PAV v Director of Child Protection Litigation
[2017] QCA 97
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- Unreported Judgment
- Appeal Determined (QCA)
- PAV v Director of Child Protection Litigation[2017] QCA 97
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PAV v Director of Child Protection Litigation[2017] QCA 97
PAV v Director of Child Protection Litigation[2017] QCA 97
COURT OF APPEAL
MORRISON JA
Appeal No 4326 of 2017
SC No 3456 of 2017
PAV Appellant
v
DIRECTOR OF CHILD PROTECTION
LITIGATION First Respondent
HG Second Respondent
BRISBANE
MONDAY, 22 MAY 2017
JUDGMENT
- MORRISON JA: On 20 April 2017, the applicant brought an application before Mullins J seeking two forms of relief:
- to cross-vest a proceeding in the Children’s Court to the Federal Circuit Court of Australia; and
- a form of declaration of the application before the Children’s Court was incompetent.
- There is no need to set out an extensive synopsis of the factual background to the application. In short, the applicant’s children were the subject of an order in the Federal Circuit Court in favour of the applicant; however, the Director of Child Protection subsequently made an interim order, placing the children with their father. The applicant contends that the power to make that order was inappropriately exercised and without jurisdiction.
- A contested hearing is scheduled to commence in the Children’s Court on 22 May and run for five days. That is to say, it is intended to start today. That hearing is intended to determine whether the applicant’s children are at risk of harm. Witnesses at that hearing will include, no doubt, departmental officers and psychologists.
- Justice Mullins gave two reasons for dismissing the application.
- The first was that there was no pending proceeding in the Supreme Court that could be the subject of the cross-vesting application. In the absence of a pending proceeding, there was no jurisdiction in the court to make the order sought. The applicant’s contention that the Children’s Court was a specialist Court as part of the Supreme Court should be rejected. It should also be rejected insofar as it contends that the Children’s Court is a specialist Court as part of the District Court.
- The second was that, even if there was a discretion to be exercised, it would be exercised against the grant of relief because of the advanced state of the pending hearing. Her Honour said that those proceedings were to determine substantive rights between the various parties and she would be reluctant to intervene in that process.
- No notice of appeal has been filed challenging the decision below. Instead, on 2 May 2017, an application to this Court was filed, seeking the following relief:
- that the orders made on 20 April be set aside; and
- “Grant leave for the application to be heard in the grounds of cross-vesting and jurisdiction of the Childrens Court to hear an application for child protection orders based on allegations of parental alienation made by the father against the mother being directly related to Family Law matters and existing parenting orders made in the Federal Circuit Court by Judge Lapthorn (18 JUN 2015)”.
- The parties were directed to lodge submissions as to jurisdiction of this Court. On 15 May, the first respondent did so and a directions hearing was held on 18 May. At that point, no submissions as to jurisdiction had been lodged by the applicant. As a consequence, the hearing of this application was set for today, 22 May, prior to the Children’s Court hearing. Directions were also made for the applicant to identify those parts of the Statute and other materials she sought to rely on and that was done over the weekend.
The Competing Contentions
- The applicant contends that:
- the proceedings in the Children’s Court are incompetent;
- the Supreme Court has jurisdiction under the Jurisdiction of Courts (Cross-vesting) Act 1987 to order that the proceedings in the Children’s Court be transferred to the Family Court or to the Federal Circuit Court. I pause to note that it was to the Federal Circuit Court as originally framed, but the applicant now says that that is to be to the Family Court; and
- that the learned primary Judge erred in not doing so.
- The respondent contends that this Court lacks jurisdiction to make any order sought by the applicant.
Discussion
- Though no appeal has been filed, paragraph 1 of the application seeks that the order made on 20 April 2017 be set aside. I intend to proceed on the basis that an appeal against the orders on 20 April is intended, though the grounds and relief are hard to discern.
The Cross-Vesting Issue
- The source of power for the Supreme Court to transfer proceedings to another Court is found in the Jurisdiction of Courts (Cross-vesting) Act 1987. I shall refer to that act as the Cross-vesting Act.
