Director of Child Protection Litigation v PAV & HOK (No 1) [2016] QChC 13

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v PAV & HOK (No. 1) [2016] QChC 13 PARTIES: THE DIRECTOR OF CHILD PROTECTION LITIGATION (appellant) v PAV (first respondent) and HOK (second respondent)) FILE NO/S: 3576/16 and 3577/16 DIVISION: Appellant PROCEEDING: Appeal from application for temporary protection order. ORIGINATING COURT: Childrens Court at Brisbane DELIVERED ON: 9 September 2016 (ex-tempore) DELIVERED AT: Brisbane HEARING DATE: 9 September 2016 JUDGE: Dearden DCJ ORDER: (1) The decision of the learned magistrate at Brisbane on 30 August 2016 in which he declined to make an order granting temporary custody of either of the children, to the Chief Executive, be set aside; (2) Order that interim custody of HYA and HYB be granted to the Chief Executive for the period of the adjournment; (3) Order that PAV have no contact, direct or indirect, with HYA or HYB, for a period of three months from 9 September 2016; (4) Order that a copy of these proceedings and this transcript be prepared urgently, and will be provided to the appellant, and to each of PAV and to Mr Holmes and, further, that the court make available telephone -- 1 of 4 -- 2 facilities if necessary for either or both of PAV and HOK to attend for the delivery of the reasons that I have foreshadowed. (5) Order, pursuant to section 67(2) of the Child Protection Act 1999 (Qld) that an authorised officer or police officer enter and search any place the officer reasonably believes the child is, to find the child, to enforce the order; (in respect of each of HYA and HYB). CATCHWORDS: LEGISLATION: CASES: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – where there are concurrent Family Law Court and Queensland Childrens Court proceedings - whether the learned magistrate erred at law in failing to grant a temporary custody order FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – whether the children are in need of protection – whether the children have suffered or are suffering emotional harm – whether the harm is significant Child Protection Act 1999 (Qld) s 67 Allesch v Maunz (2000) 2003 CLR 172 ASW & ECW v Director-General of Communities (Child Safety) [2011] Q Ch C 23 COUNSEL: SOLICITORS: Ms J Aylward for the appellant The first and second respondents were self-represented Director of Child Protection Litigation The first and second respondents were self-represented -- 2 of 4 -- 3 Introduction [1] The Director of Child Protection Litigation (DCPL) appeals against the decision of the learned magistrate in the Childrens Court Brisbane on 30 August 2016, not to order interim custody of the children, HYA (DOB …) and HYB (DOB …) to the Chief Executive pursuant to section 67 of the Child Protection Act 1999 (Qld). [2] Having heard the appeal today, I am satisfied that the appeal should be granted in respect of each child. [3] I accept that the learned magistrate placed insufficient weight on the conclusions of Ms Lauren Davis in her report dated 15 August 2016. I have also taken account of the “fresh evidence” report (admitted pursuant to an order by me today) of Dr Simon Kennedy dated 25 August 2016 which was not, however, before the learned magistrate on 30 August 2016. [4] I also accept that the learned magistrate failed to recognise that the child protection proceedings were different to, and should take precedence over, the concurrent family law proceedings. [5] It follows that the learned magistrate fell into legal, factual, or discretionary error,1 and failed to “take into account some material consideration” in so far as the learned magistrate exercised a discretion.2 [6] I conclude that each child is a child suffering emotional harm, which is significant, and each child does not, in the short-term, have a parent able and willing to protect the child from harm.3 I conclude it is the best interests of each child, that interim custody be granted to the Chief Executive. [7] In the short time available to me, I am not able to provide detailed reasons for these conclusions. To that end, I will adjourn these proceedings to 9 am on Friday 16 September 2016 in order to provide those detailed reasons. [8] In the meantime, however, given the contents of the reports of Ms Davis and Dr Kennedy, and given the circumstances of this appeal in respect of the interim decision of the learned magistrate, I intend to make the relevant orders in respect of each appeal, and then of course as I’ve indicated, to deliver those reasons for those orders on 16 September 2016. Order [9] I order as follows (in respect of each of HYA and HYB):- (1) The decision of the learned magistrate at Brisbane on 30 August 2016 in which he declined to make an order granting temporary custody of either of the children, to the Chief Executive, be set aside; (2) Order that interim custody of HYA and HYB be granted to the Chief Executive for the period of the adjournment; 1 Allesch v Maunz (2000) 2003 CLR 172, para [23]. 2 ASW & ECW v Director-General of Communities (Child Safety) [2011] Q Ch C 23, para [23]. 3 ASW & ECW v Director-General of Communities (Child Safety) [2011] Q Ch C 23, para [25]. -- 3 of 4 -- 4 (3) Order that PAV have no contact, direct or indirect, with HYA or HYB, for a period of three months from 9 September 2016; (4) Order that a copy of these proceedings and this transcript be prepared urgently, and will be provided to the appellant, and to each of PAV and to Mr Holmes and, further, that the court make available telephone facilities if necessary for either or both of PAV and HOK to attend for the delivery of the reasons that I have foreshadowed. … [The appellant requested an order that PAV provide the children’s whereabouts and PAV consented to provide the information on the children’s whereabouts voluntarily] … (5) Order, pursuant to section 67(2) of the Child Protection Act 1999 (Qld) that an authorised officer or police officer enter and search any place the officer reasonably believes the child is, to find the child, to enforce the order; (in respect of each of HYA and HYB). -- 4 of 4 --