SB, MF v Minister for Education & Child Development - [2016] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Civil)
SB, MF v MINISTER FOR EDUCATION & CHILD DEVELOPMENT
[2016] SASC 116
Judgment of The Honourable Justice Bampton
1 August 2016
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN
The maternal grandmother of M appeals against a Variation Order of the Youth Court transferring the administration of the Care and Protection Order pertaining to M to Queensland – at the time the Variation Order was made M was placed with kinship carers in Queensland – the placement has broken down – M’s circumstances have changed – the Department of Communities, Child Safety and Disability Services in Queensland is now unlikely to accept the transfer in view of instability of placement and ongoing costs – the Minister seeks orders allowing the appeal on a limited basis, setting aside the Variation Order, but otherwise dismissing the appeal in order that the administration of the care and protection order remain with the Department for Education and Child Development in South Australia – whether the appeal against the Variation Order is an appeal against an interlocutory order to be heard by a single Judge – whether the appeal involves a matter arising under the Constitution.
HELD:
1. The appeal against the Variation Order is interlocutory in nature within the meaning of s 22(2)(b) of the Youth Court Act 1993 (SA).
2. In view of the change in M’s circumstances since the making of the Variation Order and the lacuna created by the interaction of the Children’s Protection Act 1993 (SA) and the Child Protection Act 1999 (Qld):
2.1. The appellant’s interlocutory applications FDN 2, 9, 12, and 13 are dismissed.
2.2. The appeal is allowed for the purposes of setting aside the Variation Order made by the Youth Court on 10 August 2015, thereby restoring orders for access made by Judge Prescott on 16 November 2011.
2.3. The remaining grounds of appeal are struck out on the basis that they are incompetent and/or disclose no appealable error for which appellate remedy is available and/or seek relief which this Court cannot give.
Children’s Protection Act 1993 (SA) s 3, s 16, s 38, s 48, s 54F, s 54Q, s 61; Youth Court 1993 (SA) s 22; Judiciary Act 1903 (Cth) s 78B; Child Protection Act 1999 (Qld) s 61, s 222, s 223, s 224, s 225; Corporations Act 2001 (Cth); A New Tax System (Family Assistance) Act 1999 (Cth) s 3, s 22, s 22A; Family Law Act 1975 (Cth); Commonwealth Powers (Family Law) Act 1986 (SA) s 3; Children’s Protection and Young Offenders Act 1979 (SA); Social Security Act 1991 (Cth) s 5; Migration Act 1958 (Cth); Children and Young Persons (Care and Protection) Act 1998 (NSW); Children and Community Services Act 2004 (WA); Children, Young Persons and Their Families Act 1997 (Tas); Children, Youth and Families Act 2005 (Vic); Care and Protection of Children Act (NT); Children and Young People Act 2008 (ACT); Supreme Court Civil Rules 2006 (SA) r 17, r 283, r 295, referred to.
H, A v Minister for Families & Communities [2005] SASC 339; L, G v Minister for Families and Communities (2012) 113 SASR 152, applied.
Children, Youth and Women’s Health Service v YJL (2010) 107 SASR 343; Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, considered.

SB, MF v MINISTER FOR EDUCATION & CHILD DEVELOPMENT
[2016] SASC 116
Youth Court Appeal: Civil
BAMPTON J.

The appellant is the maternal grandmother of M, who was born on 22 November 2001.
On 13 August 2015, the appellant, who is self-represented, filed a notice of appeal to the Full Court against an order made on 10 August 2015 by the Senior Judge of the Youth Court varying a care and protection order (“the Variation Order”). The appellant named the Minister for Education and Child Development (“the Minister”) as the respondent.
During a directions hearing on 11 February 2016, I made an order joining M to the proceedings pursuant to r 283(2) of the Supreme Court Civil Rules 2006 (SA) (“the Rules”) noting that his address for service was that of the independent children’s lawyer, Ms K Rudham. Ms Rudham was appointed by the Legal Services Commission in accordance with s 48(1) of the Children’s Protection Act 1993 (SA) (“the Act”) to represent M.
