VD and WD v Department of Child Safety, Seniors and Disability Services
[2025] QCHC 2
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- VD and WD v Department of Child Safety, Seniors and Disability Services[2025] QCHC 2
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VD and WD v Department of Child Safety, Seniors and Disability Services[2025] QCHC 2
VD and WD v Department of Child Safety, Seniors and Disability Services[2025] QCHC 2
CHILDRENS COURT OF QUEENSLAND
CITATION: | VD and WD v Department of Child Safety, Seniors and Disability Services [2025] QChC 2 |
PARTIES: | VD & WD (Appellants) v DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES (Respondent) |
FILE NO: | DC 235 of 2024 |
DIVISION: | Childrens |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 27 March 2025 (ex tempore) |
DELIVERED AT: | Southport |
JUDGE: | Holliday KC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – TEMPORARY ASSESSMENT ORDER – whether appeal should be permanently stayed – appeal a nullity – exercises of discretion to determine appeal – whether it is in public interest – where substantive appeal conceded – where respondent conceded information founding the application was incapable of satisfying the Magistrate that the orders ought to have been made – exercise of discretion to determine appeal – where appeal should be allowed and orders set aside |
LEGISLATION: | Child Protection Act 1999 (Qld) ss 27, 117, 118, 119, 121 |
CASES: | Amos v Wiltshire [2018] QCA 208 AZC20 v Minister for Immigration, Citizen, Migrant Services and Multicultural Affairs and others [2023] 278 CLR 512 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Bonan v Hadgkiss [2007] FCAFC 113, [2007] 160 FCR 29 Department of Communities, Child Safety v M and S [2013] QChC 27 Director of Public Prosecutions v Smith [1991] 1 VR 63 F v Kefford and another [2004] QChC 1 Garning & Director-General, Department of Communities, Child Safety and Disability Services [2013] FamCAFC 28 Hope Downs Management Services Proprietary Limited v Hamersley Iron Proprietary Limited [1999] FCA 1652 IP v Department of Communities and S.C. [2009] QChC 2 Minister for Home Affairs v Aciek [2017] 327 FLR 412 People with Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253 Pitman v State of Queensland [1999] 2 QR 71 Right to Life Association New South Wales Incorporated v Secretary, Department of Human Services and Health [1995] 128 ALR 238 R v Board of Visitors [1987] QB 106 R v Secretary of State for the Home Department; ex parte Salem [1999] 1 AC 450 Sunlife Assurance Co of Canada v Jarvis [1944] AC 111 The Department of Communities, Child Safety v M and S [2013] QChC 27 |
COUNSEL: | The appellants appeared on their own behalf R Berry and N Miranda for the respondent |
SOLICITORS: | The appellants appeared on their own behalf The Crown Solicitor (Qld) for the respondent |
Introduction and chronology
- [1]This is an appeal against the decision of a magistrate to make Temporary Assessment Orders in relation to two children, who I will call XD and YD.
- [2]The appellants have a history of illicit substance use. On 11 May 2021, WD gave birth to XD. The evidence suggests that WD had abstained from drug use since October 2023. In November 2023, the respondent undertook an “intervention with parental agreement” with respect to XD. On 2 August 2024, WD gave birth to YD. YD was treated in hospital until 21 August 2024. On 7 August 2024, it seems that the respondent received hearsay information that WD was falling asleep whilst holding and/or breastfeeding YD. On 7 and/or 8 August 2024, the appellants were asked to complete urine drug tests. WD completed hers on 9 August 2024, and VD completed his on 14 August 2024. Both were negative for illicit drug use. On 19 August 2024, it seems that the respondent received further hearsay information to the same effect as that on or about 7 August 2024. The appellants were again asked to complete urine drug screens within 24 hours. Those screens were completed, but the results were unavailable to the respondent as at 21 August 2024. There was then some interaction between the parties about the appellants entering into a safety plan. There appears to be a divergence of views as to who is to blame about this not being entered into.
- [3]On 21 August 2024, the respondent applied to a magistrate for Temporary Assessment Orders of XD and YD. The orders were granted, and the children were removed from the care of the appellants on 21 August 2024 and taken into the custody of the Chief Executive. The orders were to have effect until 26 August 2024 at 11:59pm.
- [4]On 23 August 2024, the appellants lodged an appeal against the orders and applied for a stay of the orders. On 26 August 2024, the respondent applied for Court Assessment Orders. At a mention before me of the stay application on 27 August 2024, an agreement was reached between the parties as to a safety plan. The stay application was withdrawn. On 27 August 2024, the children were returned to the custody of their parents. On 28 August 2024, the application for Court Assessment Orders was discontinued.
