Lewis v Director of Child Protection Litigation
[2018] QChC 22
•31 August 2018
CHILDRENS COURT OF QUEENSLAND
CITATION:
Lewis v Director of Child Protection Litigation & Ors [2018] QChC 22
PARTIES:
DARREN LEWIS (Separate Representative)
(appellant)v
DIRECTOR OF CHILD PROTECTION LITIGATION
(first respondent)&
LFM
(second respondent)&
EJQ
(third respondent)&
SJN
(fourth respondent)&
TPB
(fifth respondent)&
QRZ
(sixth respondent)FILE NO/S:
3293/17; 3296/17; 3298/17
DIVISION:
Childrens Court of Queensland
PROCEEDING:
Appeal
ORIGINATING COURT:
Childrens Court of Queensland
DELIVERED ON:
31 August 2018
DELIVERED AT:
Brisbane
HEARING DATE:
4 May 2018
JUDGE:
Dearden DCJ
ORDER:
1. Appeal refused
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – GUARDIANSHIP OF CHILDREN –where the children had been placed in the care of the paternal grandparents – where the learned Childrens Court magistrate granted the DCPL leave to withdraw its application for child protection orders and the application for child protection orders was dismissed – where the separate representative appeals against these orders – whether the learned Childrens Court magistrate erred by failing to consider whether the child was, or might be, in need of protection – whether the learned Childrens Court magistrate erred by failing to adequately take into account the available evidence that the child was in need of protection – whether the learned Childrens Court magistrate erred by granting the application for leave to withdraw
LEGISLATION
Childrens Court Act 1992
Child Protection Act 1999 ss. 4, 5, 10, 11, 52, 54, 57A, & 59
Child Protection Reform Amendment Bill 2016
Family Law Act 1975 ss. 4, 69ZK
Uniform Civil Procedure Rules 1999 r. 304(2)
CASES
CEO Department of Children and Families v MGM & Ors [2012] NTSC 69
Fuller v Toms & Ors [2010] QCA 283
Jennifer Glover, Separate Representative v Director, Child Protection, Litigation & Ors [2016] QCHC 16
R v Jell; ex parte Attorney General [1991] 1 Qd R 48
Redbridge London Borough Council v B, C & A [2011] 2 FLR 117
COUNSEL:
BI McMillan for the appellant
KA Parrott for the first respondent
R Slade Jones for the second respondent
AK Ehlers for the third respondent
No appearance for the fourth, fifth and sixth respondents
SOLICITORS:
Legal Aid Queensland for the appellant
Director of Child Protection Litigation for the first respondent
Lyrene Wiid Lawyer and Migration Agent for the second respondent
CK Family Lawyers for the third respondent
No appearance for the fourth, fifth and sixth respondents
Introduction
On 4 August 2017, the learned Childrens Court magistrate at Chinchilla, upon application by the Director of Child Protection Litigation (DCPL), pursuant to Child Protection Act 1999 (CPA) s. 57A, granted the DCPL leave to withdraw its application for child protection orders in respect of the three children AEA, TEE and MON, and the application for child protection orders was dismissed.
Grounds of appeal
The appellant, Darren Lewis, who was the appointed separate representative for the children pursuant to CPA s. 110, appeals against these orders on the following grounds: -
“(1)The learned Childrens Court magistrate erred by failing to consider whether the child was or might be, at the relevant time, “in need of protection” pursuant to section 10 of the [CPA];
(2)The learned Childrens Court magistrate erred by failing to adequately take into account the available evidence that the child was, at the relevant time, “in need of protection”, namely:
(a)The evidence of [VIS] set out in the amended Social Assessment Report dated 24 May 2017;
(b)The evidence set out in the affidavit of [MIJ] sworn on 22 June 2016;
(c)The evidence set out in the affidavits of [AIT] affirmed on 5 April 2017, 20 June 2017 and 28 July 2017.
(3)The learned Childrens Court magistrate erred by granting the application for leave to withdraw in circumstances where:
(a)The available evidence was capable of satisfying the court that the child was, at the relevant time, in need of protection; and
(b)The scheme of the [CPA] required the court to proceed to hear and determine the application in the best interests of the child.”[1]
[1]Notice of Appeal filed 1 September 2017 (file 3293/17 re MON); Notice of Appeal filed 1 September 2017 (file 3296/17 re TEE); Notice of Appeal filed 1 September 2017 (file 3298/17 re AEA).
The appellant commenced these appeals on 1 September 2017, which was within the relevant time frame.[2] As separate representative, the appellant is entitled to appeal against the decision of the learned Childrens Court magistrate by operation of CPA s. 110(6)(4),(5) & (6) and CPA s. 117(2).
[2]CPA s. 118(3) – 28 days after the decision is made.
Background
The background to these matters is helpfully set out in the appellant’s outline of argument, as follows: -
“4.On 22 June 2016 the DCPL made application to the Childrens Court pursuant to s. 54 of the [CPA] for child protection orders in relation to each of the children (the primary proceedings).
5.On 8 July 2016 a separate representative was appointed for each of the children pursuant to section 110 of the [CPA]. The appellant subsequently took up that appointment.
6.The Childrens Court made interim custody orders in favour of the Chief Executive for each of the children from the commencement of the primary proceedings until the decision below [i.e. the learned Childrens Court magistrate’s decision to allow the DCPL to withdraw its child protection applications].
7.From 12 July 2016 until the decision below (4 August 2017) each of the children had been placed in the care of [TPB] and [QRZ], the paternal grandparents of [AEA] and [TEE], under the custody of the Chief Executive.
8.On 21 July 2017 the Federal Circuit Court of Australia (FCC) made interim custody orders in relation to the children, pursuant to s. 69ZK of the Family Law Act 1975, for the children to live with [TPB and QRZ]. Those orders were to take effect only if and when “the children cease to be under a children welfare order.”
9.The only “child welfare order” in effect in relation to any of the children at the time of the FCC order was the previous interim custody order for the children made by the Childrens Court on 22 June 2017 in the primary proceedings.
10.On 2 August 2017 the DCPL made application to the Childrens Court pursuant to s. 57A of the [CPA] for leave to withdraw each of the primary proceedings.
