Director of Child Protection Litigation v KL & LS [2022] QDC 50

DISTRICT COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v KL & LS [2022] QDC 50 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (appellant) v KL (first respondent) & LS (second respondent) FILE NO/S: 50 of 22 DIVISION: Childrens Court PROCEEDING: Appeal pursuant to s 117(2) of the Child Protection Act 1999 (Qld) ORIGINATING COURT: Magistrates Court, Southport DELIVERED ON: 3 March 2022 (delivered ex tempore) DELIVERED AT: Southport HEARING DATE: 3 March 2022 JUDGE: Holliday QC, DCJ ORDER: 1. The appeal is allowed. 2. The original decision of the Southport Childrens Court dated 17 February 2022 is set aside. 3. The matter is remitted to the Childrens Court at Southport for rehearing by Magistrate Magee or in the event she is unable, such other Childrens Court Magistrate as may be presiding in the Childrens Court at Southport. 4. I will hear the parties as to any further orders I should make. 5. There is no order as to costs. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE LEGISLATION – whether an interim child protection order ought to have been made – whether child in need of care and protection – whether error by court below – further evidence – principles associated with making interim custody orders – interests of the parents as compared with interests of the child -- 1 of 18 -- 2 LEGISLATION: Child Protection Act 1999 (Qld) ss 59, 67, 120, 121 CASES: ASD v Chief Executive, Department of Communities, Disabilities and Child Safety Services & Anor [2013] QDC 168 Cousins v HAL & Anor [2008] QCA 49 CR v CM [2015] QDC 146 HBY v WBI & Anor [2020] QDC 81 House v R (1936) 55 CLR 499 Jennifer Glover, Separate Representative v Director, Child Protection Litigation and Ors [2016] QChC 16 COUNSEL: E Rahemtula for the appellant M Lazinski for the first respondent M McLennan for the second respondent W Hodges for the separate representative SOLICITORS: Director of Child Protection Litigation for the appellant Legal Aid Queensland for the first respondent Tempest Legal for the second respondent Barbara Fox Solicitors for the separate representative -- 2 of 18 -- 3 Litigation history [1] X, currently aged four years, has been in the care of his mother, Ms L, from birth until 23 November 2021 when a temporary protection order was made. [2] On 13 January 2022, the appellant (the Director of Child Protection Litigation) applied for a child protection order in the Childrens Court (Magistrate) at Southport in respect of X. The application was brought pursuant to section 59 of the Child Protection Act 1999 (Qld) (the Act) and sought an order granting custody of X to the Chief Executive of the Department of Child Safety for two years. [3] On the first return, on 27 January 2022, Ms L (the mother of X) and Mr S (the father of X) indicated that custody was opposed and sought the matter be listed for interim hearing in respect of custody only. Orders were made by the learned Magistrate, including adjourning the proceeding to 10 February 2022 “for further mention of the application” granting temporary custody of the child to the Chief Executive pursuant to section 67(1)(a)(ii) of the Act and for filing of material. The final paragraph of the order reads “that the application is to be heard on the papers before me”.1 The parties confirmed in oral submissions that it was well understood that the application referred to in the final paragraph was the interim hearing in respect of custody and the application referred to otherwise in the order was the application for the child protection order. [4] On 10 February 2022, the matter was mentioned. The order reads: “I adjourn the proceeding to 17 February 2022 at 9am for further mention of the application.” [5] The parties confirmed in oral submissions that again it was well understood that the application referred to was for the child protection order although it was also understood that it was the interim hearing that would also be mentioned on 17 February 2022 and, indeed, the order that it would be dealt with on the papers remained. [6] On 11 February 2022, the appellant provided, by email, a decision letter relevant to X and asked that it be brought to the attention of the Magistrate to be read in 1 Page 491 of the appeal book. -- 3 of 18 -- 4 conjunction with the material filed to date in the matter.2 On 17 February 2022, the Childrens Court Magistrate delivered a decision relating to the interim hearing in respect of custody. The decision ended an extended court assessment order that had been continued when the appellant made the application for the child protection order. The continued extended court assessment order granted temporary custody of X to the Chief Executive. [7] The Childrens Court Magistrate further decided not to make an interim child protection order under section 67(1)(a)(ii) of the Act and adjourned the proceeding to 5 May 2022 for further mention of the application (the application for a child protection order). Later, on 17 February 2022, the appellant filed a notice of appeal and sought a stay of the decision of the Childrens Court Magistrate. The matter was listed before me on the same day. [8] It was agreed by all parties that in order to give the parties adequate time to prepare for the stay hearing, a temporary custody order would be sought by consent from the Magistrates Court to ensure X remained in the care of the Chief Executive until the hearing of the stay application on 18 February 2022. Consequently, a temporary custody order was made with respect to X in the Magistrates Court. [9] On 18 February 2022, after hearing submissions, both oral and written, from the parties, I granted the stay of the decision and ordered that X remain in the care of the Chief Executive pending the outcome of the appeal. On that day, I listed the hearing of the appeal on today’s date and made relevant ancillary orders with respect to the filing of material. Amended grounds of appeal [10] There were four amended grounds of appeal. They included that the learned Magistrate erred at law in failing to give sufficient weight to the evidence before the Court establishing that the child would be at an unacceptable risk of suffering significant harm in Ms L’s care, and three other grounds of appeal. It is not necessary to articulate those other grounds for the purpose of this decision as, at the hearing of the appeal, the appellant was invited to amend ground 1 such that it reads: 2 Page 425 of the appeal book. -- 4 of 18 -- 5 “The learned Magistrate erred in failing to determine that the child, the subject of the application, was in need of protection.” [11] The remaining grounds of appeal were abandoned. [12] The appellant seeks that the appeal be allowed and, in written submissions, submitted that this Court should, instead, make an interim order granting temporary custody of the child to the Chief Executive under section 67(1)(a)(ii) of the Act. As I will come to further in my decision, the appellant accepted in oral submissions that the appropriate order to make is pursuant to section 121(d) of the Act. Nature of the appeal and application for further evidence [13] The source of any right of appeal in this matter is pursuant to section 117(2) of the Act.3 [14] This court, in deciding an appeal from a Childrens Court Magistrate, 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.4 [15] In order for the appellant to succeed on this appeal, it is necessary for the appellant to satisfy the Court that there is some legal, factual or discretionary error on the part of the learned Magistrate.5 [16] The appeal is by way of rehearing on the evidence and proceedings before the Childrens Court,6 although the appellate Court may order that the appeal be heard afresh in whole or in part. 3 Fraser JA in Cousins v HAL & Anor [2008] QCA 49 held that with respect to appeals against interim orders made pursuant to s 67 of the Act, this court has jurisdiction to hear the appeal, as it is a “decision on the application”. 4 s 121 of the Act. 5 House v R (1936) 55 CLR 499. 6 See s 120(2) of the Act; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] Q ChC 16 per Bowskill QC DCJ (as she then was) at [73]. -- 5 of 18 -- 6 [17] As Bowskill QC DCJ (as she then was) stated in Jennifer Glover, Separate Representative v Director, Child Protection Litigation and Ors [2016] QChC 16, at paragraph 70: “There are a number of decisions of this Court and the District Court of Queensland in relation to a provision in similar terms, section 168 of the Domestic and Family Violence Protection Act which have held that what is contemplated by section 120(2) is an appeal in the nature of a rehearing on the basis of the evidence before the Childrens Court Magistrate subject to the discretion to hear the evidence, or some of it, again, or to receive further evidence which is conferred by section 120(3).” (footnotes omitted) [18] And further at [76]-[78]: “In my view, the proper construction of s 120(2), having regard to s 120(3), is that an appeal governed by s 120(2) is an appeal by way of rehearing, with the court having a discretion, if an application is made in this regard, to order that some or all of the evidence be heard afresh, or for further evidence to be relied on. The very presence of that discretion is one of the indicia that the appellate court is given a rehearing function. The sense in which “rehearing” is used here is that the appellate court rehears the matter, as at the date of the appeal, not in the sense of a completely fresh hearing, but on the basis of the record of the evidence before the court below, subject to the discretion conferred by s 120(3). The appellate court is obliged to give the judgment which in its opinion ought to have been given at first instance, observing the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. Within those constraints, the appellate