AS v Director of Child Protection Litigation
[2024] QChC 20
•13 December 2024
CHILDRENS COURT OF QUEENSLAND
CITATION:
AS v Director of Child Protection Litigation & Ors [2024] QChC 20
PARTIES:
AS
(appellant)
v
DIRECTOR OF CHILD PROTECTION LITIGATION(first respondent)
and
CG
(second respondent)
and
ANTHONY KINGSTON (separate representative)
(third respondent)
and
L (subject child)
(fourth respondent)
and
D (subject child)
(fifth respondent)
and
A (subject child)
(sixth respondent)FILE NO:
2272/2024
PROCEEDING:
Appeal pursuant to s 117 Child Protection Act 1999
ORIGINATING COURT:
Childrens Court at Ipswich
DELIVERED ON:
Date of orders: 5 December 2024
Date of publication of reasons: 13 December 2024
DELIVERED AT:
Brisbane
HEARING DATE:
11 November 2024
JUDGE:
Rafter SC DCJ
ORDERS:
Date of orders: 5 December 2024
1. Appeal allowed.
2. Remit the application in the child protection proceeding filed on 21 March 2024 by AS seeking a protection order under the Domestic and Family Violence Protection Act 2012 to the Childrens Court (magistrate) at Ipswich to be heard by a different Magistrate.
3. Confirm the child protection order made by the Childrens Court at Ipswich on 24 July 2024 pursuant to s 61(f)(iii) of the Child Protection Act 1999 granting long-term guardianship of the child L to the chief executive until the day before the child turns 18 years unless earlier revoked.
4. Confirm the child protection orders made by the Childrens Court at Ipswich on 26 July 2024 in relation to the child D directing CG to do and refrain from doing stated things directly related to the child’s protection pursuant to s 61(a) of the Child Protection Act 1999, and requiring the chief executive to supervise the child’s protection in relation to stated matters pursuant to s 61(c) of the Child Protection Act 1999.
5. Confirm the child protection orders made by the Childrens Court at Ipswich on 26 July 2024 in relation to the child A directing CG to do and refrain from doing stated things directly related to the child’s protection pursuant to s 61(a) of the Child Protection Act 1999, and granting custody of the child to the chief executive until 11.59pm on 23 July 2026 pursuant to s 61(d)(ii) of the Child Protection Act 1999.
CATCHWORDS:
MAGISTRATES – HEARING – CONDUCT OF MAGISTRATES – OTHER MATTERS – where the magistrate was hearing a child protection applications – where the appellant brought an application within the proceeding for a domestic violence protection order pursuant to section 43(2) of the Domestic and Family Violence Protection Act 2012 (Qld) – where the magistrate had made adverse findings about the credibility of a potential witness in the application in the proceeding – where the second respondent brought an application for the magistrate to recuse himself from determining the application in the proceeding – where the magistrate recused himself from determining the application in the proceeding only – where the final child protection orders were not opposed – whether the magistrate erred in making final child protection orders
MAGISTRATES – HEARING – CONDUCT OF MAGISTRATES – PROCEDURAL FAIRNESS AND NATURAL JUSTICE - where the magistrate was hearing child protection applications – where the appellant brought an application within the proceeding for a domestic violence order pursuant to section 43(2) of the Domestic and Family Violence Protection Act 2012 (Qld) – where the magistrate recused himself from deciding the application – where the magistrate subsequently made final child protection orders bringing the child protection proceeding to an end – whether the magistrate erred in failing to adjourn the application for a domestic violence protection order – whether the magistrate erred in effectively dismissing the application for a domestic violence protection order
Child Protection Act 1999 (Qld) s 4, s 5A, s 5B, s 59, s 61, s 63(f)(iii), s 108C, s 110(1)(a), s 110(8)(b), s 120, s 121,
Childrens Court Rules 2016 (Qld) r 70(1)(a)
Domestic and Family Violence Protection Act 2012 (Qld) s 42, s 43Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
KEM v GYB [2020] QDC 262COUNSEL:
P C Eviston for the appellant
N A Miller for the first respondent
J P Feely for the second respondent
I Gajic-Pavlica for the third respondent
E J Lewsey for the fourth respondent
G J Seaholme for the fifth respondent
No appearance for the sixth respondentSOLICITORS:
Tempest Legal for the appellant
Director of Child Protection Litigation (first respondent)
KLM Solicitors for the second respondent
Norman & Kingston for the third respondent
Legal Aid Queensland for the fourth respondent
Power Legal for the fifth respondent
No appearance for the sixth respondent
Introduction
This is an appeal by AS (the “mother”) against a child protection order made on 24 July 2024 in respect of the fourth respondent (the subject child “L”) and child protection orders made on 26 July 2024 concerning the fifth and sixth respondents (the subject children “D” and “A”). The appeal also challenges the effective dismissal of an application in the proceeding filed by the mother on 21 March 2024 seeking a domestic violence protection order naming herself and the subject children L and A as the aggrieved.[1]
[1]Domestic and Family Violence Protection Act 2012 (Qld), s 43.
