SBD v Chief Executive, Department of Child Safety
[2007] QCA 318
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- SBD v Chief Executive, Department of Child Safety[2007] QCA 318
- Add to List
SBD v Chief Executive, Department of Child Safety[2007] QCA 318
Reported at [2008] 1 Qd R 474
SBD v Chief Executive, Department of Child Safety[2007] QCA 318
Reported at [2008] 1 Qd R 474
SUPREME COURT OF QUEENSLAND
PARTIES: | SBD (respondent) |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Application for Leave s 118 DCA (Civil) Miscellaneous Application - Civil Application for Stay of Execution |
ORIGINATING COURT: | |
DELIVERED ON: | 2 October 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 September 2007 |
JUDGES: | Keane and Muir JJA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal refused |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATED TO CARE AND PROTECTION – JURISDICTION OF COURTS – where Childrens Court constituted by a magistrate made orders and issued warrants in relation to applicant's child – where applicant appealed to Childrens Court constituted by a judge – whether applicant may appeal from that decision to this Court –where applicant asserts she and child were outside jurisdiction when orders made and were not served with process – whether Childrens Court had jurisdiction to make orders Child Protection Act 1999 (Qld), s 14, s 24, s 27, s 53, s 56, s 58, s 117 District Court of Queensland Act 1967 (Qld), s 118(3) Laurie v Carroll (1958) 98 CLR 310, considered McManus v Clouter (No 2) (1980) 29 ALR 101, applied Re P (G E) (An Infant) [1965] Ch 568, applied |
COUNSEL: | H A Scott-Mackenzie RFD for the applicant K Carmody for the respondent D C Spence intervening on behalf of the child |
SOLICITORS: | Mylne Lawyers for the applicant Crown Law for the respondent Dooley Solicitors intervening on behalf of the child |
[1] KEANE JA: The child was born on 4 February 1999. The applicant is his mother. Between 1999 and 2004, the respondent had been notified on several occasions of allegations as to the applicant's failure properly to care for the child. According to the respondent, at 3.45 am on 3 November 2006, the child was found by police wandering alone along the Gold Coast Highway looking for the applicant; the child told police that he was starving and could not remember when he had last eaten anything.
[2] On 3 November 2006, the Childrens Court constituted by a magistrate made a temporary assessment order in respect of the child pursuant to s 27(2) of the Child Protection Act 1999 (Qld) ("the Act"). On 7 November 2006, a court assessment order was made pursuant to s 44 of the Act. This order was extended on 5 December 2006, and was due to expire on 22 December 2006. On 22 December 2006, a further temporary assessment order was made.
[3] On 23 December 2006, an application for a child protection order was filed in the Childrens Court constituted by a magistrate pursuant to s 54 of the Act. This application was made returnable on 2 January 2007.
[4] The application for the child protection order was served on the applicant on 27 December 2006 pursuant to s 56(2) of the Act by leaving it at the applicant's address last known to the respondent. It is the applicant's contention that she and the child were at that time in New South Wales.
[5] On 2 January 2007, the Childrens Court adjourned the respondent's application for a child protection order to 30 January 2007 and made interim orders pursuant to s 67 of the Act granting temporary custody of the child to the respondent and limiting the applicant's access to the child. On this occasion, the applicant was not present, but she was represented by a solicitor who appeared to protest that the Childrens Court had no jurisdiction, asserting that the applicant and the child were in New South Wales and were not amenable to the jurisdiction of the Childrens Court. No evidence was placed before the Childrens Court on this occasion to establish that the child and the applicant had actually left Queensland, and, if they had left Queensland, when that had occurred.
[6] In this Court, the applicant asserts that she and the child were in New South Wales on or after 23 December 2006. On this basis, it is said that the Childrens Court had no jurisdiction in respect of the child, and that the orders of the Childrens Court and the warrants issued were invalid.
[7] On 15 January 2007, the Childrens Court issued a warrant pursuant to s 172 of the Act for the apprehension of the child, relying on the interim custody order of 2 January 2007. The warrant was not executed: it appears that the applicant and the child were in New South Wales.
