Mol v Chief Executive D.F.S.D.S.C.S

[2025] QChC 19

CHILDRENS COURT OF QUEENSLAND

CITATION:

MOL & Anor v Chief Executive D.F.S.D.S.C.S. [2025] QChC 19

PARTIES:

MOL & ANOR

(applicant)

v

CHIEF EXECUTIVE DEPARTMENT OF FAMILIES, SENIORS, DISABILITY SERVICES, AND CHILD SAFETY

(respondent)

FILE NO:

4/25

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Childrens Court, Ipswich

DELIVERED ON:

18 July 2025

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2025

JUDGE:

Farr SC DCJ

ORDERS:

1.   The appeal is allowed;

2. Pursuant to section 121(2)(c)(i) of the Child Protection Act 1999 (Qld), the order made by the Magistrate at the Ipswich Childrens Court on 5 March 2025 be set aside and substituted with no further order; and

3.   No orders at to costs.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CUSTODY – ORDERS – where the Magistrate made a final Court Assessment Order on 5 March 2025 in the absence of the appellants – where the Court Assessment Order was ended by a different Magistrate on 12 June 2025 – whether the first Magistrate erred in making such an order

LEGISLATION:

Child Protection Act 1999 (Qld)

SOLICITORS:

The appellant is self-represented

Department of Families, Seniors, Disability Services and Child Safety for the respondent

1. This is an appeal against an order made under the Child Protection Act 1999 (Qld) on 5 March 2025 made by a Magistrate at the Ipswich Childrens Court. The order was a Court Assessment Order. The respondent has, in the context of an addendum outline of submissions, identified a potentially successful ground of appeal and, in fact, does not oppose the appeal being allowed and the order from 5 March 2025 being set aside.

2. The potential ground of appeal identified by the respondent arises from non-compliance with Part 3 Division 2 of the Child Protection Act 1999 (Qld) by the Magistrate, in that it does not provide a Magistrate with an express statutory power to make a final Court Assessment Order administratively on the papers, as is the case with Temporary Assessment Orders and Temporary Custody Orders. The Act provides for Court Assessment Orders upon filing the application, that the Registrar of the Childrens Court must fix a time and place for hearing the application with notice by way of personal service of the application on the child’s parents.

3. Compliance in respect to service of the application had occurred, and this matter had been before the Ipswich Childrens Court on two occasions post filing of the application, and the matter was listed for interim hearing on 7 March 2025, and the appellants had been present for these mentions of the matter.  Ultimately, however, the Magistrate dealt with this matter on the papers in the absence of the appellants.

4. Section 43 of the Act broadly requires a Magistrate to be satisfied that the parents have been given reasonable notice of the hearing and failed to attend or continue to attend the hearing, or be satisfied that it was not practicable to give the parents notice of the hearing.  The respondent concedes that the Magistrate erred by (1) not convening the Childrens Court and placing the parents on notice of his intention to make a final Court Assessment Order, and/or (2) by failing to adjourn the matter to enable the parents to appear, and/or (3) by failing to provide reasons in respect to why it was not practicable to give the parents notice of the hearing in circumstances where it was known that the parents were contesting the order, and/or (4) by failing to provide the parents with an opportunity to make further submissions in addition to their filed material during the mention on 14 March.  It would seem that part of this oversight may have arisen as a consequence of the warnings that were accompanying the approaching Tropical Cyclone Alfred, but that does not provide a lawful excuse.

5. Notwithstanding that error, any success on this appeal is of no utility for the purposes of the respondents regaining custody of the child.  Evidence is now before the Court that the Court Assessment Order appealed against is no longer in force, and, accordingly, the relief sought by the appellants cannot be provided.

6. The reason for that is that on 12 June 2025, the application for a Child Protection Order filed by the Director of Child Protection Litigation was mentioned before the Ipswich Childrens Court.  On that date, a different Magistrate made an order ending the Court Assessment Order that had been issued pursuant to section 99(2) of the Act and then subsequently granted temporary custody of the child to the Chief Executive pursuant to section 67(1)(a)(ii) of the Act.  By virtue of ending the order pursuant to section 99(2) of the Act and substituting the other order, the Court Assessment Order ceased being the source of custody for the child to the Chief Executive.  There is no appeal before the Court in relation to the order of 12 June.

7. The appellants have submitted that these two orders are intrinsically linked and that the Court can make the order they seek, that being the return of the child to their care and custody, because of this alleged linkage between orders.  The appellants submit that the evidentiary basis for that submission is that the Court Assessment Order makes up part of the evidentiary basis for the current order which is in place and that all evidence and supporting documentation that related to the Court Assessment Order also applies to the current order and that the evidence disclosed in the documentation was made up of lies and was defamatory.  That submission does not answer the question at all, and it is quite clear as a matter of law that this appeal relates to an order that no longer has any effect.

8. The consequence of this is that the respondent has conceded that the appeal ought be allowed and the order of the Magistrate be set aside and be substituted with no further orders.  That is the only order at law that is available to the Court on this matter in the correct application of the law. 

9. The order of the Court is as follows:

   1.   The appeal is allowed;

   2. Pursuant to section 121(2)(c)(i) of the Child Protection Act 1999 (Qld), the order made by the Magistrate at the Ipswich Childrens Court on 5 March 2025 be set aside and substituted with no further order; and

   3.   No orders at to costs.