On 5 October 2022 an order was made that the children be separately represented by a lawyer.[2] The third respondent is the separate representative for the subject children L, D and A. His role ends when the appeal is decided.[3]
[2]Child Protection Act 1999 (Qld), s 110(1)(a).
[3]Child Protection Act 1999 (Qld), s 110(8)(b).
The children L and D had direct representatives who appeared and participated during the hearing before the Childrens Court and on this appeal.
The Public Guardian appeared for the child A in the proceeding before the Childrens Court at Ipswich. The role of the Public Guardian is to support the child by presenting the child’s views and wishes to the Childrens Court and to make submissions, call witnesses and test evidence, including by cross-examining witnesses.[4] The role of the Public Guardian ended when the proceeding was decided in the Childrens Court at Ipswich.[5] The Office of the Public Guardian informed the Court that a child advocate with the office is neither a separate representative nor a direct representative and is not A’s legal representative for the proceeding and therefore would not appear at the appeal.[6]
[4]Child Protection Act 1999 (Qld), s 108C(1).
[5]Child Protection Act 1999 (Qld), s 108C(4).
[6]Letter from the Office of the Public Guardian to the Childrens Court list manager dated 21 August 2024.
Ultimately the child protection orders were not opposed by any party in the proceeding before the Childrens Court at Ipswich. However, the orders made on 26 July 2024 concerning the children D and A were made after the magistrate had recused himself from hearing the mother’s application seeking a domestic violence protection order.
The background to the magistrate’s recusal is that on 12 July 2024, on application by the mother, the magistrate made an order restraining Craig Stevenson, the solicitor for the second respondent, CG (the father) and related entities from taking instructions, appearing, providing advice or having any involvement in the proceedings. The restraint application proceeded over three days on 25, 26 and 27 March 2024. The magistrate formed a very unfavourable view of Mr Stevenson describing him as a “poor witness”, that he gave “rambling and confusing” answers in cross-examination and that he was evasive.[7]
[7]Reasons on restraint application 12 July 2024 at [95].
By 26 July 2024 the only contested application was the mother’s application for a domestic violence protection order. The solicitor then appearing for the father stated that he would like to call Mr Stevenson as a witness[8] and that if he did call him, having regard to the adverse findings on his credibility “there would be inherent bias … that cannot be mitigated”.[9] Counsel for the mother strongly opposed the father’s application for the application for a domestic violence protection order to be heard by another magistrate.
[8]Transcript of proceedings 26 July 2024, p 4 ll 22-23.
[9]Transcript of proceedings 26 July 2024, p 4 ll 28-32.
After hearing submissions the magistrate recused himself from hearing the mother’s application for a domestic violence protection order. The magistrate then proceeded to make the child protection orders concerning the subject children D and A.
The appellant and all respondents conducted the appeal on two fundamentally flawed assumptions. The first incorrect assumption was that the magistrate had recused himself from the entire proceeding. The application for recusal related solely to the mother’s domestic violence protection order application. The solicitor for the father expressly sought “… a different magistrate for this portion.”[10] Further, the magistrate’s reasons for recusing himself commenced by stating that he had been asked to recuse himself from continuing to hear the application for a domestic violence protection order.[11]
[10]Transcript of proceedings 26 July 2024, p 4 l 41 (emphasis added).
