and expired on 11 June 2018. [14] The father ZC was sixteen years of age and himself was subject to a child protection order granting guardianship of him to the Chief Executive until he turned eighteen. [15] The mother SP was born on 6 September 1999 and therefore presently is eighteen years of age. Her younger child DP born 19 July 2016 was found to be a child in need of protection by the Childrens Court in Townsville on 28 September 2017 and is currently subject to an order granting custody of him to the Chief Executive which expires on 21 August 2019. 1 SB v The Department of Communities [2014] QChC 007. 2 Allesch v Maunz (2000) 203 CLR 172 at [23]. 3 Fox v Percy (2003) 214 CLR 118 at [25] and Mbuzi v Torcetti [2008] QCA 237 at [17]. 4 Section 120(1) of the CPA. 5 Exhibit 14- Application dated 5 July 2018. -- 4 of 31 -- 5 [16] It was alleged in the application that MC was at an unacceptable risk of suffer ing significant future harm from physical and/or emotional harm and/or neglect in that: (a) SP had a history of polysubstance misuse which she had not sufficiently addressed. (b) Her older child DP was taken into the Chief Executive’s custody in August 2016 shortly after his birth. (c) SP has used methamphetamine and is a regular user of cannabis as well. (d) SP was unable to abstain from drug use whilst pregnant with MC despite knowing she was pregnant. (e) On 9 February 2018 SP’s unit was visited by police and she was found smoking cannabis. (f) On 14 March 2018 she reported she and ZC had recently had consumed approximately nine cones of cannabis. (g) SP has mental health instability and intellectual impair me nt difficulties. (h) SP’s overall level of cognitive functioning falls below the first percentile and she has demonstrated a limited understanding of developmental needs of a child. (i) There had been domestic violence between SP and ZC, the relationship was unstable and impacted on SP’s mental health. [17] As regards to ZC it was alleged that: (a) He had ongoing substance abuse issues and had not maintained any significant period of abstinence. (b) In December 2017 he had been using methamphetamine. (c) He continues to smoke cannabis and has no plan to cease although as at 4 April 2018 he had remained abstinent for two weeks. [18] In support of the application two affidavits of Natalie Young sworn 3 July 2018 were relied upon.6 The second affidavit was the Rule 13 affidavit. [19] Ms Young is a child safety officer at the Aitkenvale Child Safety Service Centre. She holds a Bachelor of Social Work which was conferred in 1997 from the James Cook University and had been employed by Child Safety since October 2017. She was the child safety officer with case management of this family since 26 February 2018. [20] MC born on 13 April 2018 is of Aboriginal descent. DP, the half sibling of MC, was born on 28 July 2016 and is presently in departmental care under a short term child protection order which expires on 21 August 2019.7 [21] SP (born 6 September 1999) and ZC (born 4 November 2001) are currently in a relationship and live together. [22] When MC was born on 13 April 2018 she was ten weeks premature. She remained at the Townsville Hospital for medical treatment until her discharge on 7 June 2018. She was the subject of a temporary custody order granted in the Townsville Childrens Court on 5 June 2018 extended to 8 June 2018. Although MC had not experienced actual harm at this time, Ms Young swore that MC was at an unacceptable risk of 6 Exhibits 2 and 3. 7 Exhibit 2- Affidavit of Natalie Young [9]. -- 5 of 31 -- 6 suffering emotional and/or physical harm caused by neglect in the future.8 It was her assessment that SP was willing but not able to provide parenting for MC and ZC was willing but not able to provide parenting for MC.9 [23] SP has a child protection history as a subject child which includes 20 child concern reports, 8 intake inquiries and 29 child protection notifications.10 SP also has a child protection history in relation to her first child, DP, including one child protection notification when she was pregnant and two child concern reports.11 The child protection concerns for DP were in relation to: (a) low parenting capacity; (b) SP being engaged in a domestic violence relationship while pregnant; (c) SP’s partner at the time threatened to kill the unborn child; and (d) SP’s mental health and substance abuse.12 [24] These concerns led to a temporary assessment order being applied for and granted with respect to DP on 28 July 2016. [25] ZC also had a child protection history as a subject child.13 He had been in the care of the department since 16 June 2016 and is currently subject to a long term guardians hip order to the Chief Executive.14 A child’s strengths and needs assessment for ZC was conducted by the department.15 This document identified the following concerns: (a) an inability to abide by rules; (b) issues managing emotional responses; (c) criminal offending; (d) alcohol and drug use; (e) mental health issues; and (f) poor social skills [26] On 14 December 2017 concerns were raised to the department that: (a) SP had attempted suicide twice while pregnant. On 27 November 2017 SP told police she intended kill herself and had been at the hospital earlier that day for this. She said she would take a large number of tablets then hang herself with a rope; and (b) SP was using ice during her pregnancy and is in a volatile relations hip with the child’s father but denies any physical abuse. She refused a drug screen at the hospital on 19 December 2017.16 [27] On 11 January 2018 an investigation and assessment was recorded as substantia t ed child in need of protection for MC.17 [28] The Exhibit disclosed at that time SP did not have a fixed place of abode and lived with unsafe persons. She was highly transient and resided at squatters which were physically unsafe for herself and for a child to reside. She had isolated herself from 8 Exhibit 2- Affidavit of Natalie Young [15]. 9 Exhibit 2- Affidavit of Natalie Young [16]. 10 Exhibit 2- Affidavit of Natalie Young [17]. 11 Exhibit 2- Affidavit of Natalie Young [18]. 12 Exhibit 2- Affidavit of Natalie Young [19]. 13 Exhibit 2- Affidavit of Natalie Young [21]. 14 Exhibit 2- Affidavit of Natalie Young [22]. 15 Exhibit 2- Affidavit of Natalie Young [23] and Exhibit 4 to Exhibit 3. 16 Exhibit 2- Affidavit of Natalie Young [24]. 17 Exhibit 2- Affidavit of Natalie Young [25] and Exhibit 5 to Exhibit 3. -- 6 of 31 -- 7 support services such as medical, accommodation support services. She was a user of methamphetamine, cannabis and party drugs. She had a criminal history of drug offences and allowed a number of juvenile drug and property offenders to attend the location. It was noted that she had a history of unstable mental health and suffered from acute stress reaction adjustment disorder, moderate mental retardation, suicida l ideation, moderate depressive episode, anxiety disorder, unspecified history of frequent suicidal gestures and suicide attempts and self-strangulation after relationship breakdowns. The mental health concerns would impact on her ability to care for the child. SP had not engaged well in services that had tried to support her. She had a criminal history in Queensland and displayed volatile behaviour such as aggression and had been arrested for public nuisance, possess and supply drugs, property offences. [29] ZC had a history for firearms, explosives, serious assault, public nuisance and drug possession. SP struggled to provide for her own basic day to day care needs and led a very unsafe unpredictable lifestyle. SP has a low intellectual capacity and as such she has been managed by the Public Trustee and the Public Guardian. SP had disclosed that ZC was physically violent towards her and had strangled her. During interviews with departmental staff, SP appeared unstable and unwilling to articula te a safe plan for her newborn child. [30] On 18 February 2018, the Queensland Police Service (“QPS”) submitted a child harm referral report regarding SP’s unborn baby after SP overdosed on medicatio n. 18 Exhibit 6 noted that on 4 January 2018 SP overdosed on prescription medication and said she did not care about the unborn child. [31] On 15 March 2018 the SCAN team reviewed the concerns regarding SP’s unborn baby.19 This document noted the following: (a) On 5 June 2017, SP was brought to the Townsville Hospital Emergency Department. SP had been yelling at her parents and inflicted superficial lacerations to her neck and QPS and the Queensland Ambulance Service (“QAS”) were called. Her parents indicated there were ongoing behavioural problems at home. SP denied any recent drug use but she did have a history of past using of ice. SP was unwilling to be admitted to hospital but agreed to return home to her parents’ house. (b) On 22 June 2017, SP was brought again to the emergency department with superficial lacerations to her left wrist done with a blade after an altercation with family members. She voiced suicidal intent. She told QAS officers she wanted to end her life due to worsening depression after her child was removed from her care. She also said she took herself off regular medication for depression two weeks prior because she was hearing voices. She was discharged but re-presented to the hospital with new superficial lacerations to the left wrist and an attempt to strangle herself with her hands. She was feeling suicida l and reported hearing voices telling her to take her own life. It was diagnosed that she had a moderate depressive episode and was emotionally unstable. There was moderate mental retardation, significant impairment of behaviour requiring attention or treatment, 18 Exhibit 2- Affidavit of Natalie Young [26] and Exhibit 6 to exhibit 3. 