I.P .v Department of Communities and S.C.

[2009] QDC 417

DISTRICT COURT OF QUEENSLAND

CITATION:	I.P .v Department of Communities and S.C. [2009] QDC 417
PARTIES:	I.P. v. DEPARTMENT OF COMMUNITIES AND S.C.
FILE NO/S:	Indictment 160/2009
DIVISION:	Civil
PROCEEDING:	Appeal against temporary assessment order
ORIGINATING  COURT:	Magistrates Court, Beenleigh.
DELIVERED ON:	21 December 2009
DELIVERED AT:	Beenleigh
HEARING DATE:	21 December 2009
JUDGE:	Dearden DCJ
ORDER:	Appeal upheld. Temporary assessment order discharged.
CATCHWORDS:	Appeal – Where learned Magistrate imposed temporary assessment order – Where s27(2) of the Child Protection Act was not complied with – Where inadequate information was supplied to learned Magistrate.
LEGISLATION:	Child Protection Act 1999 (Qld) Evidence Act 1977 (Qld)
COUNSEL:	D. Evans for the appellant A. Sinclair for the first respondent S. Cleeland for the second respondent
SOLICITORS:	Evans and Company Family Lawyers for the appellant Crown Law for the first respondent Gill and Lane Solicitors for the second respondent

[1] HIS HONOUR: This is an appeal pursuant to the Child
Protection Act 1999 against an order of Magistrate White at
the Beenleigh Children's Court granting a temporary assessment

order in respect of two children, M.C. and C.C..

[2] The circumstances of the application, without going back
over the material and submissions in detail, is that on the
18th of December 2009, the Department, having had the
opportunity of becoming a party to the Federal Magistrates
Court proceedings before Magistrate Spelleken in Brisbane,
chose not to do so, made a less than competent and
administratively appropriate step to advise the Federal
Magistrates Court they were not joining the proceedings, even
though it appears they had indicated of this to Mr Evans (who
appears for I.P.) that they were. On apparently receiving
information as to the detail of Federal Magistrate Spelleken's
order (which I note is set out in its full detail at folios
A54 and A55 of the affidavit of I.P.), the Department then
proceeded to bring an application before Magistrate White at
some uncertain time on the 18th of December, although, as Mr
Sinclair submits, and I accept, by implication, it must have
been at some stage in the day after the outcome of the
proceedings before Federal Magistrate Spelleken became

apparent in that respect.

[3] Mr Sinclair has drawn my attention to the second paragraph
numbered 8 (there's been a double up of the numbering). That
paragraph, together with a couple of brief passing references
to material in the application reported by Ms Thompson, the
applicant, by way of hearsay conversations with other persons,
is the only real clue as to what, in fact, was occurring in
the Federal Magistrates Court.
[4] The relevant sections under which a temporary assessment
order needs to be considered by a learned Children's Court
Magistrate start at section 23 of the Child Protection Act.
In particular, at section 25(3), there is a power in the
Magistrate to refuse the application until the applicant has
given the Magistrate all of the information the Magistrate

requires.

[5] At paragraph 27(2), the Magistrate has to be satisfied
that reasonable steps have been taken to obtain the consent of
at least one of the child's parents to the doing of the things
sort to be authorised under the order, or it is not practical

to take steps to obtain the consent.

[6] To put my assessment on this appeal at its bluntest, Ms
Thompson has been, at best, for the Department, woefully and,
arguably, wilfully inadequate in the affidavit material sworn
in her application, and at worst, has been positively

misleading.

[7] I say that because it is clear, by inference, that Ms
Thompson was fully aware of the Federal Magistrates Court
proceedings, was aware that the Department, for some
unspecified reason, had chosen not to become a party to those
proceedings; was aware of Evidence Act S.93A interviews with

both subject children; was aware of Departmental

interviews with both subject children; was aware of a report
by Mr Moriarty, a Court appointed expert, and was aware of the
current status of those Federal Magistrates Court proceedings,
including at least some information from the independent child
lawyer representative (who's not given the courtesy of her
surname), and that information, of course, would have made
much more sense, and no doubt set off red lights for the
learned Children's Court Magistrate, had it been placed
appropriately in the context of a full disclosure by Ms
Thompson of her direct knowledge of the Federal Magistrates
Court proceedings, which was, for all practical purposes,

missing from the application.

[8] The other material which is also completely missing from
the application, is Ms Thompson's knowledge (and this is her
own personal knowledge) of the details of all of the legal
representatives involved in the litigation in the Federal
Magistrates Court, and, of course, of her capacity to contact
each and every one of those legal representatives (satisfying
at least the requirement in section 27(2) to obtain the
consent of at least one of the child's parents), but for
reasons that are unexplained (other than Mr Sinclair's
submissions that time was pressing), Ms Thompson does not
appear on the material, at least to have taken any steps to
ensure that the legal representatives (who were all present at
the Federal Magistrates Court on the morning of 18 December
2009) could be present at the Beenleigh Children's Court when
the temporary assessment order application was made.
[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, and, secondly of course, cut directly across
the order just made by the Federal Magistrate Spelleken in the
proceedings that day.
[10] All of that was information which clearly should have
been placed before the presiding Children's Court Magistrate,

and was not.

[11] I'm unaware of the profession or calling of Ms Thompson,
but had she provided this material as a practicing lawyer in
Queensland, it is certainly my provisional view that the
effective misleading of the Court by omission and commission
might well have grounded a professional misconduct or
unprofessional conduct complaint under the relevant

legislation governing lawyers in Queensland.

[12] That as it may be, it's certainly, in my view, very
clearly a matter of concern which should be addressed by the

relevant line managers within the Department of Communities.

[13] The clear and obvious need to protect the interests of
children (which I accept is a paramount requirement of the
legislation and, of course, is always paramount in these
matters), cannot over ride an obligation to be truthful in a
full and complete sense to a court making orders under an ex
parte basis, which have for the children and parents
concerned, significant and often traumatic consequences.
[14] In all of the circumstances, it is my view that the
appeal should be upheld. The magistrate clearly, in my view,
was led into error by the utterly inadequate information
placed before the Court, which then meant that section 27 (2),
was not complied with; and the magistrate was not provided
with the information necessary to allow her to be satisfied to
the requisite degree that a temporary assessment order should

be made.

[15] Accordingly, I order that the temporary assessment order
be immediately discharged. My view, which I should express
for the record, is that, although a further assessment order
application has now been filed, I'm told, with the Children’s
Court at Beenleigh, and section 99 of the Child Protection Act
would continue the custody of the children with the Chief
Executive it is my view that the custody can only continue,
pursuant to section 99, if there is a valid temporary
assessment order which underpins it. In my view, the order
was not validly made and is, in any event, discharged at this

point in time.

[16] In forming the view, I have accepted an undertaking by Mr
Evans on the behalf of his client, I.P., that he will have no
unsupervised contact with the subject children, between now
and Thursday the 24th of December, when the child assessment
order is returnable in the Children’s Court at Beenleigh.
[17] That, of course, places a degree of burden on I.P., but
in the circumstances, as inadequate and as misleading as I
have found the application for the temporary assessment order
to be, it still raises clear issues of concern which need to
be addressed in the relevant jurisdictions, and, it seems to
me that the interests of protecting the two children
concerned, are best looked after by an acceptance of that
undertaking given by Mr Evans, for which I thank him, and then
the issues can be appropriately litigated with all parties
represented on the 24th of December. Now, are there any other

orders I need to make?

…

Thank you all very much.

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