[11]Transcript of decision 26 July 2024, p 2 ll 1-3.
The second incorrect assumption made by all parties to the appeal was the acceptance of the magistrate’s conclusion that having recused himself “there would be no jurisdiction for the current application to be heard in its current terms …”.[12] The magistrate considered that the effect of s 43(1) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act) was that the domestic violence protection order may only be made when the Childrens Court is hearing a child protection proceeding. This construction of the provision overlooks the express power in s 43(7)(b) to adjourn the matter of making the domestic violence protection order.
[12]Transcript of decision 26 July 2024, p 4 ll 31-32.
At the hearing of the appeal all parties accepted that the magistrate had recused himself only in respect of the domestic violence protection application by the mother. The Director of Child Protection Litigation (DCPL), counsel for the separate representative and counsel for the subject children L and D also accepted that the effect of s 43(7) of the DFVP Act was that the magistrate had the power to adjourn the application by the mother notwithstanding that child protection orders were made. Counsel for the mother, Ms Eviston and counsel for the father, Mr Feely maintained that the child protection orders should be set aside and remitted to the Childrens Court (magistrate) at Ipswich to be heard at the same time as the mother’s application for a domestic violence protection order. They submitted that this result necessarily followed from s 43(1) of the DFVP Act which confers jurisdiction on a Childrens Court to make a domestic violence protection order against a parent of a child when the Court is hearing a child protection proceeding.
For the reasons that follow, the appeal should be allowed and the mother’s application for a domestic violence protection order be remitted to the Childrens Court (magistrate) at Ipswich. The child protection order made on 24 July 2024 concerning the child L and the child protection orders made on 26 July 2024 in relation to the children D and A should stand.
Factual background
On 15 September 2022, the DCPL filed applications for protection orders concerning the subject children L, D and A.
On 18 July 2023 the mother filed an application seeking to restrain the solicitor for the father, Craig Stevenson and associated parties from acting for the father.
On 2 August 2023 Mr Stevenson withdrew from acting for the father and Sun & Co Lawyers appeared. The restraint application nevertheless remained on foot and was adjourned without having been determined.
The mother’s application for a domestic violence protection order was filed on 21 March 2024.
The matter was listed for a three-day hearing commencing on 25 March 2024. On the first day of the hearing Mr Stevenson appeared for the father. Counsel for the mother informed the magistrate of the application to restrain Mr Stevenson and Ace Lawyers from continuing to act. Counsel informed the magistrate that after the application was filed on 21 July 2023, Mr Stevenson withdrew and Sun & Co Lawyers filed a notice of address for service and remained the solicitors on the record. Counsel informed the magistrate that late the previous night Sun & Co Lawyers emailed the parties advising that their principal was unable to attend and Mr Stevenson would be appearing instead. Counsel said that the mother’s application raised two issues: first the determination of the application to restrain Mr Stevenson from continuing to act and second whether Sun & Co should be granted leave to withdraw in circumstances where no-one from that firm had appeared and very little information had been given.[13]
[13]Transcript of proceedings 25 March 2024 p 4 ll 31 – 40. The transcript attributes the submissions to the child advocate legal officer from the Office of the Public Guardian appearing for the child A, but that seems to be an error.
Mr Stevenson informed the magistrate that Mr Sun was “very sick”.[14]
[14]Transcript of proceedings 25 March 2024, p 6 l 2.
Mr Sun had sent an email to the parties the previous night stating that due to health issues he was not available to represent the father the following day and had therefore arranged for Mr Stevenson to appear.[15]
[15]Ex. 1.
In the circumstances, the magistrate adjourned the matter to the following day to enable Mr Sun to make an application for leave to withdraw supported by medical evidence.[16]
[16]Transcript of proceedings 25 March 2024, p 24, ll 25 – 30.
On 26 March 2024 Mr Sun appeared and produced medical certificates (exhibit 2). The magistrate accepted that the medical certificates established that Mr Sun was unable to appear during that week.[17]
[17]Transcript of proceedings 26 March 2024, p 9 ll 40 – 42.