19 Exhibit 2- Affidavit of Natalie Young [27] and Exhibit 7 to exhibit 3. -- 7 of 31 -- 8 moderate depressive episode, adjustment disorder and suicida l ideation. It was determined that she needed long term psychologica l support for her emotional dysregulation, impulsivity, substance use and coping skills. She was started on an anti-depressant and anti- psychotic and discharged. (c) On 26 June 2017 there was contact with SP. She stated she had bad thoughts about hurting herself again. (d) She did not attend a face to face appointment on 27 June 2017 but later reported she reported experiencing panic attacks when contacted and anxiety when she was alone. (e) There were several phone calls made to her on 28 June 2017 which were not answered. (f) On 29 June 2017 QPS raided her home and she was charged with possession of drugs and paraphernalia. (g) On 2 July 2017 she reported a slightly improved mood and some fleeting suicidal thinking with no plan or intent. (h) On 3 July 2017 she was brought to the Townsville Emergenc y Department for self-harming with a razor blade with superfic ia l wounds to the arms and neck. She said she wanted to kill herself and go to heaven. She also said she was going to hang herself in hospital. She was agitated and unpredictable. She said she had used ice, acid and alcohol the previous evening. She was erratic and emotiona l, laughing and then crying and kicking the bed. She said she was hearing lots of voices telling her to kill herself, she was later cleared for medical discharge. The assessment made at the hospital noted: “SP is an eighteen year old Caucasian female patient with intellectual disability currently on olanzapine and sertraline. SP states that she is still experiencing auditory hallucinations with derogatory themes and also commanding in nature at times voices given instructions that she should kill herself. …these are ongoing paranoid delusions… she reports ongoing thoughts of self-harm and not wanting to remain alive but denies any current self-harm, suicidal or violent intentions or plans…sleep and appetite are currently poor. She claims that she often self-medicates with cannabis so as to be able to sleep and to manage her depression. …impression adjustment disorder, mental and behavioural disorders due to multiple drug misuse and use of psychoactive substances, psychotic disorder and intellectual disability.” (i) On 4 July 2017 she attended a medical review and said she was still experiencing auditory hallucinations with derogatory themes and commanding that she should kill herself. She said the symptoms were worsened when her son was taken from her by child safety. She reported ongoing thoughts of self-harm. (j) On 19 July 2017 SP was brought to the emergency department with a history of overdosing on her anti-depressant medication. (k) On 22 July 2017 SP answered a phone call but did not seem interested in engaging for long. -- 8 of 31 -- 9 (l) On 29 August 2017 she was brought into the emergency department with a history of deliberate self-harm following family disagreeme nt. There were superficial lacerations. She had been caught by the police for drugs. (m) On 11 September 2017 she was referred to forensic intake mental health due to comments made to watch house staff when arrested on 10 September 2017. She was on a curfew but QPS picked her up late on the Saturday night. She said that she was in a taxi getting away from her house and feared “a bikie” was coming around to look for ice/drugs. She made statements regarding strangling herself out of frustration of being taken to the watch house. Her mother was currently incarcerated on drug related offences and her sister was currently in the Cleveland Detention Centre. She denied recent substance use but reported using cannabis a week prior and ice three weeks prior. (n) On 19 September 2017, SP reported to the emergency department after taking eight anti-depressant tablets with the intention of harming herself. She also said that she had tried to stab four people at a house with a knife. (o) On 20 September 2017 she re-presented to the emergency department feeling light headed with blurry vision. Reports had a positive pregnancy test three to four weeks prior but urine and blood pregnancy tests completed in the department were negative. (p) On 6 October 2017 she attended ATODS. Her goal was to cease methamphetamine. She first used methamphetamines at the age of fifteen and had last used the previous evening and prior to that four weeks prior. She had a small needle mark on her left elbow. Her pattern was daily IV drug use one point. She had withdrawa l symptoms such as anger outburst, tremors and was anxious and depressed. Her use of cannabis began at the age of fourteen and she had five cones per week which increased. She was anxious. She heard voices every second day or so telling her to harm herself. She also saw “vampires, ghosts and things” and locked herself in her room. (q) On 17 October 2017 she attended a medical review appointment. She appeared dishevelled and disorganised and was unable to answer questions coherently. She said that she did a pregnancy test the previous day and discovered she was two to three weeks pregnant. Her mood was not good, she was still hearing voices. A needle mark was observed and she confessed to using methamphetamine within the last one week. She said she’d not been taking her prescribed medicatio n. She’d been living alone since her mother went to jail. She was admitted to the acute mental health inpatient units and reviewed. She didn’t know who the father was, it could be a recent ex-boyfriend or could be a sixteen year old with whom she was having sex. She wanted to keep the baby. She said she’d had a child in July the previous year with a different partner and saw the child every fortnight. She said that she heard voices telling her to kill herself, she felt paranoid but denied having thoughts of wanting to harm herself. (r) On 18 October 2017, the scan team noted “ongoing illicit substance use.” -- 9 of 31 -- 10 (s) On 3 November 2017 SP was brought to the emergency department by the QAS. She said that she had self-harmed with intent to termina te her pregnancy and herself. She also said other pregnancies were terminated intentionally via the use of drugs and other means. She said she’d cut herself with a razor on her left forearm and was suicida l. She said she’d last used ice two weeks ago. She had suicidal ideations with a plan to hang herself. On assessment it was noted that she was found lying in her hospital bed cuddled up to her boyfriend ZC. She denied alcohol or cannabis use since finding out about her pregnancy. She did not appear intoxicated. She wanted to return home with her boyfriend. She appeared keen to progress with the pregnancy. (t) On 5 November 2017 SP was brought to the emergency department by QAS. She informed QAS she had not been compliant with the anti- depressant medication and her mental health had deteriorated. She had a near drowning episode with friends at Crystal Creek. She said she no longer felt suicidal. (u) On 27 November 2017 SP was brought to the emergency department with suicidal ideation after having placed a rope around her neck but she did not rope it to any other structure or jump from any height. She denied drug use or overdose. On review she was hostile and demanded to be discharged. She was discharged home with her step-mother. She re-presented to the emergency department later that evening having breached a curfew and was irate when talking to QPS threatening to kill herself numerous times. She said she off her medications because of the pregnancy. She had decided to terminate the pregnancy on Friday. She wanted the medications changed. She said her mood fluctuations had worsened since she’d stopped taking medications, she did deny thoughts of harm, she said she’d last taken amphetamines eight weeks prior. (v) On 30 November 2017 she failed to attend an ATODS appointment but was brought into the emergency department at 2.55 pm. She’d had an anxiety attack and was planning on hanging herself and had a rope in the house. She was with ZC. She was living with her divorced sister and boyfriend at the mother’s place. Her mood was low but she denied having acute suicidal intent. She was non-compliant with medications. She denied substance abuse since discovering she was pregnant but it was noted “usually uses amphetamines daily.” It was further noted that a social worker informed the writer there was family domestic violence and SP was being transported to a youth shelter that day with the plan that she remain there for two to three months to then move into independent accommodation. (w) On 6 December 2017 SP was brought to the emergency department at 1.40 pm with self-harm. There were superficial lacerations to her upper thigh and she’d punched herself in the abdomen with intent to kill herself and the baby. She’d used ice one week previously. She said that she did not want the pregnancy but she did not have $700 for an abortion. She was later discharged home with ZC and a youth worker at 5.30 pm. (x) On 12 December 2017 SP was brought to the emergency department after an attempted