S v Chief Executive of the Department of Child Safety

[2007] QDC 137

CHILDRENS COURT OF QUEENSLAND

CITATION:	S v Chief Executive of the Department of Child Safety [2007] QDC 137
PARTIES:	S (Appellant) v Chief Executive of the Department of Child Safety (Respondent)
FILE NO:	BD130 of 2007
PROCEEDING:	Appeal
DELIVERED ON:	15 May 2007
DELIVERED AT:	Southport
HEARING DATE:	9 May 2007
JUDGE:	C.F. Wall Q.C.
ORDER:	Appeal allowed only to the extent of setting aside the decision of the Childrens Court at Southport on the 22nd of December, 2006 to make a temporary assessment order and substituting therefore an order that the application for such an order be dismissed; otherwise appeal dismissed.
CATCHWORDS:	APPELLATE JURISDICTION – legal proceedings – child protection – temporary assessment order – conditions precedent for making – whether satisfied – jurisdiction to make child protection order where child and parent within jurisdiction at time application made but out of jurisdiction at date of hearing/order.
Legislation referred to: Child Protection Act 1999 Service and Execution Process Act (Commonwealth) 1901
Cases referred to: Jumbunna Coal Mine NL v. The Victorian CMA [1908] 6 CLR 309 at 363, CON Morgan v. White [1912] 15 CLR 1 at 13, CON Brannigan v. The Commonwealth [2000] FCA 1591 at paragraphs [12] - [14], CON McManus v. Clouter (1980) 29 ALR 101, CON Ex parte TMW (1981) Qd. R. 436, DIS

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A v. B (1979) 1 NSWR 57 at 62, DIS

B v. T, unreported, (2007) QSC 55, CON

COUNSEL:	Appellant - Mr H. A. Scott-Mackenzie Respondent – Mr A. B. Ross
SOLICITORS:	Appellant – Mylne Lawyers Respondent – Crown Law

HIS HONOUR: This is an appeal against orders made by a Childrens Court Magistrate in the Childrens Court at Southport on the 22nd of December, 2006 and the 2nd of January, 2007 and subsequent orders for the issue of warrants of apprehension. The orders were made under the Child Protection Act 1999 and were in respect of a child, S, otherwise known as S, born on the 4th of February, 1999 and also involved his mother, the appellant, as a party.

During the hearing of the appeal it became apparent that documents which should have been on the file were not. This caused delays while the parties compiled a set of all relevant documents. The bundle of documents compiled by the parties will be Exhibit 1.

The Registrar says the failure to provide all files was due to "an error" in the Registry. It appears for some reason, not apparent to me and notwithstanding the provisions of the Childrens Court Act, that the Childrens Court is separately administered in the Registry depending on whether it is constituted by a Magistrate or a Judge. An appeal from one to the other does not seem to involve, as a matter of course, the provision of the relevant files to the Judge hearing the appeal.

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Prior to the 22nd of December, 2006 temporary assessment and Court assessment
orders had been made in respect of the child who was then living in Queensland as
was the appellant. By the 22nd of December, 2006 temporary custody of the child
had been granted to the respondent who temporarily placed the child in the foster care
of his maternal grandmother. A Court assessment order granting temporary custody
of the child to the respondent made on the 5th of December, 2006 was to expire on the

22nd of December, 2006.

By the 22nd of December, 2006 the respondent had decided to make application for a
Child Protection Order and an application for such an order has been prepared. This
decision is apparent from the application dated the 22nd of December, 2006 and filed
on the 23rd of December, 2006 supported by the affidavit of Carolyn Moore, a Child
Safety Officer with the Department of Child Safety, affirmed on the 22nd of
December, 2006 and filed on the 23rd of December, 2006. In that affidavit Ms Moore

deposed as follows (paragraphs 16-24):

"16. PLACEMENT: S has been placed in two foster care placements prior to
maternal grandmother being provisionally approved to care for him. The
placement with maternal grandmother is the department's preferred
placement option.

