IP v Department of Communities and S.C

[2009] QChC 2

CHILDRENS COURT OF QUEENSLAND

CITATION:

IP v Department of Communities and S.C. [2009] QChC 2

PARTIES:

IP

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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