FY & Anor v Department of Child Safety [2009] QCA 67

SUPREME COURT OF QUEENSLAND CITATION: FY & Anor v Dept of Child Safety [2009] QCA 67 PARTIES: FY (first appellant/first applicant) FZ (second appellant/second applicant) v DEPARTMENT OF CHILD SAFETY (first respondent/first respondent) LEGAL AID QUEENSLAND (separate representative/second respondent) FILE NO/S: Appeal No 359 of 2009 DC No 11 of 2008 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Civil) ORIGINATING COURT: Childrens Court at Ipswich DELIVERED ON: 24 March 2009 DELIVERED AT: Brisbane HEARING DATE: 11 March 2009 JUDGES: Keane and Muir JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. Notice of Appeal struck out 2. Application for leave to appeal refused CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – GENERALLY – where Child Protection Act 1999 (Qld) provides for right of appeal to Childrens Court constituted by a judge – where Child Protection Act 1999 (Qld) makes no provision for right of appeal or appeal by leave to Court of Appeal – where notice of appeal fails to disclose controversy as to rights or liabilities of parties – whether appeal lies from Childrens Court constituted by a judge to Court of Appeal FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – GENERALLY – where Department of Child Safety commenced proceedings for child protection order against applicants – where Childrens Court magistrate made interim custody order – where applicants appealed interim custody -- 1 of 7 -- 2 order to Childrens Court constituted by a judge – where applicants' standing to appeal challenged – where applicants adopted children from non-convention country – where recognition of adoption by Queensland law uncertain – where status of applicants as "parents" for the purposes of the Child Protection Act 1999 (Qld) uncertain – where interaction between definitions of "parent" and "party" as to standing uncertain – where arguments as to standing not ventilated at first instance or intermediate appellate court – whether necessary or appropriate to determine status of applicants for the purposes of child protection order proceedings Adoption of Children Act 1964 (Qld), s 28, s 37, s 37A, s 38 Child Protection Act 1999 (Qld), s 5, s 52, s 67, s 113, s 116, s 117, s 120 District Court of Queensland Act 1967 (Qld), s 118 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9, cited Cousins v HAL & Anor [2008] QCA 49, applied Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91, cited Fesolai v Department of Child Safety, unreported, Childrens Court of Queensland, Richards DCJ, 12 December 2008, considered KAA & Anor v Schemioneck & Anor (No 2) [2007] QCA 449, applied SBD v Chief Executive, Department of Child Safety [2008] 1 Qd R 474; [2007] QCA 318, applied COUNSEL: S L Kissick for the applicants K A Parrott (sol) for the first respondent J W Selfridge for the second respondent SOLICITORS: McMillan Kelly & Thomas Lawyers for the applicants Crown Solicitor for the first respondent Legal Aid Queensland for the second respondent [1] KEANE JA: On 30 June 2008 the Ipswich Childrens Court constituted by a Magistrate decided pursuant to s 67 of the Child Protection Act 1999 (Qld) that temporary custody of six children who had previously been in the custody of the applicants should be given to the Chief Executive of the Department of Child Safety. The temporary custody order was made in proceedings for a child protection order in respect of each of these children brought by the authorised delegate of the Chief Executive. The proceedings were brought because of a concern that the children were being physically abused by the applicants. The applicants are respondents to that proceeding. Two of the children are said to be the natural children of the applicants. The other four children are from Samoa and were adopted by the applicants in accordance with Samoan law. [2] The applicants appealed against the temporary custody order to the Childrens Court judge. This appeal was brought pursuant to s 117(1)(c) of the Child Protection Act. -- 2 of 7 -- 3 [3] The learned judge concluded that, so far as the four adopted children were concerned, the applicants did not have standing to appeal because neither of them was a "parent" within the meaning of s 117(3)(a) of the Child Protection Act. Her Honour was of the view that the Samoan adoptions are not recognised in Queensland law under s 37 or s 38 of the Adoption of Children Act 1964 (Qld). As a result, s 28 of the Adoption of Children Act did not operate to deem the applicants to be the mother and father of the children for the purposes of s 117(3)(a) of the Child Protection Act.1 [4] Her Honour went on to hold that, in any event, there was no merit in the applicants' appeal in relation to any of the children, natural or adopted, in that each child would be at an unacceptable risk of physical abuse if he or she was to be returned to the custody of the applicants. On that basis her Honour ordered that the appeal be dismissed. [5] The applicants filed a notice of appeal to this Court. They also filed an application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). The