strangulation with a cord. It was noted she had an -- 10 of 31 -- 11 IQ of 56 and a mental health history of adjustment disorder, depression and anxiety. (y) On 15 December 2017 she presented to the emergency department with dizziness and vomiting. She’d not taken any medications as she had no money to fill the script. (z) On 18 December 2017 she was seen by the adult forensic court liaiso n service following breach of bail charges. She was in the watch house and was expressing suicidal ideation. She was presently living in a youth shelter. She was happy about being pregnant. (aa) On 19 December 2017 SP presented to the emergency department with suicidal ideation, superficial cuts to the thighs, auditory hallucinatio ns. She was not able to identify any particular trigger for her emotiona l response that day. She denied all thoughts of suicide. (bb) On 11 January 2018 SP was the rear passenger in a vehicle which was struck by a car travelling at 70 kilometres per hour. Her only complaint was decreased foetal movement. She began complaining of abdominal discomfort. She told a doctor that she had ceased using amphetamines when she was seven weeks pregnant, had occasional alcohol and was living in a youth shelter. (cc) On 22 January 2018 SP was brought to the emergency department by the QAS with suicidal ideation and a history of yelling abuse and kicking a QPS vehicle following an altercation with her boyfriend. She was irrational and impulsive but later denied any alcohol or drug use. She later said that she’d taken something but refused to identify it. On 23 January 2018 SP was brought to the emergency department after an overdose on her anti-depressant medication and with suicida l ideation. (dd) On 4 February 2018 she was brought to the emergency department with a history of an alleged overdose on sertraline. She denied the overdose and said her boyfriend lied to get her taken to the hospital. She became jealous of the boyfriend (ZC) talking to a girl. (ee) On 7 February 2018 SP attended ATODS and she said she’d not used ice since she was last at ATODS. She said she was still using cannabis when she got stressed. She was continuing to smoke ten cigarettes per day. (ff) On 16 February 2018 she attended ATODS with a support worker. She said she’d spent some time in the watch house on 9 February 2018 because she’d been found smoking cannabis when QPS visited her unit to carry out a curfew check. She’d smoked two cones. She said that that was the last occasion she’d smoked cannabis because all of her “stash” was removed by the police. (gg) On 21 February 2018 she attended an ATODS appointment and denied any cannabis use which was supported by ZC. (hh) On 26 February 2018 SP was brought to the birth suite due to lower abdominal pain and head injury. She alleged she fell at about 9.30 pm but was unsure how this happened. (ii) On 27 February 2018 it was noted that there was a North Ward community care team case review. It was noted that a lot of work had been put in to make sure that SP was supported in the long term. The Public Trustee was in place for financial matters and she had a care coordinator. She received an NDIS package. It was noted that SP was -- 11 of 31 -- 12 at high risk of harm to herself through misadventure. It was noted that she and ZC had described physically and emotionally violent situations where SP loses control. More recently she had held a knife to ZC’s chest. Also ZC had attempted to strangle her on two separate occasions. She was at high risk as she progressed through the pregnancy. (jj) On 7 March 2018 SP failed to attend a scheduled ATODS appointment. (kk) On 11 March 2018 she presented to the emergency department with lethargy and feeling weak. [32] As regards ZC it was noted that: (a) On 19 July 2017, ZC attended the emergency department with an intentional overdose of ibuprofen and Panadol. (b) On 24 September 2017 ZC presented to the emergency department with QPS with suicidal ideation, attempted hanging following an arrest. (c) On 29 September 2017 ZC was brought to the emergency department with an intentional overdose of 20 throat lozenges, 16 tablets of paracetamol and 16 tablets of ibuprofen with an intent to get “a buzz.” (d) On 6 December 2017 ZC attended the emergency department following a self-harming incident post methamphetamine use. He had superficial lacerations to his wrist and said he was a danger to himself and his partner as he had thoughts of harming himself and her. (e) On 9 December 2017 he was brought to the emergency department with erratic behaviour. He’d taken some sleeping pills (30) after an argument with SP. (f) On 16 December 2017 ZC was brought to the emergency department with suicidal ideation stating he was going to hang himself on the background of an argument with SP. (g) On 20 December 2017 there was a mental health view, it was noted: “An overall impression of ZC is a sixteen year old Aborigina l Torres Strait Island boy currently presenting with acute emotional distress, low mood, self-harming behaviours, suicidal ideation and attempts on a background of depression or anxiety…” (h) It was noted that his acute stress and triggers may be exasperated by his substance misuse i.e. cannabis and methamphetamine. [33] Ms Young noted that SP had only been able recently to obtain fixed accommodatio n but “she remains vulnerable to unsafe persons in the community using her accommodation.”20 With respect to substance misuse, Ms Young alleges that SP is a user of methamphetamine, amphetamine, cannabis and party drugs. It is also said that ZC is a user of drugs. [34] With respect to criminal history SP has a criminal history in Queensland of nine counts possession of dangerous drugs, one count of supplying dangerous drugs, public order offences, property offences and domestic violence.21 20 Exhibit 2- Affidavit of Natalie Young [28]. 21 Exhibit 2- Affidavit of Natalie Young [37] and Exhibit 8 to exhibit 3. -- 12 of 31 -- 13 [35] ZC has a history of firearms, explosives, serious assault, public nuisance and drug possession offences. [36] Ms Young says that SP struggles to provide her own basis day to day care needs and lives in a very unsafe unpredictable lifestyle and child safety are worried about her capacity to care for a child.22 Her parenting skills are very limited which in turn limits her ability to protect and care for a baby.23 [37] Ms Young swears: “SP would struggle to adequately meet a newborn child’s care and protective needs resulting in the child potentially being seriously harmed or neglected.”24 [38] It is noted that SP has a very low intellectual capacity. [39] Exhibit 1025 is a neuropsychological/social assessment report regarding SP for December 2016 – January 2017. It assesses SP’s IQ at an overall score of 45. [40] This report indicates that with respect to DP: “SP demonstrated a limited understanding of the different developmental stages of a child as well as the different care needs through each stage. At times her descriptions of the anticipated needs appeared to be based on SP’s own history…” [41] Ms Young swears: “SP demonstrates a limited understanding of the different developmental stages of a child as well as the different care needs through each stage.”26 [42] ZC is currently only sixteen years of age and has no experience parenting. [43] It was Ms Young’s assessment that a child protection order granting custody of MC to the Chief Executive for two years was appropriate and desirable as: (a) “Custody of MC is required to provide her with a stable home environment that ensures her educational, medical, social and developmental needs are met; (b) Child safety require evidence of SP’s and ZC’s sustained engageme nt with support services and long term maintenance of the changes they are making in their lives, for example maintaining accommodation and refraining from drug use. (c) The granting of an order for custody to the Chief Executive will ensure that MC’s safety is met by ensuring that she has a placement free from neglect. (d) It is my assessment that custody of MC should be placed with the Chief Executive as my exploration of the family network has failed to identify anyone who is suitable and willing to hold custody of MC.”27 22 Exhibit 2- Affidavit of Natalie Young [40]. 23 Exhibit 2- Affidavit of Natalie Young [41]. 24 Exhibit 2- Affidavit of Natalie Young [43]. 25 Exhibit 11 in these proceedings. 26 Exhibit 2- Affidavit of Natalie Young [44]. 