NT v Department of Families, Seniors, Disability Services and Child Safety

[2025] QSC 280

SUPREME COURT OF QUEENSLAND

CITATION:

NT and Anor v Department of Families, Seniors, Disability Services and Child Safety and Anor [2025] QSC 280

PARTIES:

NT

(first applicant)
AND
AH
(second applicant)

v
DEPARTMENT OF FAMILIES, SENIORS, DISABILITY SERVICES AND CHILD SAFETY
(first respondent) 
AND
DIRECTOR OF CHILD PROTECTION LITIGATION

(second respondent)

FILE NO/S:

3786/25

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 October 2025

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2025

JUDGE:

Smith J

ORDER:

1.   The originating application filed by Ms NT on 26 August 2025 is dismissed.

2.   The material which is the subject of this application, including the originating application and affidavit material of the applicants and respondents, be placed in a sealed envelope marked “Not to be opened unless by Order of the Court.”

3.   Subject to any contrary order of the Court, the court file must not be made available for search or review to any person who is not a party to the proceeding or the legal representative of a party to the proceeding.

4.   Only anonymised reasons for judgment and orders shall be released by the Court to non-parties without further contrary order of the Court.

5.   The audio recording of these proceedings is not to be published or made available except to the transcriber for the purposes of making a transcript or to the Court.

6.   Any transcript of the proceedings may only be made available to the parties, the parties’ legal representatives or to the Court.

7.   The identity of IT, EH & JH is supressed such that the full names of the child, the child’s family members and any other fact or matter that may identify the child must not be published in any way.

8.   That there be no order as to costs.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILDREN IN NEED OF CARE AND PROTECTION – JURISDICTION AND PROCEDURE – where children of the applicant are the subject of temporary custody orders made under the Child Protection Act 1999 (Qld) – whether the Supreme Court should exercise its parens patriae jurisdiction – whether the matter should be left to courts with specialist jurisdiction

Child Protection Act 1999 (Qld) ss 4, 5A, 5B-H, 10, 54, 104, Chapter 2 Part 3AA, Chapter 3 Part 4
Carseldine v Director of Department of Children’s Services [1974] HCA 33; (1974) 133 CLR 345, applied
Department of Community Services v Priestley [2004] NSWSC 639, considered
JH v Secretary, Department of Communities and Justice [2021] NSWSC 1539, considered
Re Abigail and Oliver [2016] NSWSC 370, considered
Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157, followed

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218, cited

COUNSEL:

Self-represented first applicant
M McLennan for the first respondent
I Gagic-Pavlica for the second respondent 

SOLICITORS:

Self-represented first applicant
Department of Child Safety for the first respondent
Director of Child Protection Litigation for the second respondent   

Introduction

1. Ms NT has three children, IT (aged 7), EH (aged 4) and JH (aged 2). She cares for them very much but she has had issues with using drugs and has been in domestically violent relationships. As a result, the Chief Executive of Child Safety (Chief Executive) obtained an order for temporary custody of the children from the Children’s Court at Beenleigh. Ms NT alleges the children have been harmed whilst in the care of the Chief Executive and has applied to the Supreme Court in its supervisory jurisdiction for an order for the return of the children.

2. The issue in this case is whether the Supreme Court should exercise its jurisdiction to overturn a decision made by a court in a specialist jurisdiction.      

3. For the reasons which follow, it is determined that whilst the Supreme Court does have a supervisory jurisdiction in this matter, it should only be exercised in exceptional circumstances. This is not such a case and the courts referred to in the Children Protection Act 1999 (Qld) (CPA) should continue with their management of this matter.

   Background

4. On 26 February 2025, the Chief Executive applied to the Childrens Court at Beenleigh for a child protection order pursuant to s 54 of the CPA, granting custody of the children to the Chief Executive for two years.

5. It was alleged in the material relied on that each of the children was at an unacceptable risk of harm. Mr AH, the father of EH and JH, was in custody. The children were in general foster care and had been the subject of earlier orders. Temporary custody orders and temporary assessment orders had been made. It was alleged by the Chief Executive that the children had been exposed to domestic violence against Ms NT by Mr AH and other partners. It was also alleged that Ms NT was a drug user and had tested positive to drugs and had used drugs in February 2025. It was alleged that Ms NT was willing but unable to meet the needs of the children.

6. An affidavit of Kristine Schmidt of the Department was relied on. It set out the alleged violence to which the children were exposed to, including alleged home invasions.

