Za v Director-General, Community Services Directorate (No
[2021] ACTCA 29
•6 October 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
| Case Title: | ZA v Director-General, Community Services Directorate (No 2) | ||||||||||
| Citation: | [2021] ACTCA 29 | ||||||||||
| Hearing Date: | 6 October 2021 | ||||||||||
| Decision Date: | 6 October 2021 | ||||||||||
| Before: | Mossop J | ||||||||||
| Decision: | See [23] | ||||||||||
Catchwords: | PRACTICE AND PROCEDURE – CARE AND PROTECTION PROCEEDINGS – Decision under appeal – application for interlocutory relief – orders sought overlap with orders sought in previous application – not appropriate for a single judge to deal with matter on interim application – no urgency in relation to the interim orders sought – application in proceeding adjourned to the | ||||||||||
| hearing of the appeal | |||||||||||
| Legislation Cited: | Children and Young People Act 2008 (ACT), ss 349, 433, 838 Court Procedures Rules 2006 (ACT), rr 1613, 5602 Supreme Court Act 1933 (ACT), s 37O | ||||||||||
| Cases Cited: | ZA v Director-General, Community Services Directorate [2021] ACTSC 243 ZA v Director-General, Community Services Directorate [2021] ACTCA 27 | ||||||||||
| Parties: | ZA (Appellant) Director-General, Community Services Directorate (First Respondent) | ||||||||||
| Children’s Representative (Second Respondent) | |||||||||||
| Representation: | Counsel | ||||||||||
| Self-represented (Appellant) K Musgrove (Respondent) | |||||||||||
| J Banwell (Second Respondent) | |||||||||||
| Solicitors | |||||||||||
| Self-represented (Appellant) ACT Government Solicitor (Respondent) | |||||||||||
| Legal Aid ACT (Second Respondent) | |||||||||||
| File Number: | AC 39 of 2021 | ||||||||||
| Decision under appeal: |
| ||||||||||
| MOSSOP J: | |||||||||||
| Introduction |
1. The appellant, who I will refer to as ZA, has sought in the Court of Appeal 34 interlocutory orders. The 32 grounds for those orders are set out over 10 pages of the application in proceeding dated 20 September 2021. The appeal is an appeal from a decision of a judge of this court, who I will refer to as the primary judge: see ZA v Director-General, Community Services Directorate [2021] ACTSC 243. The orders were made on 9 August 2021.
2. The reasons were given on 24 September 2021. The decision involved:
(a) an application for leave to appeal against a decision made on 30 October 2017 in the Childrens Court by the Chief Magistrate; and (b) an appeal from an order by the Chief Magistrate on 11 November 2020 refusing leave to apply more than once in a 12-month period for revocation of care and protection orders. 3. Following the making of the orders by the primary judge, ZA appealed to the Court of Appeal and filed an interlocutory application seeking orders which overlap with those which are sought in the current application. That application was dealt with by McWilliam AJ on 15 and 17 September 2021. On 17 September 2021 her Honour dismissed the application in proceeding: see ZA v Director-General, Community Services Directorate [2021] ACTCA 27 at [27]. She did so on the basis of an undertaking given to the court by the Director-General to abide by the requirements of a contact plan in respect of the young people the subject of the proceedings.
4. The two young people the subject of the proceedings are 13 and 14 years old and are currently subject to final orders made by the Childrens Court on 30 October 2017. As a result of those orders, the children are currently out of the care of their mother and are currently in care. They have complex needs. Their pasts have been challenging.
5. When the matter was last before the Deputy Registrar on 23 September 2021, the primary judge had not yet provided her Honour's reasons and the Deputy Registrar noted that they were required prior to the matter being able to progress through the Court of Appeal. The appellant was directed to circulate a draft appeal index. The appeal has not yet been listed for hearing. It is listed before the Deputy Registrar tomorrow.