27 Exhibit 2- Affidavit of Natalie Young [50]. -- 13 of 31 -- 14 [44] A family group meeting would be held during the adjournment period to develop an appropriate case plan for MC.28 [45] On 29 January 2018 child safety officer Emma Wilson received an email regarding SP assaulting a person at Hungry Jacks on 27 January 2018. Her behaviour showed she did not consider the safety of her baby.29 [46] On 11 April 2018 Ms Young met with SP, ZC and the Public Guardian. SP said that she was now connected to some support services. [47] Exhibit 13 to Ms Young’s Rule 13 affidavit is a summary of the hospital records to which I have already referred. They also relate to the birth of MC. [48] On 16 April 2018 Ms Young spoke to Ms Thompson, a social worker at the Townsville Hospital, regarding consent for health procedures for MC. SP and ZC were visiting the unit daily. I note that ZC on 16 April 2018 made a comment about taking the baby from ICU but SP calmed him down and explained that MC needed to stay there and grow properly. It was also noted that her drug screen from Friday was clear. [49] On 23 April 2018 the child safety officer attended the Townsville Hospital Infant Special Care Unit to see MC. [50] On 24 April 2018 Ms Young received an update from ATODS with SP’s attendance up until 17 April 2018.30 This file note records a number of failures to appear. [51] However it is my assessment that SP has greatly improved since then. [52] On 17 April 2018 SP was reviewed. She evidenced good judgment especially around MC’s care and her own health care. [53] Clinical Nurse Lisa Karsevani in Exhibit 16 to Exhibit 3 noted that initially it was difficult to engage with SP but she attended every appointment and had engaged in therapy. It was noted that SP was reluctant to take the anti-depressant medicatio n prescribed for her but had commenced taking it after discussion just prior to MC’s birth. SP alleged she was abstinent from all substances from apart THC and had been engaging in interventions in that regard and had significantly reduced her usage. She was not aware of any incidents of domestic violence in the past two months and had not presented to the emergency department with self-harm or suicidal ideation in the past two months. Ms Karsevani intended to continue with therapy for SP and ZC both as a couple and individuals. [54] On 24 April 2018 Ms Young received an update from the Salvation Army regarding SP’s engagement with their service.31 [55] This Exhibit noted that SP had engaged with the Salvation Army Outreach Program from 6 March 2018 through to 17 April 2018. [56] It was noted that: 28 Exhibit 2- Affidavit of Natalie Young [53]. 29 Exhibit 2- Affidavit of Natalie Young [54] at Exhibit 11 to exhibit 3. 30 Exhibit 2- Affidavit of Natalie Young [59] Exhibit 16 to exhibit 3. 31 Exhibit 2- Affidavit of Natalie Young [60] Exhibit 17 to exhibit 3. -- 14 of 31 -- 15 “SP checks in daily with the outreach team and will often seek support and guidance with other concerns she has such as sitting for her learner’s permit, family support or even budgeting and meal planning. The outreach team will often talk through the existing supports SP has in place and remind her of who on her team can help her with these issues. SP is responsive to this and is almost always able to solve the problem on her own… throughout her time in the program SP has consistently been working towards reunification with her son DP and towards building on her parenting skills before the birth of her daughter MC. SP is willing to attend parenting classes and has clearly expressed that she sees the value in this. SP has also asked for some support in getting her driver’s licence, as she is aware as a mother of two she was going to need to be able to transport her children to their required appointments. The Salvation Army Outreach Program will continue to work with SP for as long as she requires support and is engaging in the program. SP is enrolled into the bridge program which is a program based on the twelve steps of recovery. SP is also taking part in the positive lifestyle program which aims to build skills and raise awareness in the following areas: self-awareness, anger, depression or loneliness, stress, grief and loss, self-esteem and future direction.” [57] On 24 April 2018 Ms Young received an NDIS support coordination action plan from Mercy Community Service.32 [58] Ms Young noted that MC was born on 13 April 2018 ten weeks premature and needed to remain in the Neonatal Hospital on ventilation.33 With the assistance of the Salvation Army, SP and ZC have been able to visit MC as much as possible. SP has been able to speak with hospital staff about the baby’s needs and has expressed milk for her and bathed her. [59] MC has been with departmentally approved carers since her release from hospital. It is stable accommodation and there are no issues. [60] SP and ZC have contact with MC each Monday, Wednesday and Friday, supervised at the Aitkenvale Child Safety Service Centre.34 [61] On 24 May 2018, team leaders had a discussion with SP and ZC.35 SP stated she wanted to have MC in her care and was making attempts to change her lifestyle. SP identified her mother as a safe person to care for MC but SP’s mother was not safe particularly bearing in mind a long history of child protection concerns regarding her own children. ZC agreed with SP’s views. The file note indicates that SP said she was doing everything she can including no fighting, no drugs and she had a unit. Child safety acknowledged that SP had been doing well for two months but needed 32 Exhibit 2- Affidavit of Natalie Young [61] Exhibit 18 to exhibit 3. 33 Exhibit 2- Affidavit of Natalie Young [62]. 34 Exhibit 2- Affidavit of Natalie Young [65]. 35 Exhibit 2- Affidavit of Natalie Young [66]-[68] and Exhibit 19 to exhibit 3. -- 15 of 31 -- 16 to see changes for a longer period of time. SP said they’d been going to the hospital and had been bathing the child. [62] On 6 June 2018 Ms Young contacted the Townsville Aboriginal and Islander Health Service to request their views on child safety application. [63] Ms Mann responded confirming they were agreeable with the department seeking a short term custody order.36 Proceedings below [64] The matter came before the Townsville Childrens Court on 5 July 2018. The parties had agreed to the matter being adjourned until 30 August 2018 with a separate representative being appointed. However, SP’s lawyer indicated that SP did not consent to interim custody being granted to the Chief Executive.37 It was accepted by SP’s lawyer that SP did have a number of issues including mental health and drug misuse issues but all of that evidence related to 2017. The most recent incident was in February 2018 and since that date there had been no further evidence of drug use or misuse.38 It was pointed out that when she was in labour the drug test was negative (April 2018) and she had abstained from drug use since that time.39 There had been no concerns raised as to the handling of her child since the birth.40 There had been no further instances of mental health problems since February of 2018.41 It was submitted that the application for the temporary custody order was made without notice to SP and without notice to her lawyer despite request.42 SP’s lawyer relied upon the Salvation Army Support Program and the Queensland mental health report. SP was engaged with Mercy Community Services and there was a positive ATODS report.43 [65] By way of response the lawyer for the Director submitted that there was a low threshold for the court to be satisfied of and she had already made submiss io ns generally with respect to SP.44 [66] The Magistrate found that he was quite impressed as to the effort of self-improve me nt put in by SP, she had fully embraced the assistance of a number of agencies and he was satisfied there was sufficient safeguards in place and sufficient improveme nts made in terms of her own development and skills for the care of the child in a satisfactory manner. He declined to make the interim order and adjourned the matter until 30 August 2018.45 [67] After a short time SP’s lawyer returned to the court and made a submission that there had been a positive test for cannabis but the Magistrate indicated that this would not change his order.46 36 Affidavit of Natalie Young [69] Exhibit 20 to exhibit 3. 37 Transcript day 1 page 3.32. 38 Transcript day 1 page 7.5. 39 Transcript day 1 page 7.32. 40 Transcript day 1 page 8.2. 41 Transcript day 1 page 8.45. 42 Transcript day 1 page 9.20. 43 Transcript day 1 page 10.15. 44 Transcript day 1 page 11.17. 45 Transcript day 1 page 11. 46 Transcript day 1 page 14. -- 16 of 31 -- 17 Further evidence [68] Pursuant to section 105(1) and 120(1) of the CPA further evidence was brought before this court. [69] Caitlin Hurle a child safety support officer has affirmed an affidavit dated 27 July 201847. She has been involved with SP in relation to her contact with DP since February 2018 and with ZC since June 2018 when MC came into care. [70] Since MC came into care in June 2018, SP and ZC have been having contact with her from 10.00 am until 11.00 am each Monday, Wednesday and Friday supervised at the Aitkenvale Child Safety Service Centre. She has personally supervised each contact aside from six. On the Wednesday contact each fortnight DP also attends so that siblings can have contact. Generally each contact consists of SP holding MC and interacting with her for the first half hour and then ZC holds her and interacts with her for the second half hour. [71] From her observations, both parents love MC and show appropriate affection towards her and appear committed to bonding with her but Ms Hurle expresses the opinion they lack basic parenting skills. [72] In particular, she has observed that both parents need to be consistently directed as to how to appropriately hold a baby; both parents need to seek advice on how to prepare a bottle (in terms of temperature); when ZC feeds MC he often sits with his knees up and feet on the ground and rests her on his thighs which does not allow her to feed properly; ZC does not take direction well on how to hold MC and he holds her in positions which makes her uncomfortable and she cries; she has had to correct the parents on the right way to hold the bottle; ZC often bounces MC around immediate ly after feeding her and whilst ZC and SP can change her clothes and nappy, they do not proactively notice when she needs to be changed. [73] She has never had any cause to suspect SP or ZC have been under the influence of any substance at contact but they do present as being tired. [74] ZC interacts well with both children. Ms Hurle notes at [12]: “ZC and SP are both young and have limited parenting experience so it is understandable that they will require some assistance with parenting. From what I have observed, however, I would have serious worries about MC’s safety and care needs being appropriately met if she was to go home with SP and ZC until such time as they have developed the parenting skills required to care for a baby.” [75] Hollie Pezet, the senior team leader of the Aitkenvale Child Safety Service Centre, has affirmed an affidavit dated 27 July 2018.48 [76] She says that SP has engaged with the Salvation Army, community mental health, Imprint Community Care, Mercy Community Service, ATODS and Evolve Therapeutic Services. In addition, SP is supported by the Public Guardian and ZC is 47 Exhibit 8. 