- [5]There has been some delay in the hearing of this appeal as the appellants wanted to consider their position in relation to it and then intimated that they may subpoena material. This was all done prior to knowledge of the respondent’s position as to the appeal, which only became known, at least to the Court, when submissions were filed on 23 January 2025. I am in a position to provide an ex tempore judgement as the matter has been listed before me for some time and I have been assisted by the written submissions of the parties filed months prior to the hearing of the appeal.
The statutory provisions
- [6]Section 27 of the Child Protection Act 1999 (Qld) (Act) provides as follows:
- “27Making of a temporary assessment order
- (1)The magistrate may make a temporary assessment order for the child only if the magistrate is satisfied:
- (a)an investigation is necessary to assess whether the child is a child in need of protection; and
- (b)the investigation cannot be properly carried out unless the order is made.
- (2)However, in deciding the application, the magistrate must also be satisfied reasonable steps have been taken to obtain the consent of at least one of the child’s parents for the doing of things sought to be authorised under the order is it is not practicable to take steps to obtain the consent.”
- [7]Part 4, chapter 3 of the Act deals with appeals against protection and assessment orders. Pursuant to section 117(1)(c), the parent of a child has the right to appeal against a decision for a Temporary Assessment Order. In the case of such an order, the appeal lies to a Childrens Court constituted by a judge (see the definition of “appellate court” set out in schedule 3 to the Act). The appeal is started by filing a written notice of appeal with the registrar of the appellate court (s 118(1)).
- [8]Pursuant to section 119, the appellate court has the power to stay a decision appealed against to secure the effectiveness of the appeal.
- [9]Pursuant to section 121(2) of the Act, the Court is empowered to confirm the decision appealed against; or vary the decision appealed against; or set aside the decision appealed against and either substitute another decision or remit the matter to the magistrate.
Position of the appellants
- [10]The appellants submit that the appeal should be allowed and the orders set aside. The appellants submit that the respondent misrepresented the facts to the magistrate. It is unnecessary to set out in detail those contentions given the concessions made by the respondent as to the substantive appeal.
- [11]The appellants state that their decision to proceed with the appeal “only came after there was an insufficient result with the Complaints Division, which I believe was found and stuck based on the [Temporary Assessment Orders] being granted in the first place”. I note though that in a recent communication with the respondent of 20 March 2025 (annexed to the affidavit of WD sworn on 24 March 2025) there was an offer to withdraw the current proceedings but only if proposed terms of settlement were agreed to by the respondent, which included confirmation of full custody, acknowledgement of procedural errors and breach of human rights and compensation for distress and loss.
- [12]The appellants “seek to remove the [Temporary Assessment Orders] from our history that we believe was only granted due to fraudulent information being provided from [name of the respondent’s officer] up to the court”. WD, in her affidavit of 24 March 2025, states that harm to the family occurred as a result of the Temporary Assessment Orders being made (it is conceded by the respondents in oral submissions today that there is at least a controversy between the parties as to reputational interest).
Position of the respondent
The appeal should be permanently stayed
- [13]The respondent’s primary position in written submissions is that the court should permanently stay the appeal, in the exercise of discretion, as there is no utility in the appeal proceeding as the Temporary Assessment Orders ceased to have effect on 26 August 2024.
- [14]I note today, when represented by experienced counsel, the respondent took the position that it was “not vehemently submitting” that the appeal should be stayed. The respondent refers to the decisions of Amos v Wiltshire [2018] QCA 208, Department of Communities, Child Safety v M and S [2013] QChC 27 and R v Secretary of State for the Home Department; ex parte Salem [1999] 1 AC 450 at 457 in support of its position.
- [15]It is submitted that this is not a case that involves a discrete point of statutory construction or another issue of public importance that requires resolution. The personal and private importance of the subject matter of the appeal is better addressed through different channels, it is submitted, and the respondent points to having already offered an apology to WD in response to a complaint.
- [16]The respondent concludes its submissions on this point as follows in written submissions, “Other than perhaps the vindication of receiving a favourable judgement, there is no benefit to the appellants in the appeal being determined. For instance, there is no power in the court to quash or set aside the orders ab initio for jurisdictional error or otherwise. It follows that, even if the appeal were allowed, the orders would have had legal effect between 21 August 2024 and 28 August 2024, the day that the application for the court assessment orders was withdrawn.”
