Director of Child Protection Litigation Unit v Fge and Fpa

[2018] QChC 16

CHILDRENS COURT OF QUEENSLAND

LYNHAM DCJ

DC No 1247 of 2018
DC No 1248 of 2018
DC No 1249 of 2018
DC No 1250 of 2018

DIRECTOR OF CHILD PROTECTION
LITIGATION  Appellant

and

FGE   Respondent

and  

FPA  Respondent

TOWNSVILLE

TUESDAY, 10 APRIL 2018

JUDGMENT

LYNHAM DCJ: This is an application by the department for the stay of the decision of a magistrate in the Childrens Court at Townsville made on the 5th of April 2018 whereby he refused to make temporary custody orders concerning the child L, born 5 August 2017, who was eight months old; P, born on 8 February 2016, who was two years and two months old; EA, born on 26 January 2015, who was three years and four months old; and EB, born on 30 June 2013, who was four years and 10 months old. The application is made pursuant to section 119 of the Child Protection Act 1999 Queensland. Section 119 provides as follows:

119:  stay of operation of decisions.  (1) The appellant court may stay a decision appealed against to secure the effectiveness of the appeal;  (2) a stay (a) may be given on the reasonable conditions the court considers appropriate and (b) operates for the period fixed by the court and (c) may be revoked or amended by the court;  (3) however, the period of the stay must not extend past the time when the court decides the appeal;  (4) an appeal against a decision affects the decision or carrying out of the decision only if the decision is stayed.

The Act itself provides no express guidance as to the principles a Court is to apply when deciding whether or not to grant a stay under section 119. The section was helpfully considered by his Honour Judge Smith in this Court in the matter of The Director of Child Protection Litigation v D & Anor [2016] QChC 020. At paragraphs 2 and 3 of that decision his Honour observed:

In deciding whether or not to grant a stay it seems to me that the principles expressed in Aldridge v Keaton [2009] FamCAFC 106 are applicable.  That is, it is a discretionary application which should be determined on its merits.  The onus is on the applicant for the stay.  It is not necessary to demonstrate exceptional circumstances, but a person who has obtained a judgment is entitled to the benefit of that judgment and to presume the judgment is correct.

Paragraph 3:

There mere filing of an appeal is insufficient to grant a stay.  A stay may be granted on terms that are fair to all parties, which involves weighing the balance of convenience and the competing rights of the parties, weighing the risk that an appeal may be rendered nugatory if the stay is not granted, a preliminary assessment of the strength of the proposed appeal, that is, whether the appellant has an arguable case, the desirability of limiting the frequency of any change in the child’s living arrangements, the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period, and, of course, the best interests of the child the subject of the proceedings are a significant consideration.

His Honour further observed at paragraph 4 of that judgment that he specifically had regard in reaching his decision to section 5A of the Act, which expressly provides that the main principle for administering the Act is that the safety, wellbeing and best interests of a child are paramount.  His Honour also had regard to sections 5B, 5D and 5E of the Act in reaching his decision.  Then at paragraph 5 his Honour further observed:

Section 119 of the Act reposes in the court a discretion to stay the decision to secure the effectiveness of the appeal, and a stay may be given on reasonable conditions the court considers appropriate for a period fixed by the court.  The Act provides for various types of child protection orders.  Of course, before an order is made one must be satisfied there is a risk of harm, harm being specifically defined in section 9 of the Act, and the child must be in need of protection, section 10 of the Act.  I’ve had regard to those sections in reaching my decision today.

As his Honour referred to, section 9 of the Act defines what is “harm” for the purpose of the Act.  The section, which is expressed in broad terms, reads – and I quote:

9:  what is harm.  (1) Harm to a child is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing;  (2) it is immaterial how the harm is caused;  (3) harm can be caused by (a) physical, psychological or emotional abuse or neglect or (b) sexual abuse or exploitation;  (4) harm can be caused by (a) a single act, omission or circumstance or (b) a series or combination of acts, omissions or circumstances.