The magistrate refused Mr Sun’s application for leave to withdraw, but invited him to seek an adjournment of the matter based on his medical condition.[18]
[18]Transcript of proceedings 26 March 2024, p 10 ll 5 – 30.
Mr Stevenson was outside the Court at that stage. He was then asked to return and was informed that Mr Sun remained the solicitor on the record for the father, but that the matter was being adjourned.[19]
[19]Transcript of proceedings 26 March 2024, p 12 ll 1 – 10.
Ultimately the mother’s restraint application proceeded on that day and the following day. Mr Stevenson gave evidence in the course of the application.
Mr Stevenson conceded that he had a conflict of interest because he may be a material witness in the substantive proceeding. The magistrate made interim orders restraining Mr Stevenson and related entities from having involvement in the matter. The magistrate reserved his decision on the restraint application and adjourned the substantive applications for a 5 day hearing commencing on 22 July 2024.
On 12 July 2024 the magistrate delivered his decision on the restraint application. The magistrate ordered that Mr Stevenson and related entities be restrained from taking instructions or appearing or providing advice or having any involvement as legal representatives, advisors or any other participatory role in the proceedings. The magistrate regarded Mr Stevenson as a “poor witness”.[20]
[20]Reasons on Restraint Application at [95].
The magistrate considered that some of Mr Stevenson’s evidence was likely to be untruthful.[21]
[21]Reasons on Restraint Application at [98].
The magistrate held that Mr Stevenson’s conduct demonstrated that he had entered into “the fray” and consequently his independence and therefore his fiduciary relationship with his client was compromised.[22]
[22]Reasons on Restraint Application at [121].
The hearing of the substantive applications commenced on 22 July 2024. Counsel instructed by Sun & Co Lawyers appeared for the father. At the outset it was indicated that the long-term guardianship order sought by the DCPL in respect of the child L was not opposed by any party. The child protection orders sought in respect of the children D and A were opposed by the father. The magistrate ultimately made an order granting long-term guardianship of L to the chief executive, on 24 July 2024.[23]
[23]Child Protection Act 1999 (Qld), s 61(f)(iii).
The hearing on 22 July 2024 proceeded in respect of the applications for child protection orders in respect of the children D and A. Counsel for the mother indicated that the mother maintained her application filed on 21 March 2024 seeking orders that she appear by videolink and the making of a domestic violence protection order.[24]
[24]Transcript of proceedings 22 July 2024, p 12 ll 31-38.
The case presented by the DCPL concluded on 23 July 2024. The father’s case was to commence on 24 July 2024 but at the outset counsel for the father sought leave to withdraw. The instructing solicitor, Mr Sun sought an adjournment to brief new counsel.[25] Later that afternoon counsel for the separate representative informed the magistrate that after further discussions the parties had come to an agreement in respect of final child protection orders for the children D and A. In respect of the child D the proposed order was a 12 month directive and supervision order.[26] The proposed order in relation to the child A was a 2 year custody order with directives.[27]
[25]Transcript of proceedings 24 July 2024, p 2 ll 20-25.
[26]Transcript of proceedings 24 July 2024, p 8 ll 35-37.
[27]Transcript of proceedings 24 July 2024, p 8 ll 38-39.
The only remaining issue was the mother’s application for a domestic violence protection order which was opposed by the father.[28] Mr Sun sought an adjournment of the application and it was ultimately listed to be heard on 26 July 2024.
[28]Transcript of proceedings 24 July 2024, p 6 l 30 to p 7 l 20.
Before the Court adjourned on 24 July 2024 counsel for the mother (not Ms Eviston who appeared on the hearing of the appeal) said to the magistrate that although she hadn’t “… actually turned (her) head to the legislation – but whilst there is an application in a proceeding on foot, that the court might be unable to make a final order”.[29] Counsel said that she hadn’t looked at all of the legislation and had not “… strictly turned (her) head to that.” She invited counsel for the separate representative to express her view. Counsel for the separate representative, Ms Gajic-Pavlica drew the Court’s attention to s 43(7) of the DFVP Act which enabled the Court to adjourn the matter of making a protection order.[30]
[29]Transcript of proceedings 24 July 2024, p 15 ll 1-2.