- [17]I note, in oral submissions today, the respondent brought the court’s attention to the decision of AZC20 v Minister for Immigration, Citizen, Migrant Services and Multicultural Affairs and others [2023] 278 CLR 512. It was accepted by the respondent that there were differences between that case and this, at least because, in that case, there were specific statutory provisions that were applicable, but also the respondent conceded that in this case there is a controversy between the immediate parties as at the date of the appeal at least because there was reputational interest implications.
- [18]Further, unlike in the decision to which I have just referred, this is not a case that the issues would have been live if a different remedy had been sought. In that case, the Commonwealth parties could have sought an expedited appeal from the orders of the primary judge but chose a different avenue. Whereas here, the appeal was properly lodged within the time period and, indeed, at a time when the Temporary Assessment Orders were still in effect.
In the alternative, the appeal should be allowed
- [19]The alternative position of the respondent is that, “if the Court considers that it is appropriate for the appeal to be determined; the appeal be allowed, and the Orders be set aside.” The respondent concedes that, “in retrospect, it is apparent that the applications were incapable of satisfying the Magistrate that the Orders ought to have been made.”
Determination
Decline to permanently stay the appeal
- [20]The respondent contends that the appeal should be permanently stayed as there is no utility in the appeal being determined, even though it is otherwise conceded that there is merit in the appeal. I note in oral submissions today it was discussed as to whether there is, in fact, a jurisdictional point that must first be determined before my discretion is enlivened.
- [21]As a general principle, a Court should refuse to hear an appeal in respect of issues where there is no longer a controversy between the parties (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 335; People with Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253). However, the Court retains a discretion to continue to hear an appeal in circumstances where the subject matter of the appeal has been rendered moot by reason of a change in circumstances or otherwise (Hope Downs Management Services Proprietary Limited v Hamersley Iron Proprietary Limited [1999] FCA 1652). In Bonan v Hadgkiss [2007] FCAFC 113, [2007] 160 FCR 29, Tamberlin, Stone and Siopis JJ identified factors relevant to the exercise of discretion and the circumstances in which an appellate court may continue to the hearing of an appeal rendered moot:
- “[10]There is no limit on the considerations which may be taken into account in determining whether to exercise the discretion to continue to hear and determine the appeal where the only live issue between the parties is the costs order made below. However, the authorities show that the court have hard regard to the following factors in determining whether to exercise the discretion: whether the decision under appeal has ramifications which extend beyond the facts of the case in question and it is in the public interest that the issue be resolved; whether the decision under appeal reflects adversely upon the reputation of one of the parties and the determination of the appeal may serve to vindicate that party’s reputation; whether a finding of bad faith by the decision-maker has been made; whether there is doubt over the correctness of the decision under the appeal; the amount of judicial resources which would be taken in hearing and determining the appeal’ and the costs issue.
- [11]However, the presence of one or more of those factors does not mean that the discretion will be exercised in favour of hearing and determining the appeal. Each case must be considered on its own facts (citations omitted).”
- [22]The discretion is an easier one to determine where there are only private interests involved: the general rule is that the court’s interest in the matter is exhausted by the private dispute concerned (see, for example, Sunlife Assurance Co of Canada v Jarvis [1944] AC 111).
- [23]Examples of cases where questions of public law were involved and the court proceeded to determine the appeal include:
- R v Board of Visitors [1987] QB 106 at 108-109 where the appellant argued, “but the same is not true where there is a question of public law involved, when the court may properly proceed even if the particular dispute is no longer in issue. The court has a discretion to proceed if it is in the public interest to do so… The appeal by the Board to this court was as of right: the decision not to proceed further with the charge against the prisoner, which was taken both in interest and in accordance with the principles of good administration, should not prevent this court from considering the appeal on its merits… New legislation, whether by statute or by delegated legislation, will probably be considered and further clarification of the issues raised in this case is desirable in the public interest. The court has jurisdiction and should proceed with the appeal.”
Ralph Gibson LJ determined at 115, “It seemed to all of the members of this court that the fact that the prisoner was no longer at risk of disciplinary proceedings does not deprive the court of jurisdiction to hear this appeal: that there were in it questions of general public interest; and that even if the prisoner is rightly to be regarded as having no interest in the outcome, the court should, in the exercise of its discretion, hear the appeal on the merits.”