11.Leave was granted by the Childrens Court magistrate at a hearing on 4 August 2017. Those decisions, namely the granting of leave to withdraw each of the primary proceedings, are the decisions subject to this appeal.”[3]
[3]Exhibit 2 (Appeal Book) pp 50 - Appellant’s Outline of Argument paras 4-11.
The appellant outlines the facts relied upon in the Notice of Appeal in respect of each of the children as follows: -
“Facts relied upon by the appellant, as set out in the Notice of the Appeal for each of the children are:
(a) in relation to [AEA];
At the relevant time;(1)the child had suffered significant harm and was at risk of suffering significant harm, namely physical and emotional harm;
(2)the child did not have a parent willing and able to protect her from that harm, in that;
(a)[LFM] was not able and willing to protect her from harm;
(b)[EJQ] was not able and willing to protect her from harm;
(c)[TPB] was not a “parent” for the purposes of section 52(b) of the [CPA];
(d)[QRZ] was not a “parent” for the purposed of section 52(b) of the [CPA].
(b) in relation to [TEE];
At the relevant time;(1)the child had suffered significant harm and was at risk of suffering significant harm, namely physical and emotional harm;
(2)the child did not have a parent willing and able to protect her from that harm, in that;
(a)[LFM] was not able and willing to protect her from harm;
(b)[EJQ] was not able and willing to protect her from harm;
(c)[TPB] was not a “parent” for the purposes of section 52(b) of the [CPA];
(d)[QRZ] was not a “parent” for the purposed of section 52(b) of the [CPA].
(c) in relation to [MON];
At the relevant time;(1)the child had suffered significant harm and was at risk of suffering significant harm, namely physical and emotional harm;
(2)the child did not have a parent willing and able to protect her from that harm, in that;
(a)[LFM] was not able and willing to protect her from harm;
(b)[SJN] was not able and willing to protect her from harm;
(c)[EJQ] was not a “parent” for the purposes of section 52(b) of the [CPA];
(d)[TPB] was not a “parent” for the purposes of section 52(b) of the [CPA];
(e)[madQRZ] was not a “parent” for the purposed of section 52(b) of the [CPA].”[4]
[4]Exhibit 2 (Appeal Book) pp 51-52 – Appellant’s Outline of Argument para 13.
The orders the appellant seeks are: -
(1) The decision of the magistrate is set aside and, in lieu thereof the court substitutes a decision to refuse the application for leave to withdraw;
(2) The substantive application for child protection order, in relation to each child, is remitted to the magistrate for determination according to law.[5]
[5]Exhibit 2 (Appeal Book) p. 52 – Appellant’s Outline of Argument para 14.
Childrens Court decision
The application by the DCPL seeking leave to withdraw from each of the primary proceedings was made on 2 August 2017 and heard on 4 August 2017.
Mr Parrott, who appeared for the DCPL before the learned Childrens Court magistrate, advised: -
“…the application to withdraw is based upon orders which were made in the Federal Circuit Court by Judge Howard on the 21st of July 2017. In those orders – and they are annexed to the affidavit of [AIT] …his Honour…chose [indistinct] second applicants which are the [indistinct] and the second applicants, the paternal grandparents, have sole parental responsibility in relation to the children.
…
[the orders] addressed all of the child protection concerns that the director’s office had in relation to these children, and, importantly, it’s appropriate that this application be dismissed [indistinct] to withdraw the application.
…
…Today we would not be seeking to enlarge the current interim [indistinct] upon that happening, were your Honour to grant that order, the children – the orders of Judge Howard would immediately come into effect. So I understand the Chief Executive is not seeking ongoing interim custody of these children.”[6]
[6]Exhibit 2 (Appeal Book) pp 27-28 – Transcript 1-3 – 1-4.
The application by the DCPL for leave to withdraw was opposed by the separate representative (appellant in these proceedings) and by the children’s mother (second respondent in these proceedings).
Child Protection Act s. 57A
Section 57A provides: -
“(1) The application may be withdrawn only with the court’s leave.
(2)When seeking the court’s leave, the litigation director must give reasons why the order is no longer required.”
CPA s. 57A was inserted by s. 10 of the Child Protection Reform Amendment Act 2006, and became effective 1 July 2016.
Submissions
The appellant submits that “the terms of the section are unambiguous” and argues that, in any event, the Explanatory Notes to the Child Protection Reform Amendment Bill 2016 support “a plain reading of the section.”[7]
[7]Exhibit 2 (Appeal Book) p. 53 – Appellant’s Outline of Argument para 22.
The Explanatory Notes to the Child Protection Reform Amendment Bill 2016 state that: -
“…there is currently no specific legislation, rule or practice direction about the process for withdrawing an application for a child protection order. The Court Case Management Committee considered this issue and recommended amendments to make it clear that the withdrawal of a child protection application requires leave of the court.”[8]
[8]Explanatory Notes, Child Protection Reform Amendment Bill 2016 p. 4.
There was no specific clarification of the provisions of CPA s. 57A of the Child Protection Reform Amendment Bill 2016 when it was introduced into the Legislative Assembly on 16 February 2016 by the relevant minister.
It is submitted by the appellant (and I accept) that: -
“[CPA] section 57A requires an application for leave to withdraw a child protection application, ensuring the court maintains control of its own proceedings, consistently with the protective nature of the jurisdiction exercised by the court under the [CPA].”[9]
[9]Exhibit 2 (Appeal Book) p. 55 – Appellant’s Outline of Argument para 26.
Mr McMillan (on behalf of the appellant) submits that the discretion to be exercised under CPA s. 57A is akin to the discretion vested in a court pursuant to Uniform Civil Procedure Rules (UCPR) r. 304(2), where a plaintiff or applicant seeks to discontinue a proceeding after being served with the first defence or first affidavit in reply, which then requires “the courts leave or the consent of the other parties”.[10]
[10]UCPR r. 304(2).
In Fuller v Toms & Ors [2010] QCA 283, Fraser JA stated relevantly: -
“The discretion to grant or refuse leave to discontinue is not fettered, but the court ordinarily grants leave if that will not cause injustice to the opponent, since it is ordinarily not desirable to compel a claimant to litigate.”[11]
[11]Fuller v Toms & Ors [2010] QCA 283, [25] citing Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 at 879 (per Graham J).