6. As I have indicated, the orders sought on this occasion overlap with the orders sought before McWilliam AJ. Her Honour summarised the orders sought before her as follows:
(a)
Order 1 seeks that a number of people become parties to the proceeding that is currently being pursued in Court of Appeal proceedings number AC 39 of 2021.
(b)
Order 2 seeks for the young people to have one hour of phone or video call contact on a weekly basis with each of the appellants (being the mother and those referred to in Order 1). In particular, I take that request to be one for contact with the mother, who has forcefully agitated the present application.
(c)
Order 3 primarily seeks for the young people to have fortnightly personal visiting contact with their mother at an address in South Australia. There are some associated matters concerning the costs of such a visit.
(d)
Order 4 seeks contact between the young people, the mother, and other persons who are relatives or close family members, during certain school holidays in 2021 and 2022.
(e)
Order 5 seeks that the young people move to reside with ZQ, AX, YN and RX, pending the final orders of the Court of Appeal in the appeal proceedings.
(f)
Order 6 seeks that the young people be able to study in school immediately, and again, to then come to live in an address in South Australia and be supported by their mother, pending the final resolution of the Court of Appeal proceedings.
(g) Order 7 seeks that the young people’s contact, visitation, and living arrangements in accordance with particular orders dated 30 October 2017 be amended immediately to
reflect the orders sought in 1 to 6 above.(h)
Order 8 seeks for the residence of the young people to be transferred to South Australia, so that the young people may have weekly contact with their mother and with other family members.
7. The present application seeks those orders again in order 1 (second appearing), orders 2 to 8 (first appearing) and also variations based upon those orders (orders 18 to 24). Other orders sought also include:
(a) Orders that the orders dated 30 October 2017 be set aside and the children returned, (order 1 (first appearing) and order 25), or that they be revoked immediately (order 26.) (b) A further order that various named persons be joined as appellants in the appeal. That is order 2, second appearing. (c) Lengthy orders sought against a variety of people associated with these proceedings relating to defamation, physical abuse, perversion of the course of justice, hiding and omitting information, fraud, child protection, prohibiting the children from studying at school, kidnapping, abuse by theft of gifts (order 3 (second appearing) to order 17.) 8. One of the bases of the present application was r 1613 of the Court Procedures Rules 2006 (ACT). That allows orders to be set aside for, amongst other reasons, that the orders were made in the absence of the party or were obtained by fraud. As articulated by the appellant, she relies upon that rule in order to set aside the orders made on 30 October 2017 and 11 November 2020 but not in relation to the order the subject of the appeal made by the primary judge.
9. On the last occasion before the acting judge, the Director-General made two submissions. They were that there were statutory limitations on the power of the court to make interim orders under s 838 of the Children and Young People Act 2008 (ACT) which picked up s 433 of that Act. The Director-General submitted that those provisions qualified the powers in s 37O(1) of the Supreme Court Act 1933 (ACT) and that r 5602 of the Court Procedure Rules was a limited procedural power and did not extend to substantive orders sought in the present case.
10. Alternatively, the Director-General submitted that given the complex needs of the children and the extensive behavioural and emotional support that they are required to receive, it would be inappropriate to make any orders given the absence of evidence sufficient to allow the court to give adequate consideration to where the best interests of the children lie as required by s 349 of the Children and Young People Act.
11. The acting judge found it unnecessary to deal with the submission relating to the scope of statutory powers. Rather, her Honour focused upon what was necessary as an interim order pending the hearing of the appeal. In addressing the earlier application, the acting judge indicated that only the second category of order would be appropriate to make on an application such as this. It was not necessary to consider the making of an interim order because the Director-General provided an undertaking to abide by the terms of the care plan which involved the children being offered contact every second Sunday evening commencing on 19 September 2021 and her Honour considered that that was sufficient to deal with the issue before her.