17.     On the 5th of December, 2006 the department received information from mother's legal representative in relation to concerns about the previous foster care placement that S had been placed. This evidence was tendered in Court when the department made an application to extend the Court Assessment Order. In response to the allegations made against the carer enquiries were made with the carer agency TRACC and on the 15th of December, 2006 I received a copy of a report from the foster care agency. A copy of this report is attached and marked as 'EXHIBIT H'.

18.     CHILD'S WISHES: S has stated that he wishes to return to his mother's care but is happy in the placement with his grandmother. On the 22nd of December, 2006 departmental officers intended to gather further information in relation to S's wishes however he was at a Vacation Care and, as such, the department did not intend to disrupt his school holiday program. The department undertakes to provide the Childrens Court with updated wishes when the case plan is filed with the Court.

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19.     FAMILY GROUP MEETING: A family group meeting will be held in compliance with the legislative requirements contained under section 51H of the Child Protection Act 1999.

20. In accordance with section 59(1)(b) of the Child Protection Act 1999 a case plan will be developed for S that is appropriate for meeting his assessed protection and care needs.

ISSUES PURSUANT TO SECTION 59 OF THE CHILD PROTECTION
ACT 1999.

21.     In accordance with section 59(1)(a) I believe that S is a child in need of protection and that the order being sought is appropriate and desirable for his protection.

22. In accordance with section 59(1)(b) reasonable steps will be taken to convene a family group meeting and develop a case plan for the child.

23.     In accordance with section 59(1)(d) I have been able to ascertain the child's views.

24.     In accordance with section 59(1)(e) the protection sought to be achieved by the order is unlikely to be achieved by an order under this part on less intrusive terms as:

a)	The Department requires custody of S to provide him with a stable home environment;
b)	S needs a parent that is able and willing to adequately address any mental health instability;
c)	S needs a parent that is able and willing to adequately address any alcohol and substance misuse;
d)	S needs a parent that is able to provide him with age-appropriate supervision;
e)	S needs a parent that is able and willing to develop, demonstrate and maintain appropriate parenting skills, coping mechanisms and behaviour management strategies;
f)	S needs a parent that is able to prioritise his needs so as to enhance his physical, emotional and psychological functioning."

In paragraph 12 of her affidavit, filed on the 2nd of February, 2007 the child's maternal grandmother, R, deposed as follows:

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"12. On 22nd December, 2006 I received a telephone call from Carolyn Moore,

an officer of the Department of Child Safety, informing me of the
Department's intention to file an application for a Child Protection Order,

granting custody of S to the Chief Executive for a period of two years."

What happened on the 22nd of December, 2006, from the respondent's point of view,
is set out in the application for a temporary assessment order dated the 22nd of
December, 2006 which was made to a Magistrate by telephone as allowed by section

30 of the Act.

"APPLICATION FOR A TEMPORARY ASSESSMENT ORDER

Childs Name:	S
Date of Birth:	04/02/1999
Sex:	Male

APPLICATION DETAILS
This is an application for a temporary assessment order.
The grounds on which this application is made are:

1.       DEPARTMENTAL HISTORY

a)	Temporary Assessment Order granted on 3 November, 2006
b)	Court Assessment Order granted on 7 November, 2006
c)	An extension to the Court Assessment Order granted on 5th December, 2006
d)	Extension to the Court Assessment Order expires 22nd December, 2006

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2. CURRENT INFORMATION

a) On Friday 22nd December, 2006 the department's Court co- ordinator attended the Southport Courthouse Registry office at 16:00 hours to lodge the Application for a Child Protection Order to retain custody of the child pursuant to Section 99 of the Child Protection Act 1999 up until 2nd January, 2006 when the matter would be heard;

b)       A Registry office staff member advised the Court co-ordinator that they would not accept department filing after 16:00 each Friday;

c)       The Court co-ordinator pointed out visible Christmas hours signage which stated that the registry would be open until 16:30 hours - to which the staff member replied "too bad."

d) The Court co-ordinator advised the Registry office staff member
that failure to file the documents today would result in the
department losing custody of the child. The staff member refused to
allow the documents to be filed.

3.       PLACEMENT

Child to remain in the care of the maternal grandmother.