Section 10 of the Act defines “a child in need of protection” then in the following terms – and I quote:

10:  who is a child in need of protection.  A child in need of protection is a child who (a) has suffered significant harm, is suffering significant harm or is at unacceptable risk of suffering significant harm and (b) does not have a parent able and willing to protect the child from harm.

It is against that legislative background that the principles explained by Judge Smith that I am to apply will determine this stay application.  I turn then to the background of the application.  The youngest child L was made subject to a Court assessment order made in the Townsville Childrens Court in December 2017 which granted custody to the Chief Executive.  The order was to expire on the 8th of February 2018.  On that day officers from the department as well as Queensland Police Service officers attended the residence of the parents and removed the three oldest children.  An application for a temporary custody order was made and orders granted in the Magistrates Court in relation to all four children that same day. 

On the following day an application for child protection orders were filed.  The first return date of that application was the 22nd of February 2018.  On that day interim custody of the four children was granted to the Chief Executive and arrangements put in place for the care of the children.  The application for a temporary custody order was adjourned to the 5th of April 2018.  On the 5th of April 2018 the application for the temporary custody order was heard and determined in the Townsville Magistrates Court.  It is the determination of that application for which I am now determining the stay in respect to the appeal of that determination. 

On the evening of the 5th of April 2018 the department applied to the on-call magistrate for a temporary custody order of the children for 24 hours so that they would remain in the foster placements which had been previously arranged for them until the department had filed a stay application.  The temporary custody order was granted until 10 am on the 6th of April 2018 by consent in circumstances that the parties had agreed that the children would remain in foster placement until 10 am due to the lateness of the interim hearing.  On the 6th of April 2018 the department then filed a notice of appeal and an application to stay the decision of the Childrens Court not to grant a temporary custody order.

The application for the stay was heard at about 12 pm by his Honour Judge Rafter in the Childrens Court of Queensland in Brisbane.  Judge Rafter ordered that the decision of the magistrate be temporarily stayed and transferred the proceedings to the Childrens Court of Queensland in Townsville.  The application for a stay which I’m now asked to decide is, in effect, to extend the stay ordered by Judge Rafter until the appeal is heard and determined.  I’ve indicated already to the parties that I will list the substantive appeal to be heard on the 10th of May 2018 which is, in effect, about four weeks time.  I was informed by Mr Parrott, who appears on behalf of the appellant – and this is consistent with what is said in his written submissions – that in the period subsequent to the hearing last Thursday, the 5th of April 2018, that the paternal grandparents who had been put forward, in the course of oral submissions, to assume the role of the respondent parents, and whom, at the time of the hearing on the 5th of April 2018 the department had not finished their inquiries as to their suitability,  in the time since have been assessed as being suitable.  That has resulted in the three elder children being placed in the paternal grandparents care as of yesterday.  At this time there is no intention to move those children pending the final hearing.  The youngest child, who has higher needs as a consequence of being born premature I’m told that steps are being taken by the department to provide education to the paternal grandparents with a view that he might also be placed in their care. 

The effect of any stay which I might grant today is to extend the arrangements which, effectively, have been put in place, although I’ve noted already that the paternal grandparents have now assumed the role, as organised by the department, to care for the children.  The appeal, not being able to be heard for another month, will mean that the children will not be in the care of the parents for another four weeks or so pending the outcome of the appeal. 

I’ve referred to the principles I must apply in determining this application.  As I made clear, in the course of submissions, the outcome of this application, of course, will have no bearing on the outcome of the substantive appeal.  The evidence before the magistrate was, to say the least, extremely voluminous, comprising not only a number of affidavits but a substantial number of exhibits which were attached to the affidavits.  Oral submissions were made by the parties.  The magistrate’s reasons for refusing the application were brief, comprising so far as the substantive reasons in relation to the application, some three paragraphs in total. 

