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PJR v Director of Child Protection Litigation[2022] QCHC 3

PJR v Director of Child Protection Litigation[2022] QCHC 3

CHILDRENS COURT OF QUEENSLAND

LOURY QC DCJ

DC No 1046 of 2021

DC No 1047 of 2021

DC No 1048 of 2021

PJR Appellant

and

DIRECTOR OF CHILD PROTECTION LITIGATION First Respondent

and

CHIEF EXECUTIVE OF DEPARTMENT OF CHILDREN,

YOUTH JUSTICE AND MULTICULTURAL AFFAIRS

Second Respondent

and

LHG Third Respondent

BRISBANE

FRIDAY, 18 MARCH 2022

JUDGMENT

LOURY QC DCJ: The appellant appeals against decisions purportedly made at the Pine Rivers Magistrate Court on 7, 12, 13, 16 and 23 April 2021 in relation to her three children.  Those decisions involve the making of temporary custody orders (“TCOs”) with respect to each of the appellant’s children pursuant to the Child Protection Act 1999 (Qld) (the “CPA”).

Section 117 of the CPA provides the power for the appellant to appeal against a decision on an application for a TCO for a child.  The appellant was required to serve a copy of the notice of appeal on the other persons entitled to appeal against the decision.  That includes the fathers of the appellant’s three children.  The father of two of the children appeared at the hearing before this Court.  He filed no material and made no submissions. The appellant served a copy of the notices of appeal by email on the father of her third child, as did the other parties.  He did not appear or file any material.  

In Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors,[1] it was determined that section 120(2) and (3) of the CPA confers a right of appeal by way of rehearing.  That requires this Court to conduct a real review of the evidence and proceedings below and the reasons for the decision, 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 this Court are only exercisable where the appellant can demonstrate that, having regard to 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.[2]

Decisions of 7 and 12 April 2021

On 7 April 2021, applications were made by the Chief Executive of the Department of Children, Youth Justice and Multicultural Affairs for TCOs pursuant to section 51AC of the CPA.  

Section 51AD provides that a Magistrate may decide an application for a TCO without notifying the child’s parents of the application or hearing them on the application. 

Section 51AE provides that a Magistrate may make a TCO only if satisfied that the child will be at an unacceptable risk of suffering harm if the order is not made, and either the Chief Executive or the Director of Child Protection Litigation (“DCPL”) will be able to, within the period of the TCO, decide the most appropriate action to meet the child’s ongoing protection and care needs and start taking action. 

The learned Magistrate was so satisfied on the material before him and made the orders in respect of each of the children for three business days. 

On 12 April 2021, applications were made to extend the term of the TCOs for a period of one business day pursuant to section 51AH of the CPA.  Section 51AH provides for the extension of TCOs. Section 51AH(2) states that “this part applies, with all necessary changes…as if it were an application for a temporary custody order”.  Subsection (3) further provides that the TCO can only be extended if the Magistrate is satisfied that the order has not ended. 

Section 104 of the CPA provides that the Court, in exercising its jurisdiction, must have regard to the principles stated in sections 5A to 5C, to the extent that they are applicable and must, when making a decision under the Act, state its reasons for the decision. 

The application filed for the TCOs asserted that the applicant (the Chief Executive of Department of Children, Youth Justice and Multicultural Affairs) considered that the appellant’s three children would be at an unacceptable risk of suffering harm if the TCOs were not made due to the following features:

  1. on 4 April 2021, police searched the appellant’s home and charged her and her partner with drug offences;
  2. the children were, at the time, subject to a protective supervision order and the Department continued to have concerns surrounding the appellant’s mental health and that of her children;
  3. the appellant had a history of being dependent on illicit substances and had self-disclosed that she was currently using methylamphetamine;
  4. the appellant had failed to engage with mental health services, despite having been diagnosed with a serious mental illness, and failed to engage in substance abuse programs to address the child protection concerns, and in fact expressed that she did not believe that her drug use negatively impacted her children or her ability to care for them;
  5. the appellant’s partner with whom she was residing also disclosed that he used methylamphetamine;
  6. the Department had concerns that the appellant had involved her daughter in the supply of dangerous drugs as evidenced by text messages extracted from the appellant’s phone; 
  7. the appellant had not consistently engaged the children in counselling or mental health services despite ongoing concerns around their mental health and emotional wellbeing;
  8. the appellant was considered to lack insight into the impact her behaviour had on the children and attributed their mental health struggles to the Department’s intervention; and
  9. the appellant had neglected the medical needs of her children by not following up on blood tests and referrals to dieticians.