48 Exhibit 9. -- 17 of 31 -- 18 presently subject to a guardianship order in favour of the Chief Executive. There have been two stakeholder meetings to discuss what supports are being provided to the family, one on 10 July 2018 and one on 18 July 2018. Mercy Community Services is responsible for coordinating the support SP receives under the NDIS plan. Delwyn assists in SP with her budgeting and capacity building. The Salvation Army are engaged with the family once per week which is a decrease from their previous involvement. SP has a regular appointments with the community mental health, three each week for one to two hours and is engaging well. With respect to Imprint, they are funded to provide eight hours per week support but SP generally only uses them about five hours per week. The Public Guardian does monthly visits to the house and weekly telephone calls. [77] As to ATODS it is said: “SP and ZC engage roughly fortnightly however, they have been disengaging rather focusing on getting MC back.” [78] Finally, Evolve Therapeutic Services are working with ZC on a weekly basis. There were concerns about service overload and the fact that if any further services become involved this would overwhelm and confuse the parents. Child safety officer Natalie Young, has regular contact with SP and it is the intention of the department to arrange parenting capacity assessment of both parents. This has not yet been done. SP and ZC moved into a new unit in late June 2018 and Child Safety have not yet completed a safety assessment of the home. [79] It is her assessment the level of support provided to the family is insufficient to ensure MC’s care and protection needs would be met if she were to return to the care of the parents and she would be at risk of harm if this was to occur. She gives reasons for this at paragraph 10. [80] She notes that ZC is presently going through the Youth Justice Court for failing to complete his community service order following a conviction on a charge of public nuisance. A pre-sentence report has been requested. MC has been placed with departmentally approved foster carers since her discharge from hospital. It is a stable placement and there have been no worries raised with respect to this placement. [81] Kerri Lyn Patterson has affirmed an affidavit dated 25 July 201849. In this affidavit she affirms that she is the solicitor for SP. [82] On 29 May 2018 she attended a meeting with SP which had been convened for the purpose of finalising a plan for services to best assist SP when MC was released from hospital. It was hoped this would be sufficient to persuade the department to not remove the child from her custody. There were representatives from Enable OT, Salvation Army, Queensland Health, Mercy Community Services and Imprint Care present. During the meeting Ms Patterson was advised that the various services were able to coordinate their interventions and engagements with SP so that she would have in person contact with someone from those services each day. In the event that something unforeseen occurred and prevented in person contact, the services would ensure they had at least telephone contact with SP. Also during the meeting she was advised that SP had put a proposal forward that ZC, she and the baby live in a residential program “We Care.” This is a live in facility which provides 24 hour 49 Exhibit 10. -- 18 of 31 -- 19 support to the family. The department had refused this proposal. SP also put forward another proposal which involved “The Catalyst Program.” This program allows a support worker to stay with the family in their own home in a spare bedroom but the department had refused this proposal. [83] During the appearance in the Townsville Childrens Court, she had a number of letters of support from the various organisations. [84] Imprint care50 notes it is a registered NDIS service provider. As at 21 May 2018, Imprint Care had been providing transport and supports to SP for 18 hours per week. From June 2018 an onwards, it would provide transport and support for eight hours per week to enable SP and ZC to attend their weekly ATODS meetings and transporting and supporting SP and ZC to attend the parenting program. [85] The letter from Mercy Community51 confirms that Mercy Community Services were providing support coordination for SP’s annual NDIS plan. “During this time [up until 6 February 2019] Mercy Community Services will continue to work closely with SP and her formal and informal support networks. Supports will continue to focus in assisting SP in managing the complexity of her support arrangements, coordinate service delivery for multiple stakeholders and link SP to activities and services to assist her in build ing her life skills and parenting capacity.” [86] The letter from the clinical nurse at the Mental Health Service Group52 notes: “I am writing to confirm that as SP’s case manager for Northward Community Mental Health (QLD Health), SP will receive a minimum of two hours per week of support indefinitely. This time will be used to monitor SP’s mental state and risks, provide education around medication and treatment and also provide counselling services for SP. This will focus on emotional and behavioura l management. … SP will continue to regularly see her consultant psychiatrist who also specialises in pre-natal psychiatry for this period of time [twelve months] she will be reviewed at a minimum of three monthly with ad hoc reviews as required.” [87] The letter from the Salvation Army53 noted that SP had engaged with the Salvation Army Youth and the Young Adults Recovery Outreach Service from 6 March 2018 through. She was scheduled to attend 60 support sessions and had taken part in 52. These support sessions totalled about 109 hours of engagement. “SP has continued to remain focused and committed to this program during this time. Throughout my time working with SP I’ve seen a significant improvement in her ability to manage her emotions and in her ability to reach out for support in times of crisis.” 50 Exhibit KLP1. 51 Exhibit KLP2. 52 Exhibit KLP3. 53 Exhibit KLP4. -- 19 of 31 -- 20 “Both SP and her boyfriend ZC, who is also the father to her newborn child, remain focused on receiving relationship counselling and have been referred to see local psychiatrist Duncan McIntyre here at the Salvatio n Army (SP and ZC have requested this support).” [88] It was also noted that SP began volunteer work at the local Salvation Army clothing store but this was discontinued after the birth. She has also been supported with pre- natal care visits. She has not been under the influence of any substance. “SP checks in daily with the outreach team and will often seek support and guidance for other concerns she has such as sitting for her learner’s permit, family support or even budgeting and meal planning… SP’s responsive to this and is almost always able to problem solve on her own… throughout her time in the program SP has consistently been working towards reunification with her son DP and towards building on her parenting skills before the birth of her daughter MC. SP is willing to attend parenting classes and has clearly expressed she sees the value in this. SP has also asked for some support in getting her driver’s licence as she is aware as a mother of two she was going to need to be able to transport her children to the required appointments… SP has also taken part in the positive lifestyle program… the outreach team is committed to providing SP with ongoing support and is able to offer daily check ins via phone as well as visiting SP and MC in her home three times per week.” [89] A drug test certificate dated 13 April 2018 has been tended54 and no drugs were detected. There was a further drug test certificate dated 2 March 201655 and no drugs were detected. There was a further drug certificate dated 9 July 201856 and no drugs were detected. [90] The appellant also conceded in court there has been two more clean drug tests for SP. [91] Ms Karsevani gave evidence before me. In evidence-in-chief she said that she was the clinical nurse at the Townsville Mental Health Department. She had been the case manager for SP since February 2018. At the start she saw SP once per week but as it progressed she was seeing her two times per week together with other informa l sessions57. It was her evidence that SP took up the opportunities offered to her. She had very good attendance58. When she first saw SP, SP was unable to handle emotional distress but now can. She can now talk things through concerning current issues59. She has been diagnosed with post-natal depression60. She also regularly sees 54 Exhibit KLP5. 