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GGD v Director of Child Protection Litigation[2021] QDC 309

GGD v Director of Child Protection Litigation[2021] QDC 309

DISTRICT COURT OF QUEENSLAND

CITATION:

GGD v Director of Child Protection Litigation & Ors [2021] QDC 309

PARTIES:

GGD (Father)

(Appellant)

v

Director of Child Protection Litigation

(First Respondent)

and

GXU (Mother)

(Third Respondent)

and

Haz Mustaffa (Separate Representative)

(Fourth Respondent)

FILE NO:

2893/21

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Childrens Court at Pine Rivers

DELIVERED ON:

3 December 2021 

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2021 

JUDGE:

Porter QC DCJ

ORDER:

  1. The appeal be upheld.
  1. GGD have leave to make an oral application for interim contact as follows (the interim contact application):

The second respondent, pursuant to section 67(1)(b)(ii) and/or section 68(1)(c) of the Child Protection Act 1999, seeks an interim order for contact with PQM as follows:

  1. Unsupervised contact twice per week for two-hour periods; or failing that,
  2. Such other form of interim contact as the Court orders.
  1. GGD have leave to rely on his affidavit filed 8 November 2021 on hearing of the interim contact application
  1. The other parties to the temporary custody application file and serve any material they rely on in respect of the interim contact application along with an outline of submissions of not more than ten pages identifying all material to be relied upon by 4pm on 10 December 2021
  1. The interim contact application and the temporary custody application be transferred to Childrens Court Magistrate sitting in Brisbane;
  1. The interim contact application be remitted to the Childrens Court constituted by a Magistrate to be heard at Brisbane before a Childrens Court Magistrate other than the Magistrate who dealt with the matter on 5 November 2021; and
  1. The interim contact application be heard with priority as soon as reasonably possible after 10 December 2021.

LEGISLATION:

Children’s Court Rules 2016 (Qld), rr. 6, 7, 8, 16, 73, 74

Child Protection Act 1999 (Qld), ss. 67, 68, 99, 106, 110, 117, 121

District Court of Queensland Act 1967 (Qld), s. 118

Judicial Review Act 1991 (Qld)

CASES:

Neil v Nott (1994) 121 ALR 148

Trkulja v Markovic [2015] VSCA 298

APPEARANCES:

GGD, self-represented

P. Wijesoma on behalf of Director of Child Protection Litigation

C. Hughes on behalf of the Separate Representative

Background

  1. [1]
    On 8 November 2021, the appellant filed a Notice of Appeal in the Brisbane Registry of the District Court of Queensland, sitting as the Childrens Court of Queensland.  The appeal is brought against the decision made by the Pine Rivers Childrens Court on 5 November 2021.  The Notice of Appeal does not specify particular grounds of appeal other than that the decision being appealed is the order of the Pine Rivers Childrens Court of 5 November 2021, though it is evident from the accompanying affidavit that the appellant seeks orders from the Court, as follows:
    1. (a)
      That GGD’s weekly contact with the child be reinstated; and
    2. (b)
      That the subpoenas filed by GGD with the Childrens Court (presumably at the Registry of the Pine Rivers Magistrates Court) be issued. 
  2. [2]
    The appeal arises out of the following circumstances.
  3. [3]
    PQM, born on 29 October 2015, is currently six years of age.  GXU and GGD are the biological parents of PQM.
  4. [4]
    On 12 July 2019, the Brisbane Childrens Court made a final child protection order granting short-term custody of PQM to the Chief Executive (Child Safety) for a period of two years, to expire on 12 July 2019.  The making of the final child protection orders was subject to appeal proceedings commenced by GGD.  On 6 March 2020, Loury QC DCJ published reasons for the dismissal of the appeal.
  5. [5]
    On 9 July 2021, the Director of Child Protection Litigation (DCPL) filed an application in the Pine Rivers Childrens Court for a child protection order granting long-term guardianship of PQM to the Chief Executive until his 18th birthday.  By operation of s. 99 Child Protection Act 1999 (Qld) (the CPA), PQM remained in the custody of the Chief Executive (Child Safety) upon the expiry of the initial order on 12 July 2021. 
  6. [6]
    The substantive application has been before the Pine Rivers Childrens Court on the following occasions:
    1. (a)
      23 July 2021 – an order made of the appointment of a separate representative pursuant to s. 110 CPA;
    2. (b)
      20 August 2021 – the matter was further adjourned for mention on 1 October 2021 to allow for the development of a revised case plan for PQM with the family group meeting to develop this plan being scheduled of 6 September 2021.
    3. (c)
      1 October 2021 – the matter was adjourned to allow further opportunity to facilitate GGD’s participation in social assessment interviews which proceeded on 22 September 2021;
    4. (d)
      5 November 2021 – due to the matter remaining contested by the respondents, the proceedings were adjourned for further mention on 20 January 2022 with a Court Ordered Conference to be convened on 17 January 2022. 

