JH v Director-General, Community Services Directorate - [2012] ACTSC 30

JH v DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE [2012]
ACTSC 30 (29 February 2012)

STATUTES – Acts of Parliament – Interpretation – certain care and protection orders continue in force until application to extend, amend or revoke the order is heard and decided – relevant care and protection orders are those in force when application made that would end “before the application is heard” – reference to hearing of application not intended to distinguish between orders expiring before or during in-court events and those expiring before judgment given.

Children and Young People Act 1999 (ACT), ss 264(5) and (6), 266
Children and Young People Act 2008 (ACT), ss 470, 471
Children and Young People Bill 1999 (ACT), cl 60
Human Rights Act 2004 (ACT), s 30
Legislation Act 2001 (ACT), ss 126(2), 138, 139, 140, 141

International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319
Re Application for Bail by Islam (2004) 4 ACTLR 235

Explanatory Memorandum for the Children and Young People Bill 1999 (ACT), cl 262
Explanatory Statement for the Children and Young People Bill 2008 (ACT), cl 469

Macquarie Dictionary, Australian Legal Dictionary (1997)

No. SCA 44 of 2011

Judge: Penfold J
Supreme Court of the ACT

Date: 29 February 2012

IN THE SUPREME COURT OF THE )
) No. SCA 44 of 2011
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:JH
Appellant

AND:THE CHIEF EXECUTIVE ACT COMMUNITY DIRECTORATE
Respondent

ORDER

Judge:  Penfold J
Date:  29 February 2012
Place:  Canberra

THE COURT FINDS THAT:

(a)The care and protection order in respect of DH made on 15 June 2005 was continued in force by s 470(3) of the Children and Young People Act 2008 (ACT) until the Magistrate handed down his decision on the applications relating to that order.
(b)The Magistrate’s order extending the care and protection order was within the power conferred on his Honour by s 471 of the Children and Young People Act 2008 (ACT) to “extend or amend a provision in a care and protection order”, in the sense that the care and protection order concerned remained in force and was therefore capable of being extended or amended.

THE COURT ORDERS THAT:

1.The parties are to be heard about the next steps to be taken in the appeal.

Introduction

JH is the mother of a child, DH, born on 30 October 2002. A Care and Protection Order (the Order) was made on 15 June 2005 in respect of DH, expressed to operate for five years. That order restricted JH’s rights in relation to DH in favour of an authority described in the Order as the Chief Executive Family Services. JH has appealed against a decision of a Magistrate made on 30 March 2011 purporting to extend the operation of the Order, which had been due to expire on 14 June 2010.

The appeal was listed before me for urgent resolution of a preliminary point, the determination of which will, I am told, determine the next steps to be taken by JH…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] ACTSC 30
Decision Date: 29 February 2012

CaseChat Overview and Summary

The case of JH v Director-General, Community Services Directorate involves the mother, JH, who is challenging a decision by a Magistrate to extend a Care and Protection Order (the Order) concerning her child, DH. The original Order was made on 15 June 2005 and was set to expire on 14 June 2010. JH appealed the Magistrate's decision to extend the Order, which was made on 30 March 2011, arguing that the extension was not warranted under the relevant statutory provisions. The central legal issue before the court was the interpretation of the statutory provisions governing the extension of Care and Protection Orders and whether the Magistrate correctly exercised his discretion in extending the Order.

The court considered the relevant statutory provisions, which provide that certain care and protection orders remain in force until an application to extend, amend or revoke the order is heard and decided. The key issue was the interpretation of the phrase "when an application is made that would end before the application is heard." The court found that this phrase was not intended to create a distinction between orders that would expire before or during in-court events and those that would expire before judgment was given. Instead, the court held that the phrase was intended to ensure that the order remains in force until the application is finally decided, regardless of when the order would have otherwise expired.

The court concluded that the Magistrate had correctly exercised his discretion in extending the Order as the statutory provisions did not require the application to be heard before the order would have expired. The court found that the extension was valid and did not contravene the statutory provisions. Consequently, the appeal was dismissed, and the extension of the Care and Protection Order was upheld. The final order confirmed the extension of the Order until the application was finally decided, and no further orders were made.

Orders

Orders of the court

JH is the mother of a child, DH, born on 30 October 2002. A Care and Protection Order (the Order) was made on 15 June 2005 in respect of DH, expressed to operate for five years. That order restricted JH’s rights in relation to DH in favour of an authority described in the Order as the Chief Executive Family Services. JH has appealed against a decision of a Magistrate made on 30 March 2011 purporting to extend the operation of the Order, which had been due to expire on 14 June 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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