Court is required to conduct a real review of the evidence and proceedings below, and the Childrens Court magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due respect and weight to the Magistrate’s conclusions. The powers of the appellate court are, however, exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. -- 6 of 18 -- 7 As to the principles governing the exercise of the discretion under s 120(3), I note that Shanahan DCJ, now the President of the Childrens Court, has previously observed that “the clear intention of the legislation is that an appeal is to be heard on the record unless there is good reason shown for the Judge to order that it may be heard afresh” (footnotes omitted). [19] Bowskill QC DCJ provided examples of cases in which the discretion pursuant to section 120(3) of the Act or the equivalent discretion has been exercised favourably.7 Those examples demonstrate that limited further evidence has been allowed in the exercise of discretion where there has been a “significant change of circumstances” since the Magistrate’s decision,8 or where the evidence, obtained after the trial, was important and it was appropriate in the interests of justice for it to be admitted.9 [20] In discussing cases, including ones where the Judges hearing the appeal applied the common law rules governing the admission of fresh evidence on appeal, Bowskill QC DCJ stated at [80]: “Although it is not a matter necessary to decide in this case, I would add, for completeness, that in considering the exercise of a statutory discretion such as is conferred by s 120(3), it may not be appropriate to confine that to the common law rules governing the admission of fresh evidence on an appeal; the exercise of the discretion is appropriately governed by the subject matter, scope and purpose of the provision, within its broader context in the Act under which it is conferred. This would include the need to apply the principle as to the paramountcy of the safety, wellbeing and best interests of the child, in considering the exercise of the discretion” (footnotes omitted). [21] In HBY v WBI & Anor [2020] QDC 81, Moynihan QC DCJ stated at [18], in relation to analogous legislation, that “good reason” must be shown for there to be an exception to the rule that the appeal must be decided on the evidence in proceedings before the Court below. Further, he stated at [18] that the determination as to whether 7 Jennifer Glover, Separate Representative v Director, Child Protection Litigation and Ors [2016] QChC 16 at [79]. 8 ASD v Chief Executive, Department of Communities, Disabilities and Child Safety Services & Anor [2013] QDC 168. 9 CR v CM [2015] QDC 146. -- 7 of 18 -- 8 there is “good reason” is informed by the common law principles and the principles for administering the Act. [22] The appellant applied to rely on further evidence on the appeal, namely, the affidavit of Ms Carly Deighton affirmed on 23 February 2022. The appellant submitted, given that this is a protective jurisdiction, the Court “ought to have before it all relevant evidence as to the risk of harm since the decision appealed against was handed down, particularly as to the evidence that directly relates to the risk the child would be in if he was placed in either of his parents’ care at this time”. In the event that I granted the appellant’s application, in the exercise of discretion for further evidence to be relied upon, the first respondent, Ms L, also applied to rely on further evidence, namely the affidavit of Ms L.10 [23] It is very unfortunate, to say the least, that the appellant seems to have taken a reactive rather than proactive approach to placing relevant material before the Court in relation to this matter. There is no explanation in the affidavit of Ms Deighton as to why efforts were not taken once the two recent urinary drug screen results were known to apply to rely on that evidence in the proceedings below. [24] Further, the evidence relating to Ms L’s lack of engagement with some intervention programs and a psychiatrist was only obtained post the decision on 17 February 2022. Some of that evidence could have been obtained with due diligence prior to 17 February 2022. However, I accept that there is some evidence that post-dates 17 February 2022, including the consultation with Ms S and the general practitioner. [25] I well acknowledge that parties to a proceeding should generally be held to their conduct at first instance and an appeal by way of rehearing is not to be regarded as an opportunity for a disappointed or ill-prepared litigant to try a different approach. However, this is a protective jurisdiction, and the further evidence impacts, in my view, directly on matters relevant to the child and potential harm and on important findings that were made by the Childrens Court Magistrate which were then the foundation of her decision. In all the circumstances, I order, pursuant to section 10 I should note that she