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  • Unreported Judgment

KAA v Schemioneck

 

[2007] QCA 403

 

COURT OF APPEAL

 

McMURDO P

MUIR JA

DAUBNEY J

 

Appeal No 3908 of 2007

Appeal No 3909 of 2007

Appeal No 4087 of 2007

 

KAAFirst Appellant/First Applicant

&

KABSecond Appellant/Second Applicant

v

MAGISTRATE SCHEMIONECKFirst Respondent

&

DEPARTMENT OF CHILD SAFETYSecond Respondent

 

BRISBANE 

 

DATE 13/11/2007

 

JUDGMENT

 

FIRST APPLICANT conducted his own case and on behalf of the second applicant

 

No appearance by the second applicant

 

MR H A SCOTT-MACKENZIE (instructed by the Crown Solicitor) for the respondent

  

McMURDO P:  The applicants in what are really three applications, three related applications to this Court, are asking today for an adjournment of the hearing of those applications sine die, that is indefinitely.

The applicant, Mr KAA, is self representing himself and he states he has his wife's instructions, Ms KAB, to appear also on her behalf today, although she has not attended Court.

The applications are, effectively, for leave to appeal from orders made by District Court Judges sitting in the Childrens Court in that Court's appellate jurisdiction concerning an order of a Childrens Court Magistrate made under section 61 Child Protection Act 1999 (Qld) in July 2006.

The order made was a child protection order giving long term guardianship of the child to the Chief Executive of the respondent.

I note that it is by no means clear that there is even a right to apply for leave to appeal to this Court in these matters.  See SBD v Chief Executive, Department of Child Safety [2007] QCA 318.

The applications to this Court were filed in May this year.  They have been listed since 21 September 2007 for hearing today.  The applicants have not been active or helpful in progressing the matter for hearing.  The material has been prepared by the Registry.

The applicants have indicated for some time to officers in the Court of Appeal Registry that they were unhappy about today's listing and that they would be seeking an indefinite adjournment of it.

Yesterday, they faxed material to the Registry which stated that they were unwell and impecunious.  The material included faxed medical certificates.  The Court asked Mr KAA today if he had and wished to tender the original medical certificates but he stated he did not have them with him.

Mr KAA claims that both he and his wife are unwell and it will be difficult for them to conduct the case for health reasons if it is to proceed today.  They further claim they are not ready to argue their case today because they are pursuing many other avenues of litigation in other States.

They claim they are seeking material under Freedom of Information statutes in Queensland and other jurisdictions and that they need time to get that material and to collate it.  They also claim they are applying for assistance from QPILCH and Legal Aid.  But when questioned about this matter Mr KAA stated that he had not yet put in an application for Legal Aid.  Nor did he place any material before this Court to suggest that he had any real prospects of obtaining assistance from Legal Aid or QPILCH.

I note that the applicants' proposed notices of appeal and other material in the record books presently before this Court do contain detailed submissions on behalf of the applicants.  The material in their record books already amounts to almost 1,250 pages.

This matter already has a long history of many adjournments.  The child, the subject of the original order made by the Childrens Court Magistrate, R, was born in 2005 and he was taken into custody at his birth.

Later in 2005 the respondent filed a child protection order.  The hearing of that application was adjourned until December 2005 when it was adjourned again at the request of the applicants until February 2006.  The reason for the adjournment was because of health problems of the applicants and their request that they wished to obtain further material.

The hearing was adjourned again in February 2006 and was finally heard on the 7th of July 2006.

The appeals from that matter before District Court Judges sitting as the Childrens Court also have a long history of adjournments at the request of the applicant for health reasons and to obtain further material.

Counsel on behalf of the respondent emphasises the well established principle concerning the law relating to children that legal matters concerning the children should be heard and determined as soon as possible.  That well established principle has particular relevance in this case because it may be that the child R, the subject of these applications, may travel to Western Australia to reside with his two older siblings, who are residing there with a carer, once these applications are finally determined.

The applicants have had since July 2006 to get together any further material relevant to the impugned order.

After carefully listening to the many matters raised by Mr KAA, I am in the end not persuaded that anything useful could be obtained on his behalf to assist him in these applications by the indefinite adjournment he requests.

I note that if the applicants do eventually obtain material that would assist them in gaining custody of their child R they could apply at any time under section 65 of the Child Protection Act to vary or revoke the original order.  Not only does it seem that nothing would be gained in terms of furthering the applicants' position in these applications if the adjournment that they seek were granted, but there would be a significant disadvantage to the respondent and the position of the child R.

The well established principle that matters concerning children should be heard and determined as soon as possible has particular relevance in this case because a decision may need to be made as to whether R is to join his older siblings in Western Australia, and that will not apparently be made until these applications are finally determined.

Weighing up the competing considerations, I am finally satisfied that the interests of justice in this case are best served by refusing Mr KAA's application to adjourn the hearing of the present matters.  That is the order I would make.

I would refuse the adjournment.

MUIR JA:  I agree.  There is a pattern of the applicants not facing up to the need to present their case at hearings of which they have had ample notice.  The applicants have shown little inclination to prepare these applications for hearing.  Indeed, Mr KAA said at one stage this morning that he wanted the matter adjourned indefinitely.  There is no reason to suppose that if the applications were adjourned the applicants would be in a better position to argue their cases when they finally came on for hearing.

DAUBNEY J:  I wish to add only one matter if for no other reason than to correct a misapprehension under which Mr KAA appears to have been operating this morning in the course of his submissions to us.

Mr KAA urged that the applications be adjourned indefinitely asserting to the effect that as applicants they were entitled to have the matter sent off indefinitely.  The notion that applicants can dictate the course of procedure before this Court is incorrect and, indeed, directly contrary to the philosophy under which Court proceedings are conducted in this State.

Indeed, rule 5(3) of the Uniform Civil Procedure Rules expressly makes the applicants subject to an implied undertaking to this Court and the other parties to proceed in an expeditious way.  Accordingly, to the extent that Mr and Mrs KAA were under the impression that, as applicants, they were entitled to an indefinite adjournment, that, as I have said, is a misapprehension.  Otherwise, I agree with everything said by The President and Justice Muir and concur in the orders proposed.

McMURDO P:  The order is the application for an adjournment is refused.

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Editorial Notes

  • Published Case Name:

    KAA & KAB v Schemioneck & Anor

  • Shortened Case Name:

    KAA v Schemioneck

  • MNC:

    [2007] QCA 403

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Muir JA, Daubney J

  • Date:

    13 Nov 2007

Litigation History

No Litigation History

Appeal Status

No Status