4.       APPLICATION

In pursuant to Section 27(1) of the Child Protection Act 1999, it is the Department of Child Safety's belief that an investigation is necessary to assess whether S is a child in need of protection and the investigation can not be properly carried out unless the order is made. I now make an application for a Temporary Assessment Order for the following reasons:

1.

The department is not able to secure a voluntary agreement with mother to secure custody as the department has been given clear and persistent instructions by mother's legal representative that the department is not to make any contact with their client and that all communication is to go through their office. The department was advised by the legal representative that their office closed at 12 noon today;

2.

The department is required to secure custody of this child pending the application being heard in Southport Childrens Court on 2nd January, 2006 (sic).

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Pursuant to Section 30 of the Child Protection Act 1999 the Department hereby makes this application due to the special circumstances and the urgent nature of this matter."

In her affidavit in support of the application for a Child Protection Order, affirmed on
the 12th January 2007, Denise Giles, a Child Safety Officer with the Department of

Child Safety, deposed as follows:

"10. I have pursued (sic) Department records and note that on the 22nd of
December, 2006 Leah Harrap, Court Officer, attended the Southport Childrens
Court to file an application for a Child Protection Order. The signage on the
Registry door advised that the registry office closes for business at 4.30 p.m.
The Court Officer, Leah Harrap, spoke with Registry staff at 4.10 p.m. and

was told that the Registry office closed early on this day for Christmas.

11. As a result an application for a 24 hour Temporary Assessment Order was
made to the After Hours Magistrate, Mr Lee, and the Department was advised
to attend Southport Arrest Court on the 23rd of December to file the
application for the Child Protection Order."

At 5.55 p.m. on the 22nd of December, 2006 (see the affidavit of Denise Giles, affirmed on the 12th of January, 2007, paragraph 13) the Magistrate made a temporary assessment order in the following terms:

"TEMPORARY ASSESSMENT ORDER

CHILD:	S
Date of Birth:	04.02.1999
Sex:	Male

An application for a temporary assessment order was made by Carolyn Moore an authorised officer, to me, Magistrate Graham Lee, on 22nd December 2006 in relation to the above-named child.

Having considered the grounds of the application, I am satisfied that an investigation is necessary to assess whether the child is a child in need of protection, and that such investigation can not be properly carried out unless the order is made.

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I MAKE a temporary assessment order in relation to the child -

*	authorising an authorised officer or police officer to have contact with the child
*	authorising an authorised officer or police officer to keep the child in the chief executive's custody while the order is in force.
*	directing SMS and GD not to have contact, direct or indirect, with the child other than when a department approved is person (sic).

This temporary assessment order will continue in force until the end 23rd

December, 2006.

Magistrate:
Place:
Date order made: 22 December 2006

Time order made: 17:55

This order was made by means of telephone pursuant to section 30 of the Child
Protection Act 1999.

I hereby certify that this document is a true representation of the order made by the above-named Magistrate.

Signed:
Name: Carolyn Moore

* Authorised officer

* delete whichever is not applicable

* persons details refers to either name of person, or general category of person or portion

Form 3 - version 1, March 2000"

The appellant challenges this order on the basis that there is no power for the

Magistrate to make it. Section 27 of the Act provides as follows:

"27. Making of a temporary assessment order

(1)

The Magistrate may make a temporary assessment order for the
child only if the Magistrate is satisfied:

(a)	an investigation is necessary to assess whether the child is a child in need of protection; and
(b)	the investigation can not be properly carried out unless the order is made.

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(2) However, in deciding the application, the Magistrate must also be
satisfied reasonable steps have been taken to obtain the consent of at
least one of the child's parents to the doing of things sought to be
authorised under the order or it is not practicable to take steps to
obtain the consent."

