Director of Child Protection Litigation v EM [2021] QChC 47

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v EM [2021] QChC 47 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (appellant) v EM (respondent) & JUSTIN ASHCROFT (separate representative) FILE NO/S: 7 of 2021 DIVISION: Appellate PROCEEDING: Appeal pursuant to section 117(2) of the Child Protection Act 1999 ORIGINATING COURT: Magistrates Court at Beenleigh DELIVERED ON: 26 November 2021 DELIVERED AT: Brisbane HEARING DATE: 18 November 2021 at Beenleigh JUDGE: Her Honour Judge Loury QC ORDER: The appeal is dismissed. CATCHWORDS: CHILDRENS COURT – CHILD PROTECTION ORDER – INTERIM ORDER – RIGHT OF APPEAL – where the appellant brought an application for a child protection order – where an interim application to allow a non-party to take part in proceedings under section 113 of the Child Protection Act 1999 was brought by a third party and refused by the Childrens Court (magistrate) – where the appellant appeals that interim decision – whether there is jurisdiction of this court to hear an appeal of an interim decision under section 113 of the Child Protection Act 1999 COUNSEL: N Miller for the appellant Z Brereton for the respondent A Hughes for the separate representative -- 1 of 6 -- 2 SOLICITORS: Department of Child Protection Litigation for the appellant Seth Solicitors for the respondent RA Solicitors for the separate representative Background [1] On 13 December 2019 the appellant (the Director of Child Protection Litigation) applied for a child protection order in the Childrens Court (magistrate) at Beenleigh in respect of a child I shall refer to by the pseudonym, Joy. The application was brought pursuant to section 59 of the Child Protection Act 1999 (‘the Act’) and seeks an order granting custody of Joy to the chief executive of the Department of Child Safety, for two years. That application has yet to be determined. [2] Joy is the biological daughter of EM. She was born on 10 December 2019. FA understood himself to be the father of Joy and supported EM through her pregnancy, although he was not in a relationship with EM. Joy was removed from her mother at birth subject to a temporary custody order. On 13 December 2019 the Director of Child Protection Litigation brought the application for a child protection order in relation to Joy. Upon FA being registered as Joy’s father on her birth certificate he became the second respondent to the application. [3] Joy has been subject to an interim child protection order since 7 January 2020. She is cared for by FA for three days of each week. In the proceedings for the child protection order, EM filed an application seeking DNA testing as organised by herself for the purposes of determining paternity. On 6 October 2020 the Childrens Court (magistrate) determined on the basis of DNA test results that the legal parentage presumption arising from Joy’s birth registration listing FA as her father, was rebutted, and as a result, determined that FA was no longer a respondent to the proceedings. [4] On 4 January 2021 FA filed an application and supporting affidavit seeking to take part in the proceeding pursuant to section 113 of the Act. On 4 February 2021 that application was refused by the Childrens Court (magistrate). [5] The Director of Child Protection Litigation appeals that interim decision on the basis that the Childrens Court (magistrate) erred in her interpretation of section 113 of the Act. Right of Appeal [6] A right of appeal exists only if it is conferred by statute.1 The source of any right of appeal in this matter is section 117(2) of the Act. It provides that “a party to the proceeding for an application for a court assessment order or child protection order for a child may appeal to the appellate court against a decision on the application”. [7] It is noteworthy that the source of the power to appeal provides no avenue for a party who is adversely affected by an order refusing participation in the proceedings pursuant to section 113 of the Act, to appeal against the decision. The only persons who can appeal are parties to the proceeding for a child protection order. The parties to that proceeding are the Director of Child Protection Litigation as the appellant and 1 Fox v Percy (2003) 214 CLR 118 at [20] -- 2 of 6 -- 3 EM, a parent of the child. Parent is defined in section 52 of the Act as including the child’s mother or father. There are other categories of persons captured by the definition of “parent” however the position of FA is not included. Upon the DNA test establishing that FA was not the biological father of Joy, he was, as indicated, removed as a respondent to the proceeding. [8] Section 110 of the Act provides for an order for the child to be separately represented by a lawyer (the child’s separate representative). The separate representative is not a party to the proceeding on the application however it has been determined that a separate representative does have standing to bring an appeal under this Act.2 A separate representative for Joy was appointed by the Childrens Court (magistrate). [9] FA’s application to participate in the proceeding for the child protection order was made pursuant to section 113 of the Act. [10] Section 113 provides: “(1) This section applies