Director-General, Department of Child Safety v. G -H & Ors

[2007] QDC 216

THE CHILDRENS COURT OF QUEENSLAND

CITATION:

Director-General, Department of Child Safety v G -H & Ors [2007] QDC 216

PARTIES:

DIRECTOR – GENERAL, DEPARTMENT OF CHILD SAFETY

Appellant

v

T G-H

First Respondent

M H

Second Respondent

S R

Third Respondent

R S

Separate Representative

FILE NO/S:

BD 231/2007

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

The Childrens Court constituted by a Magistrate

DELIVERED ON:

25 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2007

JUDGE:

Samios DCJ

ORDER:

1. The appeal is allowed;

2. Declare the existing child protection orders in relation to A H (DOB 15/09/00), S H (DOB 28/10/99) and J H (DOB 1/11/03) expired at midnight on 24 May 2006.

CATCHWORDS:

Appeal – Statutes – Child Protection Act 1999 – interpretation

s 62 Child Protection Act 1999

s 38 Acts Interpretation Act 1954

COUNSEL:

Ms K McMillan SC for appellant

The first respondent self represented

No appearance for the second respondent

No appearance for the third respondent

Mr Jarro for the separate representative

SOLICITORS:

CW Lohe Crown Solicitor for the appellant

Rhonda Sheehy and Associates for the separate representative

1. On 24 May 2004 the learned magistrate at Redcliffe sitting as the Childrens Court made in favour of the Department of Child Safety protection orders in respect of three children.  The protection orders were to continue in force for a period of two years.

1. On 24 May 2006 the Department of Child Safety filed in the court applications to revoke the orders and make further orders with respect to the children.

1. At a hearing before the learned magistrate on 8 January 2007, the learned magistrate decided the protection orders had expired on midnight 23 May 2006 and therefore he had no jurisdiction to entertain the applications.  Further, the applications filed on 24 May 2006 did not enliven his jurisdiction.

1. The Department of Child Safety appeals against the decision of the learned magistrate on the grounds that: -

1. The learned magistrate erred at law in his interpretation of s 62 of the Child Protection Act 1999 as to when child protection orders commence and finish;

2. The learned magistrate erred at law in his interpretation of s 38 of the Acts Interpretation Act 1954 as to the calculation of the duration of child protection orders; and

3.          The learned magistrate erred at law in finding that the filing of an application before the Childrens Court did not enliven the jurisdiction of the Childrens Court.

1. Section 62 of the Act provides: -

“62 Duration of child protection orders

(1)A child protection order for a child must state the time when it ends.

(2)The stated time for the order--

(a)   if it does not grant custody or guardianship of the child--must not be more than 1 year after the day it is made; or

(b)   if it grants custody or short-term guardianship of the child--must not be more than 2 years after the day it is made; or

(c)   if it grants long-term guardianship of the child--must be the end of the day before the child turns 18 years.

(3)The order ends at the stated time unless it is extended or earlier revoked.

(4)Regardless of subsections (1) to (3), the order ends when the child turns 18.”

1. Section 38 of the Acts Interpretation Act provides: -

“38 Reckoning of time

(1)If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and--

(a)   if the period is expressed to be a specified number of clear days or at least a specified number of days--by excluding the day on which the purpose is to be fulfilled; and

(b)   in any other case--by including the day on which the purpose is to be fulfilled.

(2)If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.

(3)If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.

(4)If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.

(5)In this section--

excluded day--

(a)   for filing or registering a document--means a day on which the office is closed where the filing or registration must or may be done; or

(b)   otherwise--means a day that is not a business day in the place in which the thing must or may be done.”

1. As can be seen s 62 provides the order for a child must state the time when it ends. Further the stated time for the order if it grants custody or short term guardianship of the child must not be more than two years after the day it is made. Finally, the order ends at the stated time unless it is extended or revoked.

1. In the present matter the orders were made on 24 May 2004 and are stated to continue in force for a period of two years. In my opinion having regard to the provisions in s 62 of the Act that must be taken to mean not more than two years after the day it is made. The order was made on 24 May 2004. Two years after the order was made would mean the order expired at midnight on 24 May 2006.

1. In my opinion the time began to run on the day the order was made but the time it ends by the terms of the order must not be more than two years after the day the order is made.  The day the order is made is part of the duration of order as is the two years after the day it is made.  The stated time when the order is to end must not be more than two years after the day it is made.

1. In my opinion that is the proper construction of s 62 of the Act and the orders that have been made in this instance.

1. If recourse were had to s 38 of the Acts Interpretation Act 1954 subsection 1 of that section provides that the two years is calculated by excluding the day the order is made. In this matter that day is 24 May 2004.

1. Therefore in my opinion the learned magistrate had jurisdiction to entertain the applications.  Further it was not a bar to hearing the applications that the applications had been filed on 24 May 2006 and the hearing was taking place on 8 January 2007.

1. Therefore I allow the appeal and declare the existing protection orders in relation to A H (DOB 15/9/00), S H (DOB 28/10/99) and J H (DOB 1/11/03) expired at midnight on 24 May 2006.