Pav v Director of Child Protection Litigation

[2016] QCA 234

COURT OF APPEAL

PHILIP McMURDO JA

Appeal No 9378 of 2016
DC No 3576 of 2016

PAV Applicant

DIRECTOR OF CHILD PROTECTION LITIGATION
HG
CD Respondents

BRISBANE

WEDNESDAY, 14 SEPTEMBER 2016

JUDGMENT

PHILIP McMURDO JA: There are two applications before this Court seeking stays of orders made in the Childrens Court last Friday, 9 September. The Director of Child Protection Litigation brought proceedings in the Childrens Court seeking child protection orders. The Childrens Court, constituted by a Magistrate, was asked to order that the Director be given temporary custody of the children. They are the children of the present applicant. On 30 August 2016 the Magistrate declined to do so. The director appealed against those decisions (there being a separate proceeding for each of the applicant’s children). The appeal was under s 117 of the Child Protection Act 1999. By s 117(1) there was a right of appeal to “the appellate court”, against those decisions because they were decisions on an application for temporary custody orders. The term “appellate court” is defined by schedule 3 of the Child Protection Act to mean:

“(a)for a decision on an application for a court assessment order or child protection order, or for an order transferring a child protection order or child protection proceeding to a participating State––
(1)if the decision was made by the Childrens Court constituted by a Judge––the Court of Appeal; or
(2)if the decision was made by the Childrens Court constituted in another way––the Childrens Court constituted by a judge; or

(b)for a decision on an application for a temporary assessment order or temporary custody order––the Childrens Court constituted by a judge.”

On 9 September the Childrens Court constituted by a judge – Judge Dearden – set aside those decisions of 30 August and ordered that interim custody of each of the children be granted to the chief executive for a certain period. The Court made further orders to the effect that the present applicant have no contact with the children during that period. The applicant wishes to appeal against the orders of 9 September. She applies today to the Court of Appeal for a stay of those orders pending a proposed appeal to this Court. However, an appeal does not lie to this Court in the circumstances as I have summarised them. That is because in these circumstances the Court of Appeal is not an “appellate court” within that definition.

It is true that the proposed appeals are against decisions of the Childrens Court constituted by a judge, but it has been consistently held that subparagraph (1) of paragraph (a) of the definition refers to a decision made by the Childrens Court constituted by a judge which was in the nature of the original decision of the court and not a decision made by the Childrens Court constituted by a judge exercising its appellate jurisdiction: see SBD v Chief Executive, Department of Child Safety [2008] 1 Qd R 474; [2007] QCA 318; CAO v Department of Child Safety & Ors [2009] QCA 169; CAR & Anor v Department of Child Safety [2011] 2 Qd R 70; [2010] QCA 27 and FY & Anor v Department of Child Safety [2009] QCA 67.

It may be added that no appeal lies to this Court under s 118(3) of the District Court of Queensland Act 1967 (Qld) in the present circumstances because here the orders were not made by the District Court, but by the Childrens Court and the fact that the Childrens Court is constituted by a judge commissioned as a District Court judge does not alter the fact that the courts are distinct: see for example Cousins v HAL [2008] QCA 49.

It follows that no appeal lies to this Court against the orders made last Friday. The Court’s power to stay the operation of those orders could derive only from a jurisdiction to hear an appeal from those orders. Therefore the Court of Appeal has no power to stay the operation of the orders and the present applications must be dismissed.

CaseChat Overview and Summary

The case of Pav v Director of Child Protection Litigation involved two appeals made by the Director of Child Protection Litigation against decisions of the Children's Court that had declined to grant temporary custody orders for two children. The Court of Appeal, presided over by Justice Philip McMurdo, was tasked with determining whether it had jurisdiction to grant a stay of the orders made by the Children's Court. The applicant, Pav, sought to appeal the interim custody orders granted by the Children's Court, which had been made after the initial refusal by the magistrate to grant the custody orders.

The central legal issue before the Court of Appeal was whether it had the jurisdiction to hear an appeal from the orders made by the Children's Court constituted by a judge, and consequently, whether it had the power to stay those orders. The appeal was grounded in section 117 of the Child Protection Act 1999, which outlines the right of appeal against decisions on applications for temporary custody orders. The Court needed to interpret the term "appellate court" as defined in the Child Protection Act and determine whether the Court of Appeal fell within this definition in the context of the orders in question.

In delivering the judgment, Justice McMurdo examined the statutory provisions and case law to conclude that the Court of Appeal did not have jurisdiction to hear an appeal in the circumstances presented. The Court held that the definition of "appellate court" in the Child Protection Act did not encompass the Court of Appeal when the Children's Court was exercising its appellate jurisdiction. This interpretation was consistent with previous cases, which had established that the term referred to the original decision-making capacity of the Children's Court constituted by a judge, not its appellate function. Additionally, the Court noted that no appeal lay under section 118(3) of the District Court of Queensland Act 1967, as the orders in question were made by the Children's Court and not the District Court.

Given the Court of Appeal's lack of jurisdiction to hear the appeal, Justice McMurdo concluded that it did not have the power to stay the operation of the orders made by the Children's Court. Consequently, the applications for a stay were dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established