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PAV v Director of Child Protection Litigation (No 2)[2016] QCHC 17

PAV v Director of Child Protection Litigation (No 2)[2016] QCHC 17

CHILDRENS COURT OF QUEENSLAND

CITATION:

PAV v Director of Child Protection Litigation & Ors (No 2) [2016] QChC 17

PARTIES:

PAV
(appellant)

v

THE DIRECTOR OF CHILD PROTECTION LITIGATION
(first respondent)

and

HOK
(second respondent)

and

DAMIEN CARTER
(separate representative)

FILE NO/S:

4256/16

DIVISION:

Children’s Court of Queensland

PROCEEDING:

Appeal

ORIGINATING COURT:

Children’s Court at Brisbane

DELIVERED ON:

30 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2016

JUDGE:

Farr SC DCJ

ORDER:

The appeal is dismissed

CATCHWORDS:

APPEAL – CHILD PROTECTION ACT 1999 – appeal from an interim child protection order – whether an order of Children’s Court of Queensland has continuing effect.

Child Protection Act 1999 ss 8, 65, 66, 67, 120
Family Law Act 1975 s 69ZK

Cousins v HAL & Anor [2008] QCA 049
Director of Child Protection Litigation v PAV & HOK (No 2) [2016] QChC 014
PAV v Director of Child Protection Litigation & Ors [2016] QCA 271

COUNSEL:

The appellant was self-represented

J Aylward for the first respondent

The second respondent was self-represented

D Carter solicitor for the separate representative

SOLICITORS:

Director of Child Protection Litigation for the first respondent

Carter Farquar Mediation & Family Law for the separate representative

  1. [1]
    The relief sought by the appellant is listed in the Notice of Appeal under “orders you are seeking.” There are a number of orders sought. In essence, this appears to be an appeal from an interim child protection order made in the Brisbane Children’s Court constituted by a magistrate on 11 October 2016 vesting interim custody of the appellant’s children to the Chief Executive pursuant to s 67 of the Child Protection Act 1999 (Qld) (“the Act”).   The orders sought are:
  1. Leave to adduce fresh evidence, being the report of Ana Borges, psychologist, dated 17 October 2016;
  2. Set aside the decision of the Brisbane Children’s Court ordering interim custody to the Chief Executive;
  3. An order that the children be returned to the care of the appellant; and
  4. The application for a child protection order made on 23 June 2016 and any subsequent amended orders be revoked.
  1. [2]
    Insofar as paragraph 1(a) above is concerned, leave was granted to the appellant during the hearing to adduce evidence of the report from Ms Borges. In that regard I note that s 120(1) of the Act relevantly provides that “an appeal against a decision of a magistrate… on an application for… a temporary custody order is not restricted to the material before the magistrate.” Of course, the weight which should be given to any views expressed by Ms Borges in that report is another matter entirely.
  1. [3]
    Insofar as paragraph 1(d) above is concerned, an application to revoke a child protection order is made under s 65 of the Act, but, by virtue of the provisions of s 8 of the Act, a child protection order does not include an interim order made pursuant to s 67. It follows that this court has no jurisdiction to vary or revoke an interim order.
  1. [4]
    The Act also does not provide this court with the jurisdiction to make the order sought in paragraph 1(c) above.