It is probably the case that the written application for the temporary assessment order
was filed after the order was made over the telephone but nothing turns on this. The
appellant contends that the Magistrate was wrong to consider that the conditions
precedent to making such an order set out in section 27(1)(a) and (b) had been
satisfied because, in fact, the decision had already been made by the respondent that
the child was in need of protection. I think there is substance in this contention. For
present purposes I think I am entitled to assume that what is said in the written
application for the temporary assessment order was, in fact, orally conveyed to the
Magistrate over the telephone before he made the order. In that case he should not
have made the order. The respondent contends that the broader and longer term
interests of the child's welfare cannot be separated from the section 27(1) matters and
those interests required further investigation of the type contemplated by section 27. I
am unable to agree with this argument. It is not supported by the respondent's own
material. The order was sought for a period of one day only, hardly time to make an
assessment of whether the child was in need of protection and it was made after a
decision had already been made that the child was, in fact, in need of protection. It
also appears to be the case that no further investigation or assessment was made by
the respondent between the time the order was made and the 23rd of December, 2006
(see paragraph 90 of the appellant's outline of argument). In my view, the reason the
application was made was because the Court Registry refused on the 22nd of
December, 2006 to accept for filing the application for a Child Protection Order and

that is the conclusion the Magistrate should have reached.

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In a letter dated the 9th of January, 2007 to the Department for the attention of Ms Giles, (see Exhibit 5 to the affidavit of Ms Giles, affirmed on the 12th of January, 2007) the appellant's solicitor said that at the hearing on the 2nd of January, 2007 the

Childrens Court Magistrate said that he made the temporary assessment order on the 22nd of December, 2006 "because of the closure of the Registry but was satisfied on the facts presented to him" whatever that means. The fact of the Registry being closed is not a ground for making a temporary assessment order.

It follows that the decision to make the temporary assessment order on the 22nd of December, 2006 was not valid and should be set aside. The importance of doing this, notwithstanding that the order expired at "the end of the 23rd of December, 2006", is apparent from a consideration of section 99 of the Act which provides as follows:

"99.	Custody or guardianship of child continues pending decision on application for order
(1) This section applies if -

(a)      a child is in the chief executive's custody or guardianship or the custody of a member of the child's family, under an order; and

(b)      before the order ends, an application is made for the extension of the order or for another order.

(2) The custody or guardianship continues until the application is decided unless the Childrens Court orders an earlier end to the custody or guardianship."

The respondent contends that before the temporary assessment order made on the 22nd of December, 2006 ended an application had been made for "another order", namely the application for a Child Protection Order filed on the 23rd of December, 2006. Because of the conclusion I have reached there was, in fact, no valid current temporary assessment order on the 22nd of December, 2006 or the 23rd of December,

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2006 in which case the custody of the Chief Executive of the child had ceased on the
22nd of December, 2006.

This did not though mean that the Magistrate could not deal with the application for a Child Protection Order filed on the 23rd of December, 2006. That application was expressed to be returnable on the 2nd of January, 2007. By that time the appellant contends that the child was no longer in Queensland but was living with his mother, the appellant, in New South Wales and the Court, therefore, had no jurisdiction to make any order in respect to him.

The respondent contends that it has not been established that the child was, in fact, out of Queensland on the 2nd of January, 2007 and for this reason the Court had jurisdiction but, in any event, it is also contended that even if he was in New South Wales that did not prevent the Court making an order in respect to him.

On the 2nd of January, 2007 the Magistrate made the following order:

"CHILD:  S

Date of Birth: 4/2/1999

Sex:  MALE

Application for a child protection order was made by Carolyn Moore, an
authorised officer, in the Childrens Court at Southport on the 2nd of January,

2007 in relation to the above-named child.

I ADJOURN the proceeding to the 30th January, 2007 at

9:00 a.m. SOUTHPORT CHILDRENS COURT for further mention of the

application.

I MAKE an interim order in relation to the child -

*	granting temporary custody of the child to the chief executive and authorising an authorised officer or police officer to take and keep the child in the chief executive's custody while the order is in force.
*	directing SMS and GD not to have contact, direct or indirect, with the child other than when an authorised person is present.

The interim order has effect for the period of the adjournment."

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What happened to the appellant and the child after the 22nd of December, 2006? On that date the child was then in the temporary foster care of his maternal grandmother. R deposed as follows in her affidavit filed on the 2nd of February, 2007.

