KP v Director of Child Protection Litigation Unit

[2020] QChC 16

CHILDRENS’ COURT OF QUEENSLAND

CITATION:

KP v Director of Child Protection Litigation Unit & Anor [2020] QChC 16

PARTIES:

KP

(appellant)

v

DIRECTOR OF CHILD PROTECTION LITIGATION UNIT & Anor

(respondents)

FILE NO/S:

1273/20

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to section 117(2) of the Child Protection Act 1999 (Qld).

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

6 May 2020 (ex tempore reasons)

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2020

JUDGES:

Smith DCJA

ORDER:

1.   The appeal is allowed.

2.   The decision of the Children’s Court at Brisbane dated 8 April 2020 is set aside in part.

3.   The order to adjourn the proceeding to 1 July 2020 at 9am for further mention is set aside, and in lieu thereof, the matter is listed on 7 May 2020 at 9am for urgent mention, but all the other orders made by the Children’s Court dated 8 April 2020 remain. 

4.   I direct that the registry notify Legal Aid Queensland of the Court’s written request that it considers giving the appellant legal assistance. 

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE LEGISLATION – APPEAL AGAINST DECISION OF CHILDREN’S COURT – where the Magistrate made a temporary custody order of a four month old child in favour of the Department and adjourned the matter for three months – where the appellant sought an urgent mention so she could have the child returned to her care – where it is alleged Court staff refused to accept the request for the urgent mention – whether the Magistrate erred in adjourning the matter for three months because of COVID-19  

Child Protection Act 1999 (Qld) ss 5B, 121

WBI v HBY [2020] QCA 24

COUNSEL:

Self-represented appellant

Ms Thomas for the respondent

SOLICITORS:

Self-represented appellant

Director of Child Protection Litigation for the respondent

1. This is an appeal by the mother against a temporary custody order dated 8 April 2020, made in favour of the chief executive with respect to the child P who is four months old. 

2. The ground of appeal to be considered today is the Magistrate erred in adjourning the matter until 1 July 2020 and relevant to that is that it is alleged Court staff refused to accept a request by the mother for an urgent hearing of the matter. 

3. P was born in January 2020. P was with the mother in March and April 2020, but was then removed. There is urgency associated with temporary protection orders. This is clear from s 5B(m) of the Child Protection Act 1999 (Qld). Whilst it is true the order was made in the context of COVID-19, this does not trump the provisions of the Act.

4. The directive issued by the Chief Magistrate on 27 March 2020 (paragraph 12C) and amended on 7 April 2020, contemplated that child protection matters of this sort were urgent and were an exception to the three-month rule. A delay in the hearing of this case until July, in light of the issues and the age of the child, is not appropriate. I find an error has occurred in that the matter should not have been adjourned for three months and should have been dealt with earlier. 

5. I next turn to the orders which should have been made, the various powers are set out in s 121 of the Act. KP submitted to me that I should set aside the decision also concerning temporary custody. In this regard, during the break, I read the respondent’s material and the appellant’s material. I note from the department’s material that it is alleged that KP misuses prescription drugs which impacts upon her capacity and ability to parent. She has a history of opioid dependence. There have been presentations to hospitals with drug-seeking behaviours. Whilst pregnant, there was a suggestion of drug use. There was alleged prescription shopping.

6. Mental health assessments indicate issues concerning parenting capacity.  It is alleged there is a chronic pattern of transience and a high-risk lifestyle. There have been domestically violent relationships, in particular concerning Mr T, and it is alleged that KP was not willing and able to protect P from harm. The affidavit of Nicholas Adams supports those allegations. 

7. On the other hand, I have read the appellant’s material, which suggests that P was not properly looked after whilst in care. I note the allegations concerning T and A, and the allegations concerning Mercy, Child Safety and the emergency foster carer.  I also have read carefully her statements as to her care and I have seen the emails and the photographs of P. There are real issues in dispute, it seems to me, in this case. 

8. However, I constitute an appellate Court. I have not seen any witness give evidence or heard cross-examination, and as has been said recently by the Court of Appeal in the case of WBI v HBY,[1] it is not appropriate for an appellate Court to hear a matter afresh and in whole.

   [1][2020] QCA 24.

9. I am not in a position, at this stage, to determine which side is correct. That should be a matter left to the Children’s Court at Brisbane. 

10. In those circumstances, I make these orders:  

    1. The appeal is allowed.

    2. The decision of the Children’s Court at Brisbane dated 8 April 2020 is set aside in part.

    3. The order to adjourn the proceeding to 1 July 2020 at 9am for further mention is set aside, and in lieu thereof, the matter is listed on 7 May 2020 at 9am for urgent mention, but all the other orders made by the Children’s Court dated 8 April 2020 remain. 

    3. I direct that the registry notify Legal Aid Queensland of the Court’s written request that it considers giving the appellant legal assistance.