- People with Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253, where the court was critical of the parties not bringing to its attention earlier that there was no ongoing dispute between the parties which rendered the appeal “moot and of no utility.” At [13], Beazley JA said, “as a general rule, the court in such circumstances would not entertain the appeal. However, the rule is a general one only, and the court retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned.” At [14], it was said, “one of the factors which would cause the court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases (citations omitted).” In that case, it was ultimately decided to determine the appeal due to the appeal having almost been argued to conclusion when the court was informed that there was no dispute between the parties and due to there being an issue of statutory construction of at least one other proceeding on foot. It was expressly stated the position may well have been different had the position between the parties been known earlier.
- Garning & Director-General, Department of Communities, Child Safety and Disability Services [2013] FamCAFC 28, where the orders appealed against included an order for the return of the four children to Italy. It was common ground at the hearing of the appeal that the children had, in fact, been returned to Italy. The first respondent was the State Central Authority under the regulations, and had made the original applications for the return of the children to Italy on the basis that they had been wrongfully restrained in this country by the appellant mother. The court determined that it should consider the merits of the appeal and ultimately dismissed the appeal, but noted that, “there was much force in the submissions put to us on behalf of the [first and second respondent] that the appeal has been rendered nugatory or moot by the fact that the children were returned to Italy...”.
- The Department of Communities, Child Safety v M and S [2013] QChC 27, where Samios DCJ stated at [4], “Matters have proceeded further as between the parties since the learned magistrate made her orders and the appeal was filed… the matters between the parties have been resolved to finality, in that final orders have been made providing protective supervision for the children and the children have been returned to their parents. Therefore, as the orders appealed against were interim orders and they have now been replaced by final orders, it appears there is no utility in my determining this appeal. It has been recognised, in a number of cases, including People with Disability Australia Incorporated v Minister for Disability Services and another [2011] NSWCA 253 that the court does not have an advisory jurisdiction. When an appeal is moot and of no utility, as a general rule, the court in such circumstances will not entertain the appeal.”
After setting out [13] of Beazley JA’s judgment, Samios DCJ was satisfied that he should proceed with the appeal to determination as it could affect other cases.
- [24]Examples of cases where public law was involved which were permanently stayed include:
- R v Secretary of State for the Home Department; ex parte Salem (1999) 1 A.C. 450, where the House of Lords determined that “in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a live issue to be decided which will directly affect the rights and obligations of the parties inter se… The discretion to hear disputes, even in the area of public law, must however be exercised with caution, and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for so doing; as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future. I do not consider that this is such a case...”.
- Minister for Home Affairs v Aciek [2017] 327 FLR 412, with the court determining that the hearing of the appeal was rendered moot by the giving of a further and replacement notice under the relevant legislation.
- [25]In F v Kefford and another [2004] QChC 1, O'Brien DCJ (as he then was) dismissed an application for extension of time within which to appeal a Temporary Assessment Order. He cited the decision of Thomas J in Pitman v State of Queensland [1999] 2 QR 71 at 74:
“It does seem that time has overtaken any practical purpose in maintaining the first two applications, save of course for the satisfaction of the applicant in obtaining a declaration (if he was entitled to one) that the particular decisions were invalid. There may well be cases where a genuine benefit may be seen in setting aside a wrong decision even when its effect has ended or in eliminating an unfair matter of public record. If the intrinsic nature of the allegation is such that in the interests of justice they ought to be reviewed, then no doubt the court would proceed. What he will be denied by a stay of the first and second applications for review will be the special summary remedy provided under the Judicial Review Act which would quash two decisions which have already ceased to operate. In these circumstances, I consider it appropriate to stay any further proceeding upon the first and second applications for review.”
O'Brien DCJ then stated at [13]:
“In Pitman, Thomas J was of course concerned with an application under the Judicial Review Act but in my view the principle to which his Honour was referring should have application to the circumstances of the present case. Here the period the subject of complaint occupied no more than a few hours and the order sought to be appealed against has long ceased to have any application. There was no demonstrated basis for a finding of error on the magistrate’s behalf and no detriment is pointed to as a consequence of the making of the order. There is no practical purpose to be served in a re-hearing of an application for the Temporary Assessment Order.”
- [26]As I will turn to, in the present case, unlike in F v Kefford and Another, there is a demonstrated basis for a finding of error on the Magistrate’s behalf and the subject of complaint certainly occupied “more than a few hours”. It is unnecessary to delve into the likely “detriment” suffered by the appellants as a consequence of the making of the orders. But clearly, the Temporary Assessment Orders resulted in two children being taken from the care of the appellants for a not inconsiderable period of time where it is now conceded that the orders ought not to have been made. Further, a detriment pointed to by the appellants in their written outline of submissions is that the Orders are on their “history” with the respondent.
