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- Unreported Judgment
AJM v Director, Magistrates Court of Queensland QCHC 32
CHILDREN’S COURT OF QUEENSLAND
AJM v Director, Magistrates Court of Queensland & Ors  QChC 32
DIRECTOR, MAGISTRATES COURT OF QUEENSLAND
DIRECTOR OF CHILD PROTECTION LITIGATION
(Third Respondent – Separate Representative)
Appeal – Application for Stay
Childrens Court, Magistrates Court at Brisbane
6 August 2021
Childrens Court at Brisbane
23 July 2021
APPEAL – CHILD PROTECTION ACT 1999 – where a child protection application is before the Childrens Court – where the appellant is the subject child’s mother’s partner – where the separate representative issued subpoenas to the Queensland Police Service in relation to the appellant – where the appellant has sought a stay of the order that allows the separate representative to view the material from the Queensland Police Service – where the appellant was unable to attend the hearing when the Magistrate granted the order to issue the subpoenas – whether appellant can be heard on appeal from an interlocutory decision made in proceedings to which he is not a named party – whether in those circumstances, the appellant has standing to argue against the production of the documents – whether there has been a miscarriage of justice in the circumstances
APPEAL – PROCEDURE – FINAL AND INTERLOCUTORY ORDERS – requirements for the purposes of s 222 Justices Act 1886 (Qld) – whether appeal permitted where an interlocutory order was made as opposed to a final order
Children’s Court Rules 2016 (Qld) div 3, r 93, r 97, r 99, r 99(2)
Child Protection Act 1999 (Qld) s 110, s 113
Family Law Act 1975 (Cth)
Justices Act 1886 (Qld) s 222
Coulter v Ryan  QCA 567, applied
Coulter v Ryan  2 Qd R 302, applied
Kosteska v Phillips  QCA 266, cited
Lynch v Commissioner of Police  QDC 99, applied
Matthews v Commissioner of Police  QCA 368, cited
Owen v Cannavan  QCA 324, cited
Schneider v Curtis  Qd R 300, applied
AJM self-represented for the Appellant
Ms P Wijesoma for the Second Respondent
Ms S Mohr-Edgar for the Separate Representative
Director of Child Protection Litigation for the Second Respondent
Legal Aid Queensland for the Separate Representative
- A child protection application is currently before the Court in relation to JHW, born 14 November 2004. JHW’s mother is KS. AJM is the partner of KS and resides with her.
- As a result of the Department’s application, a separate representative was appointed on 21 March 2021. The separate representative, Ms Mohr-Edgar, issued subpoenas to the Queensland Police Service (‘QPS’) in relation to AJM, as well as subpoenas to Children’s Health Queensland. AJM has sought a stay of the order that allows the separate representative to view the material from the QPS.
- Pursuant to the Child Protection Act 1999 (Qld) (‘the Act’) the child’s parents are respondents to an application made by the Chief Executive and the court may appoint a separate representative for the child. A parent of a child is defined in the Act as the child’s mother or father or a person who is a long-term guardian or permanent guardian of the child or a person other than the Chief Executive having custody or guardianship of the child under a law of the state other than the Act or the law of another state or a person under whom a resident’s order or contact order is made under the Family Law Act 1975 (Cth). AJM does not fall into any of those categories.
- Ms Mohr-Edgar was appointed pursuant to s 110 of the Act which provides that the Children’s Court can appoint a separate representative if it considers it to be “necessary in the child’s best interests”. It also provides that a separate representative is not a party to a proceeding on the application but must do anything required by a party; and can be made do anything as allowed to be done by a party.
- Section 113 of the Act permits the court to allow non-parties to take part in the proceedings. AJM has made an application to take part in the proceedings. He originally appealed the decision to adjourn that application but upon further consideration, withdrew that appeal, as he had asked for the adjournment of those proceedings to allow affidavits to be prepared.
- The Children’s Court Rules 2016 (Qld) contain rules in relation to subpoenas. Division 3, Rule 93 provides that upon request, the court may issue a subpoena. Rule 97 deals with setting aside subpoenas and states:
“97Setting aside subpoena
- (1)A person to whom a subpoena is directed may apply to the court for an order setting aside all or part of the subpoena on any sufficient grounds, including on any of the following grounds—
- (a)want of relevance;
- (2)An application under subrule (1) is an application in a proceeding for these rules.
See part 7, division 2 for how this application is to be made in a proceeding.
- (3)A party to the proceeding to which the subpoena relates may apply to the court to be heard on the application to set aside all or part of the subpoena.
- (4)The court may hear and decide an application made under subrule (3) at the hearing of the application to set aside all or part of the subpoena.”
- I have not seen the subpoenas issued in this case but accept the Court issued a subpoena to QPS seeking information about AJM’s contact with police. As I understand it, that involved his criminal history, if any existed, and any domestic violence applications that may have been made. AJM found out about the subpoena and emailed the Registry objecting to those subpoenas being provided to the separate representative. The Registry responded by saying “Thank you for your email which will be placed on file for consideration by the presiding magistrate.”
- Once the subpoenas are issued and given to the Registry, the party does not have an automatic right to inspect the documents. Rule 99 provides that the Registrar must hold the document, subject to the court’s direction and “must not allow anyone to view the document or thing other than as directed by the court or under these rules”. Rule 99(2) provides that a party can apply to the court to view, or view and copy the document or thing produced and that application is an application in a proceeding.