7. A temporary custody order was made at that time which continues until the present time. The matter was listed for hearing on 9 May 2025. It was adjourned and listed for hearing on 26 June 2025.

8. On 2 June 2025, Ms NT filed an application to revoke the existing children protection order made on 9 May 2025 and for an order that the children be returned to her care. She alleged the children were experiencing emotional, psychological, physical, and sexual harm. She said that she had stable housing, and the children were suffering more harm in the Chief Executive’s custody. In her supporting affidavit she said that she had made substantial changes to her situation. She had left the violent relationships and had escaped one in January 2025. She had participated in domestic violence and drug counselling. She also said that the department had provided misleading information to the Court and gave particulars on how each of the children had not been looked after.

9. Ms Rutherford of the Department filed an affidavit on 25 June 2025 which set out her involvement in the matter and in particular drug testing of Ms NT in May and June 2025.

10. The Department filed an outline of submissions at the hearing on 26 June 2025. The submissions pointed out that an officer from the Department had met with Ms NT on 12 June 2025 to discuss her concerns. It was submitted that the children remained in need of protection and were at risk of harm if retuned to the mother.

11. Magistrate Mac Giolla Ri, who had been managing the matter, heard the matter on 26 May 2025. His Honour made an order for continuing custody in favour of the Chief Executive until 1 July 2025 and then 26 August 2025.

12. On 25 August 2025, Ms NT filed a statutory declaration with the Court in which she explained the events of 16 July 2025 when a man called McDougal threatened she and her partner.

13. On 22 August 2025, Ms NT sent an email to the Department raising several concerns regarding the care of the children. She raised allegations of sexual abuse, physical abuse, injuries, assault on the children, not being fed as punishment and the children acting in a sexualised manner.

14. The matter came on for hearing before Magistrate Mac Giolla Ri on 26 August 2025. Ms NT’s name was called over the loudspeaker system. She was at the Court but did not appear. She then spoke to the duty lawyer and the matter was arranged to be re mentioned. Her name was called again but she did not appear, and the temporary custody order was extended by Magistrate Mac Giolla Ri until 16 October 2025.

15. Unfortunately, the representative of the Department failed to tender the email from Ms NT. Ms NT understandably is concerned that all relevant matters were not brought to the Court’s attention.    

16. In consequence, Ms NT on 26 August 2025 made an application to the Supreme Court for an order for the return of the children to her care.

17. She filed an affidavit dated 18 September 2025, in which she says:

    (a)She is the primary caregiver for the children.

    (b)She is a survivor of domestic violence.

    (c)She was the subject herself of failures by the Department of Child Safety as a child which led to physical and sexual abuse.

    (d)She has used drugs at times, but she voluntarily disclosed this to the Department.

    (e)She has mental health conditions.

    (f)She has obtained a domestic violence order as protection.

    (g)She escaped from her violent partner with the children in January 2025.

    (h)The children have been suffering ongoing harm whilst under the interim protection order.

18. The matter first came before the Supreme Court on 19 September 2025. The respondents sought to strike out the application. The matter was adjourned to enable Ms NT to appeal the decision made on 26 August 2025 to the Childrens Court of Queensland. This appeal was heard in the Children’s Court on 29 September 2025. Judge Balic understandably expressed concerns that the Magistrate had not been informed of the allegations of Ms NT in her email dated 22 August 2025. However, her Honour dismissed the appeal on the basis that Ms NT could raise these issues before the Magistrate on the next occasion.

19. On 29 September 2025, Ms NT filed a further application to revoke the protection order on the grounds that evidence was not presented to the Magistrate and this evidence would have altered the decision. The matter came on again before the Supreme Court on 3 October 2025 and again it was adjourned to enable the Magistrate to make a decision on all of the material. Affidavits of Ms Hill (from the Department) and Ms NT were relied on.

20. Magistrate Mac Giolla Ri heard the matter over three days on 9, 10 and 16 October 2025. All the relevant evidence was placed before the Court. A reunification plan was agreed between the parties with Ms NT’s contact increasing.

21. On 16 October 2025, the Magistrate continued the interim protection order. The children were to be returned to the care of the mother on a 24/7 contact order on and from 4 November 2025, with Ms NT to undertake weekly drug screens. The matter was listed for further hearing on 20 November 2025. 

22. The Court was informed that, at that time, Ms NT did not oppose the interim protection order continuing.

23. The Court was also informed that the sexual abuse allegations were referred to the police by the Chief Executive but they do not meet the threshold required for further investigation.

