kN v Department of Communities, Child Safety and Disability Services
[2015] QChC 2
•19 February 2015
CHILDRENS COURT OF QUEENSLAND
| CITATION: | KN v Department of Communities, Child Safety and Disability Services and Another [2015] QChC 2 |
| PARTIES: | K N and DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES and H |
| FILE NO: | No. 340 of 2014 |
| PROCEEDING: | Appeal against consent order |
| DELIVERED ON: | 19 February 2015 |
| DELIVERED AT: | Southport |
| HEARING DATE: | 19 February 2015 |
| JUDGE: | Judge C.F. Wall Q.C. |
| ORDER: | Appeal dismissed |
| CATCHWORDS: | CHILDRENS COURT – APPEAL - CONSENT ORDER – no appealable error by magistrate– where the Appellant consented to a one year temporary custody order granting custody of the child to the chief executive – whether consent order appealable where no error by Childrens Court Magistrate was identified by Appellant |
| Child Protection Act 1999, s 65(1), s 117(2), s 118, s 120(2) | |
COUNSEL: | Self-represented Appellant Ms G. Thomas |
| SOLICITORS: | Crown Law for the Respondent |
HIS HONOUR: On the 15th of August in the Childrens Court at Southport, a temporary custody order was made in relation to the child CH granting custody of the child to the chief executive. That order was to continue in force until midnight at the end of Wednesday the 20th of August 2014. On the 20th of August 2014, the Department made an application for a child protection order.
The application was mentioned on the 21st of August in the Childrens Court, and an interim order granting temporary custody of the child to the chief executive was made on the 21st of August, and the application was adjourned to the 4th of September. On the 4th of September, it was further adjourned to the 18th of September, and a further interim order granting temporary custody of the child to the chief executive was made. On the 18th of September, the proceeding was adjourned until the 30th of October, and, again, an interim order granting temporary custody of the child to the chief executive was made.
A family group meeting was held on the 25th of August 2014. The appellant and H (the father of CH) were at that meeting, along with departmental representatives, and at that meeting a case plan was developed for CH. On the 24th of October 2014, a Court-ordered conference took place. Present at that conference was the appellant, H, the appellant’s solicitor RO, KC of BB School, and two representatives from the Department, Ms C and Ms B. The outcome of the conference is recorded as follows, reading from the report by the conference chairperson:
The outcome of the conference was that an agreement was reached. All parties agreed to the application for a one-year order.
The appellant agrees that that was so but contends that she expected CH to be placed in her care by the Department provided she did three things: (1) obtain suitable accommodation, (2) complete a parenting course and (3) prepare a mental health care plan. She contends that she has satisfied these three requirements. The Department says there are more concerns than just those three, and these are summarised in paragraph 27(b), (c), (d), (e), (f), (g) and (h) of the outline of argument of the respondent Department.
As a result of the agreement reached at the Court-ordered conference, when the matter returned to Court on the 30th of October, the appellant did not appear then but was represented by her solicitor RO. H appeared in person, and Ms VC appeared on behalf of the Department, and the transcript of what occurred there is set out in paragraphs 11 and 12 of the respondent’s outline of argument as follows:
MS VC: Your Honour, I understand a Court-ordered conference was held on the 24th of October with consent provided by all parties for the current application before the Court for a child protection order granting custody of the child to the chief executive for a period of one year. As such, your Honour, the Department would be ready to proceed on this application today.
BENCH: Ms RO
MS RO: Your Honour, for the record, my client is not present in Court today; however, I have instructions to agree to a one-year custody order.
BENCH: All right. Mr H, what do you say?
MR H: Yeah.
BENCH: Do you agree?
MR H: Yes, your Honour.
Then his Honour said:
Very well. Well, having considered the matters raised in the material, the matters listed in section 59 of the Act, the views expressed by the parties and the general agreement with the proposed orders, I’m satisfied that it is appropriate to make an order, and I do so. I make a child protection order in relation to the child granting custody of the child to the chief executive for a period of one year. The child protection order will continue in force to and including 30th October 2015.
The appellant has appealed against that order.
In my view, leaving aside the fact that the appellant consented to the order made by the Childrens Court magistrate, there was, in my view, in any event, a sufficient evidentiary basis for the magistrate to conclude (1) that the child was a child in need of protection; (2) that it was appropriate and desirable to make the child protection order he did; (3) that the child protection order was the least intrusive intervention that would meet the child’s care and protection needs; (4) that a suitable case plan had been developed for the child dated the 25th of August 2014; this was the plan developed following the family group meeting held on the 25th of August 2014, at which the appellant was present; (5) that the other section 59 factors were satisfied.
In my view, because the appellant consented to the making of the child protection order the subject of her appeal, there is no basis upon which she is able to appeal against that order. The following sections in the Child Protection Act deal with appeals to this Court from a Childrens Court magistrate: sections 117, subsection (2); section 118 and section 120, subsection (2). In my view, it is implicit in those sections that the appellant must in the first place be aggrieved by the decision appealed against. Having consented to the decision, she cannot, in my view, be aggrieved by it to the extent necessary to be able to appeal against it.
I agree with the outline of argument on behalf of the Department in paragraph 4 to the effect that there is no appealable error on the part of the Childrens Court magistrate and, secondly, that the grounds of appeal are essentially that the appellant
has addressed the identified child protection concerns and, therefore, CH should be returned to her care. In those circumstances, the Department contends, correctly, in my view, that the appropriate application for the appellant to bring is an application for revocation of the child protection order pursuant to section 65, subsection (1) of the Child Protection Act.
For the reasons I have given, the appeal will be struck out.
APPELLANT: Sure.
HIS HONOUR: So you will have to make your application under section 65, subsection (1) to the Childrens Court magistrate.
APPELLANT: Sure, your Honour.
HIS HONOUR: All right. Anything else, Ms Thomas?
MS GT: No. Nothing further, your Honour. Thank you.
HIS HONOUR: All right. Now, for what it’s worth, the Department has said it’s prepared to talk to you when you leave Court, and I think you should at least talk to them.
APPELLANT: I’ve always cooperated with the Department, your Honour, and that’s why I find it very hard to understand why he hasn’t been returned to my care after all this time.
HIS HONOUR: Yes. All right. Well, anyway, have a talk to them.
APPELLANT: Sure, your Honour. Thank you.
HIS HONOUR: And if you can’t resolve matters amicably, your only remedy is the application to revoke the child protection order.
APPELLANT: Thank you.
HIS HONOUR: All right. Thank you.
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