[8] In May 2007, the applicant reported to police that the child was missing. The child was apprehended in New South Wales on 4 May 2007, pursuant to a warrant issued on 3 May 2007. The child was returned to Queensland to the custody of the respondent.
[9] After the child was returned to Queensland, on 15 May 2007 the Childrens Court made a fresh interim order pursuant to s 67 of the Act giving custody of the child to the respondent and limiting the applicant's access to the child. There has been no appeal against this order or against the subsequent orders by which the interim position has been preserved from time to time pending the final hearing of the child protection application. This Court was informed that this hearing has been set down in the second week of October.
The appeal to the Childrens Court constituted by a judge
[10] Pursuant to s 117 of the Act, the applicant appealed against the orders of the Childrens Court of 22 December 2006, 2 January 2007, 15 January 2007 and 3 May 2007. The Childrens Court constituted by a judge of the District Court heard the appeal on 9 May 2007 and gave judgment in the appeal on 15 May 2007. The appeal was partially successful, in that it resulted in the setting aside of the temporary assessment order of 22 December 2006.
[11] To the extent that the applicant did not enjoy complete success in her appeal to the Childrens Court constituted by a judge of the District Court, she now seeks to appeal against that decision to this Court on the footing that the learned judge failed to appreciate that the Childrens Court had no jurisdiction to make the orders of 2 January 2007, 15 January 2007 and 3 May 2007. The applicant's argument is that the learned judge of the Childrens Court erred in concluding, as his Honour did, that the applicant had been personally served within Queensland with the application for a child protection order on 27 December 2006. It was common ground in this Court that the applicant was not personally served with the child protection application on that date.
The application to this Court
[12] The applicant seeks an extension of time to appeal because her notice of appeal to this Court was filed out of time. The delay was said to be due to difficulties in arranging legal aid for advice and representation. If the question were simply whether an extension of time should be granted to overcome difficulties experienced by the applicant in arranging legal advice and representation, there would be little that could usefully be said against granting the extension of time sought by the applicant. As the respondent points out, however, the position is not so simple.
Leave to appeal
[13] Under s 117(2) of the 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 leave pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). 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".
[14] 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."
[15] 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."
[16] The respondent's submission is that when the Childrens Court which determines an application for a court assessment order or a child protection order is constituted by a judge, an appeal to this Court lies as of right; but when a decision on such an application is made by the Childrens Court constituted by a magistrate, the appeal lies to a judge of the District Court, and no further appeal is provided by the Act. According to the respondent, the only arguable further avenue of appeal to this Court is that provided by s 118(3) of the District Court of Queensland Act.
[17] 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; indeed, counsel for the applicant advanced just that argument. But even if one assumes that this argument is resolved in favour of the view that s 118(3) does provide an avenue of appeal from the Childrens Court constituted by a judge, according to the respondent's submission, that appeal does not lie as of right.
[18] In my respectful opinion, the respondent's submission must be accepted. Rights of appeal are, of course, entirely the creature of statute.[1] 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.
[19] 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, 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.
[20] The applicant also sought to base her claimed right of appeal upon s 254 of the Supreme Court Act 1995 (Qld). This provision creates a right of appeal to this Court from any decision of "a judge in court". This submission fails to recognise that the reference in s 254 of the Supreme Court Act to "a judge in court" is to a judge of the Supreme Court. That is so because the Supreme Court Act does not deal with any other kind of judge.
[21] Accordingly, at best for the applicant, an appeal to this Court lies only by a grant of leave. I should say here that if it is the intention of the legislature that there should be no further appeal, even by way of leave under s 118(3) of the District Court of Queensland Act from the appellate court being the Childrens Court constituted by a judge, then it would be desirable for the position to be put beyond doubt by the legislature.
Should leave to appeal be granted?