in relation to a proceeding on an application for an order for a child. (2) On application by a person who is not a party, the court may, by order, allow the person to take part in the proceeding by doing all or some of the things that a party is or may be allowed to do. (3) Before deciding the application, the court must— (a) give the other parties a reasonable opportunity to make submissions about the person’s participation; and (b) consider— (i) the extent to which the person may be able to inform the court about a matter relevant to the proceeding; and (ii) the person’s relationship with the child. (4) An order allowing the person to take part in the proceeding— (a) must state— (i) how the person may take part; and (ii) whether the participation is allowed until the proceeding ends or only for a stated part of the proceeding; and (b) may be subject to conditions; and (c) may require the person to do a thing that a party is or may be required to do; and (d) may provide that a stated provision of this Act, or all provisions, apply in relation to the person as if the person were a party. 2 Jennifer Glover, Separate Representative v Director, Child Protection Litigation & LA & SL & TL [2016] QCHC 16 -- 3 of 6 -- 4 (5) This Act applies in relation to the person, as if the person were a party, to the extent provided in the order. (6) The person may be represented by a lawyer for the purpose of taking part in the proceeding.” [11] Section 113, by its terms, states that it applies in relation to “a proceeding on an application for an order for a child”. Order is defined to mean “an assessment order, temporary custody order or child protection order”.3 [12] Section 113 confers a power to allow a person who is not a parent as defined in section 52 of the Act to participate in the proceeding for a child protection order. The decision made by the Childrens Court (magistrate) was not to allow FA to take part in the proceeding. [13] The appellant, respondent and separate representative each submit that whilst there has been no determination by any appellate court as to the right to appeal against a decision made under section 113, other decisions of this court which have allowed appeals against interim orders assist and that by parity of the reasoning set out in the decision of Fraser JA in Cousins v HAL & Anor4 with respect to appeals against interim orders made pursuant to section 67, this court has jurisdiction to hear the appeal. [14] Cousins involved an application to the Court of Appeal pursuant to section 119 of the Child Protection Act 1999 for a stay of an order made by a judge of the Childrens Court of Queensland pending a proposed appeal to the Court of Appeal. In Cousins it was determined that the Court of Appeal had no jurisdiction to entertain the application or an appeal to that court. [15] The reasoning of Fraser JA considered the jurisdiction of this court, the Childrens Court of Queensland, in an appeal against an interim custody order made pursuant to section 67 of the Child Protection Act 1999. The right of appeal was conferred by section 117(2) of the Child Protection Act 1999. The magistrate’s decision was made pursuant to section 67 (1) of the Act. It provided that: “(1) On the adjournment of a proceeding for a court assessment order or child protection order, the Childrens Court may make all or any of the following orders – (a) An interim order granting temporary custody of a child – (i) … (ii) for a child protection order – to the chief executive or a suitable person who is a member of the child’s family. …” [16] Section 67(2) provides that the order has effect for the period of the adjournment. [17] Fraser JA reasoned that section 67 conferred a power to make an interim custody order, “on the adjournment of a proceeding for” a child protection order and it described such an order as being “for a child protection order”. Accordingly, he 3 Child Protection Act 1999 schedule 3 4 [2008] QCA 49 -- 4 of 6 -- 5 found, the provisions treated an interim custody order under section 67(1) as one which was made on the application for a child protection order. Therefore he reasoned, the Magistrates decision was an order “on the application” for a child protection order within the meaning of section 117(2). Fraser JA referred to the decision of Keane JA (as he then was) in the decision of SBD v Chief Executive, Department of Child Safety5 in which he concluded at [18] that the reference in section 117(2) of the Act to an “appeal to the appellate court against a decision on the application” was to a decision upon the original application for a child protection order. SBD was concerned with the jurisdiction of the Court of Appeal when a decision for a court assessment order or a child protection order was made by the Childrens Court constituted by a Magistrate. [18] Consistently with the plain words of the Act, section 113 confers a power on the magistrate to order a person to take part in the proceeding on an application for an order for a child. It does not state that it is a “decision on the application”. It could not be seen to be a “decision on the application”. The application is for a child protection order granting the chief executive of the Department of Child Safety custody of Joy for a period of