History

  1. [5]
    Before consideration can be given to the issues relevant to the order sought in paragraph 1(b) above, a threshold issue needs to be determined. That issue is whether the order made in the Brisbane Children’s Court constituted by a magistrate on 11 October 2016 is valid or whether the order which existed prior to then, is still in effect.
  1. [6]
    To address this issue, the history of the matter is relevant:
  1. (a)
    On 23 January 2016, Lissa Lyons, Child Safety Officer, applied for a child protection order in the Brisbane Children’s Court (“BCC”) seeking that the Chief Executive supervise the protection of the appellant’s two children for a period of 12 months in relation to the following matters:
  1. The children’s state of emotional and psychological health and wellbeing;
  2. The appropriateness of the interactions the mother has with the children, and whether she is having conversations with or exposing the children to discussion about the legal, parenting and/or family law issues between the mother and the children’s father, the second respondent; and
  3. The adequacy or suitability of the accommodation in which the children are residing and whether it is meeting their care and protection needs.
  1. (b)
    The Director of Child Protection Litigation (“DCPL”) is deemed to be the applicant in those proceedings.
  1. (c)
    The applications were listed for mention in the BCC on 26 June 2016 and the magistrate ordered the preparation of a social assessment report and a mental health assessment report.  The social assessment report was prepared by Lauren Davis who had been provided with numerous reports concerning the family that had been prepared for family court proceedings.
  1. (d)
    On 15 August 2016, Ms Davis forwarded her social assessment report to the Department of Child Safety.  As a result of the concerns and recommendations raised in her report and in a covering email, Drew McGowan, senior team leader of Fortitude Valley Child Safety Service Centre applied for an ex parte Temporary Custody Order (“TCO”) for the subject children on 25 August 2016. 
  1. (e)
    The TCO was granted by a magistrate on 25 August 2016 and was ordered to expire at midnight on 30 August 2016 and the appellant was ordered to have no contact with the children during that time. 
  1. (f)
    The DCPL confirmed that it would seek leave of the BCC to amend the applications for supervision orders to custody orders as a result of the concerns raised in the social assessment report.  Those applications were listed for mention on 30 August 2016.  The DCPL confirmed that it intended to seek an order for interim custody and a no contact order for the appellant. 
  1. (g)
    The appellant filed a Notice of Appeal against the magistrate’s decision in this court on 26 August 2016. 
  1. (h)
    On 26 August 2016, Smith DCJ made the following orders concerning the appeal:
  1. The application is adjourned to 10.00am on 30 August 2016 before the Children’s Court;
  2. The application currently listed on that date in the Brisbane Children’s Court is stayed pending the hearing of the application;
  3. The appellant is to file and serve material by 10.00am on 29 August 2016; and
  4. The respondents are to file and serve any response by 9.00am on 30 August 2016.
  1. (i)
    On 30 August 2016 Reid DCJ refused the appellant’s application for a stay of the proceedings, but left the appeal on foot. 
  1. (j)
    The mention in the BCC was moved from 9.00am on 30 August 2016 to 2.00pm on the same date, following the hearing before Judge Reid. 
  1. (k)
    At the mention of the child protection application before the magistrate on 30 August 2016, the DCPL sought the following orders:
  1. Leave to amend the applications before the court, and to seek a 12 month short-term custody order to the Chief Executive;
  2. Interim custody to the Chief Executive; and
  3. An order that the appellant have no contact with the children as recommended my Ms Davis.
  1. (l)
    The court made the following orders:
  1. The proceedings were adjourned to 11 October 2016 at 9.00am for further mention of the application;
  2. An interim order was made in relation to each child as follows:
  1. (i)
    Authorising an authorised officer or police officer to have contact with the child;
  1. (ii)
    That the children be separately legally represented in these proceedings;
  1. (iii)
    The Department of Child Safety is to immediately provide all of the material filed in these proceedings to the Independent Children’s Lawyer in the Federal Circuit Court proceedings and to inform the Registrar, before whom the parents will be appearing on 2 September 2016, of the Department of Child Safety’s concerns; and
  1. (iv)
    Leave was granted to the Director of Child Protection Litigation to amend the child protection applications.
  1. (m)
    The magistrate declined to make an order granting interim custody to the Chief Executive. As the TCO expired at midnight on 30 August 2016, the children were required to be returned to the appellant.
  1. (n)
    On 5 September 2016, the DCPL received the mental health assessment report ordered by the BCC on 26 June 2016.
  1. (o)
    On 5 September 2016, the DCPL filed a Notice of Appeal against the decision of the magistrate to not order interim custody to the Chief Executive. The DCPL sought leave to adduce the fresh evidence of the mental health assessment report.
  1. (p)
    On 9 September 2016, Judge Dearden heard the appeal, admitted the fresh evidence of the mental health assessment report and fresh evidence of the appellant and made the following relevant orders:[1]
  1. The decision of the learned magistrate on 30 August 2016, in which he declined to make an order granting temporary custody of either of the children to the Chief Executive, be set aside;
  2. Order that interim custody of the children be granted to the Chief Executive for the period of the adjournment;
  3. Order that the appellant have no contact, direct or indirect, with either child for a period of three months from 9 September 2016; and
  4. Order that an authorised officer or police officer enter and search any place the officer reasonably believes the child is, to find the child, to enforce the order.
  1. (q)
    On 12 September 2016, the appellant filed an appeal with respect to each child in the Court of Appeal.
  1. (r)
    On 14 September 2016, P McMurdo JA heard the appellant’s associated application for a stay of proceedings pending the appeal. He dismissed the application on the basis that the Court of Appeal had no jurisdiction to stay the operation of the orders, as no appeal lies to the Court of Appeal against the orders made by Dearden DCJ on 9 September 2016.
  1. (s)
    On 16 September 2016, Dearden DCJ published his reasons for the orders he made on 9 September 2016.
  1. (t)
    On 20 September 2016, the appellant filed an application in the Children’s Court of Queensland to “review” the decision of Dearden DCJ, which was struck out by Shanahan DCJ on 23 September 2016 for want of jurisdiction.
  1. (u)
    On 23 September 2016, the appellant filed an application in the Family Court of Australia to have the family law proceedings remitted to the Federal Circuit Court of Australia. It was listed for review on 13 October 2016.
  1. (v)
    On 28 September 2016, the Deputy Registrar wrote to the parties about CA 9378/16 and asked if the parties wished to file a Memorandum of Agreement to dismiss the appeal based on the reasons given by Justice P McMurdo in the stay application referred to in paragraph [24] above.   The appellant would not sign the memorandum, and her wishes in that regard were conveyed to the registry by letter by the DCPL dated 19 October 2016. 
  1. (w)
    On 29 September 2016, the appellant filed an application in the Children’s Court of Queensland to “vary or revoke all orders and all matters in the Brisbane Children’s Court and the District Children’s Court in relation to both children, pursuant to s 65 of the Act.” It was listed for hearing on 19 October 2016 and later moved to 20 October 2016.
  1. (x)
    On 11 October 2016, the child protection proceedings were mentioned in the Brisbane Children’s court before a magistrate; that date having been set down by the previous magistrate on 30 August 2016.  On 11 October, the magistrate heard submissions concerning interim custody of the children and made the following orders:
  1. An interim order granting temporary custody to the Chief Executive;
  2. That the appellant have no contact, direct or indirect, with the children for a period of three months from 9 September 2016; and
  3. The matter was adjourned to 6 December 2016 for further mention.
  1. (y)
    On 13 October 2016, the Family Court refused the appellant’s application to remit the matter to the Federal Circuit Court, and refused her request to interpret the earlier Federal Circuit Court order. Section 69ZK of the Family Law Act 1975 prevents the court from making an order for a child who is under the care of a child welfare law. The family law proceedings are being next mentioned on 9 February 2017.
  1. (z)
    On 19 October 2016, the appellant filed an Amended Application to Appeal and Revoke a Child Protection Order in the Children’s Court of Queensland. In essence it is an appeal of the orders of the magistrate made on 11 October 2016.

