F v Kefford & Anor [2004] QChC 1

CHILDRENS COURT OF QUEENSLAND CITATION: F v Kefford & Anor [2004] QChC 1 PARTIES: F Appellant v DELLENE KEFFORD First Respondent And KELLY McAULIFFE Second Respondent FILE NO/S: 580/04 DIVISION: Appellate Jurisdiction PROCEEDING: Application for an extension of time DELIVERED ON: 25 June 2004 DELIVERED AT: Brisbane HEARING DATE: 6 April 2004 JUDGE: Judge O’Brien ORDER: Application dismissed CATCHWORDS: APPEAL – APPLICATION FOR EXTENSION OF TIME – TEMPORARY ASSESSMENT ORDER – where applicant is natural father of child subject of order – where applicant alleges he was not given an opportunity to be heard – where applicant alleges failure to comply with s 32 – where order the subject of the appeal has expired Child Protection Act 1999, s 24, s 25, s 26, s 27, s 29, s 32, s 34, s 117, s 118, s 119, s 120, s 195 Pitman v State of Queensland (1999) 2 QR 71 COUNSEL: The applicant appeared on his own behalf Mr T Rynne for the 1st respondent Ms A Clarke for the 2nd respondent SOLICITORS: Crown Solicitor for the 1st respondent Queensland Police Service Solicitor for the 2nd respondent [1] This is an application for an extension of time within which to appeal against a Temporary Assessment Order made under the provisions of the Child Protection -- 1 of 7 -- 2 Act 1999 in the Childrens Court at Inala on 5 January 2004. The applicant is the natural father of the child in respect of whom the Temporary Assessment Order was made. The first respondent is a Family Services Officer employed by the Department of Communities who had made application for the order and the second respondent is a police officer who had provided information to the first respondent in support of the application. [2] Before considering the merits of the application it is necessary to make some reference to the legislation. Part 2 of the Child Protection Act 1999 (the Act) provides for the making of Temporary Assessment Orders. It would seem clear that the fundamental purpose of such an order is to facilitate an investigation to assess whether a child is in need of protection. A Temporary Assessment Order in respect of a child may be obtained on application to a magistrate pursuant to s 25 of the Act. A magistrate may decide such an application without notifying the child’s parents of the application or hearing them on the application (s 26). The order must state the time at which it comes to an end and, unless it is extended, cannot operate for a period of more than three days (ss 29 and 34). Section 32 requires that immediately after the order is made the applicant for the order must:- (a) give a copy of the order, or facsimile order or order form under s 30(6) to at least one of the child’s parents; and (b) explain the terms and effect of the order; and (c) inform the parent - (i) about the right of appeal; and (ii) that, because of the duration of the order, if the parent wishes to appeal against the order, an appeal should be started immediately; and (iii) how to appeal; and -- 2 of 7 -- 3 (d) tell the child about the order. [3] In these proceedings the applicant is self represented and his outline of argument contains a number of assertions of fact which, I am told by counsel for the respondents, would be the subject of challenge in the event that the applicant was successful in obtaining an extension of time in which to appeal. It would seem however that the background to the incident lies in a complaint made by the applicant’s daughter, L, that she had been sexually assaulted by the new partner of the applicant’s estranged wife. [4] There was apparently a counter-allegation that the complaint was a false one made at the instigation of the applicant. It is of course neither necessary nor appropriate in these proceedings to investigate the merits of these several allegations but it seems to have been against this background of parental separation and allegations of abuse that the present matter arose. The applicant certainly feels aggrieved by some conduct of the first respondent in relation to these matters which he alleges occurred at some time in October of 2003. [5] In any event there are certain events which do not appear to be significantly in dispute. It appears to be common ground firstly that the Temporary Assessment Order was granted on 5 January 2004 on the application of the first respondent. On the following morning, 6 January 2004, as appears from the applicant’s outline of argument, police officers approached the applicant and expressed a wish to speak to L. He was agreeable to that occurring and L then accompanied the officers to the Inala Juvenile Aid Bureau offices. The applicant maintains however that at about 12.15 pm he attempted without success to contact the police officers in relation to -- 3 of 7 -- 4 the whereabouts of his daughter. At about 3.45 pm he maintains that he received a telephone call from the second respondent asking him to come to the police station. These assertions are taken from the applicant’s outline of argument and as I have already indicated, counsel for the respondents indicate that many of these allegations are the subject of dispute. In any event it appears common ground that at about 4.20 pm L went home with the applicant. [6] The applicant appears to have two principal grounds for complaint. The first is that he was not given an opportunity to be heard when the application was made before the magistrate and the second concerns an alleged failure to comply with s 32 of the Act. [7] As to the first of these matters, s 24(2) envisages the making of a Temporary Assessment Order in circumstances where “the consent of a parent of the child to the