also sought to rely on the affidavit of a solicitor, Chanel Manton, on the appeal, which attached five journal articles. For reasons developed below, it was not necessary to determine whether that further evidence could be relied on for the appeal. -- 8 of 18 -- 9 120(3) of the Act, that the affidavit of Carly Deighton affirmed on 23 February 2022 and the affidavit of Ms L sworn on 2 March 2022 be part of the evidence on appeal. [26] As such, I have decided this appeal on the evidence and proceedings before the Childrens Court and the affidavit of Carly Deighton affirmed on 23 February 2022 and that of Ms L sworn on 2 March 2022. The proceedings below [27] The appellant’s material below consisted of the application for the child protection order, Form D disclosure form, initiating affidavit of Jade Miller (Child Safety Officer) filed on 20 January 2022, an updated affidavit filed on the 2nd of February 2022 and a review letter of Ms L filed on 11 February 2022. Written submissions were also filed. [28] Ms L’s material consisted of an affidavit sworn by her on 31 January 2022. Written submissions were also filed. No affidavit material was filed by Mr S, but written submissions were relied upon. Further evidence Appellant [29] The affidavit of Carly Deighton relied upon by the appellant relevantly includes: (a) Ms Deighton is a senior team leader with the Labrador Child Safety Centre and has case management of this matter. She has held the role of senior team leader for over 13 years.11 (b) It remains the assessment of Ms Deighton that X is a child in need of protection and that custody to the Chief Executive is required. (c) Following the filing of the relevant material in the proceeding below, Ms L has continued to use illicit substances as confirmed in two urinary drug screens taken on 8 and 11 February 2022, which were positive for methylamphetamine and amphetamine.12 11 Paragraph 2 of the Affidavit of Carly Deighton affirmed on 23 February 2022. 12 Paragraphs 5(a), 8 and 9 of the Affidavit of Carly Deighton affirmed on 23 February 2022. The results were reported to the Department on 10 February 2022 and 16 February 2022. On 18 February 2022 Ms L self- -- 9 of 18 -- 10 (d) Despite Ms L completing a drug relapse prevention plan, she continues to use illicit substances and has shown limited insight into her use and the effects this has on X and his immediate care and protection. In the opinion of Ms Deighton, there is an unacceptable risk that Ms L could enter into a drug induced psychosis at any point.13 (e) Mr Coughlan provided an updated report on 18 February 2022 as to Ms L’s engagement, which details that: (i) Ms L has engaged weekly, with the engagement being predominantly crisis management; (ii) whilst Ms L completed referrals to support programs, both programs – one of which is AMEND – have advised that they have had no contact from Ms L post-initial intake; (iii) Ms L has verbalised motivation for psychotherapy, however, due to comorbid conditions is finding it difficult or challenging to focus; and (iv) Ms L is making a concerted effort to engage, however, she is adamant that having X removed from her care is both unwarranted and unlawful.14 (f) AODS has reported on 18 February 2022 that Ms L is open to the Distance Relapse Prevention Course and had completed a program. (g) Dr Reeda reported on 22 February 2022 that Ms L engaged on 5 July 2021 for a mental health plan and completed a referral to a psychiatrist. Ms L has not attended the appointment with this psychiatrist or engaged in the referral. Dr Reeda reported that Ms L presents with visual hallucinations which were reported to him following a letter from GCUHQ Acute Care Team and that the day prior he had a phone conversation with Ms L in relation to “discharge out of skin and scalp”. He said that he was unsure of any mental health diagnoses and Ms L needs to engage with a psychiatrist in relation to this. He has not prescribed any “long-term medications”.15 reported to the Department that she had tested positive for COVID-19 and, as a result, the Department was unable to request further UDS testing or meet face to face to discuss case planning. 13 Paragraph 6 of the Affidavit of Carly Deighton affirmed on 23 February 2022. 14 Paragraph 12 of the Affidavit of Carly Deighton affirmed on 23 February 2022; Exhibit 5 to the Affidavit. 