The magistrate’s reasons were as follows.  Paragraph 1:

I’ll make the following observations.  The order or the consideration that is foremost in everyone’s mind is the welfare of the children.  The welfare of the children is never – the welfare of a child is never best catered for in a household that has, within its walls, instances of domestic violence and it is reasonably clear that that would be, in general terms, sufficient reason for orders to be made.  That said, in this instance we have the benefit, if that is what it could be called, for the protection of a protection order that was made that, in general terms, prohibits that behaviour again.  The domestic violence in this instance, in terms of the order, involves any issues in front of the children that would fall within the broad definition of domestic violence.  But there is a protection there that is currently available.

Paragraph 2: 

There is no evidence that I could see – and I asked specifically – as to the last assessment of the children’s medical – mental health [indistinct] until recently and there is nothing there.  There is more evidence in relation to the youngest, being L.  He is the one that needs the most care.  I will leave that to one side.  I’ve no evidence in relation to any harm to the children that has been exhibited in the affidavits.  There could be.  There might be and given the nature of the evidence, one side says something, the other side says something else, in general terms.  I’d be inclined to believe matters that are the subject of corroboration by source documents but that will not always tell the whole story.

Paragraph 3:

Always concerns me that there is a blanket denial of anything that has happened on the part of a respondent.  Something has probably happened, most likely happened, indeed I’m sure has happened.  But the context is important, as Mr Hibble has said.  In this instance we have, in contrast to so many applications that I see and have seen today, there is a house, there is sufficient accommodation for the children, there is a willingness on the part of the           parents to look after the
children or to accommodate the children, there is an application on foot which will, in general terms, put everyone on their best behaviour. 

I should, for completeness, also include paragraph 4 of his Honour’s reasons, where he then concluded as follows:

So what I’m tortuously getting to is this;  I’m going to adjourn the matter and I’ll seek an appropriate date in the short term.  I’m not to make any order as to custody but I will  make subsequent other orders that the children be both medically and psychologically assessed.  I do not think there is any need, at this stage because of the timeframes, to appoint a separate legal representative.  That may well be necessary and I suspect it will be and nor am I in a position now to make an order for a court ordered conference although that will come in the short term.

The power to make a temporary order fell to be considered under section 67 of the Act. Detailed written submissions were made by the parties which included references to various evidence contained in the affidavit material as well as the provisions of the Act which applied to the application. The department relied upon four distinct concerns, supporting the application for the temporary order pending the final hearing of the application. Those concerns can be summarised this way; first, there was a refusal alleged against the parents to take medical advice. That was set out in paragraphs 28 through to 37 of the applicant’s outline of submissions before the magistrate. The second concern with that of domestic violence, the evidence in support of that was set out in submissions between paragraphs 38 and 53. There was a concern raised in respect of drugs and medical issues and, again, submissions in relation to that were set out in paragraphs 54 to 58. And finally, mental health issues relating to the mother set out in paragraphs 59 to 61 of the submissions.

I make reference to the submissions for the simple reason that they avert to evidence which was contained in the affidavit material which was said to support the submissions that were therein made, ultimately buttressing the submission made by the department that on a prima facie basis there was a substantial risk to the children which justified the making of a temporary protection order. 

Now, I should add that it is obvious, both from the submissions that were made to the magistrate, as well as the submissions that have been made before me today and consistent with the competing affidavit material, that there is a clear and heated dispute between the department and the parents as to what is alleged in the affidavit material relied upon by the department.  In particular, the affidavit of Ms Brown, filed in support of the temporary order application, and some contents of that affidavit are in hot dispute by the mother and the father.  Any such disputes will no doubt feature heavily at the final hearing of this matter.

So I noted in the course of submissions the application for a temporary order, by its very nature, must be determined on the affidavit material without the benefit of viva 
voce evidence from any of the witnesses, that is, when a magistrate comes to determine the application for a temporary order he must, to some extent, accept the contents of the affidavit material, which, at the final hearing of the matter, might be either cast in a different light or substantially undermined as a consequence of various witnesses being cross-examined as to what is said or asserted in the affidavit material.