    Applicant’s submissions

24. Ms NT submits that the Department’s actions since removal have caused her children serious and lasting harm. She says that in one month her son JH was moved 11 times. His sisters have been moved more than eight times. The disruption is profoundly harmful and inconsistent with their developmental and emotional needs. The two girls have consistently expressed their desire to return home. They have disclosed to Ms NT and to the Department multiple forms of abuse yet remain in the care of the people they have identified as harming them. Ms NT submits that the Supreme Court has supervisory jurisdiction to deal with this matter and should intervene in this case.

    Respondents’ submissions

25. The respondents submit that the parens patriae jurisdiction of the Supreme Court should not be enlivened in this case. The respondents submits that Ms NT is seeking to reventilate matters which have been decided in the Children’s Court and her appeal has been dismissed. It is submitted in reliance on a number of authorities that parens patriae jurisdiction should not be exercised in a case such as this, namely where there is a statutory regime to be considered, unless the case is exceptional. It is submitted this is not an exceptional case and that the specialist Children’s Courts should deal with the matter.

26. This is particularly so when the case is not straight forward and indeed complex.

    The Statutory regime of the CPA

27. There is a specific statutory regime which deals with the custody and guardianship of children in Queensland. The CPA sets up this regime. Section 4 of the CPA notes that the Act’s purposes are:

    (a)To provide for the protection of the children.

    (b)To promote the safety of children.

    (c)To the extent that it is appropriate to support families caring for children.

28. Section 5A of the CPA notes that the main principle is that the safety, wellbeing and best interests of the children are paramount. Sections 5B to 5H of the CPA deal with other relevant principles.

29. Importantly, s 104 of the CPA requires a Children’s Court to have regard to the principles stated in ss 5A to 5C of the CPA.

30. Section 10 of the CPA provides as to when a child is in need of protection. Chapter 2 deals with the protection of children. Part 3AA of the CPA deals with temporary custody orders. Section 54 of the CPA deals with child protection orders and s 59 of the CPA deals with the making of child protection orders. There are also rights of appeal to the Childrens’ Court of Queensland under Chapter 3 Part 4.

31. The Court has been informed that Magistrate Mac Giolla Ri is very experienced in this area of the law and takes a keen interest in the matters before him. 

32. Despite the existence of the CPA, there is no doubt that the Supreme Court does have a general supervisory jurisdiction in its parens patriae jurisdiction. This jurisdiction is wide ranging and extends to the protection and education of children. It has been said that the jurisdiction is derived from the responsibility of the Crown as “parent of the country” for those people who because of legal disability cannot look after themselves.[1]   

    [1]Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218 at 258-259.

    Inherent jurisdiction of the Supreme Court and its limits

33. The inherent jurisdiction of the Supreme Court is not abolished by the CPA.

34. In Carseldine v Director of Department of Children’s Services[2], the High Court specifically found that the inherent jurisdiction of the Supreme Court to make an order for the custody of an infant was not displaced by the Children Services Act 1965 (Qld). Mason J noted:

    “In considering whether there is a necessary implication that the inherent jurisdiction is displaced, it must be kept firmly in mind that in accordance with tradition the guardianship and custody of infants has been the subject of judicial determination. Hitherto curial orders have been central to the entire concept of guardianship and custody.”

    [2][1974] HCA 33; (1974) 133 CLR 345.

35. Carseldine was followed in Re M (an infant)[3] where McPherson J noted at page 424 that the Supreme Court retained it general equitable jurisdiction over infants, notwithstanding the provisions of the Childrens Services Act.

    [3][1986] 1 Qd R 422.

36. However, it has been said that even though such jurisdiction survives and can be employed to reduce a result contrary to legislation such as the CPA, this will only occur in exceptional circumstances.

37. In Re Victoria,[4] Palmer J considered this point. In that particular case, the Department had applied for the Supreme Court to exercise its inherent jurisdiction concerning an order made by a Magistrate in the Childrens Court. At [31] his Honour said:

    “It is true that the 1998 Act does not limit the parens patriae, or wardship jurisdiction of the Supreme Court. Nevertheless, I would think it highly inappropriate for appeals from decisions of Magistrates in the Children's Court to be made as a matter of course to this Court under the guise of invoking the wardship jurisdiction. When a contest concerning a child has been fought in the Children's Court and a party is dissatisfied with the decision, an appeal should be made to the District Court under s 91 of the 1998 Act, and any application for a stay of the Magistrate's order should be made to that Court pending determination of the appeal. It would only be in the most extraordinary circumstances that this Court should be asked, in the exercise of its parens patriae jurisdiction, to set aside or to affect the decision of a Magistrate in the Children's Court.”