- That is indeed what Ms Mohr-Edgar did. She made an application in a proceeding to view or copy documents or things produced under subpoena. She asked for directions that leave be granted in chambers for the parties to inspect and copy documents produced under subpoenas filed by the separate representative on 13 May 2021 as directed to QPS and Queensland Children’s Hospital (‘QCH’). Leave was sought to provide the documents produced under subpoena by QPS and QCH to the Social Assessment Report writer, for the purposes of providing the Social Assessment Report.
- That application was advised to KS by email on 13 May 2021. The matter was originally set down for hearing on 6 July 2021 at 2.15pm.
- At the hearing of the appeal AJM indicated via emails to the Magistrates’ Court Registry, that he had blocked the delivery of the subpoena material to Ms Mohr-Edgar. As provided by the Childrens Court Rules, no party has an automatic right to access subpoenaed material and the separate representative was always required to apply to the court for access to the records. The Registry’s email response to AJM about the subpoena was simply an acknowledgement that his communication would be placed on the file for the Magistrate to consider. The Registry did not indicate that his email had caused the documents to be blocked.
- Unfortunately, it seems that at a late stage, the hearing was moved from 2.15pm in the afternoon to 9.00am in the morning. AJM tells me that neither he nor KS were advised this was to happen. As a result, he was not present at the hearing listed for 9:00am and the order for release of the subpoenaed material was made. The s 113 hearing was adjourned, as he requested, to 17 August 2021 so that he could file material for his application.
- AJM was eager to cross-examine the separate representative, the Registrar of the Magistrates Court and Ms Jeynes, the solicitor for the Director of Child Protection Litigation to find out how and why the matter was moved to an earlier time. In fact, this request, forms part of his appeal. In my view, that would be unnecessary to decide this appeal for reasons that I will state below.
- The real decision here is whether, if AJM had been present:
- he had standing to argue against the production of the documents;
- If so, whether he would have been successful; and
- Whether there has been a miscarriage of justice.
- AJM has had ample opportunity to consider the matter. He was unable to point to any legislation that gave him standing to argue the matter. The Department and the separate representative simply state that he does not have standing to appeal the matter because he is not a party to the litigation. AJM accepts that he is not party to the litigation but submits as he is the subject matter of the subpoena, he should nonetheless be able to appeal a decision to release documents relating to him.
- The fundamental problem with that argument is that, currently, he has no standing in this litigation. While he has an application pending to join the proceedings, he is not currently a party to the proceedings. The Children’s Court is a Court of statute and does not have an inherent jurisdiction. The Act only allows for parents to be a party to the proceedings unless a specific order has been made after an application under s 113 of the Act is heard. It is very clear that he does not have standing to appeal under this Act.
- There are provisions for a subpoenaed person to object to the production of subpoenaed documents under the Children’s Court Rules which I have already outlined. However, that is also limited to objection by the person who has been subpoenaed. Parties to the proceeding, such as KS may ask to be heard but KS did not seek to be heard and has not appealed the decision.
- The documents subpoenaed were directed to the QPS. The QPS did not object to their production. Prima facie, those documents are relevant to the case as AJM is living with KS, the mother of the child, and the Court must determine whether the living circumstances of the mother are safe for the child.
- At the hearing of this matter AJM raised concerns about the relevance of some of the material that may be contained in the documents; that some of the matters may not have been proceeded with, were old or were matters where “not guilty” findings had occurred. The Court, no doubt, will take that into account if that is produced in any hearing. Nevertheless, the Children’s Court, when deciding child protection applications, is not bound by the rules of evidence and even an acquittal may be relevant to the determination of the proceedings.
- At the hearing of this matter there was some discussion about whether AJM might have standing to appeal under the Justices Act 1886 (Qld) because he was the subject matter of the subpoena. Even if AJM was the person subpoenaed, he could not appeal under the Justices Act 1886 (Qld) for two reasons. Firstly, although the procedure followed in the Childrens Court is in accordance with the Justices Act, the Child Protection Act only allows appeals under the Child Protection Act.
- Secondly, even if he had a right to appeal under the Justices Act which he does not, it is settled authority starting from Schneider v Curtis  Qd R 300 that an appeal under the Justices Act only applies from a final order not an interlocutory order. At  the court noted:
“Such an appeal in my opinion only lies from an order which disposes of a complaint, for example by dismissing it, or by entering a conviction and imposing a penalty. It does not lie from a magistrate’s ruling, given at the close of the complainant’s case, that there is a case for the defendant to answer, for although such a ruling may amount to refusal of an application, and may be regarded as an order within the definition of s. 4, it is made upon an incidental application during the hearing of the complaint, and is not an order made upon the complaint.”
- This has been followed in cases such as Coulter v Ryan  QCA 567 and Lynch v Commissioner of Police  QDC 99 and stands as authority for the proposition that s 222 of the Justices Act 1886 (Qld) only allows right of appeal to the District Court upon orders finally disposing of a complaint.
- It was most unfortunate that the matter was moved to a time earlier, but despite that unfortunate set of events, AJM had no chance of success in opposing the subpoena or in obtaining standing to even be heard.
- Furthermore, any information from the QPS would be relevant to the application. Therefore, the separate representative was acting within her brief to obtain that information for a Social Assessment Report. Any objection that AJM had to production would, no doubt, have been supplanted by the need of the court to gather all relevant evidence to properly decide which order was in the best interests of the child
- The application for the stay is dismissed. The Court has no jurisdiction to hear any appeal in this matter.
- Published Case Name:
AJM v Director, Magistrates Court of Queensland & Ors
- Shortened Case Name:
AJM v Director, Magistrates Court of Queensland
 QCHC 32
06 Aug 2021