The applications were considered on the papers and the orders made. 

Ground 1

The ground of appeal in relation to these two orders is that the Magistrate erred by considering the applications ex parte.  Section 51AD provides a power for the Magistrate to consider the applications ex parte.  No legal, factual or discretionary error therefore arises. 

In relation to the application for an extension of time made on 12 April 2021, the legal representative from the Office of the Child and Family Official Solicitor (“OCFOS”) notified solicitors for the appellant by email that an application to extend the TCOs was being made.  A copy of the applications and draft orders was provided.  The legal representative for the OCFOS did not receive a response to that email, and almost two hours later at 2:47 pm, she forwarded those applications to the Pine Rivers Childrens Court by email.  At 3:00 pm, the orders were made, as endorsed on the orders by the learned Magistrate.  

At 3:04 pm, the appellant’s solicitor contacted the Pine Rivers Childrens Court by email informing the Court that the appellant opposed the extension and wished to be heard on the matter, but advised that she was still awaiting legal aid funding.  By that stage, the orders had already been made.  The extensions ordered were only for one day, and ultimately, she was given the opportunity to be heard on two later dates which I deal with below. 

The application made by the Chief Executive stated the grounds on which those applications were made being, that the TCOs had not ended, and that the DCPL intended to apply for a child protection order under the CPA and had confirmed that intention by email correspondence, which was annexed. 

As the orders were made prior to the Magistrate being made aware by the appellant’s solicitor that she wished to be heard, the appellant has not established that he was in error in determining the applications ex parte.  There was, as indicated, provision for applications to be considered in that way.   

The appellant’s grounds of appeal with respect to the making of the temporary protection orders also allege an error in the learned Magistrate relying upon hearsay evidence. 

The CPA provides, in section 105, as follows: 

  1. (1)
    In a proceeding, the Childrens Court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate.
  1. (2)
    If, on an application for an order, the Childrens Court is to be satisfied of a matter, the Court need only be satisfied of the matter on the balance of probabilities.

The Childrens Court Rules 2016 (Qld) (the “Rules”) apply to child protection proceedings.  Rule 12 requires that the originating application for, in this case, a TCO must contain a statement of all the material facts on which the applicant relies, but not the evidence by which the facts are to be proved. 

The material filed complies with the legislation and the Rules.  No error has been established with respect to the making of the orders on 7 April 2021 or 12 April 2021.

Decisions of 13 and 16 April 2021

On 13 April 2021, prior to the expiry of the TCOs, the DCPL filed applications for child protection orders in relation to each of the three children seeking an order granting custody of the children to the Chief Executive for a period of two years.[3]  No orders were made by any Magistrate on this date.  There is no decision of 13 April 2021 against which the appellant can appeal.  

Those applications were listed for first mention on 16 April 2021.  The appellant was represented by a solicitor on that occasion.  No affidavit material had been filed at that stage and the matter was adjourned until 23 April 2021.  The appellant’s solicitor did not oppose the adjournment because she said it provided time for further information to be provided to the Court as to the appropriateness of the appellant’s partner to care for the children.  The appellant’s solicitor also suggested that a separate representative be appointed.  The orders made by the learned Magistrate were that the matter was adjourned to 23 April 2021, that a separate representative be appointed and that “section 99 custody will continue until then”. 

Section 99 relevantly provides:

  1. (1)
    …if—
  1. (a)
    a child is in the chief executive’s custody…under an order; and
  1. (b)
    before the order ends, an application is made for the extension of the order or for another order.
  1. (2)
    The order granting the custody…of the child[ren] continues until the application is decided unless the Childrens Court orders an earlier end to the order. 

The filing of the applications for child protection orders on 13 April 2021 enlivened section 99 of the CPA. 

There is no error in the orders made by the learned Magistrate on 16 April 2021.  They accord with the submissions made on the appellant’s behalf. 

