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- Unreported Judgment
Department of Child Safety v WTY QCHC 23
CHILDRENS COURT OF QUEENSLAND
Department of Child Safety v WTY  QChC 23
DEPARTMENT OF CHILD SAFETY
Child Protection Act 1999 (Qld) s 117
Magistrates Court, Brisbane
2 August 2018 (ex tempore)
2 August 2018
Butler AM SC DCJ
CHILD PROTECTION LAW – APPEAL – APPEAL OF TEMPORARY CUSTODY ORDER – where the department appeals a decision of a magistrate on application for after-hours temporary custody order – whether the magistrate’s conduct constitutes a decision on the application – whether failure to take into account relevant considerations – whether unacceptable risk.
Child Protection Act 1999 (Qld)
MA Scott for the applicant
The respondent is self-represented
Department of Child Safety, Youth and Women for the applicant
- This is an appeal brought to this court under s 117 of the Child Protection Act 1999 (Qld) against the decision of a Childrens Court Magistrate refusing an application for a temporary custody order for the relevant child. He is eight years of age, having been born on 10 October 2009. The appeal documents have been served upon the mother of the child, who has participated in this appeal hearing by telephone.
- The child communicated allegations to adults that he had been cut with a knife by his mother. He bore some marks on his body that may be consistent with such an assault. On the 15th of June 2018 an application for a court assessment order on behalf of the Chief Executive was made, seeking custody for the period of the order. That order was made by Magistrate Maloney on the 4th of July 2018, granting custody to the Chief Executive. The order expired at 11.59 pm on the 1st of August 2018.
- The Department referred the matter to the Director of Child Protection Litigation on the 6th of July 2018 for their consideration. On the 1st of August at about 3.15 pm, a lawyer from the Office of the Director of Child Protection Litigation advised the departmental officer by telephone that they were still considering the referral and brief of evidence.
- An application for a temporary custody order was prepared by the Department, and the Magistrate was approached on the afternoon and evening of the 1st of August 2018. I have before me an affidavit by the departmental officer as to what occurred. Contact was made with the learned Magistrate at 6.05 pm on the 1st of August 2018. Her Honour was advised that the officer was seeking a temporary custody order. The officer was asked for details. The officer explained that there was a current court assessment order on foot that would expire at 11.59 pm that evening, and that a referral had been made to the Director of Child Protection Litigation.
- Her Honour asked what the concerns were and the officer explained that they related to the notification of the child disclosing injuries against him allegedly by his mother, and that the police had charged her with an offence of grievous bodily harm in relation to those allegations. The Magistrate was advised that the Director of Child Protection Litigation had said they needed further time to make a decision. The Magistrate asked where the child was placed, and was advised that he was placed with departmentally approved foster carers until the order would expire at 11.59 that evening. According to the affidavit, her Honour said that there was no immediacy given the child was placed in foster care, and said words to the effect “one more night will be okay”. Her Honour refused to grant an order and advised that an application should be made to the Childrens Court the following morning. It’s that refusal by her Honour to grant the order that is the subject of this appeal.
- The submission before the court is that her Honour erred in the exercise of her discretion in that she failed to take into account relevant material, namely that she failed to receive all of the relevant material necessary to determine the application, including the affidavit material of the departmental officer. It is also submitted that her Honour took into account irrelevant information, as indicated by her view that “one more night [would] be okay”. It is submitted the Magistrate failed to have regard to the fact that the order would lapse and that the fact protection of the child would cease following termination of the existing court assessment order was a relevant consideration on the application her Honour was considering. It is submitted that the reasons given for refusing the application were inadequate.
- It is perhaps a moot point as to whether or not the telephone approach to the Magistrate can be considered the hearing of an application or whether her Honour was merely declining to receive the application. I think the better view is, given the arrangements in the Magistrates Court for an after-hours Magistrate to receive applications and the fact that her Honour invited and received information on the matter before declining to make an order, that one should treat the refusal to make an order as falling within the provisions of s 117(1), that is, treat it as a decision on an application.
- Indeed, it may be valid to take the view that a decision not to receive an application brought is also a decision on the application. It is unnecessary for me to determine that question in this case. Of course, it is certainly open on the material before me that the learned Magistrate may indeed have been mistaken as to the position; that the comment “one more night will be okay” reflected a misunderstanding of what refusal to determine the application involved – namely termination of the currency of the court assessment order within a few hours.
- However, even if that be the case, it would seem that her Honour failed to take into account all relevant considerations in exercising a decision not to grant the order, and in those circumstances I consider that there was an error in the exercise of the judicial discretion. I will allow the appeal and set aside the decision of the Magistrate refusing to grant the order.
- I now turn to exercise the discretion afresh. In doing so, I have regard to the material placed before me in the affidavit of Simone Feletti, and I also have before me a copy of the original application for a temporary custody order.
- That material sets out the allegations that were made by the child in relation to what he said were assaults upon him by his mother by way of the use of a knife or other punishment of him. Of course, they are now the subject of criminal charges, and the ultimate validity of those allegations will be determined on the hearing of those charges. But it seems to me, given the allegations and given that there is some corroboration of them in visible injuries that were apparent on the body of the child, that there is justification in concluding that there is not only an allegation of harm, but also an unacceptable risk of harm to the child should an order not be made.
- In considering that, I also have regard to information before me as to the previous history of conduct of the mother. On these proceedings, the mother was invited to indicate her position. She did not oppose the making of this three-day order, but indicated that she is opposed to a lengthy order placing the child in the custody of the Department.
- On the material before me, I am satisfied that the child will be at unacceptable risk of suffering harm if the order is not made. That is not to say that the child would necessarily be harmed, but a risk exists, and it is at a level that I find is unacceptable on the material as it presently stands. I also find that the Chief Executive will be able, within the terms of the temporary custody order, to decide the most appropriate action to meet the child’s ongoing protection and care needs, and to start taking that action.
- Accordingly, I intend to make an order that an authorised officer or police officer be authorised to have contact with the child to keep him in the Chief Executive’s custody while the order is enforced, that the child may be medically examined or treated, and that the mother is not to have contact, direct or indirect, with the child other than when a departmentally approved person is present.
- The order will continue until 11.59pm on 6 August 2018. That is consistent with the provisions of s 51AG, which requires that the period of the order must not be more than three business days after the order is made. I make that order as per draft.
- Published Case Name:
Department of Child Safety v WTY
- Shortened Case Name:
Department of Child Safety v WTY
 QCHC 23
02 Aug 2018