I intimated to the parties during the directions hearing held in this matter that it was my view that the appeal was against an interlocutory order made by the Youth Court and accordingly, pursuant to s 22(2)(b) of the Youth Court 1993 (SA) (“the Youth Court Act”), the appeal lies to a single Judge of this Court.
The appellant also gave notice pursuant to s 78B of the Judiciary Act 1903 (Cth) that her appeal involves a matter arising under the Constitution.
The Court has received a letter purportedly written by M’s mother supporting the appeal.
The application brought by the Minister
By interlocutory application FDN 20 dated 9 May 2016, the Minister seeks the following orders pursuant to r 295(3) of the Rules:
2.That the appeal filed on 13 August 2015 as it relates to the orders of the Youth Court made on 10 August 2015 is interlocutory in nature within the meaning of Section 22(2)(b) of the Youth Court Act 1993.
3.The appellant’s interlocutory applications filed on 20 January 2016, 22 January 2016, 25 January 2016 be dismissed.
4.The appeal as it relates to everything other than the deletion of the Appellant’s access order and the order transferring the file to Queensland made on 10 August 2015 be summarily dismissed as it is incompetent and cannot succeed.
5.So much of the appeal as has not been summarily dismissed pursuant to the within application is allowed.
6.The orders of Senior Judge McEwen made in the Youth Court on 10 August 2015 be set aside.
The orders sought by the Minister are supported by the independent children’s lawyer.
I heard the Ministers’ application, FDN 20, on 24 June 2016. The appellant was given the opportunity to provide further written submissions in response to the Minister’s submissions following the hearing. I have received and read the appellant’s further submissions dated 6 July 2016.
For the reasons that follow, I am satisfied that the appeal against the Variation Order lies to a single Judge of this Court, that no Constitutional issue arises, and that the appeal should be allowed on a limited basis to strike out the Variation Order but otherwise be dismissed.
Background
The background to M’s care situation is set out in submissions filed on behalf of the minister and in the affidavit of Natalie Kate Kralj filed on 9 May 2016 received into evidence during the hearing of the Minister’s application.[1] Ms Kralj is a social worker with the Department for Education and Child Development (“the Department”) who supervises M’s caseworker. In describing M’s care situation, Ms Kralj deposes to matters that have occurred since the making of the Variation Order which amount to fresh evidence.[2]
[1] Exhibit R1.
[2] This Court has power to receive fresh evidence on an appeal under s 22 of the Youth Court Act 1993 (SA): H, A v Minister for Families & Communities [2005] SASC 339 at [27]-[32] (White J); L, G v Minister for Families and Communities (2012) 113 SASR 152 at [21] (Peek J, Vanstone J concurring).
The Order
M’s mother resides in Victoria. The identity of his father is unknown.
On 30 June 2010, M was subject to an emergency removal from a dangerous situation pursuant to s 16 of the Act. Immediately prior to the Department’s intervention, M had been in the custody of the appellant. M has not been returned to the appellant’s custody. On 13 September 2010, the Minister was granted a 12 month guardianship order.
In 2011, the Minister brought proceedings in the Youth Court seeking to have M placed under the guardianship of the Minister until he attains the age of 18 years. The Minister’s application was granted and the care and protection order (“the Order”) was made on 16 November 2011 pursuant to s 38 of the Act. The Order comprises the primary order placing M under the guardianship of the Minister pursuant to s 38(1)(d) and ancillary orders pursuant to s 38(1)(f) granting M’s mother and grandmother supervised access subject to M’s wishes as may be agreed with the Minister.
Following the making of the Order, M was placed with various relatives (known as kinship carers) in New South Wales and Queensland.
