F v Sturrock - [2004] QChC 4

CHILDRENS COURT OF QUEENSLAND

CITATION:

F v Sturrock [2004] QChC 4

PARTIES:

F
(appellant)

V

MARGARET STURROCK
(respondent)

FILE NO/S:

3091/04

DIVISION:

Appellate jurisdiction

PROCEEDING:

Appeal against an interim custody order

ORIGINATING COURT:

Childrens Court, Inala

DELIVERED ON:

27 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2004

JUDGE:

Judge O’Brien P.

ORDER:

1.   Appeal allowed and orders made below set aside.

2.   The Chief Executive have temporary custody of the children until further order is made by the Inala Childrens Court Magistrate.

3.   The application for the Protection Order remains returnable before the Childrens Court Magistrate at Inala at 9.00 a.m. on 30 August 2004.

CATCHWORDS:

APPEAL – INTERIM CUSTODY ORDER – where proceedings brought on before Magistrate immediately after application filed – where no attempt was made to effect service on or give notice of hearing to appellant – whether it was “not practicable” to give appellant notice of hearing – whether proceedings represented an abuse of process and a denial of natural justice

Child Protection Act 1999, s 18, ss 54-58, s 67, s 117(2), s 119

Crystal Dawn Pty Ltd & Anor v Redruth Pty Ltd (1998) QCA 373

COUNSEL:

Mr D Perkins for Appellant
Mr K Parrott for Respondent

SOLICITORS:

Inala Lawyers for Appellant
Crown Law for Respondent

On 16 August 2004 in the Childrens Court at Inala the respondent to this appeal filed an application for a Child Protection Order in respect of two children who are the daughters of the present appellant. Immediately after the application was filed it was brought on for hearing before the Childrens Court Magistrate at Inala who made orders pursuant to s 67 of the Child Protection Act 1999 adjourning the proceedings for further mention on 30 August 2004 and granting temporary custody of the children to the Chief Executive. The Magistrate also ordered that the children should undergo a medical examination, including a pregnancy test and a psychiatric evaluation, and that they should be separately legally represented in the proceedings.

Section 117(2) of the Act permits a party to the proceeding for an application for a Child Protection Order to appeal to the appellate court against a decision on the application. The appellate court, relevantly, is the Childrens Court constituted by a judge. The present appellant, as the father of the children the subject of the application, becomes a party to the proceeding through the operation of s 57 of the Act.

The essence of the appellant’s complaint is that the proceedings below represented an abuse of process and a denial of natural justice. To understand this argument it is necessary to make some reference to the provisions of the Act.

The Act provides, in s 54, that an authorised officer may apply to the Childrens Court for a Child Protection Order for a child. The application must be filed in the court and must state the grounds on which it is made, the nature of the order sought and must comply with applicable Rules of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading F v Sturrock

Details

AGLC: F v Sturrock [2004] QChC 4
Case: [2004] QChC 4
Decision Date: 27 August 2004

CaseChat Overview and Summary

The appeal involves a dispute regarding the legality of interim custody orders made in the Inala Childrens Court in relation to two children. The original application for custody was brought before the court without any attempt to serve the appellant, the mother of the children, with the necessary documents or to notify her of the hearing. The appellant subsequently appealed the decision of the Childrens Court, arguing that the proceedings represented an abuse of process and a denial of natural justice because she was not given an opportunity to be heard.

The court was required to determine whether the proceedings were lawful, specifically whether it was "not practicable" to give the appellant notice of the hearing as required by statute. The court needed to assess whether the failure to serve or notify the appellant was justified and whether the proceedings complied with the principles of natural justice.

The court held that the failure to serve or notify the appellant was not justified, and the proceedings did indeed represent an abuse of process and a denial of natural justice. The court found that it was practicable to give the appellant notice of the hearing, and her absence from the proceedings resulted in a significant miscarriage of justice. Consequently, the appeal was allowed, and the orders made by the Inala Childrens Court were set aside. The court also ordered that temporary custody of the children be given to the Chief Executive until further order by the Inala Childrens Court Magistrate. The application for the Protection Order was to remain returnable before the Childrens Court Magistrate at Inala at 9.00 a.m. on 30 August 2004.

Orders

Orders of the court

1. Appeal allowed and orders made below set aside.

2. The Chief Executive have temporary custody of the children until further order is made by the Inala Childrens Court Magistrate.

3. The application for the Protection Order remains returnable before the Childrens Court Magistrate at Inala at 9.00 a.m. on 30 August 2004.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	F v Sturrock [2004] QChC 4
PARTIES:	F (appellant) V MARGARET STURROCK (respondent)
FILE NO/S:	3091/04
DIVISION:	Appellate jurisdiction
PROCEEDING:	Appeal against an interim custody order
ORIGINATING COURT:	Childrens Court, Inala
DELIVERED ON:	27 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2004
JUDGE:	Judge O’Brien P.
ORDER:	1. Appeal allowed and orders made below set aside. 2. The Chief Executive have temporary custody of the children until further order is made by the Inala Childrens Court Magistrate. 3. The application for the Protection Order remains returnable before the Childrens Court Magistrate at Inala at 9.00 a.m. on 30 August 2004.
CATCHWORDS:	APPEAL – INTERIM CUSTODY ORDER – where proceedings brought on before Magistrate immediately after application filed – where no attempt was made to effect service on or give notice of hearing to appellant – whether it was “not practicable” to give appellant notice of hearing – whether proceedings represented an abuse of process and a denial of natural justice Child Protection Act 1999, s 18, ss 54-58, s 67, s 117(2), s 119 Crystal Dawn Pty Ltd & Anor v Redruth Pty Ltd (1998) QCA 373
COUNSEL:	Mr D Perkins for Appellant Mr K Parrott for Respondent
SOLICITORS:	Inala Lawyers for Appellant Crown Law for Respondent