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PAV v Director of Child Protection Litigation[2016] QCA 234

PAV v Director of Child Protection Litigation[2016] QCA 234

 

COURT OF APPEAL

 

PHILIP McMURDO JA

 

Appeal No 9378 of 2016

DC No 3576 of 2016

  

PAVApplicant

 

v

 

DIRECTOR OF CHILD PROTECTION LITIGATION

HG

CDRespondents

 

BRISBANE

 

WEDNESDAY, 14 SEPTEMBER 2016

 

JUDGMENT

 

PHILIP McMURDO JA:  There are two applications before this Court seeking stays of orders made in the Childrens Court last Friday, 9 September.  The Director of Child Protection Litigation brought proceedings in the Childrens Court seeking child protection orders.  The Childrens Court, constituted by a Magistrate, was asked to order that the Director be given temporary custody of the children.  They are the children of the present applicant.  On 30 August 2016 the Magistrate declined to do so.  The director appealed against those decisions (there being a separate proceeding for each of the applicant’s children).  The appeal was under s 117 of the Child Protection Act 1999.  By s 117(1) there was a right of appeal to “the appellate court”, against those decisions because they were decisions on an application for temporary custody orders.  The term “appellate court” is defined by schedule 3 of the Child Protection Act to mean:

“(a)for a decision on an application for a court assessment order or child protection order, or for an order transferring a child protection order or child protection proceeding to a participating State––

(1)if the decision was made by the Childrens Court constituted by a Judge––the Court of Appeal; or

(2)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 or temporary custody order––the Childrens Court constituted by a judge.”

On 9 September the Childrens Court constituted by a judge – Judge Dearden – set aside those decisions of 30 August and ordered that interim custody of each of the children be granted to the chief executive for a certain period.  The Court made further orders to the effect that the present applicant have no contact with the children during that period.  The applicant wishes to appeal against the orders of 9 September.  She applies today to the Court of Appeal for a stay of those orders pending a proposed appeal to this Court.  However, an appeal does not lie to this Court in the circumstances as I have summarised them.  That is because in these circumstances the Court of Appeal is not an “appellate court” within that definition.

It is true that the proposed appeals are against decisions of the Childrens Court constituted by a judge, but it has been consistently held that subparagraph (1) of paragraph (a) of the definition refers to a decision made by the Childrens Court constituted by a judge which was in the nature of the original decision of the court and not a decision made by the Childrens Court constituted by a judge exercising its appellate jurisdiction: see SBD v Chief Executive, Department of Child Safety [2008] 1 Qd R 474; [2007] QCA 318; CAO v Department of Child Safety & Ors [2009] QCA 169; CAR & Anor v Department of Child Safety [2011] 2 Qd R 70; [2010] QCA 27 and FY & Anor v Department of Child Safety [2009] QCA 67.

It may be added that no appeal lies to this Court under s 118(3) of the District Court of Queensland Act 1967 (Qld) in the present circumstances because here the orders were not made by the District Court, but by the Childrens Court and the fact that the Childrens Court is constituted by a judge commissioned as a District Court judge does not alter the fact that the courts are distinct: see for example Cousins v HAL [2008] QCA 49.

It follows that no appeal lies to this Court against the orders made last Friday.  The Court’s power to stay the operation of those orders could derive only from a jurisdiction to hear an appeal from those orders.  Therefore the Court of Appeal has no power to stay the operation of the orders and the present applications must be dismissed.

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Editorial Notes

  • Published Case Name:

    PAV v Director of Child Protection Litigation

  • Shortened Case Name:

    PAV v Director of Child Protection Litigation

  • MNC:

    [2016] QCA 234

  • Court:

    QCA

  • Judge(s):

    McMurdo JA

  • Date:

    14 Sep 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment(No citation)30 Aug 2016The Childrens Court, constituted by a Magistrate, was asked to order that the Director of Child Protection Litigation be given temporary custody of two children. Application refused.
Primary JudgmentDC3576/16 (no citation)09 Sep 2016Appeal under s 117 of the Child Protection Act 1999 from the decision of the Childrens Court on 30 August 2016. Appeal to the Childrens Court constituted by a judge ordering that interim custody of each of the children be granted to the chief executive for a certain period: Dearden DCJ.
QCA Interlocutory Judgment[2016] QCA 23414 Sep 2016Applications seeking stays of orders made in the Childrens Court on 9 September 2016 dismissed: Philip McMurdo JA.

Appeal Status

No Status

Cases Cited

Case NameFull CitationFrequency
CAO v Department of Child Safety [2009] QCA 169
1 citation
CAR v Department of Child Safety[2011] 2 Qd R 70; [2010] QCA 27
2 citations
Cousins v HAL [2008] QCA 49
1 citation
FY v Department of Child Safety [2009] QCA 67
1 citation
SBD v Chief Executive, Department of Child Safety[2008] 1 Qd R 474; [2007] QCA 318
2 citations

Cases Citing

Case NameFull CitationFrequency
PAV v Director of Child Protection Litigation [2017] QCA 971 citation
PAV v Director of Child Protection Litigation [2016] QCA 2711 citation
STC v The Director of Child Protection Litigation [2016] QCHC 192 citations
1

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