The 5 November hearing

  1. [7]
    It is what occurred on 5 November 2021 which is the subject of this appeal.  There are some important points of context to be noted.  On that day, the substantive application for final orders was on for mention. It can be accepted that her Honour on that day was primarily concerned with making programming orders.  The hearing was short and mostly concerned with making orders of that kind and no complaint is made, it seems, about the arrangements made for the progress of the underlying application.  The real issue which arises can be seen in the following extract from the transcript.[1]

HER HONOUR:Thank you very much.

RESPONDENT [GGD]:Your Honour, I have this deal to with. And ---

HER HONOUR:Well, you can lodge anything that you need to lodge though ---

RESPONDENT [GGD]:Your Honour, this clearly ---

HER HONOUR:--- the registry.

RESPONDENT [GGD]:

--- states to bring it to a judge and have it dealt with by a magistrate. I’ve waited two months for this contact ---

HER HONOUR:

You need to lodge anything that you want to come before the court with the registry.

RESPONDENT [GGD]:That is completely false. I was told ---

HER HONOUR:Thank you.

RESPONDENT [GGD]:--- this morning ---

HER HONOUR: Thank you.

RESPONDENT [GGD]:--- to hand it to you

HER HONOUR:You can go. Thank you.

MS DEAN:Thank you, your Honour.

REPSONDENT [GGD]:Are you telling me that you are refusing to do your job?

HER HONOUR:

You need to lodge anything you want me to look at through the registry. That’s the third time I’ve said it. So ---

RESPONDENT [GGD]:I was told this morning ---

HER HONOUR:--- you need to leave.

REPSONDENT [GGD]: --- I could hang [hand] this to you.

HER HONOUR:Thank you. You can’t. You need to lodge it at the registry.

RESPONDENT [GGD]:Right. So you’re telling me ---

HER HONOUR:Goodbye.

REPSONDENT [GGD]:--- that ---

HER HONOUR:Thank you. The matter is finished. We’ll move onto the next matter.

…

RESPONDENT [GGD]:Well, no. I want my subpoenas organised, your Honour

HER HONOUR:Yes. But I’ve told you

REPSONDENT [GGD]:--- that you continue to refuse.

HER HONOUR:

--- previously, your subpoenas are organised when the matter is listed for hearing. That’s not going to happen ---

RESPONDENT [GGD]:That’s not correct.

HER HONOUR:--- until January

  1. [8]
    I make the following observations about this exchange:
    1. (a)
      GGD was seeking to file a document in Court but her Honour did not inquire into what documents GGD had nor about the issue which he plainly wished to raise, and refused to do so on the basis that GGD could only file a document in the Registry.
    2. (b)
      GGD was concerned about raising an issue of “contact”. Given the character of the underlying proceeding, and GGD’s involvement as a party, it would have been obvious what he wanted to deal with: his contact with PQM.  Even the most cursory inquiry by her Honour would have disclosed that.
    3. (c)
      Her Honour did not consider GGD’s apparent wish to do something with his subpoenas because they would be organised when the matter was listed for trial.
  2. [9]
    Her Honour erred in two ways in this short exchange.
  3. [10]
    First, her Honour erred in law in stating the proposition that GGD had to lodge a document with the Registry and that he could not hand it to her in Court. Rule 16 Childrens Court Rules 2016 (Qld) (the Rules) provides that a document may be filed in the Court, in effect, by filing it in the Registry.  It is presumably this Rule which her Honour had in mind when she made the comments she did.  However, that Rule does not sustain her proposition. 
  4. [11]
    Rule 16 does not say that the only way a document can be filed in the Court is by filing in accordance with its terms.  A Court has control over its own processes and has plenary power to make orders and give directions necessary to the hearing and determining of matters within a Court’s jurisdiction.  That is expressly recognised by Rules 6, 7 and 8.  That power extends to giving a party leave to read and file a document in Court.  It is done every day in Courts at all levels in Queensland.  Her Honour had ample power to consider the documents, and if proper, to permit them to be filed in Court. She erred in asserting that the only way a document can be lodged is at the Registry. 
  5. [12]
    That is not the end of the matter though.  The written submissions of the DCPL directed attention to Rules 73 and 74 as supporting her Honour’s proposition. Rule 73 provides that an application in a proceeding may be made, relevantly, by filing it in the Court: see Rule 73(1)(b).  This picks up the method for filing in Rule 16.  The DCPL presumably directed attention to that Rule because, like me, the Director perceived that the issue GGD sought to raise was the suspension of his contact with the child.  The reference to this Rule, however, merely highlights the error made by her Honour. 
  6. [13]
    If one reads the very next Rule, Rule 74, one finds the following:
  1. Oral applications
  1. (1)
    A party to a proceeding may make an oral application for any order or relief the court may make or grant on a written application.
  2. (2)
    If a party makes an oral application under subrule (1), the court may—
    1. permit the application to proceed orally, in a way and on the conditions the court considers appropriate; or
    2. direct the party to make the application in writing in accordance with rule 73.
  1. [14]
    This Rule provided a direct solution to GGD’s problem.  Her Honour had power under the Rule to permit GGD to make his application for contact orally on the directions hearing, and then to make directions under Rule 74 for its fair disposition.  In respect of the central issue which GGD sought to raise, her Honour had express power under the Rules to permit the application to be made, despite no application having been filed with the Registry.
  2. [15]
    Second, her Honour erred not only in failing to apply the correct law, but also in failing to act consistently with her duty as a judicial officer dealing with a matter involving a litigant in person. That duty arose under statute and at common law.
  3. [16]
    Under statute, the duty was imposed by s. 106(1) CPA which provides that:  