M moved to New South Wales in 2012 and was placed with his maternal uncle and his wife. Towards the end of 2013, the placement was showing signs of breakdown and the New South Wales Department for Family and Community Services reported that there were ongoing requests by M’s uncle for respite and that he and his wife held unrealistic expectations regarding M’s behaviour.
Whilst with his uncle, M had regular respite with his maternal cousin, K, and her partner in Queensland. On 2 January 2014, K and her partner agreed to provide ongoing care for M and were approved as carers by the Department. On 20 February 2014, M was placed in their full time care. At that time, consideration was given to transferring the administration of the Order to the Department of Communities, Child Safety and Disability Services in Queensland (“the Queensland Authority”).
On 7 March 2014, the appellant signed a document titled “Consents for Interstate Transfer of SA child protection orders” and next to the words “Views regarding the transfer” she has apparently written “very good”.[3]
[3] Annexure NKK2 to Exhibit R1.
The Variation Order
On 24 February 2015, the Minister brought an application under Division 3 of Part 8 of the Act to have the ongoing administration of the Order transferred to Queensland.
The application was initially in the name of the Minister but, on 21 May 2015, the Youth Court amended the name of the applicant to the Chief Executive Officer of the Department.
One of the reasons for making the application was so that M and his carers qualified for support from the Queensland Authority. As the Order has not been registered in Queensland no support has been available.
By letter dated 23 July 2015, the Queensland Authority indicated it would consent to the transfer of the Order conditional upon:
·The Department obtaining a child protection order compatible with an order under s 61 of the Child Protection Act 1999 (Qld) (“the Qld Act”). This section, unlike s 38 of the Act, does not provide for the making of ancillary orders. I infer that is the reason Ms Kralj deposes to the fact that the Queensland Authority required that the ancillary orders for access between M and his family had to be deleted from the Order,
·The placement of M remaining viable, stable and appropriate at the point of transfer; and
·M’s current carers being granted a certificate of approval as foster carers under the Qld Act.[4]
[4] Annexure NKK3 to Exhibit R1.
On 7 August 2015, the Queensland Authority provided a copy of a Kinship Carer Initial Assessment Report to the Department which approved M’s placement with K and her partner.[5]
[5] Annexure NKK4 to Exhibit R1.
On 10 August 2015, the Senior Judge of the Youth Court granted the application and made the Variation Order pursuant to s 54F of the Act ordering that:
1The Order “of Judge Prescott dated 16 November 2011 is to be varied to primary order only”; and
2Ancillary orders are to be removed on the basis of procedural necessity to facilitate the transfer of primary order to Queensland.
Ms Kralj deposes that, over the course of the proceedings in the Youth Court, it was noted that the carers struggled at times with the care of M. The Queensland Authority had been given casework tasks which assisted in facilitating access but they were unable, without the registration of the Order in Queensland, to provide support services or intervention to work with the family.
To assist K and her partner, the Department contracted a private agency, HOPE, to work with the family and specifically with M. In October 2015, despite working with HOPE, K and her partner advised they could no longer care for M on a full time basis but would assist with respite and have M in the school holidays.
At that time, M was to remain in Queensland. The Department originally sought a home placement through the Queensland Authority, however as none was available, on 26 January 2016, M became a boarder at a boys’ college in Queensland.
Due to the breakdown of M’s placement, the Queensland Authority has advised that it needs to reconsider accepting the transfer of the Order due to the instability of the placement and costs associated with M boarding at a private college.
The Queensland Authority has advised that the Department would need to make a new request for the transfer of the Order and again seek conditional consent from the Queensland Authority. The Department considers it unlikely that the required consent will be forthcoming given the Queensland Authority’s intimation that the Department needs to retain case management and responsibility for the costs of the placement.[6]
[6] Annexure NKK5 and NKK6 to Exhibit R1: letters from the Queensland Authority dated 15 March 2016 and 14 April 2016.
M’s wish to leave Queensland
During an interview on 29 February 2016, with the independent children’s lawyer Ms Rudham, M said he wanted to live with his mother.