15 Paragraph 15 of the Affidavit of Carly Deighton affirmed on 23 February 2022; Exhibit 7 to the Affidavit. -- 10 of 18 -- 11 (h) Ms L reports she is currently prescribed by Dr Reeda Seroquel and Diazepam at night when needed.16 (i) A safety and support meeting was held with Ms L on 21 February 2022. Ms L said that: (i) she missed a call from the convenor, and she was in hospital last week (subsequent communication with QHealth confirmed the hospital admission was for COVID related matters and for other mental health reasons); (ii) she was using amphetamine about weekly but has been trying not to use and reduce her use. She is implementing strategies learnt in her program to try and stop her from using; (iii) she knows the program, AMEND, tried calling her but she changed her phone number. She will make contact by the end of the week; (iv) she has only been taking Seroquel and only has two days left of the medication as Dr Reeda does not recommend the medication. She is going to engage with another GP for a second opinion as Ms L reported that she thinks these medications help her cope and her desire to use substances has decreased; (v) she had an appointment with her psychiatrist but could not attend as she was in hospital. The wait list for another appointment, which was for a diagnosis and medication review, is a few months. Ms L, who said that the only diagnosis she currently has is anxiety, will try and find another psychiatrist with less waiting time; and (vi) her support network is her mother, friends, her psychologist and two other support groups she nominated.17 (j) The current accommodation of Ms L is supported by Mr S who is currently incarcerated. Ms L has demonstrated a significant period of housing instability 16 Paragraph 19 of the Affidavit of Carly Deighton affirmed on 23 February 2022. Exhibit 9 to the Affidavit. 17 I note that one of these support groups, AMEND has said they have had no contact with Ms L post-initial intake (see paragraph 12(d) of the Affidavit of Carly Deighton affirmed on 23 February 2022). -- 11 of 18 -- 12 and, in the opinion of Ms Deighton, if X was returned to Ms L’s care, he is at risk of not having his basic care needs met.18 (k) In the opinion of Ms Deighton, there is no way to create safety for X in the home. (l) Once Ms L has made sufficient progress in addressing the child protection concerns as they relate to her substance misuse, Ms Deighton and another member of her team will work with Ms L to explore available supports to assist in the reunification of X back to his parents’ care.19 (m) In the opinion of Ms Deighton, X is not safe in the care of Mr S. He has a history of long-term and chronic addiction to drugs, a history of perpetrating domestic violence and an inconsistent pattern of engagement with Child Safety.20 (n) X remains in a general foster care placement since 10 December 2022 and is observed as settled.21 (o) On 7 February 2022, a contact decision was made allowing Ms L face-to-face supervised contact with X for two hours every Tuesday and Friday. The contact has been positive.22 Ms L [30] Ms L attended an appointment with Dr Reeda, as detailed in the affidavit of Carly Deighton affirmed on 23 February 2022, and a relevant annexure is annexed. Ms L is employed as a casual labourer. Again, a relevant annexure is annexed. [31] Ms L has engaged with Mr Coughlin. Exhibit KJL3 to the affidavit is an undated document under the hand of Mr Coughlin which states that he has been engaging weekly with Ms L from 10 January 2022 and Ms L has committed to support from other external support services with recent referrals made to agencies including AMEND. 18 Paragraph 6(b) of the Affidavit of Carly Deighton affirmed on 23 February 2022. 19 Paragraph 6(c) of the Affidavit of Carly Deighton affirmed on 23 February 2022. 20 Paragraph 6(d) of the Affidavit of Carly Deighton affirmed on 23 February 2022. 21 Paragraph 26 of the Affidavit of Carly Deighton affirmed on 23 February 2022. 22 Paragraph 29 of the Affidavit of Carly Deighton affirmed on 23 February 2022. -- 12 of 18 -- 13 Discussion – amended ground of appeal Ground 1: The learned Magistrate erred in failing to determine that the child the subject of the application was in need of protection. [32] It must firstly be noted that the evidence before this Court differs from that before the Court at first instance because of my decision to allow further evidence. That further evidence is important in material respects in determining whether X is in need of protection. [33] A table has been prepared (Exhibit 1 on the appeal) of what was included in the Magistrate’s reasons and what is now apparent from the further evidence: Magistrate’s Reasons Appellant’s Further Evidence The learned Magistrate stated: “She continued to express [on 16 November 2021] concerns in relation to undiagnosed health conditions that [X] was suffering from. She did acknowledge she’s ceased taking her anti-psychotic medication and to daily use of ice. And therefore, not surprisingly, a drug screen provided on the 17th of November 2021 was positive for methylamphetamine and amphetamine. There were subsequent drug screens. That provided on the 1st of December 2021 was positive for benzodiazepines only. That on the 22nd of December 2021 showed amphetamine and methylamphetamine, which is consistent with [Ms L’s] admission, on the 20th of December 2021, [that] she had relapsed into drug use that weekend.”23 It was not a “relapse” into drug use limited to the weekend of 20 December 2021, rather the drug use