In a proceeding for a child, the Childrens Court must, as far as practicable, ensure the child’s parents and other parties to the proceeding (including the child if present) understand the nature, purpose and legal implications of the proceeding and of any order or ruling made by the court.  

  1. [17]
    The duty to assist in respect of a litigant in person also arises at common law.  The Court’s duty when conducting a proceeding involving a litigant in person has been the subject of numerous cases in intermediate Courts of Appeal[2] and in the High Court.[3]  It is generally recognised in the authorities as comprising a duty to ensure a fair hearing, despite the shortcomings of the litigant in person.  The formulation of this ‘duty to assist’ varies from case to case.   However, a useful statement of the general principle appears in Trkulja v Markovic [2015] VSCA 298, where the Victorian Court of Appeal held (footnotes omitted):
  1. Some cases have described the judge’s duty in terms that suggest that it is owed to the self-represented litigant while others have more accurately described it as a general duty which is inherent in the discharge of the judicial function.
  2. Whatever the rationale for the judge’s duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial.  It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case.
  3. The judge may also take into account whether a self-represented litigant is legally qualified or has had prior experience in litigation and whether it may be inferred from his or her qualifications or experience that he or she has a working knowledge of the substantive area of law that he or she is litigating and applicable court procedure.  A further relevant consideration is whether another party to the litigation, whose interests are aligned with those of the self-represented party, is represented and is able to provide assistance to the self-represented party.
  4. In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence.  It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights. 
  5. The High Court has stated that a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. Similarly, this Court has endorsed the proposition that ‘[c]oncealed in the lay rhetoric and inefficient presentation may be a just case’.
  6. It is clear that a judge cannot become the advocate of the self-represented litigant. This is because the role of a judge is fundamentally different to that of an advocate. Further, a judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. Accordingly, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one litigant is self-represented.
  1. [18]
    There is clear authority for the Judge to explain purely procedural matters to a litigant in person.  Beyond that, what is to be done in a particular case will depend on the particular circumstances. It is worth observing, however, that there is no absolute prohibition on the Court advising on substantive points of law.  The High Court in Neil v Nott (1994) 121 ALR 148 found, in effect, that it was the trial Judge’s duty in that case:
    1. (a)
      To identify that the relief which Mr Neil should have sought was an extension of time to bring a Family Provision Application (even though Mr Neil did not ever seek that relief, never filed an application and pursued utterly unrelated matters on the hearing);
    2. (b)
      To identify (from the extensive material filed) the three relevant pieces of evidence in favour of such an application; and
    3. (c)
      To grant the application.
  2. [19]
    This leaves a Judge facing something of a dilemma.  He or she needs to ensure a fair hearing.  He or she must do this by assisting the litigant in person sufficiently, but not too much, such that the trial is as fair as possible while not unduly disadvantaging the represented party and avoiding the impression that the Court is not impartial.  It is a delicate balancing exercise which can only be undertaken against the backdrop of the particular facts of each case.  These duties, statutory and common law, apply to any hearing, whether interlocutory[4] or final, though as I have said, the content of the duty will vary with the circumstances.
  3. [20]
    This is of particular significance in this case because, as the DCPL helpfully points out, the Childrens Court is able to make interim orders in relation to contact.[5]  So GGD was correct, as a matter of law, to seek interim contact orders from the Childrens Court and there was no reason why her Honour could not have identified what GGD was seeking to achieve and then made directions for that to be dealt with.
  4. [21]
    Her Honour erred in failing to listen to what GGD had to say and in considering how to assist him in navigating the procedural issues which arose. 
  5. [22]
    Both her Honour’s refusal to permit GGD to hand a document to her, and her Honour’s failure to provide any assistance to GGD as a litigant in person by explaining the processes of the Court and how they might facilitate the matters he sought to agitate, comprise errors by her Honour. 
  6. [23]
    I should add this.  It is counsel’s duty to assist a Court and to help the Court to avoid error.  This includes assisting the Court to navigate the shoals and reefs of the ‘duty to assist’ where a litigant in person appears.  Given the pressure of work presumably confronting her Honour, it was the Director’s duty to assist her Honour to avoid the errors which occurred in this matter.  That is all the more so given that the Director’s counsel had greater knowledge of the background circumstances generally, and GGD’s position in particular, and presumably had particular expertise in Child Protection law and practice.  One might think that the Director ought to have intervened to assist her Honour to avoid falling into error.
  7. [24]
    Finally, while the Director’s counsel conceded the above points quickly on the hearing of the appeal, the outline of argument sent last night maintained the correctness of the decision.