[22] It is well-settled that leave to appeal to this Court pursuant to s 118(3) of the District Court of Queensland Act will usually be granted only where there is a reasonable argument that the decision sought to be challenged is wrong and that the correction of that error will correct a substantial injustice to the applicant for leave to appeal.[2] I will consider first the utility of the proposed appeal and then whether it is reasonably arguable.
The utility of the proposed appeal
[23] The child is currently in the custody of the respondent and the applicant's access to him restricted, not by virtue of any of the orders considered on appeal by the Childrens Court constituted by the District Court judge in its judgment of 15 May 2007, but by reason of the fresh order of the Childrens Court also made on 15 May 2007. There has been, as I have said, no appeal against that order or the orders whereby its effect has been extended.
[24] In the course of argument in this Court, counsel for the applicant argued that, if the orders sought to be appealed were set aside, the orders made by the Childrens Court constituted by a magistrate on 15 May and thereafter "fall away" even though there has been no appeal against those orders. In my opinion, these later orders are not subject to collateral attack in this way.[3] It is undisputed that, when these subsequent orders were made, the child was present in Queensland. Whether or not that situation was the consequence of an earlier unlawful apprehension of the child, the fact remains that the child was present in Queensland when those orders were made. In my opinion, the jurisdiction of the Childrens Court is clearly established by the presence in Queensland of a child arguably in need of protection, in that the child was in Queensland when these orders were made.
[25] Accordingly, even if the arguments concerning the jurisdiction of the Childrens Court to make the orders of 2 January, 15 January and 3 May 2007 which the applicant seeks to agitate in the proposed appeal to this Court were successful, that would not alter the position that the child would lawfully remain under protection in the custody of the respondent by virtue of the unchallenged order of the Childrens Court of 15 May 2007. Put shortly, the grant of leave to appeal would not alter the custodial or access rights of the applicant in respect of the child. It would be devoid of utility.
Is the proposed appeal arguable?
[26] I consider that the arguments advanced by the applicant do not have sufficient prospects of success to warrant the grant of leave to appeal. Insofar as the substance of the applicant's argument is that, because she and the child were outside Queensland when the application for a child protection order was made, and that, as a result, the Childrens Court had no jurisdiction to entertain that application, the first difficulty which confronts the applicant is that there was simply no evidence at either stage before the Childrens Court that the child was not in Queensland when the child protection proceeding was commenced on 23 December 2006. Until that date it was common ground that the child was in Queensland. There was simply no issue raised as to whether the child was in Queensland when the proceedings were commenced. In my opinion, there was a sufficient basis to found the jurisdiction of the Childrens Court.[4]
[27] Even if the child were not in Queensland at the moment the application for the child protection order was made on 23 December 2006, I consider that the Childrens Court had jurisdiction to entertain the application.
[28] The avowed purpose of the Act is "to provide for the protection of children".[5] A child in need of protection is defined by s 10 of the Act to be:
"a child who—
(a) has suffered harm, is suffering harm, or is at unacceptable risk of suffering harm; and
(b) does not have a parent able and willing to protect the child from the harm."
[29] Insofar as it is necessary to read down the general words of the Act to ensure a sufficient connection to Queensland to preserve its constitutional validity, sufficient connection exists where a child has suffered harm while he has been resident in Queensland or is at risk of suffering harm in Queensland having regard to his usual residence in Queensland. The provisions of the Act show that the purview of the Act and the associated jurisdiction of the Childrens Court are at least this broad.