The appellant submits that the exercise of judicial discretion where the DCPL seeks to withdraw an application for child protection order requires a consideration of the following legislative provisions: -
CPA s. 4;
“The purpose of this Act is to provide for the protection of children.”
CPA s. 5A;
“The main principle for administering this Act is that the safety, wellbeing and best interests of a child are paramount.”
CPA s. 5B;
“The following are general principles for ensuring the safety, wellbeing and best interests of a child—
(a)a child has a right to be protected from harm or risk of harm;
(b)a child’s family has the primary responsibility for the child’s upbringing, protection and development;
(c)the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family;
(d)if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child;
(e)in protecting a child, the State should only take action that is warranted in the circumstances;
(f)if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests;
(g)if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care;
(h)if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin;
(i)if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible;
(j)a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support);
(k)a child should have stable living arrangements, including arrangements that provide—
(i)for a stable connection with the child’s family and community, to the extent that is in the child’s best interests; and
(ii)for the child’s developmental, educational, emotional, health, intellectual and physical needs to be met;
(l)a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child;
(m)a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values;
(n)a delay in making a decision in relation to a child should be avoided, unless appropriate for the child.”
The appellant submits that the exercise of the discretion by the learned Childrens Court magistrate miscarried because:
“(a)The learned magistrate erred by failing to consider whether the children were or might be, at the relevant time “in need of protection” pursuant to section 10 of the Act (ground of appeal 1)
(b)The learned magistrate erred by failing to adequately take into account the available evidence that the children were, at the relevant time “in need of protection” (ground of appeal 2); and
(c)The learned magistrate erred by granting the application for leave to withdraw in circumstances where:
(i) The available evidence was capable of satisfying the court that the children were, at the relevant time, in need of protection; and
(ii) The scheme of the Act required the court to proceed to hear and determine the application in the best interest of the children.”[12]
[12]Exhibit 2 (Appeal Book) p. 56 – Appellant’s Outline of Argument para 36.
The first respondent submits however, that: -
“The real issue as between the parties is whether the Federal Circuit Court was able to properly find on the evidence that the best interest of the children required an order that all three the children live with the paternal grandparents. It is not the function of this court nor the Childrens Court at first instance to go behind that decision which was recognised by learned [Childrens Court] magistrate.”[13]
[13]Exhibit 2 (Appeal Book) p. 65 – Outline of Argument of the First Respondent para 6.
The second respondent submits (correctly) that there are no useful Childrens Court appellate authorities directly on point in respect of CPA s. 57A, although the second respondent concedes that the terms of CPA s. 57A should be given its ordinary meaning.[14]
[14]Exhibit 2 (Appeal Book) p. 72 – Summary of Argument for the Respondent Mother para 5.
The second and third respondents both refer to the Explanatory Note from the Child Protection Reform Amendment Bill 2016 which states:
“Clause 10 inserts a new section 57A “withdrawal of application” outlining a process to be followed when the litigation director seeks to withdraw an application for a child protection order. Given that at the time the order was applied for, the applicant was satisfied that the order was necessary to meet the child protection needs, there is a requirement for the litigation director to provide reasons to the court as to why the order is no longer required when it is seeking leave to withdraw the applications. It is anticipated the reasons will explain why the child is no longer in need of protection, or may outline how the child’s protection needs issues are being dealt with. The court, prior to granting leave, must be satisfied that the order is no longer required.”[15]
[15]Explanatory Notes, Child Protection Reform Amendment Bill 2016 p 12.
Ground 1 – The learned Childrens Court magistrate erred by failing to consider whether the child was, or might be, at the relevant time, “in need of protection” pursuant to section 10 of the Act.
Appellant’s submissions
The appellant submits that the learned magistrate did not engage with the questions to whether the children were “in need of protection” pursuant to CPA s. 10, but rather considered that the interim order of the Federal Circuit Court made 21 July 2017, resolved the question of where the children should be placed (with TPB and QRZ), but in doing so, misconstrued the effect of the interim order of the Federal Circuit Court.
The terms of the Federal Circuit Court order are as follows:
(1) That pursuant to section 69ZK(1)(a) of the Family Law Act 1974 (Cth) these orders are to come into effect when the children, TEE born [DAY AND MONTH REMOVED] 2010, AEA born [DAY AND MONTH REMOVED] 2012 and MON born [DAY AND MONTH REMOVED] 2008 (“the children”) cease to be under a child welfare order.
(2) That the children live with the second applicants.
(3) That the second applicants have sole parental responsibility in relation to the children.
Paragraphs 4-14 contain various provisions not relevant for the purpose of this discussion.[16]
[16]Exhibit 2 (Appeal Book) pp 42-43 – Order of Judge Howard dated 21 July 2017.
Family Law Act 1974 (Cth) s. 4 defines “child welfare law” as: -
“A law of a State of Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition”, and the [CPA] is a prescribed law of a State for the purposes of the definition under the Family Law Act.”
Family Law Act s. 69ZK provides: -
“Child welfare laws nor affected
(1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a)the order is expressed to come into effect when the child ceases to be under that care; or
(b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
(2)Nothing in this Act, and no decree under this Act, affects:
(a)the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b)any such order made or action taken; or
(c)the operation of a child welfare law in relation to a child.
(3)If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child.”
The proceedings before the learned Childrens Court magistrate were applications by the DCPL for child protection orders pursuant to CPA s. 54. CPA s. 59(1) relevantly provides: -
“(1)The Childrens Court may make a child protection order only if it is satisfied—
(a)the child is a child in need of protection and the order is appropriate and desirable for the child’s protection.”
CPA s. 10 provides: -
“(10)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 the harm.”
The meaning of “parent” in CPA Part 4 (child protection orders) is defined in CPA s. 52 which provides: -
“(52) In this part—
parent, of a child, means each of the following persons—
(a)the child’s mother or father;
(b)a person in whose favour a residence order or contact order for the child is in operation under the Family Law Act 1975 (Cwlth);
(c)a person, other than the chief executive, having custody or guardianship of the child under—
(i)a law of the State, other than this Act; or
(ii)a law of another State;
(d)a long-term guardian of the child.”