application for leave to appeal was filed on the basis that, if this Court were to reject the applicants' primary contention that an appeal lies to this Court as a matter of right from the decision of the Childrens Court constituted by a Judge, this Court should grant leave to appeal. [6] It is convenient to deal first with the question whether the applicants have an appeal to this Court as of right. An appeal as of right? [7] It is abundantly clear that this question must be resolved against the applicants. [8] The decision of the Childrens Court judge was a decision by that court as the "appellate court" for the purposes of s 117 of the Child Protection Act. The recent decisions of this Court in SBD v Chief Executive, Department of Child Safety2 and KAA & Anor v Schemioneck & Anor (No 2)3 establish that no appeal from the Childrens Court, constituted by a Judge, which is itself sitting as the appellate court, lies to this Court as of right.4 [9] On the authority of these decisions, it is clear that, even if the applicants had standing under s 117(1)(c) of the Child Protection Act to appeal against the original decision of the Ipswich Childrens Court to the Childrens Court judge, in respect of the adopted children, no appeal lies as of right to this Court from her Honour's decision. [10] On behalf of the applicants, reference is made to the observation in SBD5 that: "[t]he 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." 1 FY v Department of Child Safety, unreported, Childrens Court of Queensland, Richards DCJ, 12 December 2008 at [15] – [26]. 2 [2008] 1 Qd R 474 at [18] – [21]. 3 [2007] QCA 449 at [21]. 4 See also Cousins v HAL & Anor [2008] QCA 49 at 7 – 8. 5 [2008] 1 Qd R 474 at [19]. -- 3 of 7 -- 4 [11] On the basis of this observation, it is argued on the applicants' behalf that: "the part of the order of [the Judge] that is appealed against was first raised during the appeal by the Second Respondent: Therefore it is an appeal against a decision on an application for a child protection order and the appellate court is the Court of Appeal." (emphasis in original) [12] It is also said on the applicants' behalf that the proceedings before the learned judge were proceedings de novo in the Childrens Court rather than proceedings in the "appellate court" constituted by the Judge. [13] Neither of these contentions is even arguable. The only decision made by the judge was the decision to dismiss the applicants' appeal against the orders of the Ipswich Childrens Court. It is abundantly clear that that decision was not a decision on the application for a child protection order. And the proceedings before the Judge were undoubtedly heard and determined as an appeal from the Ipswich Childrens Court. The learned judge did not make an order under s 120(3) that "the appeal be heard afresh" and, even if she had, it would not follow that her Honour would have ceased to be the appellate court for the purposes of s 117 of the Child Protection Act. The suggestion that the matter proceeded in the original jurisdiction of the Childrens Court constituted by a judge is contradicted by the record of proceedings before the judge and the terms of the orders made by her Honour. Leave to appeal? [14] At the outset of the discussion of this issue, it is necessary to note that the respondents to this application argue that no appeal lies to this Court, even by leave, from a decision of the Childrens Court as the appellate court. There is much to be said in favour of this view.6 But it is unnecessary to decide this question because it is clear that, even if this Court has a discretion to grant leave to appeal under s 118(3) of the District Court of Queensland Act, this is not a case in which that discretion should be exercised in favour of the applicants. [15] In terms of the argument which was actually advanced to her Honour, there is no error to be corrected by the grant of leave even if the other difficulties with the application could be ignored. [16] At the highest for the applicants, the Samoan adoptions are recognised in New Zealand and New Zealand adoptions are recognised in Queensland, but to say that is distinctly not to say that Samoan adoptions are recognised in Queensland. In this regard, Pt 4, Div 1 of the Adoption of Children Act 1964 (Qld) deals with the recognition of interstate and foreign adoptions, and establishes a tripartite classification with respect to adoptions: Australian and New Zealand adoptions (s 37), adoptions granted in convention countries (s 37A), and adoptions granted in non-convention countries (s 38). An adoption will only be a New Zealand adoption where it involves "the adoption of a person … in accordance with the law of that … country"; that is, the adoption itself and not merely its recognition must accord with New Zealand law. The other two categories turn upon whether the subject country (in this case, the Independent State of Samoa) is an adherent to the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, made at the Hague on 29 May 1993. 