TF v Director General, Community Services Directorate (No 2)

[2017] ACTCA 49

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

TF v Director General, Community Services Directorate      (No 2)

Citation:

[2017] ACTCA 49

Hearing Date:

1 August 2017

DecisionDate:

26 October 2017

Before:

Elkaim J

Decision:

The appeal is dismissed.

Catchwords:

Cases Cited:

APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Application to strike out an appeal as incompetent – whether the appeal has become otiose.

TF v Director-General, Community Services Directorate [2017] ACTSC 312

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 5604(b)

Supreme Court Act 1933 (ACT) s 37J

Parties:

TF (Appellant)

Director-General, Community Services Directorate (First Respondent)

ES (Second Respondent)

Children’s Representative (Third Respondent)

Representation:

Counsel

Self-represented (Appellant)

Ms E McLaughlin (First Respondent)

Self-represented (Second Respondent)

Mr J Haddock (Third Respondent)

Solicitors

Self-represented (Appellant)

ACT Government Solicitor (First Respondent)

Self-represented (Second Respondent)

ACT Legal Aid (Third Respondent)

File Number:

ACTCA 55 of 2016

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Burns J

Date of Decision:         20 October 2016

Case Title:  Director-General, Community Services Directorate v ES

Court File Number:       SCA 50 of 2016

ELKAIM J:

1. Two matters were listed before me for hearing on 1 August 2017 (ACTCA 55 of 2016 and SCA 27 of 2017). ACTCA 55 of 2016 is an appeal from a decision of Burns J on 20 October 2016.

1. Unless they need to be referred to separately, I will refer to TF and ES as the parents. TF is the mother and ES is the father.

1. I note that I am sitting in this matter as the Court of Appeal constituted by a single judge (Supreme Court Act 1933 (ACT) s 37J).

1. The notice of appeal was filed on 25 October 2016. The first respondent’s application to dismiss the appeal, which is the matter before me, was filed on 6 June 2017. The application is supported by the third respondent.

1. The decision of Burns J was itself an appeal from interim orders made in the Magistrates Court on 20 July 2016. The matter related to one of the parents’ six children, UL.

1. His Honour allowed the appeal and remitted the matter back to the Magistrates Court. His Honour also made an interim care and protection order pending the final determination of the matter.

1. Somewhat confusingly, TF is the appellant and ES is the second respondent. There is, however, no doubt that TF and ES are acting in unison and that they are both seeking the overturning of the judgment. Somewhat ironically, they are relying on the orders made by Burns J to support a ground of appeal in the other matter (TF v Director-General, Community Services Directorate [2017] ACTSC 312).

1. On 6 December 2016, a final hearing commenced before Special Magistrate Cush. The hearing concerned UL and her five siblings. His Honour made final orders in respect of the six children. The orders made by Special Magistrate Cush on 30 March 2017 supersede the interim orders that were made by Burns J in respect of UL.

1. The orders made by Special Magistrate Cush on 30 March 2017 are the subject of an appeal by the parents. This is the other matter listed before me (TF v Director-General, Community Services Directorate [2017] ACTSC 312). His Honour’s orders included orders in respect of UL.

1. ES, the father, spoke on behalf of the parents. I asked him if he wished to pursue the appeal. He said that the parents did wish to pursue it. As I understood his submissions, ES said that their lawyers were “incompetent”. Had they been competent, the result of the appeal may well have been different.  

1. The difficulty with this submission is that the parents’ position was not prejudiced by the orders made by Burns J. The matter was returned to the Magistrates Court for further hearing.

1. The Court of Appeal matter has now become otiose. The orders made by Burns J do not in any way dictate the current care regime under which the children live. To hear the appeal would take some time. Success in the appeal would have no practical or theoretical value.

1. I also note the glaring improbability of any of the grounds of appeal having any chance of success. In addition, the parents have not filed any material opposing the orders sought by the Director-General. They also have not replied to the correspondence, dated 4 May 2017, from the first respondent, inviting them to discontinue the appeal (Affidavit of Ms Law-Jamieson dated 6 June 2017, paragraph [18]).

1. Pursuant to r 5604(b) of the Court Procedure Rules 2006 (ACT), I make the following order: The appeal is dismissed.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 26 October 2017