It is submitted by the appellant that the Federal Circuit Court order of 21 July 2017 was not “in operation” at the time of the DCPL application to withdraw the primary proceedings because, at that time, each of the children was still subject to a “child welfare order”, namely the interim custody orders in favour of the Chief Executive made 22 June 2016.
The appellant submits that as at the date of the application (4 August 2017), the only “parents” of the children pursuant to CPA s. 52(b) were: -
(a) LFM (the second respondent) – their mother;
(b) EJQ (the third respondent) – in relation to AEA and TEE only – their father;
(c) SJN (the fourth respondent) – in relation to MON– her father.
The appellant submits that TRB and QRZ were not persons “in whose favour a residence order or contact order for the child is in operation under the Family Law Act 1975 (Cth)” pursuant to CPA s. 52(b). The appellant further submits that neither the second, third and fourth respondents were, at the relevant time, “able and willing to protect the child from harm” given the opinions of various child safety officers contained in evidence filed on behalf of the DCPL.[17]
[17]Exhibit 2 (Appeal Book) p. 59 – Appellant’s Outline of Argument para 56.
The appellant’s submission is that the learned Childrens Court magistrate either: -
(a) Did not consider whether the children were in need of protection; or
(b) Erroneously considered that they were not in need of protection because there was a parent able and willing to protect them from harm, namely TRB and QRZ, due to the operation of the Federal Circuit Court order.
In either case, the appellant submits that the learned magistrate erred in the exercise of his discretion to grant the application to withdraw.[18]
[18]Exhibit 2 (Appeal Book) p. 60 – Appellant’s Outline of Argument paras 61 & 62.
First respondent (DCPL) submissions
The first respondent submits that, on the substantive issue of leave to withdraw a child protection application, there is guidance in the decision of CEO Department of Children and Families v MGM & Ors [2012] NTSC 69 (although the Northern Territory has no equivalent of CPA s. 57A). The relevant passages of the judgment are as follows:
“[38] First, the CEO must reasonably believe that the child is in need of protection or would be in need of protection but for the fact that the child is currently in the CEO’s care. Secondly, the CEO must reasonably believe that the proposed order is the best means to safeguard the wellbeing of the child. The CEO has a duty to make an application to the court in relation to a particular child if she holds those two reasonable beliefs in relation to the child. Conversely, the CEO has a duty not to make application to the court for a protection order if the CEO does not hold both of those beliefs. It follows, in my view that if, in a particular case, the CEO ceases to hold one of the relevant beliefs, the CEO is empowered, and indeed obliged, to withdraw the application (or to amend it if the CEO still believes that the child is in need of protection, but believes a different type of protection order is the best means of protecting the wellbeing of the child).
…
[40]If the CEO does not hold both relevant beliefs in relation to a particular child then the matter is not one for the determination of the court. Simply put, if the CEO holds no concern for the safety or wellbeing of a child because the child has a parent or parents willing and able to care for the child, the matter should not be before the court and it is not for the court to enquire into the family’s affairs to determine whether the child might be better off under some other arrangement or to enquire into the parents’ plans for the child’s medical treatment, education, or any other matter relating to the care and upbringing of the child.
…
[45]I do not think it is necessary for me to decide whether an application under the Act is functionally equivalent to a statement of claim or an originating application and, if the latter, whether an originating application is analogous to an originating motion in the Supreme Court, and whether it would be appropriate to apply the relevant Supreme Court Rules to the situation. In any event I note that r 1.12 of the Local Court Rules is facultative only; it provides that the court may adopt and apply relevant procedures used in the Supreme Court. It does not automatically apply the Supreme Court Rules to the particular situation. I do not think it is necessary to decide these matters because it seems to me that the scheme of the Act is quite clear and that as outlined above, it provides for the jurisdiction of the court to be enlivened by an application by the CEO if, and only if, the CEO holds the two relevant beliefs set out in s 121 and it follows that if, for whatever reason, the CEO no longer holds those beliefs she can and should withdraw the application and does not require the leave of the court to do so.
…
[60]For these reasons, had it been necessary to decide, I would have allowed the appeal on the ground that her Honour was in error in refusing leave to withdraw the application. If the CEO had known at the time the application was filed, that the father was both willing and able to properly provide for, care and protect the child, the CEO would not have filed the application and indeed would not have been authorised under the Act to file the application because she would have lacked one or both of the requisite beliefs. It seems to me then that in those circumstances once the CEO ascertained those facts then she had not only a right but a duty to withdraw the application as the foundation for it no longer existed.”
The first respondent submits that the learned Childrens Court magistrate’s reasons, although brief, and not articulated as clearly as they could be, identified that the decision of Judge Howard in the Federal Circuit Court related to “highly relevant and similar issues” to the matters subject of the child protection application; that the department was “tasked and is legislatively required to consider… the issues”; and was satisfied that it was “now appropriate for… the application to be withdrawn”, taking into account Judge Howard’s assessment “on an interim basis… where the children should be living”.[19]
[19]Exhibit 2 (Appeal Book) p. 40 – Transcript (Decision) p. 2.
The first respondent submits that the decision by Judge Howard in the Federal Circuit Court was “a decision as to with whom the children should reside subject to those children ceasing to be under the care of a person under a child welfare law”.[20]
[20]Exhibit (Appeal Book) p. 66 – First Respondent’s Outline of Argument para 13.
The first respondent submits that the jurisdiction of the Federal Circuit Court is not subject to the jurisdiction of the State Childrens Court, but rather is limited in the orders that it may make as a result of Family Law Act 1979 s. 69ZK (i.e. orders in the best interest of children, subject to existing state child welfare orders).
In that respect, the first respondent submits that the learned Childrens Court magistrate clearly identified the greater scope of the Federal Circuit Court to determine where and with whom a child who is subject of an application should reside, in contrast to the Childrens Court which has to determine the threshold question as to whether a child is a “child in need of protection”. In such circumstances it is submitted that it is appropriate for the Federal Circuit Court to make orders as to where children should reside subject to those children ceasing to be under the care of a person under a child welfare law.[21]
[21]Exhibit 2 (Appeal Book) p. 67 – First Respondent’s Outline of Argument para 15.
The first respondent further submits that the order of the Federal Circuit Court was “in operation” and decided the underlying issues of parental responsibility including residence, but for the operation of the Childrens Court order.
