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  4. NJ v Director of Child Protection Litigation - [2023] QCHC 16

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NJ v Director of Child Protection Litigation[2023] QCHC 16

NJ v Director of Child Protection Litigation[2023] QCHC 16

CHILDRENS COURT OF QUEENSLAND

CITATION:

NJ v Director of Child Protection Litigation & Anor [2023] QChC 16

PARTIES:

NJ

(appellant)

v

DIRECTOR OF CHILD PROTECTION LITIGATION

(first respondent)

and

NARDINE COLLIER

(second respondent/ separate representative)

FILE NO/S:

19 of 2023

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Appeal pursuant to s 117 Child Protection Act 1999 (Qld)

ORIGINATING COURT:

Childrens Court (Magistrate) at Cairns – 23 March 2023

DELIVERED ON:

18 August 2023

DELIVERED AT:

Cairns

HEARING DATE:

31 July 2023

JUDGE:

Fantin DCJ

ORDER:

  1. Appeal dismissed.
  2. Decision of the Magistrate in the Childrens Court at Cairns on 23 March 2023 confirmed.

CATCHWORDS:

APPEAL – CHILD PROTECTION ACT 1999 – where Childrens Court constituted by a Magistrate made interim child protection order granting temporary custody of child to Chief Executive – whether, due to change in circumstances, appeal is moot and lacks utility

APPEAL – CHILD PROTECTION ACT 1999 – where appellant is child’s mother – where in proceeding below appellant was legally represented and order was unopposed – where appellant now self-represented and appeals decision – where notice of hearing of appeal given to appellant and child’s separate legal representative  –  where neither appellant nor child’s separate legal representative appeared at the hearing of the appeal – role of separate representative

LEGISLATION:

Child Protection Act 1999 (Qld), s 61, s 66, s 67, s 68, s 110, s 117, s 120, s 191

CASES:

Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16

MEE v Director of Child Protection Litigation & Ors [2021] QChC 14

Nursing and Midwifery Board Australia v HSK (2019) 1 QR 600; [2019] QCA 144

People With Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253

The Department of Communities, Child Safety v M and S [2013] QChC 27

COUNSEL

Miller N (solicitor) for the first respondent.

SOLICITORS

No appearance for the appellant.

Office of the Director of Child Protection Litigation for the first respondent.

No appearance for the separate representative. 

Introduction

  1. [1]
    On 23 March 2023 a Childrens Court Magistrate in Cairns made an interim order granting temporary custody of a child (for a child protection order) to the Chief Executive, pursuant to s 67(1)(a)(ii) of the Child Protection Act 1999 (Qld) (‘the Act’).
  2. [2]
    The child’s mother (the appellant in this proceeding) was represented by a solicitor, who did not oppose the making of the above order. The child’s separate representative also appeared and did not oppose the order.
  3. [3]
    The appellant (now self-represented) appealed against the Magistrate’s decision pursuant to s 117(2) of the Act. The appellant filed a notice of appeal and an outline of argument but did not appear at any of the appeal reviews, nor the appeal hearing (in person or remotely, leave for the latter having been granted).
  4. [4]
    I am satisfied on the material before the court that the appellant was served with all relevant documents by email and post, given notice of the hearing date, and informed that if she did not appear at the hearing, the appeal may be heard and decided in her absence.
  5. [5]
    At the hearing, the appellant was called three times. The Bailiff also attempted to call both mobile numbers the appellant had provided to the Registry, without success. The first number was disconnected. The second did not answer and no message could be left.
  6. [6]
    The appeal is by way of rehearing on the evidence and proceedings before the Childrens Court Magistrate, unless the court exercises its discretion to order that the appeal be heard afresh, in whole or in part: sub-ss 120(2) and (3).[1]
  7. [7]
    I proceed on the basis that there is no express power to dismiss such an appeal for want of prosecution.[2] I have considered the appeal on the merits of the material before the court after being satisfied that the appellant had been given sufficient notice of the time and place of the hearing, and that she had not appeared.