55 Exhibit KLP6. 56 Exhibit KLP7. 57 Transcript day 1 page 21.37. 58 Transcript day 1 page 22.5. 59 Transcript day 1 page 22.25. 60 Transcript day 1 page 22.42. -- 20 of 31 -- 21 a consultant psychiatrist. Ms Karsevani has never seen her in an intoxicated state61. She is presently medicated and most of the time is compliant with her medicatio n62. Presently SP and ZC live in their own apartment63. SP has an older sister with her own children who can provide support64. [92] In cross-examination by Ms Deane the witness gave details as to the medication SP was on. She also agreed there can be hallucinations when she is stressed65. She noted that SP was now using coping skills which have been developed over the previous three months. She has made significant progress in her mental state66. [93] In cross-examination by Mr Pennell she agreed she had made observations of both the mother and the father. It was Ms Karsevani’s opinion that SP was not at risk of self-harming and was not a risk to others67. [94] In cross-examination by Ms Kirkman-Scroope, Ms Karsevani gave details of her qualifications. She said that her service was open from 8.00 am to 4.30 pm but there was a 24 hour access to an acute care team to which SP has access68. Since February 2018 there had been no presentations to the emergency department. She agreed that early on though in her treatment there were threats to self-harm but there had been no such threats since the birth of the child69. There was also post-natal depression being treated by Dr Noakes70. [95] Exhibit 12, a schedule of weekly appointments was tendered by Mr Dighton. Submissions Appellant [96] The appellant submits71 that the appeal should be allowed and a temporary custody order in favour of the Chief Executive should be made. It is submitted the Magistrate failed to give sufficient weight to the evidence before the court establishing the child would be prima facie at an unacceptable risk of harm in the parents’ care. It is further submitted that the child protection concerns were comprehensively outlined and substantiated by the application, Ms Young’s affidavit and corresponding exhibits. It is submitted the Magistrate’s reasons gave little regard to these issues. It was submitted there were ongoing concerns regarding SP’s and ZC’s cannabis use and SP’s compliance with prescription medications as recently as April 2018. It is submitted the Magistrate did not have proper regard to both parents’ willingness and ability to protect the child. It is acknowledged that the respondents had in recent times demonstrated a level of improved stability and a willingness to engage with support services but this was not sufficient to adequately mitigate the risk posed to MC if she was placed in the care of the parents. It was submitted that the engagement whilst was positive, it was not demonstrated for a sufficient period nor had there been 61 Transcript day 1 page 23.7. 62 Transcript day 1 page 23.35. 63 Transcript day 1 page 23.42. 64 Transcript day 1 page 24.15. 65 Transcript day 1 page 25.5. 66 Transcript day 1 page 26.10-25. 67 Transcript day 1 page 27.10-22. 68 Transcript day 1 page 28.12. 69 Transcript day 1 page 29.30-35. 70 Transcript day 1 page 29.10-22. 71 Exhibit 4. -- 21 of 31 -- 22 sustained positive behaviour changes demonstrated to extinguish the child protection concerns. It is submitted that the Magistrate focused solely on SP’s willingness to engage with support services but failed to adequately consider the evidence before him regarding the significant risk of emotional and physical harm to the child should she be in the full time care of the parents. [97] It is submitted at [60]: “To reunify MC to her parents’ care immediately would expose MC to an overwhelming risk of harm given the recent history of entrenched dysfunctional behaviour on the part of both respondent parents and the lack of demonstrated engagement to address the child protection concerns and develop adequate parenting skills and safe coping strategies.” [98] It is submitted this was a complex matter which needed full and close consideratio n. It is submitted the Magistrate failed to have proper regard to the evidence. It is further submitted the Magistrate erred at law by placing significant weight on the oral submissions over filed affidavit material. It is submitted the Magistrate did not consider the filed material in any significant way bearing in mind that which transpired in the court proceedings. It is submitted no material has been filed on behalf of either respondent to substantiate the submissions made on their behalf. It is submitted the Magistrate erred at law in failing to have regard to the safety, wellbeing and the best interests of the child as the paramount consideration. And finally it is submitted that the learned Magistrate erred in failing to provide sufficient reasons for his decision. The Magistrate failed to provide adequate reasons for the rejection of the appellant’s argument that prima facie the child was in need of protection due to the risks posed to MC as a result of the illicit substance misuse, SP’s suicidal ideations and self-harming over the past year. [99] In oral submissions Ms Deane submitted to the court that the evidence led today did not change the circumstances. It was submitted that the threshold needed for a temporary custody order was a prima facie case on the balance of probabilities. It was submitted that there had been insufficient time since February 2018 for the court take the risk of having SP and ZC looking after the child. Ms Deane also relied on the evidence of the two recent affidavits. She also submitted that there was evidence that because MC was a premature baby she had increased the vulnerabilities. It was submitted that the needs of the child could not presently be met by the mother. It was submitted that it is crucial there be stable living arrangements. It was further submitted that there were difficulties with SP’s sister, Serita, looking after the children.72 It was submitted that it is relevant that the father’s age is very young and there needs to be a longer process before custody is given to the parents. First Respondent [100] The first respondent (SP) submits73 that determining a child’s best interests is a complex exercise which requires weighing and balancing a number of competing risk and protective factors. It is submitted with respect to ground one that it was reasonable for the Magistrate having regard to all of the evidence to the make the order that ultimately did. It is submitted there was a distinct paucity of informatio n 72 See paragraph 10(d) of the affidavit of Ms Pezet. 73 Exhibit 5. -- 22 of 31 -- 23 as to concerns as to the health development and needs of the child or on establishing any nexus between the mother’s capacity and the child’s current need. It is submitted in review of the evidence on the appellant’s own case makes clear the logical and rational basis upon which to conclude that with appropriate supports in place, separating the child from its mother and placing her in the custody of the department was not necessary or in her best interests. It is submitted that the evidence clearly established a vast improvement in SP’s position. As to ground two, it is submitted there is no relevant error of law established. It is however, accepted that the Magistrate did err in failing to provide adequate reasons for his decision. The Magistrate did fail to have regard to or make adequate reference to the relevant evidence material findings of fact or the process of applying those facts to the law. [101] Given that error and the nature of the appeal, it is appropriate for the court to exercise its power under section 121(c) of the CPA and substitute its own decision. But, whilst the appeal should be allowed and the Magistrate’s decision set aside, the applicatio n for temporary custody should be refused. [102] Mr Dighton in oral submissions submitted that the Department has an obligation to support the child. It was submitted that there is a preference that support be given to the child’s family. It was submitted that in the last five months, i.e. since February 2018 SP has made significant progress. It was submitted that the department had not proposed any alternative options but had chosen the most intrusive option i.e. custody. Just because there was a factor of risk does not mean that the child must be removed. It was submitted that the concerns raised by Ms Hurle at paragraph 8 of her affidavit were ambiguous. Mr Dighton heavily relied on the evidence of Ms Karsevani. As to the IQ of his client that had not been assessed since January of 2017. Second Respondent [103] The second respondent also concedes74 ground four of the appeal and accepts the Magistrate erred in failing to give adequate reasons for decision. The first respondent’s outline is adopted and the second respondent seeks the same orders as sought by the first respondent. [104] Mr Pennell largely adopted Mr Dighton’s submissions. Separate representative [105] In written submissions75 the separate representative supports the appellant’s position. The chronology from the SCAN team information has been set out. It is pointed out that the child has no capacity for self-protection and the child is vulnerable. There is no psychological or psychiatric update on the mother’s condition. The separate representative heavily relies on Ms Hurle’s affidavit. The mother is only 18 and the father 16 with limited parenting experience. The court would be satisfied the child is in need of protection and an interim custody order is appropriate. [106] In oral submissions Ms Kirkman-Scroope submitted that the separate representative supported the Department’s position. It was submitted that bearing in mind the child’s young age; the fact she was born premature and the past history of the parents there was an overall risk of harm to the child if the child was returned to the parents 74 Exhibit 6. 