"14. On 23 December 2006, my daughter (appellant) informed me that she had
spoken to her solicitors and was told that no application had been filed at
the Registry and as such, there was no current order in place.

15.     Pursuant to the mother's request, I returned S back to the care of his mother.

16.     SMS then told me that she had "had enough" and that she was leaving Queensland to take up permanent residence in the State of New South Wales.

17.     On or about 30th December, 2006 I provided funds for SMS to reside at a caravan park in New South Wales as SMS was preparing to move to a rental property, on a permanent basis, at a later date."

In her affidavit affirmed on the 7th of February, 2007 at Tweed Heads and filed in the

Childrens Court before the Magistrate, the appellant deposed as follows:

"1. I am the natural mother of S, who is in my care.

2.       I do not submit to the jurisdiction of the Children's Court of Queensland as I am not a permanent resident of the State of Queensland and have not been so since 23 December 2006.

6.       As of 23 December, 2006 I have been a permanent resident of New South Wales and intend to remain so.

7.       I deny the allegation that I am a permanent resident of Queensland or have ever been since 23 December, 2006.

8.       I was a temporary resident in Queensland for a period of approximately seven months from May, 2006 - December, 2006 as I was unable to find affordable accommodation in the Tweed Heads area of New South Wales, my preferred place of abode."

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The application for a Child Protection Order filed on the 23rd of December, 2006 was
served on the appellant at her Southport address on the 27th of December, 2006 (see
the affidavit of service of Carol Muraahj, affirmed on the 27th of December, 2006).
This would suggest that the appellant was then still residing in Queensland and not in

New South Wales, as she deposed in her affidavit just referred to.

In a telephone conversation with a departmental officer on the 8th of January, 2007
the appellant said that she was advised by her solicitor at 4.15 p.m. on the 22nd of
December, 2006 that "the department no longer have jurisdiction, so go now."
(Affidavit of Denise Giles, affirmed the 12th of January, 2007, paragraph 22). She
apparently also said that she "left her premises with the child on the 23rd of
December, 2006" (see the application for a warrant of apprehension dated the 15th of
January, 2007). The evidence satisfies me, more probably than not, that by the 2nd of
January, 2007 the child was living in New South Wales with the appellant and was

not in Queensland.

On the 2nd of January, 2007 the appellant was not present in the Childrens Court at
Southport but was represented by her solicitor. In paragraph 17 of her affidavit,

affirmed on the 12th of January, 2007 Ms Giles deposed:

"17. On 2 January, 2006 Mr Mylne represented Ms SMS in Court and believe (sic) that he knew that the mother was in New South Wales and failed to advise the Department or the Court."

Mr Mylne is a solicitor. This seems to suggest that on the 2nd of January, 2007 the appellant was probably in New South Wales with the child. Counsel for the appellant informed me that on the 2nd of January, 2007 the appellant was not in Queensland on that date but was legally represented before the Magistrate. He further said that her

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solicitor objected to the Court making orders because the appellant was not within the
jurisdiction. I was told that this objection was over-ruled.

In the letter dated the 9th of January, 2007 to the Department (Exhibit I to the affidavit of Ms Giles, affirmed on the 12th of January, 2007) the appellant's solicitor said that on the 2nd of January, 2007 he informed the Magistrate from the Bar table that the appellant "was no longer in the jurisdiction" and an application was made for dismissal of the application for a Child Protection Order on the ground of want of jurisdiction. These statements were not disputed in subsequent correspondence from the respondent.

In her affidavit affirmed on the 9th of March, 2007 Ms Giles deposed that the interim order made on the 2nd of January, 2007 was contested by the appellant on the basis that she did not submit to the jurisdiction "however, on this date (she) was unable to provide evidence to the Court that she was not a resident of Queensland." The Magistrate's handwritten notes on the Court file make no mention of any such objection. Those notes will be marked Exhibit 2. For present purposes I will proceed on the basis that such an application was in fact made and over-ruled. At the end of the day I do not think it makes any relevant difference.

For present purposes I will proceed on the basis that the appellant and the child were within the jurisdiction (Queensland) when served with the application for a Child Protection Order but were in New South Wales on the 2nd of January, 2007 and the appellant was legally represented before the Magistrate on the 2nd of January, 2007.

