Director of Child Protection Litigation v PMK & Others (No. 1) [2018] QChC 3

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v PMK & Others (No. 1) [2018] QChC 3 PARTIES: Director of Child Protection Litigation (Appellant) v PMK (First respondent) & PML (Second respondent) & Jen Glover (Separate Representative) FILE NO/S: 4552/16 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Brisbane Childrens Court (Magistrate) DELIVERED ON: 29 March 2018 DELIVERED AT: Brisbane HEARING DATE: 30 November 2017 JUDGE: Dearden DCJ ORDER: 1. That the Separate Representative be granted leave to appeal out of time in respect of appeal D4552/16 in respect of PMM. 2. That the Separate Representative be granted leave to adduce further evidence in respect of appeal D4552/16 in respect of PMM. 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 learned magistrate made short term child protection orders in respect of three children– where the appellant commenced appeals against the decision of the learned magistrate – where the appellant was granted leave to -- 1 of 9 -- 2 file a Notice of Discontinuance in relation to the appeal regarding the subject child – where the separate representative was granted leave to file an Application for Leave to Appeal out of Time – where the separate representative seeks leave to file an Application to Adduce Further Evidence - where there is no prejudice to any party in allowing an extension of time to appeal out of time – where there is no prejudice in granting leave to adduce further evidence LEGISLATION: Child Protection Act 1999 (Qld) CASES: ASD v Chief Executive, Department of Communities, Disabilities and Child Safety Services & Anor [2013] QDC 168 Jennifer Glover, Separate Representative v Director, Child Protection litigation & Ors [2016] QChC KAA & Anor v Schemioneck & Anor (no.2) [2007] QCA 449 COUNSEL: M Green for the appellant R W Haddrick for the first respondent No appearance for the second respondent J Benjamin for the separate representative SOLICITORS: Director of Child Protection Litigation for the appellant Sambanis Family Law for the first respondent No appearance for the second respondent Legal aid Queensland for the separate representative Introduction [2] The history of the proceedings in respect of the subject child PMM is comprehensively addressed in the outline of submissions on behalf of the Separate Representative as follows: - “1. On 20 October 2016, the Childrens Court sitting at Brisbane made short term orders granting custody of subject child [PMM] and his two siblings, PMN and PMO, to the Chief Executive of the Department of Communities Child Safety and Disabilities Services (“the Chief Executive”) for two years. These orders will expire on 19 August 2018. 2. The Office of the Director of Child Protection Litigatio n (“ODCPL”) filed Notices of Appeal on 17 November 2016, followed by an Outline of Argument, in respect of PMM and his two siblings. In those appeals, the ODCPL sought orders effectively setting aside the decisions made below and -- 2 of 9 -- 3 substituting the orders made with long term guardianship orders in favour of the Chief Executive. 3. The Separate Representative filed an Outline of Argument in support of the outcome sought by the OCDPL. 4. On 4 May 2017 the Childrens Court sitting at Brisbane and constituted by a Judge granted leave for ODCPL to file a Notice of Discontinuance in respect of the appeal concerning PMM within 21 days. The court also granted leave to the Separate Representative to file and serve any Application for Leave to Appeal out of Time, together with the proposed Notice of Appeal, within that time. 5. On 30 November 2017, the court made various orders about how the Application for Leave to Appeal out of Time and subsequent appeal proceedings concerning PMM should be conducted. These orders included that the Separate Representative file submissions in support of the Applicatio n for Leave to Appeal out of Time.” 1 Basis of the Separate Representative’s application for leave to appeal out of time [3] The Separate Representative submits as follows: - “6. The ODCPL filed their Notice of Appeal in November [2016] concerning PMM within the time ordinarily allowed for filing of an appeal, and the Separate Representative was a respondent to that appeal. It was therefore unnecessary at that time for the Separate Representative to also file an appeal in respect of PMM. 7. It is submitted that if the ODCPL had not filed their Notice of Appeal in respect of PMM, the Separate Representative would have been afforded the opportunity to file a Notice of Appeal within time. 8. Instead, having received the ODCPL’s Notice of Appeal concerning PMM, the view of the Separate Representative in relation to the appeals for all three children, including PMM, was expressed through the Separate Representative’s Outline of Argument, filed in support of the outcomes sought by the ODCPL. 