On 7 March 2016, a Department social worker spoke with M who confirmed that he would like to explore the possibility of living with his mother. It was explained to M that whilst reunification with his mother would be explored, a positive outcome could not be guaranteed. In April 2016, M’s caseworker contacted his mother who said that she would like M to live with her and that she and M’s sister were willing to participate in any arrangements necessary.
In accordance with s 3(3) of the Act regard must be had to M’s views.
Ms Kralj deposes that a Department psychologist will undertake an assessment of M’s mother’s parenting capacity to assist the Department in determining whether reunification is a viable option.
Even if reunification with his mother is not possible, it is highly unlikely that M will continue to live in Queensland. Ms Kralj states that the Department considers, given M’s changed circumstances and his “very recent wish to explore living with his mother”, that it is currently the best placed State or Territory child welfare agency to administer the Order.
The notice of appeal
In the notice of appeal, the appellant complains of:
1.My access order deleted 10-8-15
2.Transfer of file to Queensland 10-8-15
3.The whole of the order 10-8-15
4.The order and judgment has not been printed and is not available as yet because
5.I was not served a document in trial booklet and
6.Was served kinship care initial assessment report on 10-8-15 just before hearing of 10‑8-15 and
7.Not sufficient time.
Grounds of appeal
The appellant contends that her grounds of appeal are non-service of documentation, insufficient time to consider documentation served on her just before the hearing on 10 August 2015, refusal of an adjournment by the Youth Court, and discrimination.
The notice of appeal operates as a stay against the registration of the Order in Queensland
Pursuant to s 54Q(2) of the Act, the notice of appeal filed by the appellant operates as a stay of the Variation Order preventing the registration of the Order in Queensland.
The transfer of child protection orders (and proceedings) as between States and Territories is pursuant to a co-operative national scheme with each State and Territory having reciprocal legislative provisions.[7]
[7] Child Protection Act 1999 (Qld) Chapter 7; Children and Young Persons (Care and Protection) Act 1998 (NSW) Chapter 14A; Children and Community Services Act 2004 (WA) Part 6; Children, Young Persons and Their Families Act 1997 (Tas) Part 8; Children, Youth and Families Act 2005 (Vic) Schedule 1; Care and Protection of Children Act (NT) Part 2.4; Children and Young People Act2008 (ACT) Chapter 17.
An order made in an original jurisdiction (in this matter the Youth Court of South Australia) to transfer an order to another jurisdiction only becomes effective once it has been registered in the relevant court of the receiving jurisdiction (in this matter the Children’s Court of Queensland).
The Order has not been and cannot be registered in Queensland while the appellant’s appeal remains on foot.[8]
[8] Child Protection Act 1999 (Qld) s 222.
The approach suggested by the Minister
Counsel for the Minister submitted that, in light of the breakdown of M’s placement in Queensland and the fact that the Queensland Authority has indicated it is no longer prepared to take on the administration of the Order, for the administration of the Order to return to the Department it would first have to be registered in Queensland. The Department would then have to issue proceedings in the Queensland Children’s Court to have the matter transferred back to South Australia.
It was submitted that whilst the Order cannot be registered in Queensland the Queensland Children’s Court has no jurisdiction because there is no child protection order or proceeding in Queensland to transfer back to South Australia.[9]
[9] Child Protection Act1999 (Qld) s 225.
Counsel proposed that, in these unusual circumstances, in order to overcome this difficulty or lacuna, the Minister and the appellant can achieve a mutually satisfactory result if the appeal is allowed on a limited basis so that the Variation Order can be quashed or set aside pursuant to s 22(3) of the Youth Court Act.
During the hearing on 24 June 2016, in supporting the Minister’s application, counsel for M stated that in view of the significant change in M’s circumstances it was in M’s best interest for the Order to be administered in South Australia.