[30]Transcript of proceedings 24 July 2024, p 15 ll 12-19.
When the matter resumed on 26 July 2024 for the continuation of the mother’s application for a domestic violence protection order, the magistrate expressed a preliminary view that the father faced an “uphill battle” and invited Mr Sun who was then appearing for the father to take instructions.[31] The Court adjourned for a short time after which Mr Sun said that he wished to call Mr Stevenson as a witness in relation to some specific issues and he was concerned that based on the magistrate’s views of his credibility, “there would be inherent bias of this court that cannot be mitigated.”[32] Mr Sun submitted that the domestic violence application should be heard before a different magistrate, but he did not suggest that the “whole entire proceeding should start again.”[33]
[31]Transcript of proceedings 26 July 2024, p 3 ll 39-40.
[32]Transcript of proceedings 26 July 2024, p 4 ll 20-32.
[33]Transcript of proceedings 26 July 2024, p 4 ll 33 – 35.
He submitted that “… this bias, unfortunately, in my view cannot be cured unless we have a different magistrate just for this portion.”[34] The application for recusal by the magistrate was strongly opposed by counsel for the mother.[35]
[34]Transcript of proceedings 26 July 2024, p 4 ll 40-41.
[35]Transcript of proceedings 26 July 2024, p 5 ll 10-30.
The magistrate adjourned to consider the course that he would take. Upon resuming the magistrate recused himself from hearing the application for a domestic violence protection order made by the mother. The magistrate said:
“I find that Mr Stevenson is proposed to be called to give evidence in the current application. There is a logical connection that may be drawn between my earlier findings and the feared deviation, that I may not bring an unprejudiced mind to his evidence. I do recuse myself from further hearing these proceedings.
With respect to the furtherance of the domestic violence application, here we have an unusual circumstance where the substantive child protection hearing has resolved or is about to resolve, and the parties have agreed on the nature and duration of the child protection orders. It’s made clear from the wording of section 43 of the Domestic and Family Violence Protection Act where it says, “This section applies if the court is hearing a child protection proceeding.” The implication being that if the child protection proceeding is resolved, in that the court is no longer hearing the proceeding, s 43 may not apply.
Now that I’m recused, there would be no jurisdiction for the current application to be heard in its current terms, for two reasons: (1) the hearing is part-heard and a new magistrate can’t pick up the hearing and (2) section 43 would be redundant, as there would be no further child protection proceedings to be heard. It follows that the mother may seek protection or that the mother does seek protection under the Domestic and Family Violence Protection Act, a new application may need to be made.”[36]
[36]Decision on 26 July 2024 p 4, ll 15-37.
The magistrate then proceeded to make child protection orders. In respect of the child D the magistrate made various directives[37] and an order requiring the chief executive to supervise D’s protection until 11.59pm on 23 July 2025.[38] In respect of the child A the magistrate made an order granting custody of the child to the chief executive until 11.59pm on 23 July 2026[39] and an order for various directions.[40]
[37]Child Protection Act 1999 (Qld), s 61(a).
[38]Child Protection Act 1999 (Qld), s 61(c).
[39]Child Protection Act 1999 (Qld), s 61(d)(ii).
[40]Child Protection Act 1999 (Qld), s 61(a).
The appeal
The mother has appealed against the orders made by the Childrens Court at Ipswich on 24 and 26 July 2024 on the following grounds:
Decisions being appealed
“The appellant appeals against the decision of the Childrens Court:
1.Dismissal of an Application in a Proceeding filed on 21 March 2024 pursuant to section 43(2) of the Domestic and Family Violence Protection Act 2012.
2.Making of Child Protection Orders pursuant to sections 61(a), 61(c), 61(d)(ii), and 61(e) of the Child Protection Act 1999.
The decisions were made at Ipswich Childrens Court on 24 and 26 July 2024.
