CAO v Department of Child Safety & Ors [2009] QCA 169

SUPREME COURT OF QUEENSLAND CITATION: CAO v Dept of Child Safety & Ors [2009] QCA 169 PARTIES: CAO (applicant/applicant) v DEPARTMENT OF CHILD SAFETY (first respondent/first respondent) SEPARATE REPRESENTATIVE (DAMIEN CARTER) (second respondent/second respondent) HAS (third respondent/third respondent) HAT (fourth respondent/fourth respondent) FILE NO/S: Appeal No 861 of 2009 Appeal No 862 of 2009 DC No 3186 of 2008 DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Civil Miscellaneous Application – Civil ORIGINATING COURT: Court of Appeal at Brisbane DELIVERED ON: 16 June 2009 DELIVERED AT: Brisbane HEARING DATE: 9 June 2009 JUDGES: Chief Justice, Keane JA and Fraser JA Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: The application to review the order of the President of 3 April 2009 is refused CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE LEGISLATION – PROCEEDINGS RELATING TO CARE AND PROTECTION – JURISDICTION OF COURTS – where applicant sought leave to appeal decision of Childrens Court constituted by a judge to Court of Appeal – where application for leave to appeal struck out for want of prosecution – where applicant by instant application seeks review of that decision – whether appeal lies from Childrens Court constituted by a judge to Court of Appeal by right or by leave. -- 1 of 6 -- 2 Child Protection Act 1999 (Qld), s 5, s 61, s 117 District Court of Queensland Act 1967 (Qld), s 118 Uniform Civil Procedure Rules 1999 (Qld), r 5 Cousins v HAL & Anor [2008] QCA 49, cited FY & Anor v Dept of Child Safety [2009] QCA 67, cited Girando v Girando (1997) 18 WAR 450, cited KAA & Anor v Schemioneck & Anor (No 2) [2007] QCA 449, cited Macchia v The Public Trustee (2008) 251 ALR 385; [2008] WASCA 241, cited SBD v Chief Executive, Department of Child Safety [2008] 1 Qd R 474; [2007] QCA 318, cited COUNSEL: The applicant appeared on her own behalf J W Selfridge for the first respondent P A Kirkman-Scroope for the second respondent The third respondent appeared on behalf of the third and fourth respondents SOLICITORS: The applicant appeared on her own behalf Crown Law for the first respondent Carter Farquar Lawyers for the second respondent The third respondent appeared on behalf of the third and fourth respondents [1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the order proposed by His Honour and with his reasons. [2] KEANE JA: The applicant is the maternal grandmother of two boys aged 12 and eight years old respectively ("the children"). [3] On 11 November 2008, pursuant to s 61(e) of the Child Protection Act 1999 (Qld) ("the Act"), the Childrens Court constituted by a Magistrate granted short term guardianship of the children to the Chief Executive of the Department of Child Safety ("the Department"). The Department is a respondent to the application in this Court. The guardianship of the children conferred by the order was for a period of one year. Such an order is a species of "child protection order" under the Act. [4] The children's mother and father are also respondents to the application in this Court. The children are separately represented by a solicitor who has also been joined as a respondent to the application. [5] The applicant appealed to the appellate court, being the Childrens Court constituted by a judge of the District Court, pursuant to s 117(2) of the Act. That appeal was dismissed. [6] From that decision the applicant applied to this Court for leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld). This provision affords an avenue of appeal to this Court from certain decisions of the District Court. [7] As a result of the applicant's failures to comply with directions made by this Court with a view to the prompt hearing of her application for leave to appeal, on -- 2 of 6 -- 3 20 March 2009 the learned President of this Court made an order that if the applicant failed to comply with the directions made by her Honour on that day by 4.00 pm on Friday, 3 April 2009, her application for leave to appeal was to be struck out for want of prosecution without any further order. [8] Thereafter, the applicant sought a two week extension of the time for compliance with the directions made on 20 March 2009. Her application in this regard was heard by the President on 3 April 2009. On that occasion the learned President declined to give the applicant any further indulgence. In consequence, pursuant to the order of 20 March 2009, the applicant's application for leave to appeal was struck out for want of prosecution. [9] The applicant now applies to this Court to review the decision of the President of 3 April 2009 to refuse the applicant a further extension of time. [10] The application to this Court is attended by the obvious difficulty that the order made by the President concerned a matter of practice and procedure in respect of which her Honour was entitled to exercise a wide discretion. There can also be no doubt that her Honour's concern that the delay resulting