Whether the appeal is moot and lacks utility

  1. [8]
    Since the decision was made and the appeal filed, there has been a change of circumstances in the proceeding between the parties which has a direct effect on the utility of this appeal.
  2. [9]
    The decision the subject of this appeal was made on 23 March 2023. That was followed by further mentions before the Childrens Court constituted by a Magistrate.
  3. [10]
    On 29 June 2023 the Childrens Court Magistrate made a final order granting short-term guardianship of the child to the Chief Executive for two years. 
  4. [11]
    The order the subject of this appeal was an interim order, and the court has since made a final order. The question in the appeal has become moot, ie. determination of it will produce no real consequence for the parties.
  5. [12]
    The question arises whether there is any utility in determining the appeal. As the appellant did not appear at the hearing of the appeal, I did not have the benefit of her submissions on this issue.
  6. [13]
    At the time the appeal was filed, there was a real dispute between the parties, namely whether the Magistrate had erred in making an interim order granting temporary custody of the child to the Chief Executive. As a final order for short-term guardianship has since been made, there is now no relevant controversy between the parties in respect of which a decision of this Court would have any effect. In short, in respect of the decision made by the Magistrate on 23 March 2023, the appeal is moot and of no utility.
  7. [14]
    The court does not have an advisory jurisdiction.[3] As a general rule, the court, in such circumstances, would not entertain the appeal. However, the rule is a general one only and the court retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned. One of the factors which would cause the court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases.  Other examples which have been given include where the decision the subject of the appeal involves some relevant question of statutory construction, or where an issue of public interest arises, or where a determination serves a practical point.[4] 
  8. [15]
    None of those considerations apply here.
  9. [16]
    To illustrate that, I set out the relevant chronology of the court proceedings below.
  10. [17]
    On 10 November 2021, the Director of Child Protection Litigation made a child protection application in the Childrens Court (Magistrate) at Cairns in respect of the child seeking an order granting custody to the Chief Executive (Child Safety) under s 61(d)(ii) of the Act for a duration of one year.
  11. [18]
    On 16 December 2021, that application was mentioned and on the adjournment of the proceeding to 10 March 2022, an interim child protection order was made under s 67(1)(a)(ii) of the Act, granting temporary custody of the child to the Chief Executive (Child Safety).
  12. [19]
    After the first mention, the Court made interim orders on each subsequent mention of the application, granting temporary custody of the child to the Chief Executive (Child Safety) for the period of each adjournment through to 23 March 2023.
  13. [20]
    The decision the subject of the appeal on 23 March 2023 was the 12th mention of the proceeding before a Childrens Court Magistrate. On that date the Court made orders:
  1. (a)
    adjourning the application for further mention on 1 June 2023;
  1. (b)
    for a further interim child protection order granting temporary custody of the child to the Chief Executive (Child Safety) under s 67(1)(a)(ii) of the Act; and
  1. (c)
    that the parties participate in a court ordered conference on 3 May 2023 to decide the matters in dispute, or to try to resolve the matters pursuant to s 68(1)(d)(iii) of the Act.
  1. [21]
    By virtue of s 67(5) of the Act, the order granting temporary custody of the child to the Chief Executive (Child Safety) had effect for the period of the adjournment (ie. to 1 June 2023).
  2. [22]
    The Magistrate also noted that the disclosure request from the mother (who was a respondent to the application) had been completed.
  3. [23]
    On 23 March 2023 at that mention, the mother was legally represented by a solicitor. The solicitor sought that the mother’s appearance be excused on the basis that she was located in Victoria. The child’s separate representative also appeared. There was a lengthy exchange between the Magistrate and the parties about the progress of the proceeding, the nature of the application which had been amended to one of short-term guardianship, the child’s current placement, whether final orders could be transferred to Victoria with a view to reunification, and the directions proposed. The mother’s solicitor agreed that a previous disclosure request had been complied with. The solicitor did not oppose the orders ultimately made (subject of this appeal).
  4. [24]
    On 27 March 2023 the mother filed a notice of appeal. It appeared to be drafted without the benefit of legal input and listed her address for service in Victoria.
  5. [25]
    The grounds of appeal appear to be, in summary, that the appellant was not present in person at the mention on 23 March 2023, had not been served with the relevant documents, and not informed of the order currently in place. In the notice of appeal, the appellant sought an order revoking the decision and for full disclosure of all documents relating to the applications and orders. 
  6. [26]
    At the same time in the Court below, the appellant filed an application for disclosure, which was listed for hearing before the Childrens Court Magistrate on 6 April 2023.
  7. [27]
    On 6 April 2023, both the appellant and her legal representative appeared before the Childrens Court Magistrate. The appellant terminated her legal representation. The Court:
    1. again, adjourned the proceedings for further mention on 1 June 2023;
    2. made a further interim child protection order granting temporary custody of child to the Chief Executive (Child Safety) under s 67(1)(a)(ii) of the Act for the period of the adjournment; and
    3. directed that the Director of Child Protection Litigation provide the appellant, within two weeks, all material filed in the proceedings, sealed adjournment orders and the earlier temporary custody order application and court assessment order application pursuant to ss 66(4) and 191(5) of the Act.
  8. [28]
    On 3 May 2023, the court ordered conference was held. The appellant did not attend.
  9. [29]
    On 1 June 2023, the proceedings were mentioned again. Again, the appellant did not appear. The interim order made on 23 March 2023 only had effect for the period of the adjournment (which was to 1 June 2023). On that date, the Court adjourned the proceedings for a further mention on 29 June 2023 to allow the appellant a further opportunity to appear and if she did not, noted the Director of Child Protection Litigation’s intention to seek a final order.
  10. [30]
    On 29 June 2023, the appellant again did not appear. The Court made a final child protection order granting short-term guardianship of the child to the Chief Executive (Child Safety) under s 61(e) of the Act for a duration of two years, ending 29 June 2025.
  11. [31]
    The decision subject of the appeal was limited to the interim order made on 23 March 2023, which has now been overtaken by subsequent events. The decision in question raises no issue of principle, is not likely to affect other cases, does not involve a relevant question of statutory construction, does not identify any issue of public interest, and the determination of the appeal would not serve any practical point.
  12. [32]
    This is not a case where there is any good reason to depart from the general rule that because the appeal lacks utility the court should not entertain it. As a result, the appeal will be dismissed.