Details of appeal
1.That the Magistrate erred by making a substantive Order on 24 June 2024 (sic; July) whilst an Application in a Proceeding was before the Court;
2.That the Magistrate erred by making substantive Orders after being recused on 26 June 2024 (sic; July);
3.That the Appellant was denied procedural fairness in relation to the Application in a Proceeding.”
The appeal is to be decided on the evidence and proceedings before the Childrens Court unless the appellate court orders that the appeal be heard afresh, in whole or in part.[41]
[41]Child Protection Act 1999 (Qld), s 120.
The powers of the appellate court are set out in s 121 Child Protection Act 1999 (Qld) (CP Act):
“121 Powers of appellate court – appearance of respondent
(1)This section applies if a respondent appears before an appellate court at the hearing for an appeal.
(2)In deciding the appeal, the appellate court may—
(a) confirm the decision appealed against; or
(b) vary the decision appealed against; or
(c) set aside the decision appealed against and either—
(i)substitute another decision; or
(ii)remit the matter to the magistrate or Childrens Court that made the decision.”
Consideration
The purposes of the CP Act are set out in s 4:
“4 Purposes of Act
The purposes of this Act are—
(a) to provide for the protection of children; and
(b) to promote the safety of children; and
(c) to the extent that it is appropriate, to support families caring for children.”
The main principle of the CP Act is that the safety, wellbeing and best interests of a child are paramount.[42]
[42]Child Protection Act 1999 (Qld), s 5A.
The general principles in s 5B of the CP Act are relevant to making decisions relating to the safety, wellbeing and best interests of a child. The general principles include:
“5B Other general principles
The following general principles are relevant to making decisions relating to the safety, wellbeing and best interests of a child—
…
(m)a delay in making a decision in relation to a child should be avoided, unless appropriate for the child;
(n)a child has the right to express the child’s views about what is, and is not, in the child’s best interests.”
The making of a child protection order is governed by Pt 4 of the CP Act. The requirements for making a child protection order are set out in s 59. The types of child protection orders that may be made are contained in s 61.
Section 43 of the DFVP Act confers jurisdiction on the Childrens Court to make or vary a domestic violence protection order in child protection proceedings in certain circumstances. The provision is contained in Part 3 Division 1B which is headed “Domestic violence orders in criminal and child protection proceedings”. Section 42 applies where a court convicts a person of a domestic violence offence.
Section 43 of the DFVP Act provides:
“43 When Childrens Court can make or vary order against parent of a child
(1)This section applies if the Childrens Court is hearing a child protection proceeding.
(2)The court may make a protection order against a parent of a child for whom an order is sought in the child protection proceeding (the parent) if—
(a) the court is satisfied that, under section 37, a protection order could be made against the parent; and
(b) the person who would be named as the aggrieved in the protection order is also a parent of a child for whom an order is sought in the child protection proceeding.
(3)If a domestic violence order is already in force against a parent of a child for whom an order is sought in the child protection proceeding (also the parent), the court must consider the order and whether, in the circumstances, the order needs to be varied, including, for example—
(a) by varying the date the order ends; or
(b) to ensure the terms of the order are consistent with an order proposed to be made in the child protection proceeding.
(4)The court may make a protection order under subsection (2) or vary a domestic violence order under subsection (3) on its own initiative or on the application of a party to the child protection proceeding.
(5)However, the court may not make a protection order under subsection (2) or vary a domestic violence order under subsection (3) unless each party to the child protection proceeding has been given a reasonable opportunity to present evidence and to prepare and make submissions about the making or variation of the order.
(6)Despite section 37(2)(a)(iii), in deciding whether to make a protection order under subsection (2) or vary a domestic violence order under subsection (3), the court is not required to, but may, consider the parent’s criminal history and domestic violence history.
(7)A court exercising jurisdiction under this section—
(a) may make the protection order, or vary the domestic violence order, during the hearing of the child protection proceeding; or
(b) may adjourn the matter of making the protection order, or varying the domestic violence order, to a later fixed time and day and may, in the meantime, make a temporary protection order under division 2.