from the applicant's difficulties in prosecuting her challenge to the order of the Childrens Court, with the consequent undesirable prolongation of the uncertainty of the position of the children, was a consideration of great relevance to the exercise of her Honour's discretion. [11] There is, however, yet a further difficulty which stands at the threshold of the proceedings initiated by the applicant in this Court. This difficulty concerns the fundamental question whether any appeal lies to this Court, even by way of leave, from a decision of the Childrens Court constituted by a District Court judge in the exercise of the appellate jurisdiction of the Childrens Court. In my opinion, this difficulty is fatal to the applicant's attempt to resuscitate her application for leave to appeal. I proceed directly to explain why I am of this opinion. An appeal to this Court? [12] It is well-established that no appeal lies as of right to this Court from a decision of the Childrens Court constituted by a District Court judge as the "appellate court" for the purposes of s 117 of the Act. That this is so appears by the decisions of this Court in SBD v Chief Executive, Department of Child Safety,1 KAA & Anor v Schemioneck & Anor (No 2)2 and FY & Anor v Dept of Child Safety.3 [13] In SBD v Chief Executive, Department of Child Safety,4 I said (with the agreement of Muir JA and Lyons J): "Under s. 117(2) of the [Child Protection Act], '[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'. The respondent submits that an appeal from the decision of the Childrens Court constituted by a judge sitting on appeal from the Childrens Court constituted by a magistrate under s. 117 of the Act lies to this Court only by grant of 1 [2008] 1 Qd R 474 at [18] – [21]. 2 [2007] QCA 449 at [21]. 3 [2009] QCA 67 at [8]. 4 [2008] 1 Qd R 474 at 477 – 478 [13] – [19] (citation footnoted in original). -- 3 of 6 -- 4 leave pursuant to s. 118(3) of the District Court of Queensland Act 1967. The applicant's view is that an appeal from the District Court sitting on appeal from the Childrens Court under s. 117 of the Act lies to this Court as of right as 'the appellate court'. The definition of 'appellate court' is in sch. 3 of the Act. That definition is relevantly in the following terms: "appellate court means– (a) for a decision on an application for a court assessment order or child protection order …– (i) if the decision was made by the Childrens Court constituted by a judge–the Court of Appeal; or (ii) if the decision was made by the Childrens Court constituted in another way–the Childrens Court constituted by a judge; or (b) for a decision on an application for a temporary assessment order–the Childrens Court constituted by a judge.' Under s. 102(1) and (2) of the Act, the Childrens Court must be constituted by a judge when exercising its jurisdiction to hear appeals against decisions of the court constituted in another way; and the Childrens Court must be constituted by a judge or magistrate 'when exercising its jurisdiction to decide applications for child protection orders'. … … Rights of appeal are, of course, entirely the creature of statute (Attorney-General v. Sillem (1864) 10 H.L.C. 704 at 720 – 721; 11 E.R. 1200 at 1207 – 1208; South Australian Land Mortgage and Agency Co. Ltd v. The King (1922) 30 C.L.R. 523 at 533). The argument advanced by the applicant fails to come to grips with the language of the Act by which the relevant rights of appeal are created. The reference in sch. 3 of the Act to a 'decision … by the Childrens Court constituted by a judge' is to a 'decision on an application'. The reference in s. 117(2) of the Act to an 'appeal to the appellate court against a decision on the application' is to a decision upon the original application for a court assessment order or child protection order under s. 102(2) of the Act; it does not refer to a decision on appeal from such a decision. These provisions of s. 117 and sch. 3 of the Act erect a dichotomy between an application to the Childrens Court, however constituted, in its original jurisdiction and an appeal to the appellate court against a decision on that application. The only appeal to this Court as 'the appellate court' lies where the decision on the original application is made by the Childrens Court constituted by a judge. The Act thus clearly contemplates only one level of appeal (as of right) from a decision upon an application. That this is so is hardly surprising, -- 4 of 6 -- 5 given that the subject matter of the Act is the protection of children and the obvious undesirability of protracted litigation, and consequent uncertainty concerning the child's situation, which would result from a process of multiple appeals." [14] I pause here to note that the present case affords an example of the kind of prolongation of litigation, and undesirable uncertainty as to the position of the children affected thereby, which the legislature can be taken to have intended to avoid by providing only one level of appeal under the