Now, I have been at pains to set out what the reasons of the magistrate were for the simple reason that it’s important to understand the extent of the reasons by reference to the grounds of appeal.  So I’ve noted already there are eight grounds of appeal which will be relied upon by the appellant in challenging the refusal by the magistrate to make the temporary order.  Ground 1 relates to an allegation that the magistrate erred at law in failing to find that the children were children in need of protection on a prima facie basis.  Ground 2 relates to an allegation that the magistrate made no finding that the children were prima facie in need of protection.

Ground 3 relates to an allegation that in making no finding that the children were prima facie in need of protection the learned magistrate erred in law in ordering that the children be medically and psychologically assessed.  Ground 4 relates to an allegation that the magistrate erred at law in failing to give sufficient weight to the evidence before the court establishing a number of matters, including domestic violence, the admissions of the respondent mother in relation to domestic violence, and the admissions of the mother in relation to obtaining opiate type painkillers and medication for the father to placate him. 

Ground 5 of the appeal relates to an allegation that the magistrate made an error of fact when giving his reasons whereby he stated that there was no evidence of any harm to the children.  Ground 6 relates to the learned magistrate erring in law by placing weight on what is described as irrelevant considerations.  Ground 7 relates to the learned magistrate erring at law in failing to have regard to the safety and the best interests of the children as being the paramount consideration.  And, finally, ground 8 relates to a complaint that the reasons of the magistrate were not adequate.

Now, as I’ve noted already, it is not for me today to determine any of those grounds of appeal, or to form a view that the applicant has an especially strong basis for asserting that the appeal will be allowed.  I need, as I’ve noted already, to have regard to the principles which were summarised by Judge Smith in determining whether or not the temporary stay granted by Judge Rafter on the 6th of April 2018 should now be extended until the appeal has been heard and determined.  So far as those relevant principles are concerned they can be summarised this way.

I must have regard to first the balance of convenience and the competing rights of the parties.  Secondly, I must weigh the risk that an appeal may be rendered nugatory if a stay is not granted.  Thirdly, I must make a preliminary assessment of the strength of the proposed appeal, that is, whether the appellant has an arguable case.  Fourthly, I must have regard that the desirability of limiting the frequency of any change in the 
children’s living arrangements.  Fifthly, I am to have regard to the period of time in which the appeal can be heard.  Sixthly, I must have regard to whether existing satisfactory arrangements may support the grounding of the stay for a short period.  And, finally, I must have regard as the most paramount consideration which underpins the whole act:  the best interests of the children, the subject of the proceedings.

Some of those I can deal with relatively briefly.  I’ve noted already that the appeal in respect to this matter will be heard on 10 May 2018.  That is in approximately four weeks time.  In terms of listing of appeals on any measure that might be regarded as an expedited hearing, that is, it is the earliest time in which the court can hear the appeal.  And being only another four weeks time, having regard to the fact that the appeal relates to a decision only determined on 5 April 2018, there could be no complaint that the appeal is not going to be heard in an expeditious way.

The appellant argues that if the stay is not granted then it will render the appeal nugatory.  What is meant by that, as I understand the submission, is that if the children were to continue to live with the parents, and ultimately it was determined that the appeal should be allowed, then in the ensuing period it is said that the children would be exposed to an acceptable risk of harm pending the final determination of the application.  The desirability of limiting the frequency of any change in the children’s living arrangements, to some extent, is to be considered in light of the arrangements now put in place, at least in respect to the three oldest children that they have now been placed in the care of the maternal grandparents.

And in terms of an assessment of the strength of the proposed appeal, that is, whether the appellant has an arguable case, that again comes back to the grounds of appeal, which I’ve summarised already.  As I made mention in the course of submissions it is clear that the reasons of the magistrate might be described as relatively brief, having regard to the substantive material, which was placed before the court both in support of and in opposition to a temporary order being granted.  I’ve set out in full the reasons of the magistrate.  Whether or not they disclose any of the errors identified in the grounds of appeal will ultimately be for a determination of the judge who hears the appeal, and, again, I don’t intend to make any conclusions in respect of those.