6 See SBD v Chief Executive, Department of Child Safety [2008] 1 Qd R 474 at [17] – [19]; Cousins v HAL & Anor [2008] QCA 49 at 8 – 9. -- 4 of 7 -- 5 [17] Samoa is a non-convention country. Therefore, the applicants needed to satisfy the requirements in s 38 with respect to adoptions granted in non-convention countries in order for the putative adoptions to be recognised by the law of Queensland. The applicants were living in Queensland not in Samoa at the time of the putative adoptions, and so s 38(2)(b) was not satisfied. [18] There are, I think, even more powerful reasons to refuse leave to appeal. The only orders sought by the applicants on their proposed appeal (apart from an order relating to the costs of proceedings which can be ignored given that there is no provision for the award of costs under the Child Protection Act)7 are that the appeal be allowed and that it be "ordered" that the applicants are "parents" within the meaning of the Child Protection Act. [19] It is clear that there is no challenge to the conclusion of both courts below that the children would be at an unacceptable risk of harm if they were returned to the custody of the applicants; and no order is sought from this Court in relation to the disposition of the custody of any of the children. More importantly for present purposes, it is not suggested that, even if this Court were disposed to uphold the applicants' contention that they have standing as "parents" under the Child Protection Act in respect of their adopted children, some different order for the temporary custody of any of the children should be made by this Court. It is therefore apparent that the proposed appeal, even if successful, would not result in any variation to the orders made below. [20] Appeals can be brought only from orders of the court below; appeals do not lie against the reasons given by courts for making those orders.8 Further, while the issues sought to be agitated by way of appeal are plainly important, the fundamental business of the courts is to resolve controversies as to the rights and liabilities of litigants. In this case what is sought from this Court is in the nature of an advisory opinion which will not actually resolve the right to temporary custody of the children pending the determination of whether a child protection order should be made. This Court should not accept invitations to deliver hypothetical opinions about the reasons for decisions of inferior courts. Such a role does not accord with the modern understanding of the judicial function. As the High Court said in Bass v Permanent Trustee Co Ltd:9 "Courts have traditionally declined to … answer – preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred." [21] In this Court in oral submissions made on behalf of the applicants, it was argued that the question of the applicants' standing to appeal to the Childrens Court judge in this case is not a matter of only academic interest to the applicants because it may well have implications for their status as respondents to the Chief Executive's application for a child protection order. It emerged that the Chief Executive has 7 Section 116 of the Child Protection Act 1999 (Qld) states: "The parties to a proceeding in the Childrens Court for an order must pay their own costs of the proceeding." 8 Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64. 9 (1999) 198 CLR 334 at 356 – 358 [49]. -- 5 of 7 -- 6 brought an application to have the applicants removed as respondents to the child protection proceedings involving the adopted children. It appears that this application may have been prompted by the view of the Childrens Court judge that, because the applicants were not the "parents" of the adopted children for the purposes of the right of appeal conferred by s 117(1)(c) of the Child Protection Act, they were not "parents" for the purposes of the child protection proceedings commenced on behalf of the Chief Executive. [22] On the applicants' behalf it was urged that this Court should grant leave to appeal in order to pre-empt the pending application to remove them as respondents to the child protection proceeding. It was also urged that the applicants are indeed proper parties to the child protection proceedings because they are "persons … having guardianship of the [children] under a law of the State or another State" within s 52(c) of the Child Protection Act. [23] The legal representative of the Chief Executive who appeared on the hearing of the appeal was disposed to acknowledge that there is force in the argument that the applicants have guardianship of the children. This argument has not yet been considered, even indirectly, by either of the courts below. In that regard, it was not put to her Honour that the applicants' standing to appeal to her Honour could be sustained under s 117(3)(c) of the Act which is cast in similar terms to s 52(c) of the Child Protection Act. [24] In my respectful opinion, this Court should not accept the applicants' invitation to pre-empt the outcome of an argument which has not yet been put to, or considered by, the Childrens Court in respect of an application which is not before this Court and in respect of which discretionary considerations may loom