(aa) On 20 October 2016 the appellant served the DCPL with the amended application filed on 19 October 2016 during the hearing before Bowskill QC DJC of the Application filed on 29 September 2016.

(bb) Bowskill QC DCJ dismissed the application filed on 29 September 2016 for want of jurisdiction. Directions concerning the filing of material in the new/amended application/appeal filed on 19 October 2016 were made and the matter was listed for hearing on 10 November 2016. The application for an urgent hearing of a stay application was not granted.

(cc) On 25 October 2016, the appellant’s appeal was heard by the Court of Appeal which dismissed her appeal for want of jurisdiction.[2]

Threshold issue

  1. [7]
    The threshold issue arises from the orders of Dearden DCJ on 9 September 2016 and his reasons delivered on 16 September 2016.[3]
  1. [8]
    The order in question is:

“That interim custody of the children be granted to the Chief Executive for the period of the adjournment.”

  1. [9]
    The issue is what period his Honour was referring to when he spoke of the “period of the adjournment.” The parties, and the Children’s Court as constituted by a magistrate, have interpreted that term to mean the period of time until the matter is next mentioned in the Children’s Court as constituted by a magistrate. It was based on that interpretation that the magistrate considered that she was empowered to make the further orders which were made on 11 October 2016. That is, it was considered that the order of Dearden DCJ ended that day. The alternative interpretation however, is that the term “period of the adjournment” referred to the period of time from the date of his Honour’s decision until the final hearing of the application.
  1. [10]
    If the latter interpretation is correct, then the order of Dearden DCJ is still effective and the learned magistrate’s order of 11 October 2016 has no authority as it was ultra vires her power.
  1. [11]
    Whilst Dearden DCJ did not specifically define what he intended by the term “for the period of the adjournment,” its meaning when considered in full context is clear.
  1. [12]
    Immediately preceding the passage in which Dearden DCJ lists his orders, his Honour said:

“…given that these are proceedings at this stage in respect of the temporary protection order, and that any permanent order, if made, will no doubt require a full trial, which will be sometime yet in the future.”[4]

  1. [13]
    This was the only passage in the judgment where his Honour spoke of a period of time that would be considered to be an adjournment, that is, the adjournment of the application to final hearing.
  1. [14]
    Furthermore, order (iii) made by his Honour is inconsistent with order (ii) unless order (ii) is given the interpretation that the phrase “period of the adjournment” is referable to the period of time until final hearing, bearing in mind that there was no adjournment of the proceedings in respect of the temporary protection order.
  1. [15]
    Order (iii) states:

“Order that the appellant have no contact, direct or indirect, with the children, for a period of three months from 9 September 2016.”