75 Exhibit 7. -- 23 of 31 -- 24 at this stage. It was also of concern that there had been a diagnosis of post-natal depression. It was also of concern that on occasions even still SP was not compliant with medication at all times. It was submitted the risk here is that if things became too much there would be a reversion by SP to her previous mental state. She was unpredictable and the risk was too great to take in this case. Her past history was a good indicator of future risk and the court should not take that risk. Ms Kirkman- Scroope heavily relied on the IQ issue and submitted ultimately that it was premature to return the child to the parents. Discussion [107] In light of the concessions made by all parties, it is appropriate to allow this appeal. [108] I observe that whilst this was an interim application there is still a requirement for a court to give adequate reasons.76 Without even briefly summarising the affidavit material, the arguments of counsel and the relevant statutory provisions the matter may be exposed to a successful appeal77. [109] It should be borne in mind though that in light of the interim nature of the applicatio n the reasons may be brief.78 [110] The question remains though what order should be made. [111] It is necessary to consider the relevant provisions. [112] Section 67 of the CPA provides relevantly: (1) On the adjournment of a proceeding for a court assessment order or child protection order, the Childrens Court may make all or any of the following orders— (a) an interim order granting temporary custody of the child— (i) for a court assessment order—to the chief executive; or (ii) for a child protection order—to the chief executive or a suitable person who is a member of the child’s family; [113] Section 104 of the CPA provides: (1) In exercising its jurisdiction or powers, the Childrens Court must have regard to the principles stated in sections 5A to 5C to the extent the principles are relevant. [114] Section 105 of the CPA provides: (1) In a proceeding, the Childrens Court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. (2) If, on an application for an order, the Childrens Court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities. [115] As noted section 104 relates back to sections 5A to 5C. [116] Section 5A of the CPA provides: 76 Director of Child Protection Litigation v FGE and FPA (No 2) [2018] QChC 17 at pages 5-6. 77 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at page 259. 78 MB v AR (1999) 25 Fam LR 322 at [36]-[37]. -- 24 of 31 -- 25 The main principle for administering this Act is that the safety, wellbeing and best interests of a child are paramount. [117] Section 5B of the CPA provides: The following are general principles for ensuring the safety, wellbeing and best interests of a child— (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; (h) if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin; (i) if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible; (j) a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support); (k) a child should have stable living arrangements, includ ing arrangements that provide— (i) for a stable connection with the child’s family and community, to the extent that is in the child’s best interests; and (ii) for the child’s developmental, educational, emotional, health, intellectual and physical needs to be met; (l) a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child; (m) a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religio us identity and values; (n) a delay in making a decision in relation to a child should be avoided, unless appropriate for the child. [118] Section 5C of the CPA provides: The following additional principles apply in relation to an Aboriginal or Torres Strait Islander child— (a) the child should be allowed to develop and maintain a connection with the child’s family, culture, traditions, language and community; -- 25 of 31 -- 26 (b) the long-term effect of a decision on the child’s identity and connection with their family and community should be taken into account. [119] Other sections also need to be examined. [120] Section 59 of the CPA provides that a Childrens’ Court may only make a child protection order if it is satisfied that the child is in need of protection and the order is appropriate and desirable for the child’s protection. I note that the provision of section 59(1) (e) i.e. the least intrusive order should be made does not apply to this case (see section 59(9). [121] When a court considers making a child protection order including an interim order under section 67 of the CPA, the court must have regard to sections 9 and 10 of the CPA. [122] Section 9 of the CPA provides: (1) Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. (2) It is immaterial how the harm is caused. (3) Harm can be caused by— (a) physical, psychological or emotional abuse or neglect; or (b) sexual abuse or exploitation. [123] And section 10 of the CPA provides A child in need of protection is a child who- (a) has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and (b) does not have a parent able and willing to protect the child from the harm. [124] The court should also bear in mind that which was stated by Deane J in J v Lieschke79 namely: ‘The possible consequences to a parent, even an ‘unimpeachable’ parent (see J. v. C. [1969] UKHL 4; (1970) AC 668, at p 715), of being deprived of custody of an infant child by an order of a court will be outweighed by the paramount interests of the child in a case where there is clear overall conflict between them. Those possible consequences to the parent, which may be emotionally, and even physically, devastating, are not however irrelevant to the factual issues and consideratio ns involved in such proceedings or only relevant to the extent that there is coincidence or reciprocity between the interests of the parents and the interests of the child. Nor is the interest of the parents in such proceedings merely indirect or derivative in its nature. To the contrary, such proceedings directly concern and place in jeopardy the ordinary and primary rights and authority of parents as the 79 (1987) 162 CLR 447 at 462-463. -- 26 of 31 -- 27 natural guardians of an infant child. True it is that the rights and authority of parents have been described as ‘often illusory’ and have been correctly compared to the rights and authority of a trustee (see, e.g., the Report by Justice, the British Section of the Internatio na l Commission of Jurists, Parental Rights & Duties and Custody Suits, (1975), pp.6-7; Dingwall, Eekelaar and Murray, The Protection of Children, (1983), p.224) in that they are to be exercised “for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education” (United States v. Green (1824) 26 Fed. Cas. 30, at p 31; Goldstein, Freud and Solnit, Before the Best Interests of the Child, (1979)) and in that they are susceptible of being overriden or supplanted by the courts either in the exercise of statutory jurisdiction or ‘for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae’ (per Lord Cottenham L.C. in In re Spence (1847) 2 Ph 247, at p 252 (41 ER 937, at p 938), cited by Cardozo J. in Finlay v. Finlay (1925) 148 NE 624, at p 626). Regardless, however, of whether the rationale of the prima facie rights and authority of the parents is expressed in terms of a trust for the benefit of the child, in terms of the right of both parent and child to the integr ity of family life or in terms of the natural instincts and functions of an adult human being, those rights and authority have been properly recognized as fundamenta l (see, e.g., Universal Declaration of Human Rights, Arts. 12, 16, 25(2) and 26(3) and the discussion (of decisions of the Supreme Court of the United States) in Roe v. Conn (1976) 417 F Supp 769 and Alsager v. District Court of Polk County, Iowa (1975) 406 F Supp 10). They have deep roots in the common law. In the absence of an unmistakable legislative intent to the contrary, they cannot properly be modified or extinguished by the exercise of administrative or judicial powers otherwise than in accordance with the basic requirements of natural justice’. [125] In terms of the risk of harm, in Youngman v Lawson80 Street CJ stated: ‘It is not difficult to envisage a child being at a current and immediately existing state of risk if the guardianship is incompetent or improper by reason of, inter alia, the condition or attitude of the person who has the legal dispositive power and authority over the child. I can see no necessary inconsistency between the existence of a present state of risk to the child from incompetent or improper guardianship and a current factual state of the 80 [1981] 1 NSWLR 439 at 446 -- 27 of 31 -- 28 child being, as was the child in the present case, in the immediate care of the Balmain Hospital.’ [126] In assessing risk, there must be “something more than a bare possibility … that some treatment, not necessarily curative, has to an extent been neglected before the court takes a child from the care of the person” who has been a long-term caregiver.81 [127] In M and M82 it was said at p78: ‘The degree of risk has been described as a ‘risk of serious harm’ (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), ‘an element of risk’ or ‘an appreciable risk’ (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), ‘a real possibility’ (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ [128] With reference to M and M in Re Karen and Rita83 it was noted by Nicholson CJ at [195] p24 that: ‘[counsel] further submitted, correctly in my view, that the High Court did not intend to confine its remarks to sexual abuse, but to all forms of abuse and said that each area of abuse and neglect must be considered on the basis of whether the current and future risk is unacceptable and that this required a consideration of the children's exposure to actual and potential risk.’ [129] The Full Court of the Family Court in In the marriage of R 84noted that there was nothing in M’s case which limited the concept of risk to sexual abuse. [130] In the marriage of Obrenovic85 it was noted: “The principle that, if a contest between a parent and a stranger, it is assumed that, prima facie, the interests of the child will be better served in the custody of a parent, is not 81 Dunnett v Gebers & Anor; ex parte Dunnett [1997] QCA 56 at page 6. 82 (1988) 166 CLR 69 at page 78. 83 (1995) 19 Fam LR 528 at page 550; (1995) FLC 92-632 84 (1998) 146 FLR 267 at p 285 85 (1985) FLC 91-655 at 80,273 and 80,274. -- 28 of 31 -- 29 a rule of law nor a matter of principle, but a consideratio n based on common sense and the general experience of mankind and on the pattern upon which our society is designed. Prima facie, it is assumed that a parent will be able to do more and will do more in this regard than a stranger, but it by no means follows that this should inevitably be the case.” [131] Further with reference to Brown v Brown86 it was said: “In some custody cases, of which type I am of the view this was one, it is necessary for the Judge in the exercise of his discretion to have regard to the guiding rule that if of two decisions available to the court one would expose the child to risk or more risk than another decision, then that course should usually be adopted which is the least likely to expose such child to such risk.” [132] The fact is that the paramount principle is the safety, well-being and best interests of the child.87 Where there is a conflict between the child’s safety, wellbeing and best interests and the interests of a parent of the child, then the conflict must be resolved in favour of the child.88 Those principles are of relevance to this case. [133] I also note that in a number of cases it has been held that the relevant standard is the civil standard, but of course where there are serious allegations with grave consequences a finding should only be made on convincing evidence89. [134] Also when considering an interim matter of custody I have regard to J v W90. The Full Court of the Family Court noted at [45] that on an interim application the court must have regard to the best interest of the child as the paramount consideration. The interests of the child will normally be met by ensuring 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. [135] I do bear in mind the provisions of the CPA are overriding. Paramountcy91 and stability92 are specifically referred to in the CPA. [136] I bear all of these principles in mind when making the decision in this case. Conclusion [137] I am satisfied on the evidence that SP has been making excellent attempts at improving her position in life. She has embraced the supports made available to her 86 (1980) FLC 90-875 at 75, 543. 87 Section 5A of the CPA. 88 Note to Section 5A of the CPA and STC v The Director [2016] QChC 19 at [35]. The note is part of the CPA – see section 14 of the Acts Interpretation Act 1954 (Q). 89 Taylor v L; ex parte L [1988] 1 Qd R 706 at page 714 and Director-General v E (1998) 23 Fam LR 546 at page 548. 90 (1999) 25 Fam LR 299; (1999) FLC 92-858 at [45]. 91 Section 5A of the CPA. 92 Section 5B(k) of the CPA. -- 29 of 31 -- 30 in particular since February 2018. I was impressed by the evidence of Ms Karsevani although as she conceded she was not qualified to advise the court on whether the child would be safe with SP and ZC93. [138] The evidence is not as convincing concerning ZC though, who still lives with SP. ZC presently is the subject of breach proceedings and may receive a punishment of detention. He is also only 16. [139] I am conscious of the provisions as to the desirability of having a family unit kept together, the fact that a child’s family has the primary responsibility in raising and protecting a child, the fact that the preferred way of ensuring a child’s safety is through supporting the child’s family and that the State should only take action that is warranted in the circumstances94. [140] But on the other hand a child has the right to be protected from harm or risk of harm, and if a child does not have a parent both able and willing to protect the child the State is responsible for protecting the child.95 [141] However at the end of the day I am not concerned with the best interests of SP or ZC but with the best interests of the child.96 [142] I am also considering this matter at an interim stage and bear in mind the fact that a prima facie case is to be established and that the case is to be decided on the balance of probabilities. [143] Despite Mr Dighton’s submissions I cannot disregard the evidence of Ms Hurle and Ms Pezet. [144] In my view Ms Hurle does raise concerns at paragraph 8 of her affidavit. [145] I cannot disregard the evidence in Ms Hurle’s statement at paragraph 12 that “ZC and SP are both young and have limited parenting experience so it is understandable that they will require some assistance with parenting. From what I have observed however I would have serious worries about MC’s safety and care needs being appropriately met if she was to go home with SP and ZC until such time as they have developed the parenting skills required to care for a baby.” [146] I also cannot disregard the evidence of Ms Pezet at paragraph 10 of her affidavit as to her concerns and what Ms Young says at paragraph 50 of her affidavit as to her concerns. [147] Having considered all of the evidence and the submissions I am satisfied on the balance of probabilities the temporary custody order in favour of the Chief Executive should be made. At this stage I am satisfied on the balance of probabilities that the child is at a risk of harm97 and is in need of protection.98 [148] In summary the reasons are: 93 Transcript day 1 page 22.26. 94 Section 5B (b), (c), and (e) of the CPA. 95 Section 5B (a) and (d) of the CPA. 96 See note to section 5A of the CPA. 97 Section 9 of the CPA. 98 Section 10 of the CPA. -- 30 of 31 -- 31 (a) It is still only some months since SP has started to turn her life around ; (b) I am not satisfied she has sufficient family supports in place; (c) SP and ZC have been observed by Ms Hurle and Ms Pezet in more recent times and there is concern on their evidence as to the level of their parenting skills; (d) SP has had a significant mental health history, a history of self- harming and drug use. There is a chance of relapse. Of course the longer things progress without relapse, the less likelihood there will be relapse; (e) ZC has himself has mental health issues and drugs issues. He is presently facing a term of detention; (f) SP has a low intellect; (g) MC is only a few months old and was born prematurely and there some evidence from Ms Thompson99 of her vulnerability; and (h) Presently MC is in a stable home environment and that situatio n should not be disturbed. [149] However, if SP continues to make improvement and/or does not relapse, I can see that she should have the custody of the child given to her. I think she is ultimate ly capable of having custody of the child but more time is needed. [150] I would expect the court in Townsville on 30 August 2018 or at a time shortly thereafter to freshly consider the situation and up to date reports and make a further determination on whether continued custody is necessary. [151] I have considered the draft orders proposed by the parties100. [152] I will hear the parties as to any further orders I should make. [153] For the reasons given I make the following orders: 1. The appeal is allowed; 2. The original decision of the Townsville Childrens Court dated 5 July 2018 is set aside in part. 3. In place of the original decision not to make an interim order granting temporary custody to the Chief Executive I make an interim order granting temporary custody of MC to the Chief Executive pursuant to section 67(1)(a)(ii) of the Child Protection Act 1999 (Q). 4. These orders have effect for the period of the adjournment. 5. The original orders with respect to the appointment of a separate representative pursuant to section 110 of the Child Protection Act 1999 (Q) and service of the Recognised Entity are confirmed. 6. I will hear the parties as to further orders I should make. 7. There is no order as to costs. 99 Exhibit 9 Affidavit of Hollie Pezet at page 10- the child is more susceptible to sickness and can dehydrate overnight. 100 Exhibit 15. -- 31 of 31 --