Is there a right of appeal from interlocutory decisions in child protection matters?

  1. [25]
    The jurisdiction in this Court to hear an appeal from an interlocutory decision of a Magistrate constituting the Childrens Court must arise from statute.
  2. [26]
    Counsel for the Director submitted that such jurisdiction is conferred by s. 117(1) CPA which provides:
  1. (1)
    The following persons may appeal to the appellate court against a decision on an application for a temporary assessment order or a temporary custody order for a child—
  1. (a)
    the applicant;
  2. (b)
    the child;
  3. (c)
    the child’s parents.
  1. [27]
    The substantive application is one contemplated by the chapeau provision in s. 117(1), being an application for a temporary custody order.  The section does not expressly confer power to hear an appeal from an interlocutory judgment: compare s. 118(2) District Court of Queensland Act 1967 (Qld).  And the language of the section permitting an appeal against a decision “on an application” is not most conducive to implying such jurisdiction.  However, a decision “on an application” does not preclude including interlocutory decisions, and other language could have been chosen to limit appeals to final orders if that was Parliament’s intention (such as “a decision of an application”, or “the determination of an application”).
  2. [28]
    Further, it seems highly improbable, given the extensive and far-ranging provision in the CPA for interlocutory orders (such as interim contact orders of the kind dealt with below), that Parliament would intend to read s. 117(1) strictly so as to exclude jurisdiction to hear interlocutory appeals.  Such a construction would leave an interlocutory order necessarily in place for a long time and further, if wrongly given, could have evidentiary consequences which impacted on the fair determination of the application itself.  In that respect, a strict construction seems unlikely to advance the principles of the CPA articulated in Part 2 Division 1.
  3. [29]
    The Director’s counsel informed me that no judgment from this Court had determined this issue.  I have no reason to doubt that, though I understand a judgment on the issue in pending.  However, I cannot guess what the conclusion might be in that decision.
  4. [30]
    For my part, I construe s. 117(1) as conferring jurisdiction on this Court to hear appeals from interlocutory orders by the Childrens Court constituted by a Magistrate.  The possibility of an order to review under the Judicial Review Act 1991 (Qld), for jurisdictional error where there is a failure to exercise jurisdiction, need not be considered.

Orders on this appeal

  1. [31]
    The powers of this Court on appeal are set out at s. 121 CPA:

121 POWERS OF APPELLATE COURT

In deciding an appeal, the appellate court may—

  1. (a)
    confirm the decision appealed against; or
  2. (b)
    vary the decision appealed against; or
  3. (c)
    set aside the decision and substitute another decision; or
  4. (d)
    set aside the decision appealed against and remit the matter to the magistrate or Childrens Court that made the decision.
  1. [32]
    Her Honour’s decision was to refuse to receive any document from GGD or to consider his submissions on any matter.  I set aside that decision. In my view, her Honour should have given GGD an opportunity to explain his objective and should have explained the procedural alternatives available properly to advance that objective.  That is what in fact occurred in the course of the appeal hearing before me.  The result is that, in my view, the order which should have been made was to grant GGD leave to file his affidavit and leave to make an oral application for an interim custody order and give directions for its prompt resolution. 
  2. [33]
    Accordingly, I order:
    1. (a)
      That GGD have leave to make an oral application for interim contact as follows (the interim contact application):