Decision of 23 April 2021

On 23 April 2021, an interim hearing was held.  The appellant appeals against orders made by the learned Magistrate not to bring an end to the custody of each of the children continuing pursuant to section 99 of the CPA.  Each of the DCPL and the appellant filed affidavits relevant to the considerations of the learned Magistrate.  If he ordered an end to the custody of the children, which was then subject to the order made under section 99, the children would have been returned to the appellant pursuant to a supervision order which was then in place.  Section 67 of the CPA empowered the learned Magistrate to make an interim order granting temporary custody of the children to the Chief Executive or a suitable person who is a member of the child’s family.  No application was in fact made for the children to be placed with a member of the children’s family. 

There is no test set out in section 99 of the CPA for determining whether to bring a custody order to an end.  The determination of that issue therefore needed to be considered against the paramount principle enshrined in the Act,[4] that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are permanent, and also against the general principles for ensuring the safety, wellbeing and the best interests of a child.  Those general principles[5] include, relevantly, that:

  1. a child has a right to be protected from harm or risk of harm;
  2. a child’s family has the primary responsibility for the child’s upbringing, protection and development;
  3. the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family;
  4. if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child;
  5. in protecting a child, the State should only take action that is warranted in the circumstances; and
  6. if a child is removed from the child’s family, support should be given to the child and the family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests.  If a child is removed from the child’s family, consideration should be given to placing the child, as a first option, into the care of a kin.  Kin is defined to mean “any of the child’s relatives who are a person of significance to the child” and “anyone else who is a person of significance to the child”. 

The appellant’s partner would come within the definition of “kin” as he had lived with the children for some significant period of time.

The making of the TCO required the Court to be satisfied that the child would be at an unacceptable risk of suffering harm if the order was not made.

As referred to above, the Court, in considering this application under section 99, could inform itself in any way it considered appropriate, was not bound by the rules of evidence and needed only be satisfied of the matters on the balance of probabilities.[6]  However, the Court’s decision must derive from relevant, reliable and rationally probative evidence that tends to logically show the existence or non-existence of the facts in issue.[7]

The learned Magistrate said in his decision that he considered that the material filed before him indicated a willingness on the part of the appellant to address the issues that had been raised.  The affidavit of the Child Safety Officer (“CSO”) deposed that it was considered that the children were at risk of emotional and physical harm from; being exposed to unsafe people and situations due to the ongoing substance abuse in the home; the appellant’s use of illicit substances; and, her supplying illicit substances to her daughter and using her daughter to distribute illicit substances.  An opinion was proffered in the affidavit that the appellant appeared to lack insight into the impact of her drug use on her children by her statement that she is a “functional Ice user” and that the children are not impacted by or exposed to her drug use. 

In respect of the appellant’s partner, the CSO deposed that one of the children had expressed difficulty adjusting to the presence of the appellant’s partner in the home.  She also deposed that Child Safety had been working with the family since November 2020 under child protection orders requiring the Chief Executive to supervise their protection.  The children had been removed from the care of the appellant on 20 February 2020 and returned to her care on 27 February under a contact arrangement.  The appellant had not engaged with services to address her mental health issues.  The affidavit sets out the basis upon which those opinions were formed, including the evidence relied upon.  That evidence included notifications to the Department that the appellant was offering to sell ice to the mother of one of her daughter’s friends, that the notifier was aware that the daughter was using ice daily and had a recent hospitalisation for anorexia.  The appellant had informed the CSO herself that she uses ice to “keep afloat”, that she was a “functional user”, and that she uses “a couple of times per week”.  The appellant failed to complete a drug screen requested of her.  She had not engaged with a substance abuse service.  She considered that she needed to work on her mental health before working on her substance misuse issues. 

Significantly on 4 April 2021, the appellant, her partner and her daughter were all charged with drug offences.  Text messages found on the appellant’s phone indicated that the appellant attempted to source drugs for her daughter.

Neither the appellant nor her partner were considered appropriate adults to care for the children. The appellant was charged with 10 offences of supplying dangerous drugs in March and April 2021, possessing anything used in the commission of a crime in April 2021 and failing to properly dispose of a needle in April 2021.  The appellant’s partner was also charged with possessing dangerous drugs in April 2021.  On 14 April 2021, the appellant and the appellant’s partner each tested positive for methylamphetamine.