Separate representative’s role

  1. [33]
    There is a remaining procedural issue. The Childrens Court Magistrate made an order that the child be separately represented by a lawyer. Such an order can only be made if the Childrens Court considers it is necessarily in the child’s best interests for the child to be separately represented by a lawyer: s 110(1). The Court must consider making an order for the child to have a separate representative if the proceeding concerns an application that is contested by the child’s parents (s 110(2)), as it was here.
  2. [34]
    On 16 June 2023, at a mention of the appeal in this Court, the Court ordered that the separate representative be joined as a respondent to the appeal.
  3. [35]
    Despite that, the separate legal representative did not appear on the hearing of this appeal nor provide to the Court any explanation for their non-appearance.
  4. [36]
    The first respondent tendered an email chain with the separate representative which was marked for identification. It showed that:
    1. the separate representative was served with the relevant material in the appeal and was aware that the hearing was listed for 31 July 2023 at 10am;
    2. on 19 July 2023, the first respondent sent an email to the separate representative asking her to confirm that she was available to appear at the hearing and asking if she intended to file an outline of argument. The separate representative, Ms Collier, replied by email the same day. She did not answer directly but said: ‘Unfortunately I do not have funding to appear not (sic) do I have counsel available to appear at short notice. I have a number of other court matters as well.’;
    3. on 25 July 2023 the first respondent sent an email in response in these terms:

As your role as the child’s separate representative continues until the appeal is decided or withdrawn (section 110(8)(b) of the CP Act) and noting that you do not have a grant of legal aid to appear, to ensure that the appeal is not unnecessarily delayed, I would be grateful if you could at the very least indicate your position in respect of the appeal in order (sic) so that I may present this to the appellate court on Monday.;

  1. (d)
    on 26 July 2023, the first respondent received an email from Ms Collier’s administration assistant advising: ‘Nardine is currently on annual leave and will return to the office on Wednesday the 2nd of [August].’

