SKJ v HR[2023] QCHC 17

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant is the mother of a child, X. She wishes to appeal against the decision of a Childrens Court Magistrate made on 26 April 2022 to make a Child Protection Order granting long-term guardianship of X to the chief executive.

2. [2]
   The applicant filed a Notice of Appeal on 17 April 2023. She requires an extension of time within which to appeal as the Child Protection Act 1999 provides that an appeal must be filed within 28 days after the decision is made.

3. [3]
   By way of explanation for the delay, the appellant has filed an affidavit, affirmed 10 May 2023, in which she states that she did not know the long-term guardianship order had been made as she had changed email addresses and she did not receive the relevant documents, including the application for the long-term guardianship order. She further states that she became aware in late May 2022 that a long-term guardianship order had been made. She spoke to various parties, including politicians and helplines, but it was not until she approached her current solicitor, Mr Michael Dwyer, that she knew to file a Notice of Appeal. The applicant does not indicate when she first retained a solicitor, however the material before me suggests that she had done so by 15 February 2023. There is no explanation for the two-month delay from February 2023 through until April 2023 when the Notice of Appeal was filed.

4. [4]
   The ground of the appeal, whilst setting out a complaint about service of the material, is in effect that the applicant was denied natural justice as she was not personally served with the application for a Child Protection Order as required under the Child Protection Act 1999.

5. [5]
   The parties to the appeal are the father of X and the Director of Child Protection Litigation (“DCPL”). Both parties oppose the granting of an extension of time within which to appeal and the allowing of the appeal.

The learned Magistrate’s reasons

6. [6]
   It is not contentious that neither the applicant or the father were present at the hearing of the application or the making of the order on 26 April 2022.

7. [7]
   The learned Magistrate was empowered pursuant to section 58 of the Child Protection Act 1999 to hear and decide the application for a Child Protection Order in the absence of the child’s parents, subject to certain conditions. Section 58 reads:

58Hearing of application in absence of parents

1. The Childrens Court may hear and decide the application in the absence of the child’s parents only if—
   3. (a)
      the parents have been given reasonable notice of the hearing and fail to attend or continue to attend the hearing; or
   3. (b)
      it is satisfied it was not practicable to give the parents notice of the hearing.
2. Subsection (1) does not limit the jurisdiction of the court to exclude a person from a proceeding

8. [8]
   A reading of the transcript of the hearing on 26 April 2022 reveals that the names of the applicant and the father were called out, and neither of them appeared. The learned Magistrate indicated that when the matter was last before the court, an amended application was filed, and the parents were placed on notice as they were not engaging with the Department of Child Safety. He indicated that the matter had been before the court since 19 October 2021, that it was the sixth mention of the matter, and that the parents had not attended the Court on any occasion. The reference to the parents being placed on notice is a reference to correspondence sent by the DCPL via post to the applicant and the father of X setting out the result of each mention of the matter; informing each of them of the next court date; and, informing each of them that if they failed to appear, the court may make a final order in their absence.^[1]
9. [9]
   The learned Magistrate said that an application for a short-term guardianship order had been filed on 30 September 2021. That application was amended to an application for a long-term guardianship order as the parents had stopped engaging with the Department of Children, Youth Justice and Multicultural Affairs (“Child Safety”) in December 2021.

10. [10]
    The learned Magistrate referred to the correspondence having been sent to the applicant and to the father. He referred to a family group meeting where the applicant terminated her involvement in it. He referred to the applicant having been provided the contact details for Legal Aid Queensland. He was satisfied that the parents had been given every reasonable opportunity to engage. He was satisfied that they each understood the nature and purpose of the proceedings, pursuant to section 106 of the Child Protection Act 1999. He determined that no parent of X was willing and able to protect her, and that her interests were best served by the making of the long-term guardianship order granting long-term guardianship of X to the chief executive.

Child Protection Order history

11. [11]
    In June 2020, when she was around nine months of age, the child, X, was placed by Child Safety with her paternal grandparents. The assessment of harm made by a Child Safety Officer related to physical abuse X was said to have suffered at the hands of the applicant. The applicant engaged with Child Safety and had unsupervised contact with X.

12. [12]
    On 30 September 2021, an application for an extension of a Child Protection Order was filed in the Childrens Court registry. By that application, the DCPL sought an extension of the short-term custody order which was then in place to be extended to 14 June 2022 to “allow further time for [the applicant] and [father] opportunity to address the child protection concerns.”

13. [13]
    That application was served on the applicant by email and “in person, on both [the parents], by leaving the material in the mailbox of their residential address.”^[2]
14. [14]
    Because of Covid-19 issues, in-person family contact was suspended on 4 January 2022. X’s paternal grandmother confirmed she was able to facilitate video calls between X and the applicant and father. The applicant did not attempt to engage in virtual contact with X on 10 January or 17 January 2022.