(8)If the court adjourns the matter under subsection (7)(b), the court—
(a) must inform the parent that if the parent does not appear in court at the later time and day to which the matter has been adjourned—
(i)a protection order may be made, or a domestic violence order varied, in the parent’s absence; and
(ii)the court may issue a warrant for the parent to be taken into custody by a police officer if the court believes that it is necessary for the parent to be heard; and
(b) may issue any direction that it considers necessary.
(9)If the parent fails to appear at the later time and day to which the matter is adjourned, the court may—
(a) make a protection order against the parent, or vary a domestic violence order against the parent, in the parent’s absence; or
(b) adjourn the matter further and may, in the meantime, make a temporary protection order under division 2; or
(c) subject to section 156(1), order the issue of a warrant for the parent to be taken into custody by a police officer and brought before the court.
(10)This section does not limit the power of the court to make any order under the Child Protection Act 1999.
(11)In this section—
party, to a child protection proceeding, means—
(a) a child for whom an order is sought in the proceeding; or
(b) a separate legal representative, if any, for a child mentioned in paragraph (a); or
(c) an applicant or respondent in the proceeding.
separate legal representative means a lawyer appointed under the Child Protection Act 1999, section 110.”
The explanatory notes to the Domestic and Family Violence Protection Bill 2011 stated that clause 43 (which became s 43 of the DFVP Act) recognised “… that matters raised during child protection proceedings can provide a basis for making a child protection order or varying a domestic violence order”.
The child protection order made in respect of the child L was made on 24 July 2024 before any issue arose in relation to apprehended bias on the part of the magistrate. When that issue was raised on 26 July 2024 it related solely to the mother’s application for a domestic violence protection order.
A reasonable apprehension of bias arises where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the issue for determination.[43] There are two steps in the application of the apprehended bias principle: (a) identification of the matter that might lead the judge to decide the case other than on its merits; and (b) the connection between that matter and the concern that the judge will decide the case other than on its merits.[44]
[43]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[44]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The magistrate recused himself only in respect of the mother’s application for a domestic violence protection order. He disqualified himself because of adverse findings about Mr Stevenson who was a potential witness for the father in that proceeding.
The child protection orders were the subject of agreement by all parties. The magistrate was nevertheless required to make his own assessment of whether those orders were appropriate.[45] In the circumstances there is no basis for concluding that the magistrate made the child protection orders other than on the merits.
[45]Child Protection Act 1999 (Qld), s 61.
The magistrate did err by concluding that having made the child protection orders the court had no jurisdiction to hear the mother’s application for a domestic violence protection order. Having disqualified himself from hearing the mother’s application, the magistrate should have invited submissions in relation to the appropriate course to follow in respect of the remaining proceedings including the child protection applications concerning the children D and A. Counsel for the separate representative, Ms Gajic-Pavlica had drawn attention to the court’s power to adjourn the mother’s application.[46]
[46]See para [33] above.
The submission made by Ms Eviston and Mr Feely that the power to make a domestic violence protection order in s 43(4) of the DFVP Act depends upon the Court continuing to hear the child protection proceeding cannot be accepted.
Section 43 of the DFVP Act is to be interpreted having regard to its context and legislative purpose.[47] An interpretation that will best achieve the purpose of the Act is to be preferred.[48]
[47]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 31 [4], (French CJ), at 46 – 47 [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[48]Acts Interpretation Act 1954 (Qld), s 14A.
Section 43(1) of the DFVP Act states that the provision applies if the Childrens Court is hearing a child protection proceeding. Section 43(2) provides that the Court may make a protection order against a parent of a child if satisfied that under s 37 a protection order could be made against the parent and the person who would be named as the aggrieved is also a parent of a child for whom an order is sought in the child protection proceeding. Section 43(3) applies when a domestic violence order is already in force. The court is required by s 43(5) to give each party to the child protection proceeding a reasonable opportunity to present evidence and to prepare and make submissions about the making or variation of the domestic violence order.
Section 43(7) provides two options when the Childrens Court is exercising jurisdiction under the provision:
(a)the court may make or vary the domestic violence order during the child protection proceeding; or
(b)may adjourn the matter of making the protection order, or varying the domestic violence order to a later date and may in the meantime make a temporary protection order. If the matter is adjourned the court is required by s 43(8) to inform the parent that if they do not appear on the later day, an order may be made in their absence and a warrant for them to be taken into custody may be issued if the court considers that it is necessary for the parent to be heard.
