F v Sturrock

[2004] QDC 302

CHILDRENS COURT OF QUEENSLAND

CITATION: 

F v Sturrock [2004] QDC 302

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

1. 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.

2. 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.

3. 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.

4. 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 Court.

5. When the application is filed, the Registrar of the Court must immediately fix the time and place for hearing the application having regard to the principle that it is in the best interests of the child for the application to be heard as early as possible (s 55).

6. Section 56 then provides as follows:

“(1)

As soon as practicable after the application is filed, the
applicant must –

(a)	personally serve a copy of it on each of the child’s’ parents; and
(b)	tell the child about the application.

(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 applicant;

(3)

The copy of the application served under this section must
state -

(a)	when and where the application is to be heard; and
(b)	the application may be heard and decided even though the parent does not appear in court”.

1. Section 58 of the Act deals with the hearing of the application in the absence of parents and provides as follows:-

“(1)

The Childrens Court may hear and decide the application in
the absence of the child’s parents only if –

(a)	the parents have been given reasonable notice of the hearing and fail to attend or continue to attend the hearing; or
(b)	it is satisfied it was not practicable to give the parents notice of the hearing.

(2)

Sub-section (1) does not limit the jurisdiction of the court to
exclude a person from a proceeding.

1. As indicated above, in this case the hearing of the application was brought on before the Magistrate immediately after the application was filed in the Registry. No attempt was made to effect service on the appellant notwithstanding that the children were residing with him at his residence. Moreover, no notice of the hearing of the application was ever given to the appellant. His first knowledge of the matter came with the service of the Interim Protection Order on the late afternoon of 16 August 2004. Mr Parrott who appears for the respondent, has argued that the procedure followed was appropriate because the applicant for the orders considered that the appellant, if forewarned of the application, might “influence the children in such a way as to make taking them into temporary custody impossible”. He submits that it was therefore “not practicable” in the circumstances to give the appellant notice of the hearing.

2. In my view however the word “practicable” as it appears in s 58 of the Act should bear its ordinary meaning. The primary meaning of the word, as defined in the Oxford English Dictionary, is “capable of being put into practice, carried out in action, effected, accomplished, or done; feasible”.

3. Section 58 is concerned with the actual act of giving notice of the hearing to the child’s parents. The section requires 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, cannot be effected or carried out.

4. The scheme of the Act contemplates that the giving of notice would ordinarily be achieved through the operation of s 56. That section as set out above, requires that the application must be either served personally on each of the parents, or if such personal services is not practicable, then a copy may be posted to the parent’s residential address last known to the applicant. It is not without significance that s 56(3) requires that the notice served under the section must provide detail of when and where the application is to be heard and must advise that the application may be heard and decided even though the parent does not appear in court.

5. In my view, the requirements of ss 56 and 58 are mandatory in their terms and they cannot be circumvented or ignored. To do so represents a denial of natural justice to the parents of a child the subject of an application.

6. The Magistrate below gave no reasons for his decision to make the orders there sought in the absence of proper notice to the appellant. The matter was the subject of argument by counsel who appeared for the present respondent and clearly reasons should have been given. There is a well established duty on the part of judicial tribunals to give reasons for their decisions and the failure to give reasons can itself amount to an appellable error[1]. It would seem however that the learned Magistrate was influenced by the submissions of counsel for the respondent that any forewarning given to the appellant of the proposed application might prejudice the outcome of subsequent proceedings. This submission was based very largely on certain criticisms made of the appellant during the course of other judicial proceedings to which he had been a party. The material, said to form the basis for this course, has been placed before me on the hearing of this appeal. Those concerns however, even if they could be shown to be well founded, cannot justify a failure to comply with the requirements of the legislation. In any event, if concerns did exist, I can see no reason why the Department could not have proceeded under the provisions of Part 1 of Chapter 2 of the Act and subsequently sought a temporary assessment order in accordance with section 18. That further investigation was thought necessary seems to be confirmed by the fact that orders were in fact made on 16 August 2004 for further medical examinations to be conducted of the children.

   [1]     See for example the comments of Muir J in Crystal Dawn Pty Ltd & Anor v Redruth Pty Ltd (1998) QCA 373

7. This matter has been argued as an application to stay the decision of the Childrens Court Magistrate. The power of the appellate court to order a stay “to secure the effectiveness of the appeal” is provided for in s 119. However the issue, that of failure to comply with the notice and service requirements of the legislation, is really determinative of the whole appeal.

8. For these reasons, the appeal must be allowed and the orders made below set aside. It does not follow however that the application for the Protection Order should also be set aside. The applicant now has notice of the application which should remain returnable before the Childrens Court Magistrate at Inala at 9.00 a.m. on 30 August 2004.