15. [15]
    On 13 January 2022, a Child Safety Officer had text communication with the applicant after trying to make contact with her some days earlier. The applicant responded by saying she was too busy; that she was working and wouldn’t sacrifice her time for Child Safety. When told by the Child Safety Officer that she wanted to work with the applicant and the father towards having X returned to their care, but needed to communicate with them (and was willing to do so outside of office hours), the applicant responded:

“[X] has been with her carers now going on 3yrs so I’m happy to say not dealing with child safety has made me feel a lot better in life than actually dealing with child safety, so no I will not work with child safety anymore I’m better off without the so called help child safety say they want to give or provide so please don’t contact me again unless your giving my child back to her actual mum an dad.”

16. [16]
    On 28 January 2022, when advised by text that face-to-face contact had been re- instated and she was welcome to see X on Sunday, the applicant responded:

“Its been ages since I’ve seen her or got to have her can u just stop contacting me I don’t want anything to do with child safety anymore you got what u wanted an that was [X] she is fine an safe with her carers, so now I just want to get on with my life if I have to I will block this number an any other number from contacting myself as iv already asked to be left alone an would like to stop working with child safety as I don’t want to work with your organization for my mental health an physical health so thanks…Don’t contact this number again there is nothing to discuss anymore.!”

17. [17]
    On 31 January 2022, the Child Safety Officer emailed the applicant a copy of an updated affidavit. Following the sending of that email, the applicant sent the Child Safety Officer text messages expressing her anger at Child Safety. She said:

“…..so yea I’m done whether this is court ordered or not I’m not going to be the mother to X anymore I would rather sign my rights away to her as all it involves is child safety lying and [the paternal grandparents] do the same so till X is out of the grandparents care I will not have contact with anyone involved in this case.”

18. [18]
    On 16 February 2022, a decision was made by Child Safety to suspend the applicant’s contact with X as she had not seen X since December 2021. An email to that effect, with reasons, was sent to the applicant on 18 February 2022. The letter expressed that the applicant had not participated in family contact with X since December 2021 and had made repeated requests for Child Safety to stop contacting her, and that Child Safety wanted to meet with the applicant to ensure X’s ongoing relationship with her. The letter requested the applicant make contact with the Child Safety Officer.

19. [19]
    On 3 March 2022, an email was sent to the applicant which set out the result of a meeting in which a decision was made by Child Safety to apply for a long-term guardianship order for X. The applicant was invited to contact the Child Safety Officer after 16 March 2022. The applicant has deposed that she could not access this email account (a hotmail account) between January 2022 and May 2022.

20. [20]
    On 25 March 2022, an amended application for a Child Protection Order was filed by the DCPL in the Children’s Court registry. This application sought a long-term guardianship order granting long-term guardianship of X to the chief executive.

21. [21]
    On 25 March 2022, the amended application for a Child Protection Order and updated affidavit of the Acting Senior Team Leader were served on the applicant by emailing the documents to her at her hotmail email address. There is no evidence that any attempt was made to personally serve the applicant with this amended application.

Requirements for service under the Child Protection Act 1999

22. [22]
    Child Protection Orders include a long-term guardianship order granting long-term guardianship of a child to the chief executive.^[3] An application for a Child Protection Order must be made to the Childrens Court; state the grounds on which it is made; state the nature of the order sought; comply with the applicable rules of court; and be filed in the court.^[4]

Section 56 of the Act provides:

1. As soon as practicable after the application is filed, the chief executive must—

1. personally serve a copy of it on each of the child’s parents; and
2. tell the child about the application.

Note— Section 195 deals with compliance with provisions about giving information.

2. However, if it is not practicable to serve the copy personally, a copy of the application may be served on a parent by leaving it at, or by sending it by post to, the parent’s residential address last known to the chief executive

3. The copy of the application served under this section must state—

1. when and where the application is to be heard; and
2. the application may be heard and decided even though the parent does not appear in court.

23. [23]
    It is not the case that this provision provides an option as to how service of an application is to be effected at the discretion of Child Safety or the DCPL. By its clear terms, this provision makes it mandatory for an application for a Child Protection Order to be served personally. If it is not practicable to serve the application personally, the provision allows for service to be affected by leaving the application at the parents’ last known residential address.

24. [24]
    The purpose of section 56 is to bring to the attention of the child’s parents the nature of the application which is being sought. Before reliance upon service by post pursuant to sub-section (2) is permitted, it must be demonstrated that personal service was not practicable.

25. [25]
    Rule 28 of the Childrens Court Rules 2016 provides for how personal service is to be effected. It reads:

1. To serve a document personally, the person serving it must—

1. give the document, or a copy of the document, to the person to be served; and
2. tell the person to be served what the document is.

2. However, if the person does not accept the document or copy, the person serving it may serve it by putting it down in the person’s presence and telling the person what it is.

