The Department of Communities, Child Safety v M and S
[2013] QChC 27
•24/05/2013
DISTRICT COURT OF QUEENSLAND
CITATION: | The Department of Communities, Child Safety v M and S [2013] QChC 27 |
PARTIES: | THE DEPARTMENT OF COMMUNITIES, CHILD SAFETY v M and S |
FILE NO/S: | 1/2013 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court |
DELIVERED ON: | 24/05/2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24/05/2013 |
JUDGE: | Samios DCJ |
ORDER: | 1. Appeal dismissed. |
CATCHWORDS: | INFERIOR COURTS - appeal - child protection orders - interim custody ordered to vest in Chief Executive - whether Magistrate had power to order that there be contact with another person - whether Magistrate had power to order contact be by residence with other person- whether contact can include residing with another person- meaning of ‘contact’ |
COUNSEL: | Mr Parrott (Sol) for the appellant Mr O’Mera for the first respondent Mr Harris (Sol) for the second respondent |
SOLICITORS: | Crown Law for the Appellant Paradise Lawyers for the first Respondent Keyworth Harris & Lowe Family Lawyers for the second respondent |
On 10 July 2012 an application was filed in the Children’s Court of Brisbane, seeking child protection orders granting custody of three children to the Chief Executive Department of Communities Child Safety and Disability Services for a period of 18 months. On 18 December 2012, the child protection applications were mentioned before Children’s Court of Brisbane, before the learned Magistrate O’Shea, at which time it was ordered, inter alia, under section 68(1)(c) of the Child Protection Act: “I order that the respondent children will reside with their grandmother on a day-to-day basis”. That application was adjourned for further mentioned on 8 January 2013, again before the learned magistrate, at which time she ordered, inter alia: “The maternal grandmother will have such contact with the said children concerned in this application which means that they effectively reside in her care until further order in this matter”.
On 7 January 2013, the Director General appealed against the decision of the learned magistrate and notice was given to the respondents, who are the parents of the children, that the Director General would amend its notice of appeal. That amended notice of appeal has been filed today by leave. The appeal seeks, in effect, to set aside the orders of the learned magistrate whereby it was relevantly ordered, under section 68(1)(c) of the Child Protection Act, “the respondent children shall reside with their grandmother on a day-to-day basis” and that part of the order made on 8 January 2013 whereby it was relevantly ordered “The maternal grandmother will have such contact with the said children concerned in this application which means that they effectively reside in her care until further order in this matter”.
The grounds of the appeal, in effect, are that the learned magistrate did not have a power to make those orders. Further, by making those orders, the learned magistrate erred at law by fettering the statutory discretion vested in the Director General, pursuant to the concurrent order that the Director General be granted temporary custody of the children the subject of the application. That is, when the learned magistrate made the orders sought to be set aside in this appeal, the learned magistrate also made an interim order in relation to the children, granting temporary custody of the children to the Chief Executive. Further, the Director General says section 68(1)(c) of the act does not vest in the learned magistrate the power to order the children the subject of the application reside with a nominated person. Further, to the extent that the order of 8 January 2013 purported to modify the order of 18 December 2012, the order was in error in that it did not specify what contact the children were to have with the maternal grandmother. Further, to the extent that the order of 8 January 2013 purported to modify the order of 18 December 2012, the order was in error in that section 68, Child Protection Act 1999, does not vest in the learned magistrate the power to order that the children the subject of the application reside with a nominated person as part of a contact regime. Finally, the learned magistrate erred at law in not nominating a specific person with whom the children the subject of the application should reside.
Matters have proceeded further as between the parties since the learned magistrate made her orders and the appeal was filed. That is, on the 3rd of April 2013, the matters between the parties have been resolved to finality, in that final orders have been made providing protective supervision for the children and the children have been returned to their parents. Therefore, as the orders appealed against were interim orders and they have now been replaced by final orders, it appears there is no utility in my determining this appeal. It has been recognised, in a number of cases, including People With Disability Australia Incorporated v Minister for Disability Services and another (2011) NSWCOA 253, that the court does not have an advisory jurisdiction. Where an appeal is moot and of no utility, as a general rule, the Court, in such circumstances, will not entertain the appeal. However, as Justice of Appeal Beazley said at paragraph 13 in that case, “That is a general rule only and the Court retains the discretion to hear and determine an appeal which has been regularly commenced, but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned.” Her Honour went on to say in paragraph 14 that one of the factors which would cause the Court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases.
I am satisfied in this matter that the determination of this appeal could affect other cases or, I should say, likely to affect other cases, as the circumstances in this matter are likely to be duplicated from time to time and will therefore require magistrates to determine these issues and make orders accordingly of the kind that have been made in this matter and which are now the subject of appeal. It seems to me, though, that in this case the critical submission made by the appellant is that the Magistrate’s orders were inconsistent in that making the order for contact cut across the Director General’s rights, that is, the Director General was granted interim custody of the children and the learned Magistrate ordered that the children have contact with the grandmother and, for that purpose, reside with her.
The Director General submits that these was no power to make that order, as I’ve already indicated, with respect to the grounds of appeal and that, in any event, it fettered the discretion of the Director General. Custody is defined in the Act in section 12. Subsection 2 provides, “Where the Chief Executive is granted custody of a child, the Chief Executive has the right to have the child’s daily care and the right and responsibility to make decisions about the child’s daily care.” Contact, as defined in the dictionary, schedule 3 to the Act, that with a child includes to see and talk to the child. In my view, section 5A of the Act requires that when approaching decisions, the main principle is that the safety, well-being and best interests of a child are paramount. Section 68 provides the courts other powers on adjournment of proceedings for child protection orders. In subsection (1)(c), it provides that: “Subject to subsection (5), an order about the child’s contact with the child’s family during the adjournment can be made by a magistrate”. Subsection (4) of section 68 provides that: “Without limiting subsection (1)(c), an order mentioned in the paragraph may limit the child’s contact with the child’s family or provide for how the contact is to happen”.
While it may seem attractive to construe a contact as being something transient, I do not think it necessarily follows that in the context of this Act and the orders that can be made on an interim basis that it is so limited. I see no basis for restricting contact such that it would not allow for residence to allow that contact to take place. While section 12, subsection (2) gives the Chief Executive rights when granted custody, in my opinion, it does not necessarily follow when one has regard to the paramount principle of the Act that the Chief Executive cannot have interim custody at the same time that some other person has contact which includes residence. I do not think the learned magistrate’s orders were ineffective because the grandmother was not named or defined further the contact to be had between the children and the grandmother.
While it can, from time to time, be spelt out I do not think the order the learned magistrate made fails for not spelling out the hours of contact or the days of contact. It was clear the intent of the orders that the learned magistrate was making. I have no doubt that the learned magistrate had power under the Act to make the orders she made and she exercised her discretion properly in the circumstances. Clearly, she was trying to deal with a difficult situation as all these matters seem to be from time to time. I have no doubt she was concerned about conflicts that had arisen about other carers and while I am of the view she was legally correct in making these orders, in addition, the learned magistrate arrived at a practical result in the circumstances.
While I have entertained doubt about proceeding as I have to determine the appeal because there is a question mark, what order would I make if I had in fact allowed the appeal and, further, that the grandmother has not been joined as a party if she were to be the subject of an order that she had custody of the children. In the end, as can be determined or discerned from my reasons, I dismiss the appeal.
In this matter, I make no order as to costs on two bases. One is that I consider I do not have jurisdiction to make an order as to costs. On the second basis in the exercise of my discretion, if I did have power I consider that this was an appropriate matter to bring to the court. I have elected to decide the appeal although in the end I have dismissed it.
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