The second respondent, pursuant to section 67(1)(b)(ii) and/or section 68(1)(c) of the Child Protection Act 1999, seeks an interim order for contact with PQM as follows:

  1. (a)
    Unsupervised contact twice per week for two-hour periods; or failing that,
  1. (b)
    Such other form of interim contact as the Court orders; and
  1. (b)
    GGD have leave to rely on his affidavit filed 8 November 2021 on that application.
  1. [34]
    Further, the consequence of the decision below was to delay the hearing of an interim contact application by a month.  Christmas is now looming.  GGD is acutely anxious to have the application heard.  Accordingly, I make the further orders:
    1. (a)
      That the other parties to the application file and serve any material they rely on in respect of the interim contact application along with an outline of submissions of not more than ten pages identifying all material to be relied upon by 4pm on 10 December 2021;
    2. (b)
      The interim contact application and the temporary custody order application be transferred to Childrens Court Magistrate sitting in Brisbane;
    3. (c)
      The interim contact application be remitted to a heard at Brisbane before a Childrens Court Magistrate other than the Magistrate who dealt with the matter on 5 November 2021; and
    4. (d)
      The interim contact application be heard with priority as soon as reasonably possible after 10 December 2021.

The subpoena issue

  1. [35]
    There is no error in her Honour’s decision to defer considering the issue of subpoenas until trial directions.  However, her Honour seemed to be acting on the assumption that subpoenas could only be issued at that point, which seems incorrect under the Rules.  In any event, I direct that on the hearing of GGD’s interim contact application, the Court determine, after hearing from the parties, whether to issue the subpoenas filed in the application by GGD and if so when.

Footnotes

[1] TS2.14 to 3.15.

[2] Recent cases include Rajski v Scitec Corporation Ltd (Unreported NSWCA No 146 of 1986) at pages 14 and 27 (frequently cited in later cases);  Minogue v HREOC (1999) 84 FCR  438 at [26] to [33]; In Marriage of F (2001) 161 FLR 189 at 215-227 (Full Court of the Family Court);  McWhinney v Melbourne Health (2011) 31 VR 285 at [20] to [26];  Hamond v NSW [2011] NSWCA 375 at [309] to [316], approved and applied by the Full Court of the Federal Court in Szrur v Minister for Immigration (2013) 216 FCR 445 at 452-454; Trkulja v Markovic [2015] VSCA 298; Ross v Hallam [2011] QCA 92 at [12]-[13] and [18] to [22].

[3] Neil v Nott (1994) 121 ALR 148.

[4] See cases on the approach to adjournments: Sullivan v Department of Transport (1978) 20 ALR 323 at 343; DPP v Ozakca (2006) 68 NSWLR 325.

[5] See ss. 67(1)(b)(ii) and 68(1)(c) CPA.

Close

Editorial Notes

  • Published Case Name:

    GGD v Director of Child Protection Litigation & Ors

  • Shortened Case Name:

    GGD v Director of Child Protection Litigation

  • MNC:

    [2021] QDC 309

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    03 Dec 2021

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
DPP v Ozakca (2006) 68 NSWLR 325
1 citation
Jump To
Cite 1 - (2006) 68 NSWLR 325
Hamod v New South Wales [2011] NSWCA 375
1 citation
Jump To
Cite 1 - [2011] NSWCA 375
In Marriage of F (2001) 161 FLR 189
1 citation
Jump To
Cite 1 - (2001) 161 FLR 189
McWhinney v Melbourne Health (2011) 31 VR 285
1 citation
Jump To
Cite 1 - (2011) 31 VR 285
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
1 citation
Jump To
Cite 1 - (1999) 84 FCR 438
Neil v Nott (1994) 121 ALR 148
3 citations
Jump To
Cite 1 - (1994) 121 ALR 148
Cite 2 - (1994) 121 ALR 148
Cite 3 - (1994) 121 ALR 148
Ross v Hallam [2011] QCA 92
1 citation
Jump To
Cite 1 - [2011] QCA 92
Sullivan v Deparment of Transport (1978) 20 ALR 323
1 citation
Jump To
Cite 1 - (1978) 20 ALR 323
Szrur v Minister for Immigration (2013) 216 FCR 445
1 citation
Jump To
Cite 1 - (2013) 216 FCR 445
Trkulja v Markovic [2015] VSCA 298
3 citations
Jump To
Cite 1 - [2015] VSCA 298
Cite 2 - [2015] VSCA 298
Cite 3 - [2015] VSCA 298

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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