Exit Distraction Free Reading Mode
- Unreported Judgment
CHILDRENS’ COURT OF QUEENSLAND
KP v Director of Child Protection Litigation Unit & Anor  QChC 16
DIRECTOR OF CHILD PROTECTION LITIGATION UNIT & Anor
Appeal pursuant to section 117(2) of the Child Protection Act 1999 (Qld).
Magistrates Court at Brisbane
6 May 2020 (ex tempore reasons)
6 May 2020
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE LEGISLATION – APPEAL AGAINST DECISION OF CHILDREN’S COURT – where the Magistrate made a temporary custody order of a four month old child in favour of the Department and adjourned the matter for three months – where the appellant sought an urgent mention so she could have the child returned to her care – where it is alleged Court staff refused to accept the request for the urgent mention – whether the Magistrate erred in adjourning the matter for three months because of COVID-19
Child Protection Act 1999 (Qld) ss 5B, 121
WBI v HBY  QCA 24
Ms Thomas for the respondent
Director of Child Protection Litigation for the respondent
- This is an appeal by the mother against a temporary custody order dated 8 April 2020, made in favour of the chief executive with respect to the child P who is four months old.
- The ground of appeal to be considered today is the Magistrate erred in adjourning the matter until 1 July 2020 and relevant to that is that it is alleged Court staff refused to accept a request by the mother for an urgent hearing of the matter.
- P was born in January 2020. P was with the mother in March and April 2020, but was then removed. There is urgency associated with temporary protection orders. This is clear from s 5B(m) of the Child Protection Act 1999 (Qld). Whilst it is true the order was made in the context of COVID-19, this does not trump the provisions of the Act.
- The directive issued by the Chief Magistrate on 27 March 2020 (paragraph 12C) and amended on 7 April 2020, contemplated that child protection matters of this sort were urgent and were an exception to the three-month rule. A delay in the hearing of this case until July, in light of the issues and the age of the child, is not appropriate. I find an error has occurred in that the matter should not have been adjourned for three months and should have been dealt with earlier.
- I next turn to the orders which should have been made, the various powers are set out in s 121 of the Act. KP submitted to me that I should set aside the decision also concerning temporary custody. In this regard, during the break, I read the respondent’s material and the appellant’s material. I note from the department’s material that it is alleged that KP misuses prescription drugs which impacts upon her capacity and ability to parent. She has a history of opioid dependence. There have been presentations to hospitals with drug-seeking behaviours. Whilst pregnant, there was a suggestion of drug use. There was alleged prescription shopping.
- Mental health assessments indicate issues concerning parenting capacity. It is alleged there is a chronic pattern of transience and a high-risk lifestyle. There have been domestically violent relationships, in particular concerning Mr T, and it is alleged that KP was not willing and able to protect P from harm. The affidavit of Nicholas Adams supports those allegations.
- On the other hand, I have read the appellant’s material, which suggests that P was not properly looked after whilst in care. I note the allegations concerning T and A, and the allegations concerning Mercy, Child Safety and the emergency foster carer. I also have read carefully her statements as to her care and I have seen the emails and the photographs of P. There are real issues in dispute, it seems to me, in this case.
- However, I constitute an appellate Court. I have not seen any witness give evidence or heard cross-examination, and as has been said recently by the Court of Appeal in the case of WBI v HBY, it is not appropriate for an appellate Court to hear a matter afresh and in whole.
- I am not in a position, at this stage, to determine which side is correct. That should be a matter left to the Children’s Court at Brisbane.
- In those circumstances, I make these orders:
- The appeal is allowed.
- The decision of the Children’s Court at Brisbane dated 8 April 2020 is set aside in part.
- The order to adjourn the proceeding to 1 July 2020 at 9am for further mention is set aside, and in lieu thereof, the matter is listed on 7 May 2020 at 9am for urgent mention, but all the other orders made by the Children’s Court dated 8 April 2020 remain.
- I direct that the registry notify Legal Aid Queensland of the Court’s written request that it considers giving the appellant legal assistance.
 QCA 24.
- Published Case Name:
KP v Director of Child Protection Litigation Unit & Anor
- Shortened Case Name:
KP v Director of Child Protection Litigation Unit
 QCHC 16
06 May 2020