12. In relation to this application, the application identified the material relied upon in support as including a large number of affidavits which were before the primary judge. They included material that was originally filed for the purposes of the Childrens Court proceedings. Further, the application referred to material in what is referred to as Appeal Book A and some additional further evidence.
13. It was apparent that the appellant wished to rely upon the full history of all of the proceedings before both the Childrens Court and the court below in support of what was said to be interim applications. Those interim applications included an application that the orders in the Childrens Court be set aside pursuant to r 1613 of the Court Procedure Rules on the basis of fraud. I leave aside, for the moment, whether it is conceivably possible to seek orders under r 1613 in these appeal proceedings given that the orders sought to be set aside are those made by the Childrens Court.
14. Because of the extensive nature of the material sought to be relied upon and the fact that addressing the orders sought on the present application would involve going over the full range of matters involved in the history of the matter, including those that would need to be traversed for the purposes of the appeal, it appears to me that it is not appropriate for a single judge to deal with that on an interim application. To adopt that course would inevitably require a duplication of the resources of the court.
15. I accept that in some cases it might be appropriate to embark on such a process before a single judge. There may be cases, because of their particular circumstances, which urgently require action by a single judge. In this case, there is a long history involving the children and it is likely that at least much of the recent history involving the children would be contested. The children have been subject to final care and protection orders since 2017. Notwithstanding the contentions of ZA, I do not accept that there is any urgency in relation to the interim orders that are sought which would compel the court to engage in the very substantial exercise that would be involved in dealing with the application on the basis that it is put.
16. For those reasons, I consider that it is unnecessary to decide whether or not, in the circumstances, the re-seeking of the orders in the same terms as those sought before McWilliam AJ involves any abuse of process or, of itself, provides a reason for the refusal of those orders.
17. In my view, the appropriate course is simply to adjourn the application in proceeding dated 20 September 2021 to the hearing of the appeal proper.
18. There are a number of matters in relation to which it is necessary to make some specific comment.
19. I note that part of the application involves an application to join additional parties to the proceedings. Those were identified before the acting judge as being, first, a person asserted by the appellant to have legal guardianship of the children under Chinese law who is also a sister-in-law of the appellant. Second, the appellant's brother. Third, the appellant's mother and father and fourth, a sibling or cousin of the children. These people were not parties to the proceedings below. An application to join additional parties to the proceedings was dealt with in the primary judge's decision at [596]-[598] and the application was refused.
20. There is not presently before the court any evidence that those people have consented to being joined as appellants and in those circumstances, I consider that the application for that order is appropriately adjourned along with all of the other orders to the hearing before the Court of Appeal constituted by three judges.
21. [Further submissions from ZA.]
22. The matter in which I want to give some brief additional reasons was the contention that the application under r 1613 of the Court Procedure Rules is separate from the appeal proceedings. There is some substance in that submission. The reason that there is some substance in that submission is that the application, in fact, relates to orders made by the Childrens Court. If that is, in fact, the case, then it would be an abuse of process to bring that application purporting to be within the appeal proceedings. Instead, the application should be made in the court which made the order. I have not dealt with the matter on that basis because I think overall it is better to leave the matter to the final hearing but to the extent to which the application under r 1613 of the Court Procedure Rules is a separate application, then it is one which should not be involved in the appeal proceedings and should not be sought to be dealt with as part of the appeal proceedings.
23. [Further submissions from ZA. The orders made were as follows.]
1. The application in proceedings dated 20 September 2021 is adjourned to the hearing of the appeal.
2. I direct that any application in proceedings filed by any party is to be referred to the Registrar or Senior Deputy Registrar prior to being accepted for filing.
3. I direct that the appellant file and serve any written submissions on the
application in proceeding filed by the children’s representative on 30 September
2021 limited to not more than three pages by 4pm on 8 October 2021 and that
no submission be accepted for filing if it is beyond three pages.4. I note that I will deal with the children’s representative’s application matter in
chambers.
I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
Associate:
Date: 24 November 2021
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