The two younger children were then in the care of foster carers.  The appellant’s daughter had self-placed with family friends.  The children’s views were sought in April 2021.  The views of the younger children were incorporated into the affidavit.  The appellant’s daughter attended the hearing and made a submission herself to the learned Magistrate.   The text messages were exhibited to the affidavit.  They support the assertions made. 

The appellant deposed that she wanted her children returned to her care. She deposed that she had conducted in depth research into self-healing therapies and had been trying to find the most appropriate tailored services for each of her children. She deposed to being “almost two weeks completely drug free” and that she intended to attend an outpatient rehabilitation and relapse prevention program.  She deposed to the trauma that her children had again suffered being removed from her care a second time.  She considered that the complex emotional needs of her children stemmed from the trauma of their removal from her care at the earlier time.  She deposed that her children were not exposed to her drug use, whereas there was some evidence contained in the affidavit of the CSO as to conversations her 10 year old son had with a carer about his mother’s drug use, seeing needles at home, and knowing that his mother injects drugs into her arms.  The appellant also deposed that she was willing to move out of the home if her partner was considered an appropriate carer for her children.  She deposed to the efforts that she had made to obtain counselling for herself and her children and the emotional and psychological issues that each of her children experienced as a result of their removal from her care. 

The learned Magistrate said in his reasons that he considered that the appellant had indicated a willingness to address the issues that had been raised by the Department.  The appellant had provided some evidence to demonstrate that she had not consumed non-prescription drugs for 13 days.  He considered the contents of a social assessment report prepared in October 2020 in which the writer pointed to the possibility that separating the children from the appellant may result in trauma to them, but also acknowledged many shortcomings in her capacity to carry out her full parental responsibilities.  Of particular concern to the learned Magistrate was the recent evidence indicating that the appellant had been involved in obtaining and/or supplying illicit substances to her daughter.  He considered that such conduct was such a dereliction of her duty as a parent that it would seem alarming that such a choice would be made.  On balance, he considered that there was no way that the risk to the children from the appellant and her partner’s drug use might be abated subject to further detailed investigation.  He considered that, on balance, the appropriate order was for the temporary custody of the children to continue with the Chief Executive. 

Ground 2

The appellant’s arguments with respect to Ground 2 relate to the use of hearsay evidence.  That is, as already indicated, permitted by the legislation.  The appellant was provided with procedural fairness in that she was made aware of the evidence to be relied upon by the DCPL and the source of it.  She was able and indeed did dispute some of that evidence.  However, the learned Magistrate was entitled to act upon the evidence contained in the text messages which was not hearsay evidence at all, but original evidence which offered some significant proof that the appellant was supplying illicit drugs to her daughter.   During the course of the submissions made by the appellant’s solicitor, she informed the learned Magistrate that she was instructed that the appellant was referring to the supply of cannabis in messages which referred to “I was already going to leave half of my 4 grams for [her daughter]” and “Also got stuck with a half oz [her daughter] asked me for this morning.”   The learned Magistrate, in discussion with the appellant’s solicitor, said that there was strong evidence that the appellant was potentially supplying drugs to one of her children.   The submission made was that the appellant was trying to assist her daughter by supplying her with illicit drugs.  She was taking prescribed Seroquel and Valium and had expressed feelings suggesting an addiction to those drugs.  She was turning to the streets to feed that impulse, placing her in dangerous situations. The appellant was apparently trying to control, minimise and to assist her daughter in the ways that she believed would be in her best interests at the time. 

This was the feature of the evidence – the supply of illicit substances to her own daughter – which persuaded the learned Magistrate that there was a risk to the safety of her children. 

Whilst there are other portions of the evidence which the appellant disputed, this particular feature was not disputed by her. 

In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, Brennan J referred to the dissenting judgement of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott and said:

“The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that "this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force", as Hughes CJ said in Consolidated Edison Co. v. National Labour Relations Board (305 U.S. 197 at 229). To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in R. v. War Pensions Entitlement Appeals Tribunal; ex parte Bott (1933) 50 CLR 228 at 256: "Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'." That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedure rule. Facts can be fairly found without demanding adherence to the rules of evidence.” 

As indicated, whilst there are some disputes as to the facts and opinions set out in the affidavits of the CSO, the feature of the material before the learned Magistrate which caused him concern was a feature which was not disputed by the appellant.  There was no error in the learned Magistrate relying upon the allegation that the appellant supplied illicit drugs to her own daughter. 