- [27]It is conceded by the respondents that a controversy exists in this matter at least in relation to reputational interest. To my mind, to the extent that it is necessary to do so, there are significant differences between the cases which were permanently stayed in the exercise of discretion highlighted above and the present case.
- [28]I note that there was an issue raised today as a result of the decision of AZC20 v Minister for Immigration, Citizen, Migrant Services and Multicultural Affairs and others as to whether I first needed to determine a jurisdictional point. To my mind, that case can be distinguished as it was operating under a specific statutory basis. If I am wrong, and I do have to determine a threshold jurisdictional question, as the respondents have conceded, there is a controversy between the immediate parties to the appeal in this case.
- [29]To my mind, as I have said, to the extent that it is necessary to do so, there are significant differences between the cases which were permanently stayed in the exercise of discretion highlighted above and the present case. I fully recognise that this matter does not involve any question of statutory construction or other outstanding legal issue, but that is not the end of the matter. In my view, there is a public interest in determining this appeal. The categories of public interest are not closed: “the public interest is a concept of wide meaning and not readily limited to precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest” (Right to Life Association New South Wales Incorporated v Secretary, Department of Human Services and Health [1995] 128 ALR 238 per Lockhart J).
- [30]Public interest includes ensuring that decision makers, in exercising their discretionary powers, are properly accountable and there is transparency. As was said in Director of Public Prosecutions v Smith [1991] 1 VR 63 at 75, per Kaye, Fullagar and Ormiston JJ:
“The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.”
- [31]As Dearden DCJ stated in IP v Department of Communities and S.C. [2009] QChC 2 at [9]:
“Temporary Assessment Order applications, by their nature, are significant orders, they have the effect of temporarily placing the relevant children in the custody of the Chief Executive of the Department, they obviously do so in the interests of seeking to protect the children. Those orders, apart from anything else, cut, firstly, directly across parental rights…”
- [32]In this matter, there is not just “doubt over the correctness of the decision under the appeal” but rather it goes to the extreme of the respondent (properly) conceding the appeal; conceding that the information founding the application was “incapable of satisfying the Magistrate that the Orders ought to have been made.”
- [33]A matter of concern is that the respondent, rather than taking responsibility for the concession that it is now making on appeal, states, “the orders themselves were made by an independent Magistrate and not officers of the respondent.” Whilst that is true, the respondent is conceding that the information founding the application for the Temporary Assessment Orders was “incapable of satisfying the Magistrate that the orders ought to have been made.” This ought to have been known to the relevant persons within the respondent Department at the time. There are aspects of concern which need to be addressed by the Department. The clear and obvious need to protect the interests of children cannot override an obligation to ensure that an application is not made unless there are sufficient grounds to do so.
- [34]In my view, I should proceed to determine the appeal, and do so.
Appeal should be allowed and the orders set aside
- [35]The appeal is conceded by the respondent. Section 27 of the Act provides that a magistrate can make a Temporary Assessment Order only if satisfied that:
- (a)an investigation is necessary to assess whether the child is a child in need of protection; and
- (b)the investigation cannot be properly carried out unless the order is made.
- [36]It is clear, as the respondent concedes, that the information was incapable of satisfying the Magistrate of the statutory test. As the respondent summarises “on the material before the Magistrate, the crux of the respondent’s concern was based on reports of [WD] falling asleep while holding [YD] together with historical concerns about drug use. The respondent accepts that information was incapable of satisfying the Magistrate that the Orders ought to have been made. It follows that it is open to this Court to find that there was a failure by the Magistrate to properly exercise her discretion in making the Orders.”
- [37]In all the circumstances, it is my view that the appeal is properly conceded by the respondent and should be allowed.
Other relief sought
- [38]The appellants also “seek assistance” from the court, including to “seek help from the court with ending [the name of the respondent’s officer] reign of terror on our children as well as us”. In an affidavit filed on 24 March 2025, WD details that they are seeking declarations that the Temporary Assessment Orders were illegal, a declaration of a breach of “our human rights” and $300,000 in compensation as well as costs against the respondent. Today, in oral submissions, WD requested that the relevant officer be referred to the Queensland Police Service for investigation.
- [39]As was explained to WD at the hearing, the powers of this court on the appeal are limited to those in section 121(2) of the Act and, as such, I have no power to make the additional orders or declarations sought by the appellants.
Orders
- [40]My orders are as follows:
- The appeal is allowed.
- The Temporary Assessment Orders made on 21 August 2024 are set aside.