An order quashing/setting aside the Variation Order will return the parties to the position they were in prior to the Chief Executive Officer’s application to transfer the Order to Queensland. This means the ancillary orders made by Judge Prescott on 16 November 2011 including the appellant’s supervised access order, will be restored.
Bearing in mind the objects of the Act prescribed by s 3, and noting that M is not receiving any care and support from the Queensland Authority the approach suggested by the Minister is in M’s best interests.
The appeal is against an interlocutory order
As stated above it is my view the Variation Order was interlocutory in nature.
Section 22 of the Youth Court Act governs appeals against decisions in the Youth Court. Section 22(2)(b) provides that in the case of an interlocutory judgment given by a Judge the appeal lies to the Supreme Court constituted of a single Judge.
The Variation Order is an order made pursuant to s 54F under Division 3 of the Act which provides for the judicial transfer of a child protection order. Section 54Q of the Act prescribes time limits for the lodging of appeals against “a final order of the Court”.
Division 4 of the Act provides for the transfer of child protection proceedings that are extant or pending proceedings. In my view, the use of the word “final” is to distinguish the orders to which s 54Q applies from interim orders provided for in s 54L under Division 4 that may be made in the transfer of pending child protection proceedings. The use of the word in s 54Q does not indicate that the order the subject of the judicial transfer order pursuant to s 54F is to be considered a final as opposed to an interlocutory order.

I agree with the following submission set out in paragraph 8 of the Minister’s submissions that the Variation Order bears all the usual hallmarks of being interlocutory in nature:
·The transfer proceedings are not an end in themselves and do not stand alone. There must have been child protection proceedings under the Act antecedent to the transfer proceedings and there will be further proceedings contingent upon the transfer proceedings through the process of registration of the Order under Part 3 of the Qld Act;
·The transfer proceedings are procedural or adjectival in nature and do not affect the substantive rights of the parties as determined through the earlier care and protection proceedings under s 38 of the Act which were the subject of the Order made by Judge Prescott in November 2011;
·The purpose and effect of transfer proceedings is to determine no more than issues of venue or place or forum.
In Hardel Pty Ltd v Burrell & Family Pty Ltd,[10] the Full Court found that an order of a Master of the Supreme Court dismissing an application to set aside a creditor’s statutory demand under the Corporations Act 2001 (Cth) was interlocutory in nature.[11] Kourakis J (as he then was), with whom Nyland and David JJ agreed, held:[12]
In my respectful opinion there is much utility in the reformulation of the interlocutory/final dichotomy by reference to the concept of procedural or adjectival orders on the one hand, and orders determining substantive rights and obligations on the other. Disputed questions of law may arise between persons about the scope and extent of those rights and obligations, as may factual disputes about the circumstances which attract them. Rights carry with them a co-relative right to enforcement or remedial orders if those obligations are breached. It is the function of courts to adjudicate those controversies. As Kitto J observed in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd:
[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons.
A final order is generally one that creates the “new charter” to which Kitto J referred. It is the very essence of the exercise of judicial power that it finally settles the controversy which is the subject matter of the action, and thereby precludes any further application for another or different orders with respect to that matter; to ask whether a further application can be brought for the purpose of determining whether an order is final or interlocutory conflates cause and effect. (Footnotes omitted)
[10] (2009) 103 SASR 408.
[11] For the purposes of Rule 17 of the Supreme Court Civil Rules 2006 (SA).
[12] (2009) 103 SASR 408 at [34]-[35].
In this matter, applying the reasoning of Kourakis J, the threshold question of whether the Variation Order “… thereby precludes any further application for another or different orders with respect to that matter…” is clearly not met having regard to s 224 of the Qld Act which provides that the child the subject of the order, a parent of the child and a party to a proceeding in which the interstate decision was made may apply to revoke the registration of an order.