The Child Protection Act is expressed to be an "Act about the protection of children, and for other purposes" and "is to be administered under the principle that the welfare and best interests of the child are paramount" (Section 5(1)). (See also section 5(2)).

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Children at immediate risk of harm may be taken into the custody of the Chief
Executive (Section 18) and reasonable steps must then be taken to tell at least one of
the child's parents that this has happened (Section 20).

Before making a temporary assessment order the Magistrate must be satisfied as specified in Section 27(2). Immediately after such an order is made the parents of the child are to be notified about their right to appeal and how to appeal (Section 32). Appeals are dealt with in sections 117 to 121.

The application for the Child Protection Order filed on the 23rd of December, 2006 is expressed to be directed to the appellant. It advises her that the application will be heard in the Childrens Court at Southport at 8.30 a.m. on the 2nd of January, 2007 and that, "If you do not attend, the Court may proceed to make an order in your absence."

As soon as practicable after the application is filed a copy must be personally served on each of the child's parents (Section 56(1)).

Section 56(3) provides:

"56(3)

The copy of the application served under this section must state -

(a)	when and where the application is to be heard; and
(b)	the application may be heard and decided even though the parent does not appear in Court."

The child's parents "are respondents to the application" (Section 57).

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The respondent's "current child protection concerns" stated in paragraph 7 of the
application (see also paragraphs 12-14 and 21-24) relate to events occuring

Queensland. The application also refers to relevant New South Wales history.

Section 58(1) provides:

"58.	Hearing of application in absence of parents
(1) The Childrens Court may hear and decide the application in the absence of the child's parents only if -

(a)      the parents have been given reasonable notice of the hearing and fail to attend or continue to attend the hearing; or

(b)      it is satisfied it was not practicable to give the parents notice of the hearing."

In the present case whilst the appellant did not personally attend Court on the 2nd of
January, 2007 she, in fact, appeared by her solicitor, Mr Mylne and she had in my

view been given "reasonable notice of the hearing".

Section 60 provides:

"60.	Extraterritoriality
To remove doubt, it is declared the Childrens Court may make a Child Protection Order even if the events causing the child to be a child in need of protection happened outside Queensland or partly in Queensland and partly outside Queensland."

The adjournment of the proceeding on the 2nd of January, 2007 to the 30th of
January, 2007 and the interim orders then made were authorised by section 67. The
respondent also referred to Chapter 7 of the Act but that only has application once a

Child Protection Order has been made and that stage has not yet been reached here.

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It can be seen from this relatively brief examination of the legislation that whilst orders made are in respect to the child, they are primarily directed to the parent or parents of the child upon whom, understandably, certain rights are conferred.

The appellant submitted that the Childrens Court Magistrate erred in making the orders he did on the 2nd of January, 2007 primarily because the child was not within the jurisdiction. Any argument to the same effect involving the appellant must, of necessity, fail because she was served and effectively appeared on the 2nd of January, 2007 albeit objecting to the jurisdiction of the Court to make any orders; her objection to the jurisdiction of the Court was expressed to be on the basis of the absence from the jurisdiction of the child.

In my view the Court was not, by the absence from the jurisdiction of the child, prevented from making the orders it did on the 2nd of January, 2007. The appellant had been served with the application when she and the child were both within the jurisdiction and, in my view, she is not able to frustrate the proceedings by removing herself and the child from the jurisdiction before the date of the hearing. The removal of the child from the jurisdiction did not deprive the Court from making orders in respect to him.

The authorities relied by the appellant (in particular, Jumbunna Coal Mine NL v. The Victorian CMA [1908] 6 CLR 309 at 363, Morgan v. White [1912] 15 CLR 1 at 13 and Brannigan v. The Commonwealth [2000] FCA 1591 at paragraphs [12] - [14]) do not, in my view, compel a contrary conclusion. The appellant's complaints, in my view, relate more to enforcement of orders rather than jurisdiction to make them.

