AC v Department of Communities, Child Safety and Disability Services [2014] QChC 6

CHILDRENS COURT OF QUEENSLAND CITATION: AC v Department of Communities, Child Safety and Disability Services [2014] QChC 6 PARTIES: AC Appellant v DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES Respondent FILE NO/S: 226/2014 PROCEEDING: Appeal against decision of Childrens Court Magistrate ORIGINATING COURT: Childrens Court, Southport DELIVERED ON: 5 September 2014 DELIVERED AT: Southport HEARING DATE: 5 September 2014 JUDGE: Judge CF Wall QC DECISION: Appeal dismissed. Reference by Registrar struck out. CATCHWORDS: CHILD PROTECTION – application for protection order – temporary custody order made each month pending substantive hearing – appeal – Section 55 Child Protection Act 1999 – necessity for early hearing of substantive application consistent with the objective of Section 55 – practice and procedure – reference by Registrar under Rule 15(1) Uniform Civil Procedure Rules 1999 – no basis for reference – reference struck out. COUNSEL: Appellant in person Barbara Fox – for the child Paul Munro – for the respondent SOLICITORS: Barbara Fox Solicitor – for the child Crown Law – for the respondent -- 1 of 5 -- 2 [1] This is an appeal by Mrs AC against a temporary custody order made in the Childrens Court granting temporary custody of one of Mrs AC’s children, YC, born on the 11th of December 2012, to the Chief Executive. The history of the matter is referred to in the outline of argument of Ms Fox, the separate representative for the child, Exhibit 1, but I need to summarise it here. On the 23rd of April 2014 an application for a child protection order in respect of YC was made by Tracy Crabtree, an authorised officer under the Child Protection Act 1999. The application was filed in the Childrens Court at Southport on the 23rd of April 2014 and was returnable in that court at 11 am on the 24th of April 2014. The application was supported by an affidavit of Ms Crabtree, also filed on the 23rd of April 2014. [2] On the 24th of April an interim order granting temporary custody of YC to the Chief Executive until the 15th of May 2014 was made, and an order was made adjourning the proceeding to the 15th of May 2014. Whilst it is not entirely clear, I think the interpretation to be placed on the order is that, pursuant to Section 51AG of the Child Protection Act 1999, the 15th of May 2014 was the date when the temporary custody order was to end. On the 15th of May the proceeding was adjourned to the 5th of June 2014 and an interim order granting temporary custody of YC to the Chief Executive was made. On the 5th of June 2014 a further interim order granting temporary custody of YC to the Chief Executive was made, and it was ordered that the child be separately legally represented in the proceedings. Ms Fox is the separate legal representative for YC pursuant to that order. The proceeding was adjourned to the 7th of August 2014. On the 7th of August the application was further adjourned to the 18th of September 2014 for mention, and the interim order was enlarged to that date. That has been treated as a temporary custody order, and that is the order which Mrs AC appeals against. [3] Section 55 of the Child Protection Act 1999 provides as follows in relation to an application for a protection order: When the application is filed the registrar of the Childrens Court must immediately fix the time and place for hearing the application having regard to the principle that it is in the best interests of the child for the application to be heard as early as possible. [4] In my view, the implication from Section 55 is that the court should fix a date for the hearing of the substantive application on the occasion when the application first comes before the court. It is not satisfactory in the circumstances for a temporary -- 2 of 5 -- 3 custody order to be made month by month. The grounds of the application by Ms Crabtree include emotional harm to YC by Mrs AC and a particular allegation that she emotionally harmed YC due to exposure to sexual abuse in the house as well as emotional abuse in the house. [5] I propose to deal with the appeal on the basis of the following material: 1. The facts outlined in the affidavit of Tracy Crabtree filed in the Childrens Court on the 23rd of April 2014; 2. The matters stated in the appellant’s written outline of argument filed in this court on the 11th of August 2014 in support of her appeal, together with what she has said to me this morning; and 3. The outline of argument filed by Ms Fox, Exhibit 1. [6] Having considered that material, I am not satisfied that the Childrens Court Magistrate erred in making a temporary custody order in respect of YC. On the contrary, I think that there was and is a sufficient basis for making such an order, pending the substantive hearing of the application for a protection order. [7] Mr Munro, who appeared for the Chief Executive, relied on the affidavit of Ms Crabtree. Ms Fox submitted that: 1. The appellant has not identified any error of law in her argument that the decision to grant the temporary custody order be set aside; and 2. That on the basis of the material currently before the court, it was open to the Childrens Court magistrate to be satisfied that the child was prima facie in need of protection. I agree. As to the second of those matters, I refer in particular to paragraphs 43, 51 to 53, 56 to 59, 61, 64, 65, 74 and 75 of the affidavit of Ms Crabtree. The resolution of those matters and others referred to in Ms Crabtree’s affidavit, on a final basis, is something which will occur on the substantive hearing. [8] A conference between the parties, including Ms Fox and the parties legal representatives, if any, has been ordered for the 12th of September 2014. That was ordered under Section 68(1)(e) of the Child Protection Act 1999. See also Sections 69 to 72 of the Child Protection Act 1999. [9] At the moment, I consider that: 1. There are serious questions to be tried; -- 3 of 5 -- 4 2. A prima facie case has been established for making a temporary custody order in respect of YC and a protection order; 3. There is a risk of harm to YC, such as supports the making a temporary custody order; 4. YC may be placed at risk should the temporary custody order be set aside before there is a substantive hearing of the application for a protection order; and 5. A date for the hearing of the substantive application is likely, so I’m told, to be fixed on the 18th of September next. [10] I have asked the registrar to enquire of the Childrens Court registrar in the Magistrates Court when the matter would be likely to be listed for hearing, if the listing was made on the 18th of September. I have been advised by him that the earliest date that there could be a hearing of the substantive application is the 27th of October. After that it would be the 12th, 13th, 14th of November. In my view, the provisions of section 55 compel the earlier date rather than any later dates. [11] In my view, it would be preferable and it is, I think, the object of Section 55, if a date for the substantive hearing of an application for a protection order were fixed on the first return date of the application, bearing in mind, of course, the interlocutory steps that are likely to have to take place before that hearing. On the first return date, here, the 24th of April 2014, orders ideally should then have been made setting out a timetable for the completion of necessary interlocutory steps, including disclosure of documents and compulsory conferencing. This would be consistent with the objective stated in Section 55. The Childrens Court calendar should allow for early substantive hearings of applications for protection orders, consistently with the objective stated in Section 55. [12] For these reasons, the appeal will be dismissed. [13] The matter initially came before the court today on a reference by the registrar, under Rule 15(1) of the Uniform Civil Procedure Rules 1999 which is in the following terms: If the registrar considers an originating process to be an abuse of the process of the court or frivolous or vexatious, the registrar may refer the originating process to the court before issuing it. -- 4 of 5 -- 5 [14] The notice of appeal here was, in fact, filed, as was Mrs AC’s outline of argument. It was therefore “issued” as that term was used in Rule 15. [15] Further, the registrar, in a letter to Mrs AC dated the 14th of August 2014, suggested as the basis for the application under Rule 15 that she was re-litigating matters which have already been disposed of by the court, which is a reference to earlier appeals by her against other orders made by the Childrens Court. That is not correct. The Child Protection Act 1999 gives the mother of a child the right to appeal against a decision to grant a temporary custody order. See Section 117(1) of the Child Protection Act 1999. For these reasons, the reference by the registrar is struck out. -- 5 of 5 --