Act. [15] In SBD v Chief Executive, Department of Child Safety, it was not necessary to come to a final conclusion on the question of whether s 118(3) of the District Court of Queensland Act affords an avenue of appeal, albeit by leave, from decisions of the Childrens Court constituted by a District Court judge sitting as the appellate court. I did, however, note that:5 "It is arguable that the Childrens Court constituted by a judge is not the District Court for the purposes of s. 118(3) of the District Court of Queensland Act". [16] In Cousins v HAL & Anor,6 this question fell to be decided. Fraser JA said: "… I must conclude that s 117(2) does not confer any right of appeal to this Court from the decision of the Judge who constituted the Childrens Court. There is no other provision of the Act that confers a right of appeal to this Court from such a decision. Reference was made during the course of argument to s 118(3) of the District Court of Queensland Act 1967. That provision is as follows: '3. A party who is dissatisfied with any other judgment of the District Court, whether in the Court's original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that Court.' Section 118 authorises appeals only from the District Court. That is a reference, of course, to the District Court of Queensland established by Part II of The District Court of Queensland Act 1967. That Court is a court of record constituted by any of the District Court Judges. It is to be distinguished from the Childrens Court, which is a separate Court established as a court of record by section 4 of The Childrens Court Act 1992. The Childrens Court is not constituted by any of the District Court Judges. Rather, section 5 of that Act provides that the members of the Childrens Court are, so far as Judges are concerned, a Childrens Court Judge or, and only if such a Judge is not available, a District Court Judge. That on occasions where a Childrens Court Judge is not available the Court may be constituted by a District Court Judge does not establish an identity between the Childrens Court and the District Court. The Courts are established by separate legislation and have a different, albeit overlapping, membership. Ultimately, the question is whether the Childrens Court of Queensland established by The Childrens Court Act 1992 may also 5 [2008] 1 Qd R 474 at [17]. 6 [2008] QCA 49 at 8 – 9. -- 5 of 6 -- 6 be regarded as 'the District Court' for the purposes of the right of appeal conferred by s 118(3) of the District Court of Queensland Act 1967. This question was adverted to in SBD, in which Keane JA observed that it was arguable that the Childrens Court constituted by a Judge was not the District Court for that purpose. It is necessary to decide the point here. For the reasons I have given, the conclusion is unavoidable, in my opinion, that these are different Courts. It follows that I must conclude that the Childrens Court is not the District Court for the purposes of s 118(3), so that no appeal lies from a decision of the Childrens Court, constituted by a District Court Judge, under s 118(3) of the District Court of Queensland Act 1967." [17] I am respectfully in agreement with the reasons of Fraser JA on this point. [18] It follows that the application for leave to appeal should have been struck out as incompetent. That it was, in the event, struck out for other reasons does not make the outcome any the less correct. [19] While it is strictly unnecessary for me to comment on the reasons which led the learned President to refuse the applicant the indulgence of a further extension of time, I should make it clear that I am not at all persuaded that her Honour erred in the exercise of her discretion. [20] The applicant's difficulties in organising and preparing her application were manifest. It may be that the applicant's difficulties were understandable by reason of the difficulties which confront any litigant in person. But the applicant had been given a number of indulgences, and whatever the reasons for the delays which attended the prosecution of the application, the applicant's inability to progress her application in conformity with the orders of the Court and her obligations under r 5 of the Uniform Civil Procedure Rules 1999 (Qld) was clear. Furthermore, and most importantly, the undesirability of further delay in resolving the dispute concerning the custody of children was a consideration which weighed strongly against the grant of a further indulgence.7 There was simply no sufficient reason for the grant of a further indulgence to the applicant.8 Conclusion and order [21] The application for leave to appeal was incompetent. That application was rightly struck out. The application to review the order of the President of 3 April 2009 should be refused. [22] FRASER JA: I agree with the reasons of Keane JA and with the order proposed by his Honour. 7 See s 5(1) of the Act. 8 Cf Girando v Girando (1997) 18 WAR 450; Macchia v The Public Trustee (2008) 251 ALR 385 at 395 [37]. -- 6 of 6 --