The first respondent submits that the Childrens Court is required to determine whether a child meets the threshold necessary to enliven the jurisdiction of the court (i.e. a child in need of protection), but the CPA and Childrens Court Act 1992, although introducing a process to be utilised in the judicial determination of child protection applications, do not as a result of that process vest or divest parental responsibility.
The first respondent’s submission is that the learned Childrens Court magistrate did not, in fact, fail to comprehend the definition of a child in need of protection, but rather was cognisant of the effect of the withdrawal of the application of the child protection order, which as a result of the orders in the Federal Circuit Court, resulted in the paternal grandparents being immediately vested with the lawful custody of the children.
On the first respondent’s submission, there was no evidence of child protection concerns in respect of the paternal grandparents, and accordingly once the application for leave to withdraw was made and granted, and the interim custody orders in the Childrens Court ceased, then the children ceased to be “children in need of protection”.
In such circumstances, the first respondent submits that the learned Childrens Court magistrate did not err in granting the application for leave to withdraw.
The first respondent further submitted that pursuant to Family Law Act ss 61B and 61C, every parent has “parental responsibility” for the child, defined to include all the duties, powers and responsibilities that a parent has at law.
It is further submitted that a child protection application may only apply to those persons having or exercising parental responsibility, however that is described for the purposes of CPA s. 52, and the issue of parental responsibility was substantially altered upon the making of the order in the Federal Circuit Court, in that the parents of the children ceased “but for” the child protection application and interim orders, to have parental responsibility. The first respondent submits that it is not unusual for an application to be brought in the Childrens Court where a family law order is in place in favour of a parent, but in circumstances in which child protection concerns involving that parent who has the benefit of the orders has arisen, and the application is taken to protect the child until such time as the family law orders may be reconsidered.[22]
[22]Exhibit 2 (Appeal Book) p. 68 – First Respondent’s Outline of Argument paras 24-26.
Accordingly, the first respondent submits that the appeal should be dismissed in respect of ground 1.
Second respondent submissions
The second respondent (mother) submits that CEO Department of Children and Families v MGM & Ors [2012] NTSC 69 has no relevance, given that the state’s “beliefs”, “concerns” or wider motivation when the application to withdraw was made is immaterial, because CPA s. 57A requires the DCPL to give reasons, and the Childrens Court is required to consider adequacy of those reasons.[23]
[23]Exhibit 2 (Appeal Book) p. 72 – Summary of Argument of the Respondent Mother para 7.
The second respondent submits that the Explanatory Notes offer little guidance, other than for the passage that reads “it is anticipated the reasons [why the order is no longer required] will explain why the child is no longer in need of protection, or may outline how the child’s protection needs issues are being dealt with. The court, prior to granting leave, must be satisfied that the order is no longer required”.[24]
[24]Exhibit 2 (Appeal Book) p. 72 – Summary of Argument of the Respondent Mother para 8.
The second respondent submits that guidance can be found in the decision of Redbridge London Borough Council v B, C & A [2011] 2 FLR 117, where the Family Procedure Rules 2010 provide: -
“29.4 Family Procedure Rules 2010
(1)This Rule applies to applications in proceedings:-
(a)…
(b)…where the application relates to the welfare or upbringing of a child or;
(c)…
(2)Where this rule applies, an application may only be withdrawn with the permission of the court.
(3)…a seeking permission to withdraw an application must file a written request for permission setting out the reasons for the request.”
In Redbridge London Borough Council v B, C & A [2011] 2 FLR 117, Hedley J stated that:
“If the local authority could not prove the threshold criteria, then of course, their application [to withdraw] would succeed without more, as otherwise I would have no alternative but dismiss the proceedings. If, however, the threshold could be established, then the application would really depend upon the court concluding… that no order was necessary…”[25]
[25]Redbridge London Borough Council v B, C & A [2011] 2 FLR 117, [9].
The second respondent referred to the definition of “a child in protection” in CPA s.10, which states:-
“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 the harm.”
The second respondent submits that the test then is whether it could be established “that the children have no parent” able and willing” to protect them from the harm”, which then needs to be construed in the context of CPA s. 11(1), which relevantly defines “parent” for the purposes of CPA s. 10 as:
“11. Who is a parent
(1) A parent of a child is the child’s mother, father or someone else (other than the Chief Executive) having or exercising parental responsibility for the child.”
The second respondent notes that the order made by Judge Howard in the Federal Circuit Court stated that it would “come into effect when the children…cease to be under a child welfare order”, consistent with Family Law Act s. 69ZK.[26]
[26]Exhibit 2 (Appeal Book) pp 42-43 – Order of Judge Howard dated 21 July 2017.
The second respondent then identifies that the Federal Circuit Court orders conferring sole parental responsibility upon the paternal grandparents had no effect until the Childrens Court granted leave to the State to withdraw its substantive application, (ie decision under appeal to this court). In short, if the appeal were allowed, then the paternal grandparents sole parental responsibility would, in the second respondent’s submission, remain inchoate.[27]
[27]Exhibit 2 (Appeal Book) pp. 74 -75 – Summary of Argument of the Respondent Mother paras 14-19.
The second respondent submits that, given the paternal grandparents were not parents pursuant to CPA s. 11, their capacity to care for the children is of no relevance in deciding the question of whether leave should or should not have been granted to the DCPL to withdraw its case under CPA s. 57A.[28]
[28]Exhibit 2 (Appeal Book) p. 75 – Summary of Argument of the Respondent Mother paras 20-21.
The second respondent refers to the relevant provisions of CPA s. 5B(d) & (f) namely:-
“If a child does not have a parent who is able and willing to protect the child from harm, the State is responsible for protecting the child”;[29] and
“If a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family” provided that “the return is in the child’s best interests”.[30]
The second respondent then submits that the Childrens Court has not been given the opportunity to address the question as to whether it would be in the children’s best interests to return to their mother, with the support of the State.
[29]CPA s. 5B(d).
[30]CPA s. 5B(f).
The second respondent submits that: -
“The children should not have left the [State] system until such time as the State discharges its statutory duty or until there was some evidence of the mother’s failure to address the child protection concerns notwithstanding the support and intervention identified.”[31]
[31]Exhibit 2 (Appeal Book) p. 76 – Summary of Argument of the Respondent Mother para 29.