That email raises the question whether Ms Collier did not appear because she was on annual leave, rather than for one or more of the reason(s) given in the email of 19 July 2023 (ie. did not have a grant of aid, had not been able to brief counsel, or had commitments in another court).

  1. [37]
    On the information available to this Court, at no time did the separate representative communicate to the Court (via the Associate or the Registry) that she did not intend to appear, the reason for that, or her attitude to the appeal.
  2. [38]
    The Court is left in the unsatisfactory position of not knowing why the separate representative failed to appear, nor what position she would have taken on the appeal. 
  3. [39]
    Legal practitioners engaged to act in this very important role must bear in mind their statutory and professional obligations. As the first respondent correctly pointed out, the separate representative’s role ends, if there is an appeal in relation to the application, ‘when the appeal is decided or withdrawn’ (emphasis added): see s 110(8)(b). I respectfully agree with previous remarks of this Court that it is clearly contemplated that the separate representative’s role will continue until the end of any appeal against a decision.[5]
  4. [40]
    Until that time, the separate representative has statutory obligations to:
    1. as far as possible present the child’s views and wishes to the court: s 110(4)(b);
    2. act in the child’s best interests regardless of any instructions from the child: s 110(5); and
    3. do anything required to be done by a party: s 110(6).
  5. [41]
    There may be reasons why a separate representative is unable to appear to assist the court on the hearing of an appeal. It is incumbent upon a separate representative to inform the court of any such reason, and their position on the appeal. It is unfortunate that in this case the separate representative failed to do so. But for the reasons explained above, that failure does not affect the outcome of the appeal.

Conclusion

  1. [42]
    The appeal is dismissed and the decision of the Court below confirmed.

Footnotes

[1]  I respectfully adopt the analysis in Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [75]–[78].

[2]MEE v Director of Child Protection Litigation & Ors [2021] QChC 14, [41]–[44].

[3]People With Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253, [12]–[15], cited with approval in Nursing and Midwifery Board Australia v HSK (2019) 1 QR 600, 604–5[19]–[22] and The Department of Communities, Child Safety v M and S [2013] QChC 27, [4].

[4]Nursing and Midwifery Board Australia v HSK (2019) 1 QR 600, 605[22].

[5]Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16, [12].

Close

Editorial Notes

  • Published Case Name:

    NJ v Director of Child Protection Litigation & Anor

  • Shortened Case Name:

    NJ v Director of Child Protection Litigation

  • MNC:

    [2023] QCHC 16

  • Court:

    QChC

  • Judge(s):

    Fantin DCJ

  • Date:

    18 Aug 2023

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
Glover v Director, Child Protection Litigation [2016] QCHC 16
3 citations
Jump To
Cite 1 - [2016] QCHC 16
Cite 2 - [2016] QCHC 16
Cite 3 - [2016] QCHC 16
MEE v Director of Child Protection Litigation [2021] QCHC 14
2 citations
Jump To
Cite 1 - [2021] QCHC 14
Cite 2 - [2021] QCHC 14
Nursing and Midwifery Board of Australia v HSK(2019) 1 QR 600; [2019] QCA 144
4 citations
Jump To
Cite 1 - [2019] QCA 144
Cite 2 - (2019) 1 QR 600
Cite 3 - (2019) 1 QR 600
Cite 4 - (2019) 1 QR 600
People With Disability Australia Inc v Minister for Disability Services [2011] NSWCA 253
2 citations
Jump To
Cite 1 - [2011] NSWCA 253
Cite 2 - [2011] NSWCA 253
The Department of Communities, Child Safety v M and S [2013] QCHC 27
2 citations
Jump To
Cite 1 - [2013] QCHC 27
Cite 2 - [2013] QCHC 27

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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