remains ongoing as demonstrated by the UDS on 8 and 11 February 2022. “Subsequent to X being placed in care, [Ms L] has engaged with a general practitioner to have a mental health care plan prepared. That was created on the Ms L did not attend the psychiatric appointment or engage with the referral. Further, her general practitioner states that in February 2022 Ms L complained of “discharge out of 23 Decision of Magistrate on 17 February 2022 at page 3L45-page4L5. -- 13 of 18 -- 14 27th November 2021. She has obtained a psychiatric referral…”24 skin and scalp”. Further, the general practitioner is unsure of any mental health diagnosis and Ms L needs to engage with a psychiatrist in relation to this. The report of the psychologist dated 21 January 2022, which details that there have been three appointments with Ms L, there has been no evidence of psychosis, delusional or paranoid thinking nor has there been any evidence of her being under the influence of any illegal drugs.25 Ms L has continued to use illicit drugs, that there may be evidence of psychosis, delusional or paranoid thinking as per Ms L’s consultation with the general practitioner in February 2022 and that Ms L has not attended a psychiatrist for the purpose of diagnosis and the general practitioner is unsure of any mental health diagnosis. The psychologist has opined that Ms L continued to obtain support from the AMEND program.26 Ms L has not engaged with the AMEND program with the program advising that they have not had any contact with her post initial intake. “The acute care team closed their reference in relation to [Ms L] on the 3rd of December. In doing so they stated there was evidence of … methylamphetamine withdrawal consistent with the mother’s determination to abstain from drug use. There was historical, mild psychotic phenomena, likely secondary to methylamphetamine use. There was no evidence of enduring psychotic disorder. The diagnosis was a drug-induced psychotic phenomena, depression and post-traumatic stress disorder.”27 The illicit drug use continued as is evidenced by the UDS screens in February 2022. The psychiatric referral did not occur (and the general practitioner is unsure of any diagnosis) and with the continuing drug use, Ms L reported to her general practitioner in February 2022 that she was having discharge out of skin and scalp which is consistent with that reported in November. “[Ms L] has completed an… scrapbook program. She’s undertaking to repeat a parenting program… And she’s now The illicit drug use continued as is evidenced by the UDS screens in February 2022 despite completion of 24 Decision of Magistrate on 17 February 2022 at page 4LL8-15. 25 Decision of Magistrate on 17 February 2022 at page 4 LL20-25. 26 Decision of Magistrate on 17 February 2022 at page 4LL30-35. 27 Decision of Magistrate on 17 February 2022 at page4LL35-40. -- 14 of 18 -- 15 compliant with her medication, taking Seroquel and Diazepam…”28 the scrapbook program. Whilst Ms L completed referrals to support programs, both programs have advised that they have had no contact from Ms L post initial intake.29 Ms L self- reported that she only has two days left of Seroquel. Her general practitioner is unsure of any diagnosis and has referred her to a psychiatrist but that appointment did not take place. “The evidence indicates that [Ms L] has suitable, stable accommodation”.30 The accommodation may not be stable. “The real concern is [Ms L’s] drug use and its impact on her mental health and capacity to safely parent [X]. Subsequent to the 15th of November, she’s demonstrated a commitment to addressing the drug and mental health issues that resulted in [X] being placed in care”.31 Ms L tested positive for methylamphetamine in February 2022, has not attended the psychiatric appointment, her general practitioner is unsure of the diagnosis and she has reported to him that she was having discharge out of skin and scalp (around the time of the last positive UDS result). “[Ms L] has demonstrated a commitment to addressing those matters that place [X] at risk of harm while in her care”.32 Ms L has tested positive for methylamphetamine on two occasions in February 2022, has not engaged in some recommended programs beyond the initial stages and has not attended the appointment with the psychiatrist. “[X] is currently at risk of emotional harm if he remains separated from his mother”. X is in stable foster care accommodation since December 2021 and is having positive contact with his mother per supervised contact. [34] The learned Magistrate concludes, after setting out matters including those detailed in the first column of the table in Exhibit 1, that she: 28 Decision of the Magistrate on 17 February 2022 at page 4 L42-page 5 L5. 29 The document exhibited “KJL3” to the affidavit of Ms L sworn on 2 March 2022 is undated. 30 Decision of the Magistrate on 17 February 2022 at page 5 line 8-10. 31 Decision of the Magistrate on 17 February 2022 at page 5LL12-15. 