F v Sturrock

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…