3. It is not necessary to show to the person served the original of the document

26. [26]
    The word “practicable” in section 56 is not defined, however it is an ordinary word commonly used in legislation relating to applications for substituted service. The word “practicable” is defined in the Macquarie Dictionary as meaning “capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible”. Not practicable, by its ordinary meaning, therefore means cannot be put into practice; cannot be done; cannot be effected or carried out.

27. [27]
    In Foxe v Brown,^[5] Justice Mason, in speaking of the “standard of diligence or effort required of a plaintiff in seeking out a defendant in a case where substituted service is sought”, said:

“That standard, however it is expressed, is one of reasonableness so as to show a practical impossibility of personal service. Furthermore, the question is not whether reasonable effort has been shown by the plaintiff over a particular period but whether at the date on which the application for substituted service is made that plaintiff, using reasonable effort, is unable to serve the defendant personally.”

28. [28]
    Section 56 required the DCPL to satisfy the learned Magistrate that it was a practical impossibility to serve the applicant personally before service by post was permitted. That is, there needed to be evidence before him that reasonable effort had been made to serve the defendant personally (in accordance with the Rules), but despite those efforts, service could not be effected or carried out. There was no evidence before the learned Magistrate that could have satisifed him that it was not practicable to personally serve the applicant with the first of the applications, which was for a short- term custody order. There was no evidence that any effort had been made to serve the applicant personally in accordance with the legislative requirements.

29. [29]
    Even more concerning is what occurred when Child Safety determined to amend their application to one for long-term guardianship. That application, by virtue of the same provision, section 56 of the Act, was also required to be served personally on the applicant unless it was not practicable do so. No attempt at all was made to personally serve the application and no attempt was made to even serve it in accordance with sub-section (2) of the provision by leaving it at the applicant’s residential address. All that occurred was that the application was sent to an email address the applicant was no longer using.

30. [30]
    It is clear that neither the application for the short-term custody order nor the long- term guardianship order were personally served on the applicant. No explanation was provided in any of the affidavits filed as to why it was not practicable to serve a copy of either application personally. It is apparent that the Child Safety Officer knew where the applicant was living, given the correspondence sent to the applicant through the post. It appears that no effort was made at all to personally serve the applicant.

31. [31]
    Section 58 of the Act provides for the circumstances in which the court may hear and decide the application in the absence of the child’s parents. It is concerned with the act of giving notice of the hearing to the child’s parents. Section 58 provides that the application may only be heard in the absence of the parents if reasonable notice has been given, or if the actual giving of such notice is not practicable, that is, it cannot be effected or carried out.

32. [32]
    In F v Sturrock^[6] the then President of the Childrens Court of Queensland, His Honour Judge O'Brien (as he then was) held that the requirements of sections 56 and 58 are mandatory in their terms and cannot be circumvented or ignored. He went on to say to ignore those requirements represents a denial of natural justice to the parents of a child the subject of the application.

33. [33]
    There is provision in the Rules for an application to be made to the Court for substituted service if it is impractical to serve a document in a way provided under the Act or the Rules. There is also a provision in the Rules for an order, if the document is not personally served, but the Court is satisfied on evidence that it came into the person’s possession on a particular day, that service has been effected.

34. [34]
    Again, the threshold condition for an application for substituted service is for it to be demonstrated that it was impracticable to personally serve the application on the applicant. Only once that condition is established is the discretion enlivened.

35. [35]
    In this case, the evidence before me and before the learned Magistrate establishes that no attempt was made to serve the applicant personally with either the application for an extension of a child protection order (short-term custody), or the application for the amended child protection order (long-term guardianship order). No application was made for substituted service and no application was made for an order as to informal service. The legislative requirements were completely ignored. The order obtained has the effect of extinguishing the applicant’s parental rights. The failure to comply with the legislative requirements as to service of the application amounts to a fundamental breach of natural justice.

36. [36]
    In administering the Child Protection Act 1999, Child Safety and the DCPL are required to apply the overarching principle that the safety, wellbeing and best interests of a child are paramount, as well as the general principles set out in the Act. By failing to act in accordance with the Act and the Rules, these principles have been ignored.

37. [37]
    The hearing before the learned Magistrate was conducted ex-parte. The DCPL, in appearing before the learned Magistrate on such an application, were required to meet a high standard of candour and responsibility in bringing all material matters to the notice of the learned Magistrate, including matters that the applicant and the father would rely upon. Written submissions were filed by the DCPL. Nowhere in those submissions is any mention made of the service requirements under the Act.

38. [38]
    The applicant was denied natural justice. That is an error of law. It is appropriate to extend the time for the appeal to be filed and allow the appeal.

39. [39]
    My orders are:

1. I extend the time within which to file the notice of appeal to 17 April 2023;

2. The appeal is allowed;

3. The decision of the learned Magistrate granting a long-term guardianship order to the chief executive is set aside;

4. The matter is remitted to the Childrens Court to proceed according to law.