two years. [19] The decisions of judges of the Childrens Court of Queensland referred to by counsel have each involved appeals against decisions made either pursuant to section 67 of the Act or section 68 of the Act which also provides for powers on the adjournment of proceedings for a child protection order. None of the decisions referred to have considered the jurisdictional issue. None of the decisions referred to relate to an application made pursuant to section 113 of the Act.6 [20] I have also been referred to section 102 of the Act which provides for the Court’s jurisdiction and constitution. Emphasis is placed on subsection (3) which provides that: “The Childrens Court must be constituted by a judge or magistrate or 2 justices of the peace (magistrates court) when exercising its jurisdiction to— (a) decide applications for court assessment orders; or (b) make interim orders on applications for court assessment orders or child protection orders or adjourn the hearing of the applications.” [21] It is argued that the words “make interim orders on applications for … child protection orders” should inform my interpretation of the phrase “decision on the application” in section 117(2). [22] Section 120 of the Act provides for the “hearing procedures” and has been interpreted to mean that appeals to this court from section 117(1) or (2) are to be considered 5 [2008] 1 Qd R 474 6 F v Sturrock [2004] QChC 4 at [1] and [2]; S v Chief Executive of the Department of Child Safety [2007] QChC 2; AF & F v Department of Child Safety [2008] QChC 1; Department of Communities, Child Safety v M and S [2013] QChC 27; Department of Communities, Child Safety and Disability Services v S & Anor [2013] QChC 33; Director of Child Protection Litigation v FGE & FPA [2018] QChC 17; KP v Director of Child Protection Litigation Unit & Anor [2020] QChC 16; CAR & Anor v Department of Child Safety [2010] QCA 27 at [15]. -- 5 of 6 -- 6 appeals by way of rehearing.7 Section 120(3) confers a power to hear the evidence (or some of it) again or to receive further evidence. In a hearing de novo the court exercises original jurisdiction.8 For a rehearing the appellate court is obliged to give the judgement which in its opinion ought to have been given at first instance, observing the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record.9 Section 121 of the Act provides for the powers of the appellate court which include: setting aside the decision and substituting another decision. [23] An appeal brought against an order made pursuant to section 67 of the Act which was, as Fraser JA determined, a decision which could be the subject of an appeal pursuant to section 117(2), might require an appellate court exercising original jurisdiction or giving the judgement that ought to have been given at first instance, to make interim orders pursuant to that provision. That explains the existence of the specific power to make interim orders in section 102. Section 102 does not in my view inform the interpretation of section 117(2) of the Act. [24] I have therefore reached the conclusion that there is no jurisdiction for this court to entertain this appeal. The determination of an application pursuant to section 113 of the Act does not involve a “decision on the application” for a child protection order. My view is fortified by the fact that the very person aggrieved by the decision of the Childrens Court (magistrate), FA, has no right to appeal the decision. FA is not however, left without any remedy. There is nothing preventing him bringing a further application to participate in the proceeding. That is particularly so in that each of the counsel before me conceded that the learned Magistrate was led into error. [25] Section 113 of the Act provided that the learned Magistrate need consider two matters before determining the application. The first was the extent to which FA may be able to inform the court about a matter relevant to the proceeding and secondly his relationship to the child.10 There was no requirement for the learned Magistrate to find that FA fell within the definition of “family member” before he could be considered a proper person to participate in the proceedings. The learned Magistrate was led into error by the submissions made in this respect by the separate representative (not Ms Hughes). [26] My conclusion that there is no jurisdiction for this court to entertain this appeal also accords with the general principles which underpin the decisions made under this Act. A delay in making a decision in relation to a child should be avoided, unless appropriate for the child. The bringing of appeals against interim decisions such as those made pursuant to section 113 of the Act results in significant delay in the determination of the application for the child protection order as demonstrated by the fact that this appeal was filed on 3 March 2021 and not heard until 18 November 2021. [27] The appeal being incompetent it is dismissed. 7 See Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 per Bowskill DCJ (as she then was) 8 Harris v Caladine (1991) 172 CLR 84 at 96 per Mason CJ and Dean J, 124 per Dawson J and 164 per McHugh J. 9 Fox v Percy (2003) 214 CLR 118 at [23] 10 Section 5B of the Child Protection Act 1999 (Qld). -- 6 of 6 --