- Section 5 provides for the transfer of proceedings from the Supreme Court of Queensland to other courts. Each of the relevant provisions requires that there be “a proceeding pending in the Supreme Court”: ss 5(1) and 5(2). It appears that this application is the only proceeding in the Supreme Court relating to this applicant and the proceeding in the Children’s Court. The application seeks that this Court grant the particular relief and not that another Court would do so or could do so. Unless the Children’s Court is part of the Supreme Court, there is no proceeding pending in the Supreme Court that can be transferred.
- Further, each provision of the Cross-vesting Act requires either that the Supreme Court determine that it is “more appropriate”[1]or “in the interests of justice”[2] that the proceedings be heard by another Court. Because the application seeks orders only from this Court, it does not appear how the relevant determination of appropriateness or interests of justice could be reached.
- Section 8 of the Cross-Vesting Act provides:
“(1) Where–
- a proceeding (the relevant proceeding) is pending in–
- a court, other than the Supreme Court, of the State; or
- a tribunal established by or under an Act; and
- it appears to the Supreme Court that–
- the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Family Court or the Supreme Court of another State or of a Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court; or
- an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court;
the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court.
- Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court.
- Where a proceeding is removed to the Supreme Court in accordance with an order made under subsection (1), the Supreme Court may, if the Supreme Court considers it appropriate to do so, remit the proceeding to the court or tribunal from which the proceeding was removed.”
- That section does not assist the applicant. It applies where there is another proceeding in a Court of the state which, prima facie, would include the Children’s Court. However, it applies in two ways. One is where the removed proceeding arises out of or is related to another proceeding pending in the Federal Court, Family Court or the Supreme Court of another state or territory. That is not the case here.
- The second is so that the Supreme Court can give consideration to whether the removed proceeding should be transferred to another Court. That power is clearly discretionary. Even if there was a case to exercise the power to remove and send the proceedings elsewhere, given the advanced state of the proceedings in the Children’s Court, which will likely determine substantive matters between the relevant parties, I would not do so.
- In my view, there is no basis for relief under the Cross-vesting Act.
- In any event, there is another hurdle facing the applicant. Assuming that she intends to appeal the decision below, s 13 of the Cross-Vesting Act has application. Relevantly, it provides that “An appeal does not lie from a decision of a court… in relation to the transfer or removal of a proceeding under this Act.”
- In the event that (contrary to what is said above) it might be said that there was a pending proceeding in the Supreme Court, the application below sought an order transferring that proceeding. That transfer was refused. It is arguable that such an order was one “in relation to the transfer”. If so, no appeal lies.
Jurisdiction of the Children’s Court
- The Children’s Court is established under the Children’s Court Act 1992. The provisions of that Act show that:
- the Children’s Court is a Court of record: s 4;
- its Judges are to be Children’s Court Judges or District Court Judges in cases where the Court is not required to be constituted by a Children’s Court Judge, it may be constituted by a Children’s Court Magistrate: s 5;
- the term Children’s Court Judge is defined to mean a District Court Judge appointed to the Children’s Court: s 3;
- the Judges are to be appointed from the District Court: s 11; and
- the president of the Children’s Court is a Children’s Court Judge, that is, a District Court Judge appointed to that position: s 9.
- The Children’s Court has the jurisdiction conferred on it by any Act: s 6(1). The Child Protection Act 1999 confers jurisdiction on the Children’s Court in respect of applications for a child protection order: s 54. That section is part of Part 4 of the Child Protection Act, the purpose of which is to provide for the making of child protection orders. A child protection order “is made to ensure the protection of a child the Children’s Court decides is a child in need of protection”: s 53.[3] Those provisions seem directed to conferring exclusive jurisdiction for child protection orders on the Children’s Court. The Child Protection Act does not confer any such jurisdiction on the District Court or the Supreme Court.
- The District Court of Queensland Act 1967 does not confer any jurisdiction in respect of child protection orders on that court. No provision of that Act refers to the Children’s Court, let alone suggests that it is part of the District Court.
- The Supreme Court of Queensland Act 1991 provides that the Court consists of a Chief Justice, a President of the Court of Appeal, other judges of appeal, a Senior Judge Administrator and the other judges appointed by Governor in Council: s 4. It is divided into the office of the Chief Justice and two divisions: the Court of Appeal and the Trial Division: s 5. No provision of that Act refers to the Children’s Court, let alone suggests it is part of the Supreme Court.