An application for a temporary order under section 67 of the Act inevitably involves considerations of those principles which underscore the child protection regime, and, in particular, that the best interests of the children is the paramount consideration, as well as the other matters which I’ve referred to especially in section 5A, B, D and E of the Act, relating to other matters that would ordinarily need to be considered, so far as an application of this kind is concerned, but moreover, having regard to both section 9 and section 10 of the Act that define both the term “harm” and define the term “a child in need of protection” and what would need to be satisfied there.

Whilst I accept the submission that was made before the magistrate on behalf of the father that what would need to be established to make a temporary order was significant harm or an unacceptable risk of the children suffering significant harm, they are not matters that, at least on my reading of the reasons for decision, averted to in an express way, and, therefore, by combination of what was said in the course of submissions on the application as well as what is said in the three paragraphs comprising the judgment it would need to be inferred that all those relevant matters were taken into account.

On the face of it, therefore, having regard to the grounds of appeal which are sought to be relied upon by the applicant, which in respect of some of those grounds are expressly directed towards whether or not a particular consideration was taken into account or whether or not a particular finding necessary to make at least some of the orders made had in fact been made expressly enough in the reasons for decision, in those circumstances there is at least an argument that the reasons for decision are not adequate. 

Again, I do not seek to be expressing any concluded view in relation to that.  As I have noted already for the purpose of this application, I am to have regard to what on the face of it is the strength of the proposed appeal.  That is, whether the appellant has at least an arguable case.  Ultimately, I am persuaded that having regard to that consideration, having regard to the issues that have been raised by the parties both in the affidavit material, the submissions which were made before the magistrate and the submissions made before me, that there is at least an arguable case that the magistrate failed to avert his attention to or make findings relevant to whether or not the application for the temporary order should have been refused or allowed, particularly in light of the voluminous material that was before him.

Again, I note that in respect to some of those matters there is vigorous dispute between the parties.  That dispute relates to the circumstances, for example, by which the parents refused what is described in the applicant’s material,  medical attention.  The affidavits deposed by both of the parents place that in an entirely different context, and that will no doubt be a matter that will be a live issue when the matter comes on for final determination.  There is also a live issue as to accepting that there is a background of domestic violence to the relationship, whether or not that background of domestic violence continued into 2018.  There seems to be some not insubstantial material painting both the parents in a very good light and suggesting that they are both good parents.

Now, they are all matters that ultimately become relevant both to a determination of this appeal but, more particularly, a determination as to whether or not final orders should be made.  The point that I am dealing with here is whether or not having regard to the reasons which were given for refusing the temporary order that it can at least be argued that some of the grounds of appeal relied upon by the applicant are made out.  In my view, having regard to the brief reasons given, there is at least an argument that those reasons do not cover all of the matters that needed to be expressly averted to in concluding the matter in determining that the temporary order should not have been made.

So having regard to all of those matters that I must take into account, again making clear that I am only determining the stay application here, having regard to the fact that the appeal will be determined or at least heard in about four weeks time, having regard to the grounds of appeal and what at least on a prima facie basis would seem to indicate to me that there is at least some arguable grounds of appeal that the appellant can rely upon, in my view, it is appropriate that the decision of the magistrate on the 5th of May 2018 should be stayed.  Now, the stay, of course, will be limited up until the determination of the appeal, which will be, as I have indicated, I would expect, in about four weeks time.

Now, with all of those matters taken into account I will make the following order: that the order made in the Childrens Court on the 5th of April 2018 refusing the temporary protection order in respect to the four children the subject of the appeal is stayed until the determination of the appeal. In addition to the order I’ve made in respect to the granting of the stay, pursuant to section 67 of the Child Protection Act I also make an interim order granting temporary custody of the children to the Chief Executive pending the outcome of the appeal.