[30] The notion of protection includes protection from harm as well as the provision of care for the child;[6] "protection, of a child, includes care of the child". The investigative powers of the respondent arise where the respondent becomes "aware … of alleged harm or alleged risk of harm to a child and reasonably suspects the child is in need of protection".[7] A temporary assessment order:
"is made to authorise actions necessary as part of an investigation to assess whether a child is in need of protection, if 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."[8]
[31] A magistrate may make a temporary assessment order for the child only if the magistrate is satisfied that "an investigation is necessary to assess whether the child is in need of protection; and the investigation cannot be properly carried out unless the order is made".[9] A child protection order is made "to ensure the protection of a child the Childrens Court decides is a child in need of protection."[10] It is clear that such an order may be made in the absence of the child's parents and even if they have not been served with process.[11]
[32] These provisions afford, in my respectful opinion, a clear indication that the purposes of the Act, and the related jurisdiction of the Childrens Court, cannot be defeated by the mere assertion that a child, who has habitually resided in the State, has been removed permanently from the State. A child who is within the purview of the Act as a child in need of protection because of harm which has occurred, or may occur, in Queensland, cannot be denied that protection merely by the removal of the child from the State. I do not presume to prejudge the merits of the application for a child protection order in this case; but it must be understood that the Act cannot responsibly be read down so as to allow exposure of a child to harm to continue in cases where a child is taken out of the State by the very person who is responsible for the harm suffered by the child. Whether a child is within the purview of the Act depends on whether the child has been harmed in Queensland, or is at risk of harm in Queensland.
[33] The applicant seeks to rely on the principle of the common law, confirmed in Laurie v Carroll,[12] that the jurisdiction of a court to entertain an action in personam against a defendant usually depends on the service of proceedings on the defendant within the jurisdiction.
[34] It is to be emphasised that Laurie v Carroll, and the rule there confirmed, is concerned with the concept of jurisdiction over a defendant to a civil claim. In proceedings of the kind contemplated by the Act, this concept and the rule relating to it has no place. One cannot sensibly speak of the child as a defendant. It was established more than 40 years ago by the decision of the Court of Appeal of England and Wales in Re P (G E) (An Infant)[13] that under the general law a court having equitable jurisdiction may make an order for the custody and maintenance of a child who is ordinarily resident within the State even though the child is for the time being absent when proceedings are commenced.
[35] There is no reason apparent from the language or subject matter of the Act to attribute to the legislature an intention that the scope of protection exercisable by the Childrens Court in respect of children in need of protection should be less than that which has long been recognised as inhering in courts of chancery.[14] Even if the child in this case was not in Queensland when the application for the child protection order was filed, he was undeniably ordinarily resident here at that time. Additionally, the investigative processes of the Act had been engaged to determine whether his circumstances were such as to require the making of a child protection order. The circumstances which gave rise to what was at least an arguable need for a child protection order occurred here. It should be noted that s 60 of the Act, to remove doubt, declares that:
"the Childrens Court may make a child protection order even if the events causing the child to be a child in need of protection happened outside Queensland, or partly in Queensland and partly outside Queensland."
[36] The applicant also relies on the rule in Laurie v Carroll to argue that the applicant and the child's father were not served in Queensland with the application for the child protection order, and, therefore, the Childrens Court had no jurisdiction to make the orders the subject of this application. While the parents of a child said to be in need of protection are proper "respondents" to an application for a child protection order, it is something of a stretch of language to describe them as defendants within the rule in Laurie v Carroll. The applicant relies, in particular, on the provisions of s 56 and s 58 of the Act. Section 56(1) provides that "as soon as practicable after the application is filed, the applicant must–(a) personally serve a copy of it on each of the child's parents …"
[37] Section 58(1) provides that the Childrens Court:
"may hear and decide the application in the absence of the child's parents only if:
(a)the parents have been given reasonable notice of the hearing and fail to attend or continue to attend the hearing; or
(b)it is satisfied it was not practicable to give the parents notice of the hearing."
[38] These provisions, and especially s 58, clearly postulate a jurisdiction in the Childrens Court which, though its exercise is regulated by these statutory provisions, arises independently of compliance with them. These provisions clearly contemplate that the jurisdiction of the Childrens Court may be exercised, in some circumstances, without the child's parents being served with proceedings or even being given notice of them. That this should be so is hardly surprising. While the Act recognises and seeks to accommodate parental rights of custody and guardianship, the subject matter of the Act is children in need of protection. That need may, and often will, arise because of the unwillingness or inability of a parent to care for the child. It is not to be supposed that the protection conferred by the Act is to be denied to an abandoned child because the child's parents cannot be served with proceedings.