The Variation Order removed the ancillary order granting the appellant supervised access to M. Section 223 of the Qld Act provides that upon registration a care and protection order transferred from a participating State is taken to be a child protection order of the Children’s Court in Queensland made on the day of its registration and it may be enforced, varied, revoked, or extended in operation, as if it had been a child protection order made under Chapter 2, Part 4 of the Qld Act. The Variation Order did not preclude the appellant from making any further application for access. Had the Order been registered in Queensland the appellant would have been entitled to apply for access to M.
I agree with counsel for the Minister’s alternate analogy that the effect of the provisions for judicial transfer for child protection orders[13] is, to some extent, no more than the substitution of one party for another (in this instance the Queensland child protection authorities in place of the Department). The mere substitution of one party for another, whether before or after the substantive issue in dispute has been heard or determined, does not affect the determination or finality of the substantive dispute or rights between the parties.
Section 78B of the Judiciary Act notices
[13] Children’s Protection Act 1993 (SA) Part 8, Division 3.
The appellant argues that, as she was the recipient of social welfare payments on M’s behalf while he was in her custody, she was recognised as his guardian in the federal jurisdiction. Her contention appears to be that s 38(2)(a) of the Act is inconsistent with the A New Tax System (Family Assistance) Act 1999 (Cth).
The appellant issued Notices under s 78B of the Judiciary Act 1903 (Cth). The Attorney-General for the State of South Australia does not seek to intervene in the proceedings.
I agree with the Minister’s submissions to the effect the Commonwealth has only limited power with respect to the guardianship of children under the Constitution and no Constitutional point arises in the circumstances of this matter. I have taken the liberty of paraphrasing the submissions filed on behalf of the Minister under the heading “Constitutional Point” as follows.
The Family Law Act 1975 (Cth) relies, in part, on s 51(xxii) which gives the Commonwealth power with respect to “divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;” in dealing with the children of a marriage. South Australia passed the Commonwealth Powers (Family Law) Act 1986 (SA) (“the Commonwealth Powers Act”) in 1986 referring “the custody and guardianship of, and access to, children”[14] to the Commonwealth in order that the Family Court under the Family Law Act 1975 (Cth) could deal with ex‑nuptial children. Section 3(2) of the Commonwealth Powers Act provided for express reservations which were not included in the referral and including in s 3(2)(a):
A Minister of the Crown, an officer of the State, an officer of an adoption agency approved under a law of the State, or any other person, having or acquiring the custody, guardianship, care or control of children under a provision of an Act specified in the Schedule;
[14] See s 3(1)(b).
The Children’s Protection and Young Offenders Act 1979 (SA) (as it was at the time) is included in the Schedule to the Commonwealth Powers Act which also provides at s 3(3)(c):
… the references to an Act specified in the Schedule shall be read as references to that Act as amended and in force from time to time, and as including a reference to any Act or Acts replacing that Act and as amended and in force from time to time”.
The Act repealed and replaced the Children’s Protection and Young Offenders Act 1979. The Youth Court in this matter has made two decisions under the Act. The first was the making of the Order on 16 November 2011. The second was the Variation Order on 10 August 2015. The appellant’s alleged Constitutional issue only arises with respect to the Order. The Variation Order is dependent on the Order being valid.
The A New Tax System (Family Assistance) Act 1999 (Cth) and the Social Security Act 1991 (Cth) are not laws regarding the care and protection or the guardianship of children. They concerned with the eligibility for, and payment of, monetary welfare benefits, which in some cases, includes payments to certain adults for certain children. Neither Commonwealth Act is reliant for its source of power on the marriage power or any subsequent referral of power under the Commonwealth Powers Act.