9. It is submitted that the Separate Representative’s position in relation to an appeal concerning PMM has been clear to the parties since the Separate Representative’s Outline of Argument was served on the parties. 10. Upon learning of the ODCPL’s intention to abandon its appeal in relation to PMM, the Separate Representative gave notice to the parties and the court, of the Separate Representative ’s intention to seek leave to file a Notice of Appeal out of time. 11. It is submitted that that the Separate Representative’s intentio n to apply for leave to appeal, has been clear to the parties since the day that leave was given to the ODCPL to discontinue their appeal. 1 Outline of Submissions on behalf of the Separate Representative, paras 1-5. -- 3 of 9 -- 4 12. The Separate Representative submits that there can be no prejudice to any other party in allowing the application for an extension of time because: - (a) the position of the Separate Representative regarding the orders made below in relation to PMM has been known to the parties since prior to the ODCPL’s decision to abandon its appeal; (b) the sole reason for the Separate Representative not needing to file her own appeal in relation to PMM was because the ODCPL filed an appeal first.” 2 [4] For those reasons, the Separate Representative seeks leave to appeal out of time in respect of the Childrens Court decision relating to PMM. Application for leave to adduce further evidence [5] If the application for leave to appeal out of time by the Separate Representative is granted, the Separate Representative seeks to adduce further evidence in respect of PMM’s current living arrangements and any current arrangements in place to ensure contact between PMM and his siblings and the first respondent. [6] In the Outline of Submissions on behalf of the Separate Representative in respect of the application for leave to adduce further evidence, the Separate Representative states: - “7. At the time that the decision was made by the learned trial magistrate, PMM was 14 years old and had self-placed with the first respondent. There was, at the time, a temporary custody order in favour of the Chief Executive, but there were no plans to forcibly remove PMM from his living arrangements with his mother. 8. The Separate Representative understands, however, that PMM’s circumstances began to change shortly after the making of the order being appealed. PMM’s placement with his mother subsequently ended and he now lives in residential care. 9. The evidence which the Separate Representative seeks to put before the court is: - (a) the nature of the current living arrangements for PMM, including information about the stability thereof; (b) the nature of the current contact between PMM and the first respondent; 2 Outline of Submissions on behalf of the Separate Representative, paras 6-12. -- 4 of 9 -- 5 (c) the circumstances surrounding the change in PMM’s living arrangements; and (d) the current case plan for PMM.” 3 The law – fresh evidence [7] Child Protection Act 1999 (Qld) s.120(2) provides: - “Hearing procedures: - (1) An appeal against a decision of a magistrate on an application for temporary assessment order is not restricted to the material before the magistrate. (2) An appeal against another decision must be decided on the evidence and proceedings before the Childrens Court. (3) However, the appellate court may order that the appeal be heard afresh, in whole or part.” [8] The Child Protection Act is not specific about how the discretion in s.120(3) should be exercised. However, Child Protection Act s.104 provides: - “Court must have regard to particular principles and state reasons (1) In exercising its jurisdiction or powers, the Childrens Court must have regard to the principles started in s.5A to 5C, to the extent the principles are relevant. (2) When making a decision under this Act, the Childrens Court must state its reasons for the decision.” [9] Child Protection Act s.5A provides: - “Paramount principle The main principle for administering this Act is that the safety, well- being and best interest of a child are paramount.” Child Protection Act s.5B provides: - “Other general principles 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; 3 Outline of Submissions on behalf of the Separate Representative – Application for Leave to Adduce Further Evidence, paras 7-9. -- 5 of 9 -- 6 (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, consideratio n 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, includ ing 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, emotiona l, 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.” Child Protection Act s.5C contains additional principles for Aboriginal or Torres