In that respect, the second respondent then submits that this court in its appellate function “cannot be satisfied that the order is no longer required until such time as the children and their mother are given the support, the opportunity and time the State is obliged to give them. The State’s position prior to the FCC [Federal Circuit Court] orders was that it would offer all three, but since the [Federal Circuit Court] orders it seems the State’s duties and responsibilities, and the children’s and the mother’s rights, have all evaporated.”[32]
[32]Exhibit 2 (Appeal Book) p. 77 – Summary of Argument of the Respondent Mother para 32.
In summary, the second respondent submits that the decision by the learned Childrens Court magistrate:
“denied the children:
·The opportunity to be reunited with their mother (an outcome always sought by the state in the court below);
·The opportunity of having their mother receive the statutory support of the state (an outcome always sought by the state in the court below).”[33]
[33]Exhibit 2 (Appeal Book) p. 78 – Summary of Argument of the Respondent Mother para 35.
Third respondent submissions
The third respondent’s submissions refers to the decision in Jennifer Glover, Separate Representative v Director, Child Protection, Litigation & Ors [2016] QCHC 16, [69] – [78], in particular identifying the following passages:
“[76]In my view, the proper construction of [CPA] s. 120(2), having regard to s. 120(3), is that an appeal governed by s. 120(2) is an appeal by way of rehearing, with the court having a discretion, if an application is made in this regard, to order that some or all of the evidence be heard afresh, or for further evidence to be relied on. The very presence of that discretion is one of the indicia that the appellate court is given a rehearing function.”
[77]…the powers of the appellate court are, however, exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”
The third respondent submits that it was entirely appropriate for the learned magistrate to consider fully the circumstances of the Federal Circuit Court parenting orders as the learned magistrate was obliged to consider how the subject childrens’ child protection issues were being dealt with. It would indeed, have been an error for the learned magistrate to have considered in a vacuum the applications for protection orders without a consideration of the circumstances and details of the orders made in the Federal Circuit Court proceedings.
It follows logically, that the DCPL (and of course the learned Childrens Court magistrate) were entitled to rely upon the Federal Circuit Court proceedings and orders as a relevant consideration.”[34]
[34]Exhibit 2 (Appeal Book) p. 89 – Outline of Argument on Behalf of the Third Respondent paras 33-34.
The third respondent submits that CPA s. 57A has terms which are unambiguous, and in those circumstances, it is not necessary to refer to extrinsic material.[35]
[35]Acts Interpretation Act1954 (Qld) s. 14B.
The third respondent identifies the specific reasons provided to the Childrens Court magistrate by the DCPL as follows: -
(1) “The application to withdraw is based upon orders which were made in the Federal Circuit Court by Judge Howard on 21 July 2017…annexed to the affidavit of [AIT]”[36]
[36]Exhibit 2 (Appeal Book) p. 27 – Transcript (Hearing) 1-3 ll 29-31.
(2) “[The orders] addressed all of the child protection concerns that the director’s office had in relation to these children, and importantly it’s appropriate that this application be dismissed [indistinct] to withdraw the application.”[37]
[37]Exhibit 2 (Appeal Book) p. 27 – Transcript (Hearing) 1-3 ll 44-47.
(3) “Now, Mr Lewis had indicated that there was no evidence which would support the concept of the children remaining with the carers; however…his own report writer, at paragraph 196 has recommended that the children remain in their kinship care placement at this time… so there is direct evidence before this court which would support the proposition that the children should be with carers, and its our submission that the most appropriate jurisdiction for determining all the parenting issues is the Federal Circuit Court.”[38]
[38]Exhibit 2 (Appeal Book) pp 37-38 – Transcript (Hearing) 1-13 l 42-1-14 l 2.
(4) “Now Mr Lewis made some references to obligations of the department to investigate. The department, in this matter, has investigated what it needs to have investigated. It has done…taken all the appropriate steps. …It has complied with its obligations. … And as your Honour quite rightly pointed out, should it have failed to do that, Mr Lewis [separate representative] could agitate that before the Federal Circuit Court and before Judge Howard.”[39]
[39]Exhibit 2 (Appeal Book) p. 38 – Transcript (Hearing) 1-14 ll 4-9.
(5) “…the Chief Executive no longer requires custody to be vested in him.”[40]
(6) “The Chief Executive does not have child protection concerns in relation to these children.”[41]
[40]Exhibit 2 (Appeal Book) p. 38 – Transcript (Hearing) 1-13 ll 16-17.
[41]Exhibit 2 (Appeal Book) p. 38 – Transcript (Hearing) 1-13 ll 29-30.
The third respondent submits that given the contents of the affidavit of AIT,[42] “it is an error for the appellant to contend that the scheme of the [CPA] required the court to proceed and hear and determine each of the primary proceedings in the best interest of the children as the children’s “protection needs issues” were amply outlined to the learned magistrate and explanations given as to how those issues were being dealt with”.[43] In that respect, the third respondent highlights the following passage from the affidavit of child safety officer AIT, which relevantly stated: -
“14. It is my assessment that [TRB and QRZ] have continued to uphold and demonstrate exceptional care…ensuring the children’s needs are met, this includes but is not limited to, medical needs, educational needs, support in respect to family contact, ensuring the children have contact with their therapeutic supports and ensuring the girls physical, material and basic needs are met such as clothing, housing and food.
[42]Affirmed 28 July 2017 (filed 2 August 2017).
[43]Exhibit 2 (Appeal Book) p. 92 – Outline of Argument on Behalf of the Third Respondent para 43.
…
16.It is my assessment that should the Director of Child Protection Litigation withdraw the current application before the Chinchilla Childrens Court in respect to the children and the interim Federal Circuit Court order comes into effect, the children will no longer be children in need of protection.”[44]
[44]Affidavit of AIT affirmed 28 July 2017 paras 14 and 16.