As explained at paragraph 19 of the Minister’s submissions:
The appellant’s argument is misconceived in a similar way to that advanced in Minister for Immigration v B[15] which held that the Family Court did not have jurisdiction over alien children in immigration detention simply because they were ‘children of a marriage’ or ex-nuptial children caught by the referral of power from the States. If the Family Court did have jurisdiction over such children, so the argument went, it could make orders in relation to the welfare of such children including their release from detention under the Migration Act 1958 (Cth). The argument was rejected. As observed by the High Court, South Australia has not referred the matter of the welfare of children to the Commonwealth.[16] Further, the issue of alien children and their detention was dealt with comprehensively by the Migration Act 1958 (Cth) which was a clear statement of constitutionally valid policy on the part of the Commonwealth. Even if the Family Court, through the Family Law Act 1975 (Cth), had the relevant jurisdiction it could not be taken to cut across another constitutionally valid enactment, namely the Migration Act 1958 (Cth), and its very specific provisions about detention of aliens including children.[17]
(Footnotes in original)
[15] (2004) 219 CLR 365. See also Children, Youth and Women’s Health Service v YJL (2010) 107 SASR 343 at 349.
[16] Per Gleeson CJ and McHugh J at 387.
[17] Per Kirby J at 409, 414-416, 425-426 and per Callinan J at 440-441.
Finally, as the Minister submits at paragraph 20:
The most that might be said in the present case is that each of the Commonwealth Acts here either determine for themselves, or pick up some external determiner, as to who will receive what benefits which are payable under the relevant Act on behalf of a child. The terms ‘guardian’ or ‘guardianship’ are not used in either Commonwealth Act, but rather the concept of ‘dependent child’ is used. Both Acts assume that some adult is “legally responsible” for the child or the child is in that adult’s “care”. Both Acts provide mechanisms for identifying who such a person might be at any particular point in time but neither Act seeks to determine in any way who such an adult should be or whether there should or could be a change to the identity of such a person.”[18]
(Emphasis and footnotes in original)
[18] See s 5 of the Social Security Act 1991 (Cth) and ss 3, 22 and 22A of the A New Tax System (Family Assistance) Act 1999 (Cth).
The appellant does not seek to appeal the Order
Much of the documentation filed by the appellant and her correspondence forwarded to the Court is lengthy, disparate, tangential and repetitive. Much of it appears to be a complaint about the Order made by Judge Prescott.
However, the appellant clearly stated during the hearing on 24 June 2016 that “the position is that I am in agreement with Judge Prescott, I am not trying to appeal …”. Further, the appellant filed a notice of appeal against the Order on 22 December 2011 in Action number 1936 of 2011 and discontinued it on 19 July 2012.
The appellant’s interlocutory applications
The appellant filed interlocutory applications on 13 August 2015,[19] 20 January 2016,[20] 22 January 2016,[21] and 25 January 2016[22] seeking orders with respect to the documents she wanted included in the case books, directions for the prosecution of offences under the Act she alleges have been committed by M’s legal representative and the Minister’s solicitor, and orders “restraining the administration of the Supreme Court from discriminating against her by giving her a hard time for the purposes of a breach of s 61 of the Act”.
[19] FDN 2.
[20] FDN 9.
[21] FDN 12.
[22] FDN 13.
In the following orders I have allowed the appeal on a limited basis and set aside the Variation Order. In the circumstances I have dismissed the appellant’s interlocutory applications FDNs 2, 9, 12 and 13.
Conclusion
As I have determined the appeal against the Variation Order is interlocutory in nature within the meaning of s 22(2)(b) of the Youth Court Act, I make the following orders allowing the appeal and setting aside the Variation Order in light of the change in M’s circumstances since the Variation Order and the legal difficulty/lacuna created by the interaction of the Act and the Qld Act:
1The appellant’s interlocutory applications FDN 2, 9, 12 and 13 are dismissed.
2The appeal is allowed for the purposes of setting aside the Variation Order made by the Youth Court on 10 August 2015 thereby restoring the ancillary orders for access to the Order made by Judge Prescott on 16 November 2011.
3The remaining grounds of the appeal are struck out on the basis that they are incompetent and/or disclose no appealable error for which appellate remedy is available and/or seek relief which this Court cannot give.