  1. [16]
    If “period of the adjournment” means the period until the next mention of the matter on 11 October 2016, then his Honour has made, on the one hand, an order granting interim custody to the Chief Executive for a period of just over a month, knowing that the issue will be reconsidered on 11 October 2016, whilst simultaneously, on the other hand, ordering that the appellant have no contact with the children for a period of three months up to 8 December 2016. The effect of this would be that whilst his Honour had decided to take the very serious step of ordering no contact between a mother and her children for three months, he simultaneously made an interim custody order for a period of just over one month knowing that the matter would be reconsidered after that time. Potentially, that could result in a further order not granting interim custody to the Chief Executive which would then result in the potential for the children to be returned to the appellant, which would however be prohibited by the terms of order (iii) until at least 8 December 2016. In other words, the children would be in limbo during that passage of time.
  1. [17]
    Such an outcome would be avoided however, if the phrase “period of the adjournment” referred to the passage of time until final hearing.

Legislation

  1. [18]
    Section 67 of the Act provides some assistance in relation to this issue. It relevantly provides that on the adjournment of a proceeding for a child protection order, the Children’s Court may make an interim order granting temporary custody of the child to the Chief Executive and that the order has the effect for the period of the adjournment.[5] That is precisely what Dearden DCJ ordered.
  1. [19]
    Section 66(1) provides that the court may adjourn a proceeding for a child protection order for a child for a period decided by the court, noting that the court must take into account the principle that it is in the child’s best interests for the application of the order to be decided as soon as possible.[6] Of course, the application of the order can only be decided at the final hearing. It follows that the period of time prior to the final hearing is the period of the adjournment.
  1. [20]
    As Fraser JA noted in Cousins v HAL & Anor:[7]

“…even though s 67 was the source of the power to make the interim custody order, the magistrate’s decision was an order “on the application” for the child protection order…”[8]

  1. [21]
    In this matter, the adjournment was of the application of the order sought. Nothing to the contrary was said by Dearden DCJ limiting the period of the adjournment to sometime before final hearing.

Conclusion

  1. [22]
    It follows that the order of Dearden DCJ granting temporary custody of the children to the Chief Executive is still the current order and that the order made in the Children’s Court on 11 October 2016 by the presiding magistrate was ultra vires that magistrate’s power. 
  1. [23]
    Accordingly, the appeal against the magistrate’s order on 11 October 2016 is incompetent.
  1. [24]
    In these circumstances, further consideration of the issues raised by the appellant on this appeal is pointless.
  1. [25]
    Finally, I would recommend that the application for the order sought by the first respondent to this appeal be expedited in the Children’s Court constituted by a magistrate. It is an application that needs to be determined as soon as possible.

Order

  1. [26]
    The appeal is dismissed.

Footnotes

[1] Director of Child Protection Litigation v PAV & HOK (No 2) [2016] QChC 014.

[2] PAV v Director of Child Protection Litigation & Ors [2016] QCA 271.

[3] Director of Child Protection Litigation v PAV & HOK (No 2) [2016] QChC 014.

[4] Ibid [35].

[5]  Section 67(1)(a)(ii) and (v) of the Act.

[6]  Section 66(3) of the Act.

[7]  [2008] QCA 49.

[8]  Ibid 7.

Close

Editorial Notes

  • Published Case Name:

    PAV v Director of Child Protection Litigation & Ors (No 2)

  • Shortened Case Name:

    PAV v Director of Child Protection Litigation (No 2)

  • MNC:

    [2016] QCHC 17

  • Court:

    QChC

  • Judge(s):

    Farr DCJ

  • Date:

    30 Nov 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cousins v HAL [2008] QCA 49
3 citations
Jump To
Cite 1 - [2008] QCA 49
Cite 2 - [2008] QCA 49
Cite 3 - [2008] QCA 49
Director of Child Protection Litigation v PAV & HOK (No. 2) [2016] QCHC 14
4 citations
Jump To
Cite 1 - [2016] QCHC 14
Cite 2 - [2016] QCHC 14
Cite 3 - [2016] QCHC 14
Cite 4 - [2016] QCHC 14
PAV v Director of Child Protection Litigation [2016] QCA 271
2 citations
Jump To
Cite 1 - [2016] QCA 271
Cite 2 - [2016] QCA 271

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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