In short, the third respondent submits that the learned Childrens Court magistrate was required to be satisfied on the balance of probabilities that the children’s protection needs were being dealt with such the child protection ordered were no longer required, and that the learned Childrens Court magistrate did not fall into error in forming that conclusion. The third respondent submits that the exercise of judicial discretion in CPA s. 57A is arguably a discretion that should be exercised in a manner more aligned with the discretion exercise by the criminal courts, noting that in R v Jell; ex parte Attorney General [1991] 1 Qd R 48, Lee J said:
“I also agree with the remarks of the Chief Justice and Thomas J that the exercise of the inherent jurisdiction of the court in the circumstances here under discussion [refusal to return the indictment to the prosecutor on his request in order that he may enter a nolle prosequi upon it] should be exercised only in rare cases”.[45]
[45]R v Jell; ex parte Attorney General [1991] 1 Qd R 48, 68.
Discussion
It is clear that the children were no longer in need of protection as at the point in time immediately after the DCPL application to the learned Childrens Court Magistrate was made and granted on 4 August 2017, because each of the three named children were in the care of TPB and QRZ (the paternal grandparents of the two elder children AEA and TEE, and carers for the younger child MON).
The submissions by the appellant and the second respondent, in effect, seek to constrain the exercise of the learned Childrens Court magistrate’s discretion pursuant to CPA s. 57A, to require the issue of whether each of the three children were “in need of protection” before the learned Childrens Court magistrate could grant the DCPL application. With respect, that proposition is unworkable and is a gloss on the language of CPA s. 57A, which is not supportable either in the terms of the section itself, or in the light of the explanatory notes to the Child Protection Reform Amendment Bill 2016.
The purpose of requiring the DCPL to provide the Childrens Court with reasons for discontinuing a child protection application is clearly to ensure that the application is not made capriciously, or without reasons sufficient to enable the court to exercise its discretion to grant leave for the application to be withdrawn.
Where, as here, the DCPL was satisfied that the children were no longer in need of protection, because the Federal Circuit Court order would come into effect immediately upon withdrawal of the application in the Childrens Court, and that the children would then be residing with the paternal grandparents (about whom there was no evidence of child protection concerns), then the learned Childrens Court magistrate did not err, in my view, in exercising his discretion to grant the application for leave to withdraw.
With respect, the learned Childrens Court magistrate’s decision to grant the DCPL leave to withdraw was the only rational decision that could or should have been made in the circumstances. It is, in my view, irrelevant that the paternal grandparents were not “parents” pursuant to CPA s. 11, given the concurrent nature of the Family Law Act proceedings, and the fact that the order made by Judge Howard in the Federal Circuit Court came into effect when the children ceased to be under a child welfare order.[46]
[46]Family Law Act s. 69 Z, a.
It is also irrelevant that the Childrens Court has not been given the opportunity to address the protection needs of the children. Clearly to do so would impose an unnecessary burden on the Childrens Court, given its awareness of the “but for” order in the Federal Circuit Court which became effective immediately upon the withdrawal of the child protection applications in Childrens Court.
I accept that for the appellant to succeed, it is necessary to show that “the order that is the subject of the appeal is the result of some legal, factual or discretionary error”.[47]
[47]Jennifer Glover, Separate Representative v Director, Child Protection, Litigation & Ors [2016] QCHC 16, [77].
The Childrens Court magistrate was not only entitled, but was obliged to consider the effect of the Federal Circuit Court parenting orders on the child protection issues in respect of each of the children (as of course was the DCPL prior to making the application to withdraw the proceedings).
As the Chief Executive no longer had child protection concerns in respect of the children, the DCPL was entitled to make the application under CPA s. 57A. The relevant parenting issues in respect of each of the three children remain open to be litigated before the Federal Circuit Court pursuant to the Family Law Act with the participation of the appellant, and second, third and fourth respondents, if they chose.
I consider the learned Childrens Court magistrate, while exercising the judicial discretion pursuant to CPA s. 57A, should approach the task with caution, and exercise the discretion to refuse an application to withdraw child protection proceedings after careful and anxious consideration of the competing factors placed before the court.[48] It is clear that the discretion was appropriately exercised by the learned Childrens Court magistrate.
[48]See R v Jell ex parte Attorney General [1991] 1 Qd R 48, 68 (per Lee J).
This ground of appeal fails.
Ground 2 - the learned Childrens Court magistrate erred by failing to adequately take into account the available evidence that the child was, at the relevant time, “in need of protection”, mainly:
(a)the evidence of VIS set out on the amended social assessment report dated 24 May 2017;
(b)the evidence set out on the affidavit of MIJ sworn on 22 June 2016;
(c)the evidence set out in the affidavits of AIT affirmed on 5 April 2017, 20 June 2017 and 28 July 2017.
Submissions
The appellant submits that the evidence was clearly capable of establishing that each of the children was, at the relevant time, in need of protection and that the learned Childrens Court magistrate “did not adequately consider the evidence in this regard”, rather addressing his queries to the “issue of the quality of care and the safety provided by the grandparents”,[49] which in the appellant’s submission was irrelevant given that neither TRB and QRZ were “parents” of the children at the time the application was heard before the Childrens Court. In those circumstances, it is submitted that the learned Childrens Court magistrate’s exercise of discretion to grant leave to withdraw miscarried, on the basis that the learned Childrens Court magistrate did not take adequate account of the available evidence that the children were at the relevant time in need of protection.[50]
[49]Exhibit 2 (Appeal Book) p. 60 – Appellant’s Outline of Argument paras 64-65.
[50]Exhibit 2 (Appeal Book) p. 61 – Appellant’s Outline of Argument paras 67-68.
The first respondent submits, on the contrary, that the learned Childrens Court magistrate did consider the circumstances giving rise to a possible finding that the children were children in need of protection, but noted that “on the face of the evidence, absent the child protection orders, parental responsibility was not vested in the paternal grandparents and there was no evidence before the court to establish that the children were in need of protection in relation to those persons” and therefore properly allowed the DCPL to withdraw the application.[51]
[51]Exhibit 2 (Appeal Book) p. 69 – Outline of Argument of the First Respondent paras 29-30.
The second respondent submits that:-
“given the paternal grandparents are not parents under s.11 of the CPA, their capacity to care for the children is of no relevance in deciding the question of whether leave should or should not have [been] granted to the State to withdraw its case under [CPA] s.57A.”[52]
[52]Exhibit 2 (Appeal Book) p. 75 – Summary of Argument of the Respondent Mother para 21.