actions has not been able to be obtained or it is not practicable to take steps to obtain the parent’s consent”. Further, s 27(2) provides that, in deciding the application “the magistrate must be satisfied reasonable steps have been taken to obtain the consent of at least one of the child’s parents to the doing of the things sought to be authorised under the order or it is not practicable to take steps to obtain the consent.” Counsel for the respondents do not concede any lack of proper compliance with these sections and this is no doubt a matter which might be the subject of argument if the application for the extension of time in which to appeal was successful. It should however be noted that s 26 expressly provides that the application may be decided without the child’s parents being notified of the application or being heard on the application. -- 4 of 7 -- 5 [8] As to the second matter raised by the applicant, there can be no doubt that s 32 is mandatory in its terms. Once the order is made then the applicant for the order must, subject to matters of the type set out in ss 195(3) and 195(4), comply with the requirements of the section. To deliberately ignore the duty imposed by the section would in my view represent a serious breach of duty by the authorised officer. That however is not to say that such conduct would necessarily render the making of the original order invalid. [9] Part 4 of Chapter 3 of the Act deals with appeals against Protection and Assessment orders. Pursuant to s 117(1)(c) the parent of a child has an entitlement to appeal against a decision for a Temporary Assessment Order. In the case of such an order the appeal lies to a Childrens Court constituted by a judge – see the definition of “appellant court” set out in Schedule 3 to the Act. The appeal is started by filing a written Notice of Appeal with the Registrar of the appellant court (s 118(1)). The Notice of Appeal must be filed within 28 days although the court has power to extend that period at any time (s 118(4)). Pursuant to s 119 the appellant court has power to stay a decision appealed against to secure the effectiveness of the appeal. An appeal is not restricted to the material before the Magistrate (s 120(1)). [10] In the present case the applicant had until 2 February 2004 to file a Notice of Appeal against the decision made on 5 January 2004 to grant the Temporary Assessment Order. No application to stay the order was ever made pursuant to s 119(1). In the absence of any extension the Temporary Assessment Order ended “not more than three days after the day the order is made” (s 29(2)). The Notice of Appeal in this matter was in fact not filed until 18 February 2004. -- 5 of 7 -- 6 [11] The result of this is that the order has now long since expired. In reality what the applicant seeks is an extension of time in which to appeal against a decision that no longer has any practical effect. [12] Mr Rynne who appears for the first respondent argues that on any view of the material the applicant was content for his daughter to go with the police officers on the morning of 6 January 2004. She was returned to his custody that same afternoon. Even if there has been some failure to comply with s 27 or s 32, which is not conceded, then the order has long since ceased to have any force or effect. Mr Rynne relies upon the following comments of Thomas J in Pitman v State of Queensland (1999) 2 QR 71 at 74:- “It does seem that time has overtaken any practical purpose in maintaining the first two applications, save of course for the satisfaction of the applicant in obtaining a declaration (if he was entitled to one) that the particular decisions were invalid. There may well be cases where a genuine benefit may be seen in setting aside a wrong decision even when its effect has ended or in eliminating an unfair matter of public record. If the intrinsic nature of the allegation is such that in the interests of justice they ought to be reviewed, then no doubt the court would proceed …. it should also be noted that a stay of the first and second applications for review will not deny the applicant any rights that he may have to bring a civil action for damages against named persons against whom defamation or misfeasance in public office is alleged, arising out of the same events as those referred to in all three application. In other words, there remain alternative avenues for the ventilation of the wrongs he claims to have suffered and for their compensation if he chooses to pursue them. What he will be denied by a stay of the first and second applications for review will be the special summary remedy provided under the Judicial Review Act which would quash two decisions which have already ceased to operate. In these circumstances I consider it appropriate to stay any further proceeding upon the first and second applications for review.” [13] In Pitman Thomas J was of course concerned with an application under the Judicial Review Act but in my view the principal to which his Honour was referring should have application to the circumstances of the present case. Here the period the -- 6 of 7 -- 7 subject of complaint occupied no more than a few hours and the order sought to be appealed against has long ceased to have any application. There is no demonstrated basis for a finding of error on the magistrate’s behalf and no detriment is pointed to as a consequence of the making of the order. There is no practical purpose to be served in a rehearing of an application for the Temporary Assessment Order. [14] In these circumstances, the application for an extension of time in which to appeal should be dismissed. -- 7 of 7 --