Strait Islander children, which are not relevant to the appeal before me. [10] It is submitted that the paramount consideration in this appeal is the “wellbeing and best interest of the child in question.”4 [11] The Separate Representative relies on the decision of Jennifer Glover, Separate Representative v Director, Child Protection litigation & ors [2016] QChC 16, paragraph [75], where Bowskill QC DCJ (as she then was) stated “the discretion conferred by [Child Protection Act] s.120(3) is very broad; but not such as to conclude 4 Outline of Submissions on behalf of the Separate Representative, para 12. -- 6 of 9 -- 7 that what is intended is that the appellate court precede by way of a hearing de novo.” [citation deleted]. [12] Bowskill QC DCJ then adopts the observation of Shanahan DCJ in KAA & Anor v Schemioneck & Anor (no.2) [2007] QCA 449 at [29] and states at [78]: “As to the principles governing the exercise of the discretion under s 120(3), I note that Shanahan DCJ, now the President of the Childrens Court, has previously observed that “[t]he clear intention of the legislation is that an appeal is to be heard on the record unless there is good reason shown for the Judge to order that it may be heard afresh.” [13] Bowskill QC DCJ also noted the decision of ASD v Chief Executive, Department of Communities, Disabilities and Child Safety Services & Anor [2013] QDC 168 at [7], where Kingham DCJ permitted “limited further evidence” when it became apparent “there has been a significant change of circumstances” since the magistrate ’s decision.”5 [14] The separate representative submits “that given the importance of finality of litigatio n in this jurisdiction, the court ought to have before it evidence of the changes and the circumstances of the child and the first respondent since the original decision was handed down, particularly as the nature of those changes relate to the issues that arose in the hearing of the original application in the court below.”6 [15] The ODCPL, in its submission, “acknowledges there can be no prejudice to any party in allowing the application for an extension of time”7 and further states that “give n the circumstances of this application, [the ODCPL] does not oppose the Separate Representative’s application for leave to appeal out of time.”8 5 Jennifer Glover, Separate Representative v Director, Child Protection litigation & Ors [2016] QChC 16 at [79](a). 6 Outline of Submissions on behalf of the ODCPL – Response to Application to Adduce Further Evidence, para 15. 7 Outline of Submissions on behalf of the ODCPL, para 2. 8 Outline of submissions on behalf of the ODCPL, para 3. -- 7 of 9 -- 8 [16] In respect of the application for leave to adduce further evidence, the ODCPL adopts the submissions of the Separate Representative in respect of the history of proceedings and the law, and states further that the ODCPL “acknowledges there can be no prejudice to any party in allowing the application to adduce further evidence,”9 and that “given the circumstances of this application, [ODCPL] does not oppose the separate representative’s application to adduce further evidence.”10 [17] The first respondent does not oppose the application to granting leave to appeal out of time by the Separate Representative.11 Nor does the first respondent oppose the application by the Separate Representative to adduce fresh evidence on the appeal. 12 The first respondent does, however, object to the ODCPL being heard on the substantive appeal, either by adducing fresh evidence and/or making submissio ns.13 That objection will be litigated at the hearing of the appeal, currently listed for 29 March 2018. Discussion [18] Given the history of the litigation in respect of the child PMM, and the granting of leave for the original appellant, ODCPL to file a Notice of Discontinuance, there can be no prejudice to any party in allowing an extension of time to the Separate Representative to appeal out of time, nor in the circumstances of the ongoing change of arrangements for the child PMM, can there be any prejudice in granting leave to adduce further evidence. 9 Outline of submissions on behalf of the ODCPL – Response to Application to Adduce Further Evidence, para 3. 10 Outline of submissions on behalf of the ODCPL – Response to Application to Adduce Further Evidence, para 4. 11 First Respondent’s Outline of Argument, para 5. 12 First Respondent’s Outline of Argument, para 5. 13 First Respondent’s Outline of Argument, para 10. -- 8 of 9 -- 9 Orders [19] Accordingly I make the following orders: - 1. That the Separate Representative be granted leave to appeal out of time in respect of appeal D4552/16 in respect of PMM. 2. That the Separate Representative be granted leave to adduce furthe r evidence in respect of appeal D4552/16 in respect of PMM. -- 9 of 9 --