The orders made on the 2nd of January, 2007, (and subsequently) were made in respect of the appellant and the child who were within the jurisdiction when the Child

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Protection Order was applied for. There was no suggestion that the Court intended they then have extraterritorial effect by virtue of the Child Protection Act.

The analogous power in the Supreme Court of New South Wales in respect of minors
conferred by section 5(1) of the Infants Custody and Settlements Act 1899 was held
by Justice McClelland in McManus v. Clouter (1980) 29 ALR 101, (after referring to
the New South Wales equivalent of section 35(1)(b) of the Acts Interpretation Act
1954) "to be exercisable only in respect of a minor who was within New South Wales
at the date of the institution of the proceedings or possibly in the alternative at the date
of the order." In the present case, the child was within Queensland at the date of the
application for the Child Protection Order. The appellant was also then within
Queensland.

The cases of Ex parte TMW (1981) Qd. R. 436 and A v. B (1979) 1 NSWR 57 at 62 also relied on by the appellant are, in my view, distinguishable from the present case. They involved jurisdiction to issue a writ of habeas corpus.

In TMW there was no jurisdiction where the writ was directed to a person ordinarily resident and in fact out of Queensland for the production of a person ordinarily resident and in fact out of Queensland. In A v. B there was jurisdiction to direct the issue of the writ in respect of a person outside the jurisdiction provided the writ was directed to a person within the jurisdiction.

In the present case it was never intended that the interim orders made on the 2nd of January, 2007, and those interim orders made subsequently, have extraterritorial effect - that is, effect outside Queensland - and the respondent's case is not based on any such effect. The respondent has also referred to the decision of Justice Lyons in

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B v. T, unreported, (2007) QSC 55. The facts in the present case provide an even stronger basis for jurisdiction than did the facts in B v. T.

In my view, the appellant's challenge to the efficacy of the orders made on the 2nd of January, 2007 fails. The Childrens Court Magistrate had power to make the orders he then did notwithstanding the absence of the child from the jurisdiction on that date.

On the 8th of January, 2007 the respondent learned from the appellant by telephone that the appellant and the child were living in New South Wales (see the affidavit of Denise Giles, affirmed on the 12th of January, 2007, paragraph 21).

On the 15th of January, 2007 relying on the interim orders made on the 2nd of January, 2007 the Childrens Court issued a warrant for the apprehension of the child expiring on the 23rd of January, 2007. Subsequent continuing similar interim orders have been made and further warrants have been issued for the apprehension of the child. I am told that the child was apprehended in New South Wales on such a warrant on the 4th of May, 2007 and is presently in foster care in Queensland. The warrant was issued on the 3rd of May, 2007 to expire on the 17th of May, 2007.

The appellant challenges the orders issuing the warrants of apprehension (and the apprehension of the child and his continuing custody by the respondent) on the basis of the argued invalidity of the interim orders made on the 2nd of January, 2007 (and, it follows, subsequent orders continuing the first one). The appellant submits that if the order made on the 2nd of January, 2007 is invalid by reason of want of jurisdiction, then so are all subsequent orders relying on that order including orders for the issue of warrants of apprehension.

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I have already concluded that there was power to make the order on the 2nd of
January, 2007. In that case there was power to issue a warrant to apprehend the child.
The warrant upon which the child was apprehended was validly executed under the
Service and Execution Process Act 1901 (Commonwealth). In my view, that
apprehension has not been shown to be unlawful. No question of any extraterritorial
effect of the interim orders made on the 2nd of January, 2007 and subsequently,
arises, rather what occurred was interstate service and execution of a Queensland
Warrant of Apprehension pursuant to the Service and Execution Process Act 1901
(Commonwealth) not pursuant to the Child Protection Act.

The result is that the appeal will be allowed only to the extent of setting aside the decision of the Childrens Court at Southport of the 22nd of December, 2006 to make a temporary assessment order and substituting therefore an order that the application for such an order be dismissed. Otherwise, the appeal is dismissed.

I direct the Registrar of the Childrens Court at Southport to inquire into and report on
the circumstances surrounding the early closure of the Registry on the 22nd of

December, 2006 as referred to in these reasons.

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