    [4][2002] NSWSC 647; (2002) 29 Fam LR 157.

38. His Honour had regard to the fact that the 1998 Act provides for the operation of a specialist jurisdiction within the Court system of the state. His Honour stated at [36] “Matters concerning the welfare of the children are to be dealt with by a Children’s Court consisting of Magistrates highly experienced in the determination of such issues. The 1998 Act also specifically provides the appeals in the Childrens Court in light of the District Court…” At [37] “I do not think that there should be encouraged a procedure whereby persons who have fully contested a matter in the Children's Court and wish to appeal can by-pass the appeal provisions of the 1998 Act and come straight to this Court seeking to invoke its inherent wardship jurisdiction.”

39. His Honour at [39] stated the Supreme Court should not encourage such a process, although his Honour noted at [40] that there may be exceptional circumstances in a particular case which justifies a Court in departing from the general approach.

40. In Re Abigail and Oliver,[5] Kunc J spoke of the “well-understood reluctance on the part of the Supreme Court to exercise the parens patriae jurisdiction in relation to matters which are before the Children’s Court.”

    [5][2016] NSWSC 370 at [5].

41. Likewise, Young CJ in Eq in Department of Community Services v Priestley[6] accepted that it is only in the most extraordinary circumstances that the Supreme Court should interfere with the decision of a Magistrate in a Children’s Court where the party is dissatisfied with the decision. His Honour noted that specialised magistrates in a specialised jurisdiction are dealing with these decisions.

    [6][2004] NSWSC 639 at [5].

42. It has even been said that applications which invoke the parens patriae jurisdiction whilst proceedings are on foot in the Children’s Court may become an abuse of process.[7]

    [7]JH v Secretary, Department of Communities and Justice [2021] NSWSC 1539 at 8.

    Should the Supreme Court exercise its jurisdiction?

43. This particular case is not an easy one. There is no doubt Ms NT cares for her children and is very concerned as to their welfare. Ms NT is to be commended for her concern for her children.

44. On the other hand, one can understand the Department’s concerns for the children bearing in mind the violent relationships which Ms NT has had previously and her struggle with drug use. In this particular case, allegations have been made by Ms NT which remain to be established.

45. As noted earlier, Magistrate Mac Giolla Ri is regarded as being an experienced Magistrate in this area and takes a keen interest in such matters. He has given much consideration to this case and is aware of the issues. It is obviously of concern to Ms NT and indeed the Court that the Department did not place relevant written evidence before the Magistrate on 26 August 2025. That is not to be encouraged. Indeed, it had the hallmarks of an ex parte application and full disclosure is necessary in such application, particularly by a government department which is to act as a model litigant. The representative of the Department did mention the email of 22 August 2025 to the Magistrate.[8] There was no deliberate concealment of the information provided by Ms NT by the representative of the Department.

    [8]Exhibit 11.

46. In light of the history of this matter, the factual complications associated with it and the diligence with which the Magistrate in the Childrens Court is approaching this matter, I am not persuaded this is an exceptional case in which the Supreme Court should exercise its jurisdiction. The matter should take its course in the Magistrates Court on the relevant evidence to be considered at the material time.

1. The matter is progressing well with the parties working together towards a beneficial outcome.

2. In the circumstances, the applicant’s application should be dismissed.  

   Orders

3. I make the following orders:

4. The originating application filed by Ms NT on 26 August 2025 is dismissed.

5. The material which is the subject of this application, including the originating application and affidavit material of the applicants and respondents, be placed in a sealed envelope marked “Not to be opened unless by Order of the Court”.

6. Subject to any contrary order of the Court, the court file must not be made available for search or review to any person who is not a party to the proceeding or the legal representative of a party to the proceeding.

7. Only anonymised reasons for judgment and orders shall be released by the Court to non-parties without further contrary order of the Court.

8. The audio recording of these proceedings is not to be published or made available except to the transcriber for the purposes of making a transcript or to the Court.

9. Any transcript of the proceedings may only be made available to the parties, the parties’ legal representatives or to the Court.

10. The identity of IT, EH & JH is supressed such that the full names of the child, the child’s family members and any other fact or matter that may identify the child must not be published in any way.

11. That there be no order as to costs.