As there is no assistance provided for in the legislation as to how the determination under section 99 to end the TCO should be made, regard needed to be had to the general principles which underpin all decisions made under the CPA. That relevantly included here that a child has a right to be protected from harm or risk of harm. 

I am in agreement with the learned Magistrate that there was a risk of harm, and in my view, a significant one, to these children from the appellant’s willingness to supply illicit drugs to her daughter. In that respect, the appellant could not be considered a parent who was able and willing to protect the child, making the State responsible for that protection.  The only person suggested as a possible carer by the appellant was her partner, who himself was a user of methylamphetamine.  There was no evidence before the Magistrate from the appellant’s partner in the form of an affidavit.  There was no evidence therefore that he took any steps at all to prevent the appellant supplying illicit drugs to her daughter.  I too do not consider that placing these children in the care of the appellant’s partner ensured the safety, wellbeing and best interests of the children and protected them from harm or risk or harm. 

The appellant argues that the learned Magistrate placed weight on unsubstantiated allegations contained in the affidavit material filed.  The Magistrate made no specific findings beyond that which I have already mentioned.  The particular finding which underpinned his decision was not something that the appellant disputed. 

There is no legal, factual or discretionary error which arises in the determination the Magistrate made that the order for temporary custody of the each of the children should continue pursuant to section 99 of the CPA. 

Grounds 3 and 4

Grounds 3 and 4 can be addressed together. Those grounds have regard to the nature of the appellant’s accommodation.  Specifically, in Ground 3, the appellant argues that the Magistrate erred in placing weight on unsubstantiated allegations that her children are “at an unacceptable risk of suffering significant harm as a result of neglect due to unstable accommodation”. Ground 4 does not appear to be a substantive ground of appeal, but rather is the appellant’s description of the accommodation the children were staying in. All in all, there was no finding in the learned Magistrate’s decision that any of the children would suffer significant harm due to unstable accommodation, and so no appealable error can be founded in these grounds.

Ground 5

Ground 5 alleges that the learned Magistrate had regard to contrived allegations of drug test results.  There is no foundation for a statement that the results of the drug testing were contrived.  The appellant in her affidavit stated that she has used drugs whilst the children had been in her care.  She admitted a positive drug screen taken on 14 April 2021.  She provided further evidence that she underwent another drug screen on 19 April 2021, which returned a negative result.  The learned Magistrate in fact referred to a period of 12 days in which the appellant had been drug free.  

There is therefore nothing in this ground of appeal.

Ground 6

I assume that Ground 6 relates to an argument that the learned Magistrate failed to take into account the wishes of her children.  As indicated, the affidavits filed provided some limited information as to the wishes of the younger children.  The appellant’s daughter attended Court and made a submission which related to her drug use rather than where she wanted to live.  

The appellant also argues that the Magistrate failed to place weight on her affidavit.  As referred to above, he did consider the material she filed and indeed considered that the appellant has demonstrated a willingness to address the issues raised, particularly as regards her drug use.  He clearly considered the contents of the social assessment report which she had exhibited to her affidavit.  The appellant has failed to demonstrate that the learned Magistrate failed to consider the material she filed or failed to take into account the wishes of her children. 

There is nothing in the ground of appeal.    

Grounds 7, 8 and 9

Grounds 7, 8 and 9 do not relate to any decision of the learned Magistrate, but are rather grievances against the Department of Children, Youth Justice and Multicultural Affairs and the DCPL.

The appellant has otherwise raised matters which do not bear upon the decision the learned Magistrate had to make and relate to grievances that she has against the Department. 

My orders are: the appeals are dismissed.

Footnotes

[1] [2016] QChC 16.

[2] Allesch v Maunz (2000) 203 CLR 172 at [23] and [44].

[3] Section 61(d)(ii).

[4] Section 5A.

[5] Section 5B.

[6] Section 105.

[7] Sudath v Health Care Complaints Commission [2012] NSWCA 171 per Meagher JA; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 226.

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Editorial Notes

  • Published Case Name:

    PJR v Director of Child Protection Litigation & Ors

  • Shortened Case Name:

    PJR v Director of Child Protection Litigation

  • MNC:

    [2022] QCHC 3

  • Court:

    QChC

  • Judge(s):

    Loury QC DCJ

  • Date:

    18 Mar 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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