The exercise of jurisdiction by the Childrens Court to make or vary a domestic violence protection order does not depend on the continuation of the child protection proceeding. First, such an interpretation is not supported by the plain text of s 43(7) which clearly gives power to adjourn the domestic violence matter. Second, the child protection proceeding must be conducted expeditiously because s 5B(m) of the CP Act states that one of the general principles that is relevant to making decisions relating to the safety, wellbeing and best interests of a child is that a delay in making a decision in relation to a child should be avoided, unless appropriate for the child. Third, an adjournment of the domestic violence matter may be necessary to give procedural fairness to a party, but that should not preclude the court from making a child protection order. Fourth, this construction is consistent with the provision immediately preceding s 43 of the DFVP Act. Section 42 is a similar provision which applies when an offender is convicted of a domestic violence offence. In such cases s 42(6) provides that a court may: (a) make the protection order or vary the domestic violence order before the offender is discharged by the court or otherwise leaves the court; or (b) adjourn the matter of making the protection order or varying the domestic violence order to a later date and in the meantime make a temporary protection order.[49]
[49]See for example KEM v GYB [2020] QDC 262.
The magistrate was wrong to conclude that upon making the child protection orders, the court no longer had jurisdiction to determine the mother’s application for a domestic violence protection order. The prospect that an application filed in the proceeding is not determined and treated as being effectively dismissed is completely untenable. The suggestion by the magistrate that the mother could commence a new application under the DFVP Act is also unacceptable. The magistrate was required by rule 70(1)(a) of the Childrens Court Rules 2016 (Qld) to consider whether to make a protection order under the DFVP Act. In the present circumstances where he had recused himself from hearing the mother’s application, the preferrable course would have been to seek submissions before making the child protection orders in respect of the children D and A.
Ms Eviston and Mr Feely submitted that the child protection applications and the mother’s application in the proceeding should be remitted to the Childrens Court (magistrate) at Ipswich. There is no logical reason for setting aside the child protection orders when they were not affected by the issue of apprehended bias and were made with the agreement of all parties. Importantly, the children supported the making of the orders through their separate representative and in the cases of L and D, through their direct representative. Ms Eviston and Mr Feely did not articulate any rational basis upon which the child protection proceedings should be reheard.
The mother’s application in the child protection proceeding seeking a protection order under the DFVP Act must be remitted to the Childrens Court (magistrate) at Ipswich to be heard by a different magistrate. Although it will ultimately be a matter for the magistrate hearing the matter, there does not appear to be any reason why the proceeding would need to start afresh. In my view the mother should be able to rely on the evidence already given in the child protection proceeding.
Orders
Accordingly I make the following orders:
1.Appeal allowed.
2.Remit the application in the child protection proceeding filed on 21 March 2024 by AS seeking a protection order under the Domestic and Family Violence Protection Act 2012 to the Childrens Court (magistrate) at Ipswich to be heard by a different magistrate.
3.Confirm the child protection order made by the Childrens Court at Ipswich on 24 July 2024 pursuant to s 61(f)(iii) of the Child Protection Act 1999 granting long-term guardianship of the child L to the chief executive until the day before the child turns 18 years unless earlier revoked.
4.Confirm the child protection orders made by the Childrens Court at Ipswich on 26 July 2024 in relation to the child D directing CG to do and refrain from doing stated things directly related to the child’s protection pursuant to s 61(a) of the Child Protection Act 1999, and requiring the chief executive to supervise the child’s protection in relation to stated matters pursuant to s 61(c) of the Child Protection Act 1999.
5.Confirm the child protection orders made by the Childrens Court at Ipswich on 26 July 2024 in relation to the child A directing CG to do and refrain from doing stated things directly related to the child’s protection pursuant to s 61(a) of the Child Protection Act 1999, and granting custody of the child to the chief executive until 11.59pm on 23 July 2026 pursuant to s 61(d)(ii) of the Child Protection Act 1999.
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