[39] So far as the failure to serve the applicant while she was in Queensland is concerned, in my respectful opinion, the applicant was served effectively pursuant to s 56(2) of the Act which provides:
"… if it is not practicable to serve the copy [of the application] personally, a copy of the application may be served on a parent by leaving it at, or by sending it by post to, the parent's residential address last known to the applicant."
[40] In this Court, it was accepted on the applicant's behalf that the application for the child protection order was left at her residential address in Queensland last known to the respondent. It was argued, however, that this service was not effective to give the Childrens Court jurisdiction because the applicant was not served while she was present in Queensland. This argument fails to recognise that the provisions of s 56 and s 58 are not concerned with the conferral of jurisdiction on the Childrens Court, but with the way in which that jurisdiction is exercised, and, in particular, with the need to accommodate the interests of, and accord procedural fairness to, the parents of a child in respect of whom an application for a child protection order is made.
[41] So far as the failure to serve the child's father with a copy of the child protection application is concerned, this point was not raised at any stage of the proceedings prior to oral argument in this Court. The applicant cannot seek to raise this argument now when, if it had been raised earlier, it might have been met by evidence from the respondent to show that it was neither practicable to serve a copy of the application on the child's father for the purposes of s 56, or to give him notice of the hearing for the purposes of s 58 of the Act.[15]
Parens patriae
[42] Finally, it should be said that the paramount concern in all proceedings under the Act must be "the welfare and best interests of the child".[16] In the present case, the appeal to this Court, which the applicant seeks to pursue, is concerned solely with questions relating to the jurisdiction of the Childrens Court to make the orders of December 2006, January and May 2007. There is no suggestion that the decisions which were made were not, at least arguably, for the welfare and best interests of the child. It is true that, if the jurisdictional points which the applicant seeks to argue were determined in her favour, there would be no occasion to decide the merits of the existing court-imposed arrangements for protection of the child. The point here, however, is that, even if the present case be viewed as an exception to the rule which usually governs the grant of leave to appeal, or if the parens patriae jurisdiction of the Supreme Court survives the enactment of the Act,[17] there is no reason on the material before this Court why this Court should, either by a grant of leave to appeal, or of its own motion, be concerned that the welfare and best interests of the child require that he should be returned forthwith to the applicant's custody pending the final hearing of the respondent's application for a child protection order.
Conclusion and order
[43] I consider that there is no good reason to grant the applicant leave to appeal in this matter. Success in the appeal would have no real utility; and, in any event, the arguments which the applicant would seek to agitate on appeal are without substance.
[44] The application for leave to appeal should be refused.
[45] MUIR JA: I agree with the reasons of Keane JA and with his proposed order.
[46] LYONS J: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the reasons and the order proposed by Keane JA.
Footnotes
[1] Attorney-General v Sillem (1864) 10 HLC 704 at 720-721; 11 ER 1200 at 1207 – 1208; South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523 at 533.
[2] Pickering v McArthur [2005] QCA 294 at [3].
[3] Craig v South Australia (1994) 184 CLR 163.
[4] See McManus v Clouter (No 2) (1980) 29 ALR 101.
[5] Section 4.
[6] Schedule 3.
[7] Section 14(1).
[8] Section 24(1).
[9] Section 27(1).
[10] Section 53(2).
[11] Section 58.
[12] (1958) 98 CLR 310 at 323 - 324.
[13] [1965] Ch 568 at 585.
[14] Cf Hope v Hope (1854) 43 ER 534 at 540 – 541; McManus v Clouter (No 2) (1980) 29 ALR 101 at 113 – 115.
[15] Coulton v Holcombe (1986) 162 CLR 1 at 7 – 9.
[16] Section 5(1) or s 104 of the Act.
[17] Cf Carseldine v Director of Department of Childrens Services (1974) 133 CLR 345 at 348, 351 – 353, 359, 365 – 366; Christensen v Christensen CA No 5239 of 1998; R v NG [2007] 1 Qd R 37 at [62]; [2006] QCA 218 at [62].