OWM v Director of Child Protection Litigation & Anor (No. 2)

[2022] QChC 30

DISTRICT COURT OF QUEENSLAND

CITATION:

OWM v Director of Child Protection Litigation & Anor (No. 2) [2022] QChC 30

PARTIES:

OWM

(appellant)

v

DIRECTOR OF CHILD PROTECTION LITIGATION

(first respondent)

and
DKM
(second respondent)
and

HAZRABEE MUSTAFFA
(separate representative)

FILE NO:

230/22

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 117 of the Child Protection Act 1999 (Qld)

ORIGINATING COURT:

Childrens Court Queensland

DELIVERED ON:

13 October 2022 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2022

JUDGE:

Dearden DCJ

ORDER:

The appeal is struck out

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was in relation to an interim child protection order made against the appellant – where a final child protection order was made on 15 September 2022

LEGISLATION:

Child Protection Act 1999 (Qld) s 67

CASES:

OWM v Director of Child Protection Litigation [2022] QCHC 19

COUNSEL:

OWM (self-represented) for the appellant
P Wijesoma for the first respondent
No appearance for the second respondent

H Mustaffa for the separate representative

SOLICITORS:

OWM (self-represented) for the appellant
Office of the Director of Child Protection Litigation for the first respondent
No appearance for the second respondent

H M Lawyers for the separate representative

Introduction

1. In respect of the substantive interim order that was made by the magistrate of the Childrens Court on 20 January 2022, which was an interim child protection order, made pursuant for section 67(1)(b)(ii) of the Child Protection Act1999 (Qld) and referred to in paragraph 2 of OWM v Director of Child Protection Litigation [2022] QCHC 19,[1] that interim decision was the subject of a notice of appeal filed on 28 January 2022, and the decision that I’ve just handed down and referred to related to an application for this court to allow the introduction of new or fresh evidence on that appeal.

   [1]OWM v Director of Child Protection Litigation [2022] QCHC 19 [2].

2. As a consequence of that application for new/fresh evidence, this court then was unable to proceed in dealing with what was the substantive appeal from the interim order of 20 January 2022.  And, consequently, given the delays, which I clearly indicate were matters that concerned me in respect of these proceedings, the proceedings have continued before a magistrate in the Childrens Court, and I’m advised that a final decision is being made by a magistrate on 15 September 2022. 

3. Pursuant to the Child Protection Act1999 (Qld) section 67(5), the interim order of 20 January 2022, has effect for the period of the adjournment, a final order now having been made and, I gather, from OWM, an appeal having been lodged, there is no interim order currently operative on which the substantive appeal in this matter before me currently can operate.

4. In those circumstances, the appeal has effectively been subsumed by the subsequent proceedings in the Childrens Court before the magistrate and the making of a final order.  That appeal, of course, will come to this court, no doubt, in due course.

5. In all of the circumstances, then, the only appropriate order in my view in this court is to make an order that the appeal filed 28 January 2022 be struck out. 

6. I note for the record that that is not for any reason in respect of the merit of that appeal, and OWM has today, as he has previously, identified clearly and passionately his concern to have an ongoing relationship with his child, and he is concerned about the processes that he has been involved in now for a number of years.  I understand that concern, and I respect that concern.  But, of course, my obligation is to deal with the law as set out in the Child Protection Act1999 (Qld) and the circumstances which have unfolded. And, unfortunately, because of the delays in these proceedings, the matter has proceeded to a stage where a final order has been made by a magistrate in the Children’s Court and the appeal from that, of course, will be on all of the material that was before that magistrate and will, of course, come before a judge of this court in due course, subject to directions about how that appeal is to be conducted.

   Order

7. As I’ve just identified, in the order that I’ve made, the current appeal is struck out.