large. For this Court to proceed otherwise would be inconsistent with its function as a court of appeal. That is a sufficient basis to refuse the application for leave to appeal. There are some further observations which I feel constrained to make by reason of the way this matter has proceeded in the courts below and in this Court. [25] It may be regrettable that no argument relying upon the applicants' guardianship was advanced to the Childrens Court judge. However that may be, as I have explained, the applicants were not prejudiced by the view of the Childrens Court judge that they lacked standing to appeal against the temporary custody order because her Honour dismissed their appeal on the merits, and it has not been suggested in this Court that this order was not rightly made. [26] That having been said, the applicants are understandably alarmed at the prospect that they will be removed as respondents to the child protection application. Their concern has no doubt been heightened by the suggestion that their removal as respondents to that application is supported by the view of the Childrens Court judge that they lacked standing to appeal to the appellate court under s 117 of the Child Protection Act. [27] It needs to be recognised that the learned Judge was not concerned to decide the question whether the applicants should be removed as respondents in the child protection proceedings. The applicants were joined as parties to that proceeding by the Chief Executive's delegate; their removal may involve matters of discretion. Relevantly in this regard, it appears to be conceded that the applicants would be -- 6 of 7 -- 7 entitled to be heard on the child protection order pursuant to s 113 of the Child Protection Act in any event. [28] It is abundantly clear that the Childrens Court judge was not concerned to address any such discretionary considerations. More importantly, as is now conceded by the Chief Executive's legal representative, there is a substantial argument that the applicants have guardianship of the adopted children and so are within the extended definition of "parent" in s 52(c) of the Child Protection Act. It is also abundantly clear that the learned Childrens Court Judge was not asked to consider the relevance of guardianship as a source of the applicant's standing to appeal under s 117(3)(c) of the Child Protection Act. This argument would have to be addressed before the occasion for the exercise of any discretion to remove the applicants as respondents to the child protection proceedings could arise. Conclusion and orders [29] In my respectful opinion, the appeal is clearly incompetent. Further, I consider that the Court should, in the exercise of its discretion, refuse leave to appeal. [30] It should not be thought, however, that these conclusions or the decision of the Childrens Court are apt to resolve the question, which has yet to be addressed, as to whether the applicants should be removed as respondents to the child protection proceedings. It may be that s 52(c) of the Child Protection Act does afford a sound basis for the applicants to remain respondents in the child protection proceedings in relation to the adopted children, and in any event there may be sound discretionary reasons to refuse to remove the applicants as respondents to that proceeding. It should also be said that, while the interests of the children must be the paramount consideration, the desirability of resolving the proceeding in a way which is fair to the applicants is not irrelevant as is apparent from s 5(2)(d) of the Child Protection Act. [31] It is, I think, important to emphasise that it is of the first importance that the child protection proceedings be resolved as soon as possible in the interests of the children. It is far from clear to me that the foreshadowed application on the part of the delegate of the Chief Executive for the removal of the applicants as respondents is likely to achieve that end. The interlocutory skirmishing in which the parties have thus far been engaged has been remarkable for the proliferation of half-baked arguments the consequences of which have not been thought through. It is to be hoped that all parties will bring a more responsible focus to bear on the further prosecution of these proceedings. [32] I would order that the notice of appeal be struck out and that the application for leave to appeal be refused. [33] MUIR JA: I agree with the reasons of Keane JA and with the orders he proposes. [34] DAUBNEY J: I agree entirely with the reasons for judgment of Keane JA, and with the orders he proposes. [35] I would only seek to emphasize my express concurrence with the observations made by Keane JA in the penultimate paragraph of his judgment. Section 5(1) of the Child Protection Act 1999 provides in terms that the Act “is to be administered under the principle that the welfare and best interests of a child are paramount.” I, too, exhort the parties to concentrate their minds on pursuing an expeditious resolution of the child protection proceedings, bearing in mind the paramountcy of the welfare and interests of these children. -- 7 of 7 --