- Reference to the foregoing is sufficient to indicate that the Children’s Court is established by the legislature as a specialist court for children’s matters. Further, it plainly has jurisdiction to deal with child protection issues now before it. The jurisdiction of the Supreme Court is unlimited, but clear statutory provisions can limit it. In my view, that is the case where child protection orders are sought under the Child Protection Act.
- I should also mention that the same view has been reached, that is to say that the Children’s Court is a separate Court and not part of the District Court or the Supreme Court, in PAV v the Director of Child Protection Litigation [2016] QCA 234 and in Cousins v HAL [2008] QCA 49.
History of the Proceedings
- The following matters appear from the respondent’s outline as to jurisdiction as well as the material provided by the applicant:
- On 25 February 2015, there was a hearing for domestic violence orders in the Magistrates Court in Brisbane. Temporary protection orders were granted to both children, individually named and identified in the orders;
- On 18 June 2015, the Federal Circuit Court heard an application for parenting orders. That Court was constituted by Judge Lapthorn. Orders were made that the children reside with the mother and live in Brisbane with no facilitated contact being available to the father;
- On 17 November 2015, a further hearing on an application for domestic violence orders was heard in the Magistrates Court;
- In May 2016, applications were made by the officer of the Child and Family Official – by the office of the Child and Family Official Solicitor to the Children’s Court;
- On 23 June 2016, an application for a child protection order regarding the applicant’s children;
- On 28 June 2016, the application for child protection orders was mentioned in the Brisbane Children’s Court with orders being made for a social assessment report, a family group meeting and a mental health assessment;
- On 15 August 2015, the social assessment report was provided;
- Based on the matters expressed in that report on 25 August 2016, a temporary custody order was granted, operative until 30 August 2016;
- On 30 August 2016, Reid DCJ refused a stay of that order. Later that day, the Children’s Court refused to grant a further custody order to the Chief Executive,[4] and the children were returned to the applicant; however, orders were made for the separate representation of the children;
- On 5 September 2016, the mental health assessment report was received. The same day, an appeal was lodged against the refusal of a further custody order;
- On 9 September 2016, orders were made by Dearden DCJ, setting aside the decision refusing custody and ordering interim custody to the chief executive;
- On 20 September 2016, the applicant filed an appeal;
- On 23 September 2016, the appeal was struck out for want of jurisdiction;
- On 11 October 2016, an appeal was filed by the applicant seeking to challenge the dismissal of another application which had sought a form of revocation;
- On 30 November 2016, the appeal was dismissed;
- On 6 December 2016, a further custody order was made;
- On 23 December 2016, a further appeal was filed by the applicant seeking to set aside the custody order made on 6 December and the orders made on 30 November 2016;
- On 18 January 2017, the appeal was heard. Time was granted to make further submissions;
- On 3rd March 2017, the appeal was dismissed and directions made for the trial;
- On 4 April 2017, the applicant lodged an appeal seeking to set aside the orders made on 9 September and 3 March 2017 and a stay was sought; and
- On 5 May 2017, the stay was refused and the appeal was dismissed in relation to the challenge to the orders made on 9 September 2016.
- The trial was set to commence today in the Children’s Court.
- There are matters before the Family Court Registrar,[5] but that Court is relevantly restrained from making orders in relation to a child under care of a person under a child welfare law: Family Law Act 1975 (Cth), s 69ZK. The Child Protection Act is a child welfare law: Family Law Act, s 4 and Family Law Regulations 1984, item 11 of schedule 5.
- The history as set out above does not include the commentary on the validity of any of those steps or the counter-positions of the father and mother of the children in any of those applications. That is because I have simply wanted to set out that steps were taken, not to comment upon the validity of those steps or the competing considerations that were advanced by either side.
- The imminent commencement of the trial, in a specialist court, in proceedings that have been on foot for nine months, is, in my respectful view, a compelling reason why this Court would not intervene, even if it had power to do so.
Appeal against the orders below
- For the reasons above, there is no realistic prospect of an appeal succeeding against the orders made below by Justice Mullins.
Conclusion
- My conclusion is that the application should be dismissed and I so order. Now, the order of the Court is that the application is dismissed.