The third respondent submits (as with respect to Ground 1) that “the learned magistrate was simply required to be satisfied, on the balance of probabilities, that the children’s protection needs issues are being dealt with such that child protection orders are no longer required”[53] and further that the appellant has not demonstrated any legal, factual or discretionary error such as to interfere with the learned Childrens Court magistrate’s decision.[54]
[53]Exhibit 2 (Appeal Book) p. 92 – Outline of Argument on Behalf of the Third Respondent para 44.
[54]Exhibit 2 (Appeal Book) p. 95 – Outline of Argument on Behalf the Third Respondent para 55.
Discussion
In my view, the learned Childrens Court magistrate clearly considered whether the children the subject of the application were in need of protection, but concluded that their child protection needs issues were being dealt with pursuant to the Federal Circuit Court order (structured in accordance with the Family Law Act such that it commenced if/when child protection orders were no longer required). Accordingly it was irrelevant whether as paternal grandparents they did not fall within the definition of “parents” pursuant to CPA s. 11. It flows in my view that no legal, factual or discretionary error was demonstrated on the part of the learned Childrens Court magistrate.
This ground also fails.
Ground 3 - The learned Childrens Court magistrate erred by granting the application for leave to withdraw in circumstances where:
(a)the available evidence was capable of satisfying the court that the child was, at the relevant time, in need of protection; and
(b)the scheme of the Act required the court to proceed to hear and determine the application in the best interests of the child.”
Submissions
The appellant’s submission is that, although CPA s.57A does not provide any guidance as to what factors the court must take into account in the exercise of the discretion to grant or refuse leave to withdraw, “it would be entirely inconsistent with the scheme of the Act, for that exercise not to require an examination of the available evidence as to whether or not the children the subject of the primary proceedings are, or may be, in need of protection.”
In that regard, the appellant argues that the available evidence was that the children were in need of protection and accordingly the protective nature of the court’s jurisdiction required the court to proceed to hear and determine the primary proceedings in the best interests of the children.[55]
[55]Exhibit 2 (Appeal Book) p. 61 – Outline of Argument on Behalf of the Appellant paras 70, 71, 73.
Accordingly, the submission is that “CPA s.57A should not be construed to allow the court to grant an application for leave to withdraw, without the court having any regard to the available evidence that the child who was the subject of the primary proceeding is, or may be, in need of protection.” It follows, the appellant submits, that the learned magistrate erred in granting the DCPL leave to withdraw when there was evidence capable of establishing that the children were in need of protection.[56]
[56]Exhibit 2 (Appeal Book) p. 62 – Outline of Argument on Behalf of the Appellant paras 78-79.
The first respondent submits that the available evidence before the learned Childrens Court magistrate included the evidence of the orders of the Federal Circuit Court, and that there was no demonstrated child protection concerns in relation to the paternal grandparents.[57]
[57]Exhibit 2 (Appeal Book) p. 69 – Outline of Argument of the First Respondent para 32.
In particular, the first respondent submits that the inclusion of s.57A in the CPA is of itself a clear indication that the “scheme of the Act” does not require the court to hear and determine “primary” proceedings on a final basis, because CPA s.57A specifically enables the court to consider allowing an application to be withdrawn before it reaches a final hearing stage.[58]
[58]Exhibit 2 (Appeal Book) p. 69 – Outline of Argument of the First Respondent para 33.
The first respondent submits further that the threshold test in CPA s.59(1)(a) requires the court to be satisfied that the children are “in need of protection”, which is the threshold test and given the Federal Circuit Court orders, it was the duty of the DCPL to bring the application to withdraw the proceedings because the threshold test could no longer be met.[59]
[59]Exhibit 2 (Appeal Book) p. 69 – Outline of Argument of the First Respondent para 34-35.
Accordingly the first respondent submits that there was no appellable error in respect of this ground.
The second respondent submits that the capacity of the grandparents to care for the children was of no relevance in deciding whether leave should have been granted under CPA s.57A.
The third respondent submits that the DCPL and the learned Childrens Court magistrate were entitled to rely upon the Federal Circuit Court proceedings and orders as a relevant consideration,[60] and where adequate reasons have been provided by the DCPL pursuant to CPA s.57A, then it is an error to contend that the scheme of the CPA required the court to proceed to hear and determine each of the primary proceedings in the best interests of the children, in a context where the children’s protection needs issues were amply outlined and sufficient explanation given as to how those protection needs issues were being met. It follows, the third respondent submits, that it was sufficient that the learned magistrate was satisfied on the balance of probabilities that the children’s protection needs were being dealt with and child protection orders were no longer required.[61]
[60]Exhibit 2 (Appeal Book) p. 89 – Outline of Argument on Behalf of the Third Respondent para 34.
[61]Exhibit 2 (Appeal Book) p. 92 – Outline of Argument on Behalf of the Third Respondent para 43-44.
Discussion
The appellant seeks to argue that an application pursuant to CPA s. 57A requires the court to examine the available evidence as to whether or not the children the subject of the primary proceedings are or may be in need of protection. With respect, CPA s. 57A cannot be construed to require the court to hear and determine primary proceedings on a final basis, because to do so would leave CPA s. 57A no work to do. That section clearly contemplates consideration by the court of an application to withdraw prior to the final hearing stage. Once the DCPL is satisfied that the children are no longer “in need of protection”,[62] and given that there were Federal Circuit Court orders which commenced immediately upon the Childrens Court granting the application, there was in my view no appellable error by the learned Childrens Court magistrate in granting the application for leave to withdraw.
[62]CPA s. 59(1)(a).
It is clear that:
(1) The DCPL and the learned Childrens Court magistrate were entitled to rely upon the Federal Court proceedings and the “but for” orders of that court as a relevant consideration (in respect of the DCPL making the application and the learned Childrens Court magistrate granting the application).
(2) Those circumstances amounted to adequate and sufficient reasons pursuant to CPA s. 57A.
(3) Neither the scheme of the CPA nor the provisions of CPA s. 57A require the court to hear and determine each of the primary proceedings in the best interests of the child, where the children’s protection needs issues were amply outlined and sufficient explanation was given to the learned Childrens Court magistrate as to how those protection needs issues were being met by the Federal Circuit Court orders.
It follows, inevitably, that this ground also fails.
Order
Appeal refused.1.
0
3
0