L v Department of Communities

[2004] QChC 3

CHILDRENS COURT OF QUEENSLAND

CITATION:

L v Department of Communities [2004] QChC 3

PARTIES:

L
Appellant
v
DEPARTMENT OF COMMUNITIES
Respondent

FILE NO/S:

2902/04

DIVISION:

Appellant jurisdiction

PROCEEDING:

Appeal against interim custody order

ORIGINATING COURT:

Brisbane Registry

DELIVERED ON:

13 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2004

JUDGE:

O’Brien DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL – INTERIM CUSTODY ORDER – meaning of “on the adjournment of a proceeding” – whether orders made were within the power of the Court – whether learned Magistrate had proper regard to the principles of the legislation

Child Protection Act 1999, s2(g), s4, s5, s67, s 104

COUNSEL:

Mr M J Byrne QC for the appellant
Mr K Parrott for the respondent
Mr M J Emerson for the child

SOLICITORS:

Boe Lawyers for the appellant
Crown Solicitor for the respondent
Emerson Black Solicitors for the child

1. This is the hearing of an appeal against orders made in the Childrens Magistrates Court at Brisbane on 27 July 2004 and 9 August 2004. On 27 July 2004 the Childrens Court Magistrate had made an interim order under s 67 of the Child Protection Act 1999 granting temporary custody of the appellant’s child to the Chief Executive of the Department of Communities and had on that date and again on 9 August 2004 declined to make an order granting interim custody to a member of the child’s family. It is those orders which are the subject of this appeal.

1. The appeal is brought on three grounds:-

1. The Childrens Court Magistrate did not have jurisdiction to make the orders purported to be made under s 67 of the Act; alternatively

2. In purporting to exercise powers under that section, the Childrens Court, the Childrens Court Magistrate did not have proper regard to the stated purposes of the Act, as stated in ss 5(b), 2(g) of the Act; and

3.          There was no proper basis to find that there was any risk of harm to the child in being placed with C, his fraternal grandmother.

1. The relevant chronology of events leading to this appeal are set out in the affidavit of Miss Paula Morreau filed on behalf of the appellant.  On 25 April 2004 the Department of Communities (“the Department”) obtained a temporary assessment order in respect of the child pursuant to the provisions of Pt 2 of the Act.  Such an order is of limited duration and may in certain situations be obtained without notice to the child’s parents.  It is made to authorise actions necessary as part of an investigation to assess whether a child is in need of protection.

1. Following the obtaining of the temporary assessment order the Department, on 28 April 2004 filed an application for a child protection order pursuant to Pt 4 of the Act. 

1. Section 67 of the Act provides, relevantly, that on the adjournment of a proceeding for a child protection order, the Court may make an interim order granting temporary custody of the child to the Chief Executive or to a suitable person who is a member of the child’s family. The Department had, on 28 April 2004, sought such an interim order granting short term custody to the Chief Executive. The learned Magistrate however declined to make such an order on that occasion and the proceedings in respect of the protection order were adjourned until 14 May 2004.

1. On 14 May 2004 the proceedings were further adjourned to 18 August 2004 and the Court ordered a conference be held between the parties with a report on the outcome of that conference to be filed no later than the adjourned date of 18 August 2004.

1. On 27 July 2004 however the Department arranged for the matter to be again listed before the Court for the renewed purpose of seeking an order for interim custody pursuant to s 67 of the Act. Although the application was opposed by the appellant, the Childrens Court Magistrate made the order sought and granted temporary custody to the Chief Executive. The matter was again adjourned to 18 August 2004.

1. On 9 August 2004 the appellant made application before the Magistrate for a variation of the order such that interim custody was granted to a member of the child’s family.  The Magistrate declined to make such an order.

1. As indicated above it is these orders of 27 July 2004 and 9 August 2004 that are the subject of this appeal.

1. The principal argument for the appellant is that the Childrens Court Magistrate had no power to make the order which was made on 27 July 2004.  It is argued that such an order may only be made “on the adjournment of a proceeding” for a court assessment order or child protection order.  As the hearing of the application had already been adjourned to 18 August 2004, the proceedings of 27 July 2004 did not amount to an “adjournment of the proceeding” and the court therefore had no power to make an interim order granting temporary custody of the child to the Department.

1. This argument is plainly of a technical nature and in my view it is lacking in substance.  The Court became seized of the matter on 28 April 2004 when the application for the child protection order was filed.  As noted above the application was then adjourned to 14 May 2004 subsequently to 18 August 2004.  Throughout the whole of that period however the Court retained jurisdiction in the matter.  The power to exercise that jurisdiction is not limited to those specific days to which the proceeding might, from time to time, be adjourned.  In reality the hearing of 27 July 2004 could properly be seen as a re-listing of the application before the Court on the earlier occasion, if not a bringing forward of the mention proposed for 18 August 2004.  This appears to be consistent with the approach taken by the Childrens Court Magistrate when, after granting the interim custody orders sought, he adjourned the proceeding to 18 August 2004.  In my view the orders made were within the power of the Court.

1. Grounds 2 and 3 can conveniently be dealt with together.  It is clear from the material that was before the Court that there are significant areas of dispute between the Department and the appellant.  There are matters which will no doubt require further investigation and assessment and there may be some matters which will ultimately need to be resolved by the Childrens Court Magistrate.

1. The fundamental purpose of the legislation as set out in s 4 of the Act is to provide for the protection of children. Section 5 of the Act sets out a number of principles under which the Act is to be administered. These include the principle that every child has a right to protection from harm and that the welfare and best interests of the child are paramount. Section 104 of the Act specifically provides that in exercising its jurisdictional powers the Childrens Court must regard the welfare and best interests of the child as paramount.

1. It is neither possible nor appropriate for this Court to now attempt to resolve those issues that are the subject of ongoing dispute before the Childrens Court Magistrate. It is enough to say in my view that there was material before the Magistrate, particularly as set out in the affidavits of Ms Kerrie Pickering and Ms Ann Duffield, which entitled him, acting consistently with the principles set out in s 5 of the Act and having regard to the paramountcy of the child’s welfare, to make the interim custody orders that were in fact made. The learned Magistrate expressly found the appellant’s child to be someone who “at the moment … is at risk”. This conclusion was reasonably open to him on the material though the Department has not excluded the possibility of the child being placed with C after the completion of a thorough Relative Carers Assessment had been undertaken.

1. In my view it has not been shown that the Magistrate has failed to have proper regard to the principles that are set out in s 5 of the Act.

1. For these reasons I consider that this appeal should be dismissed.