32 Decision of Magistrate on 17 February 2022 at page 5 LL30-32. -- 15 of 18 -- 16 “… is satisfied that by reason of the steps taken by Ms L to address the risk of harm, X is not at an unacceptable risk if returned to her care. Conversely, I am satisfied that it is currently in his best interests that he be returned to his mother’s care and that any further unwarranted separation from his mother poses a real risk of psychological harm.” [35] However, as detailed in the table, the further evidence is such that there is a significant difference in the evidence placed before me as to the position relating to Ms L. I am satisfied on the evidence on the appeal that the learned Magistrate erred in determining that X was not in need of protection. [36] In paragraph 46 of the appellant’s written submissions, it is submitted that to place a “young and vulnerable child back in Ms L’s care at this time, when the evidence on a prima facie basis supports that her substance use is ongoing, would place this child at an unacceptable risk of harm”. That understates the nature of the combination of evidence demonstrating that X is in need of protection. On the evidence in this appeal, it is the ongoing drug use in the face of no assessment by a psychiatrist as to diagnosis, but her previous attendance with X resulting in an opinion that she suffered from a drug induced psychotic phenomena which referenced X. [37] Further, in a recent attendance with a general practitioner, Ms L made a similar complaint. It is also relevant that X has been in a stable environment since December 2021, this is an interim matter and X is seeing his mother on supervised visits. [38] The appeal is allowed on this ground and I set aside the decision appealed against. The next issue that must be considered is what other orders should be made. The matter should be remitted to the Magistrate that made the decision or another Magistrate if that Magistrate is unavailable [39] The appellant and separate representative, in written submissions, submitted that I should make an interim custody order. However, the appellant, in oral submissions, as model litigant, recognised that as a matter of procedural fairness, in all the circumstances, this Court should make an order pursuant to section 121(d) of the Act and remit the matter to the Magistrate or Childrens Court that made the decision. -- 16 of 18 -- 17 [40] In all the circumstances, I have determined that pursuant to section 121(d) of the Act, I should remit the matter to the Childrens Court Magistrate that made the decision or, if she is not available, another Childrens Court Magistrate. [41] If the further evidence had been placed before the Magistrate, then Ms L and Mr S would have been properly able to consider what, if any, further evidence should be placed before the Magistrate and whether to make submissions that an in-person hearing was required with witness examination. Mr S submits that due to the further evidence being relied upon by the appellant on the appeal and the swift turnaround from the filing of the notice of the appeal to the hearing of this substantive appeal, procedural fairness will not have been afforded to him in the event that the issue of an interim custody order is determined by this Court. [42] Mr S submits at paragraph 80 of written submissions that the appropriate and only procedurally fair course is that the matter be remitted to the Childrens Court at Southport for rehearing on a date to be fixed. In all the circumstances, I agree. [43] Mr S also sought an order that the hearing in the Childrens Court not occur on the papers without express agreement of all parties. This order, in my view, is not required. It is a matter for the parties and the Childrens Court to consider, at the appropriate time, which is once all the material has been filed for the purpose of the interim custody hearing, how the matter should be heard. [44] Finally, if I have not already made it clear, I wish to do so now that I consider that the approach taken by the appellant to this matter has been unsatisfactory. It, no doubt, has resulted in additional anxiety to Ms L and Mr S. If proper competence and diligence had been exercised by the appellant, then most of the further material relied upon in this appeal would have been made available to the Magistrate and the other parties at the appropriate time, which was prior to the decision being made below. Orders [45] The orders are as follows: 1. The appeal is allowed. -- 17 of 18 -- 18 2. The original decision of the Southport Childrens Court dated 17 February 2022 is set aside. 3. The matter is remitted to the Childrens Court at Southport for rehearing by Magistrate Magee or in the event she is unable, such other Childrens Court Magistrate as may be presiding in the Childrens Court at Southport. 4. I will hear the parties as to any further orders I should make. 5. There is no order as to costs. -- 18 of 18 --