Director of Child Protection Litigation v DHP & Anor [2020] QChC 9

CHILDRENS COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v DHP & Anor [2020] QChC 9 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (Appellant) v DHP (First Respondent) GHJ (Second Respondent) FILE NO/S: 125/2019 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Childrens Court of Queensland at Cairns DELIVERED ON: 29 April 2020 DELIVERED AT: Brisbane HEARING DATE: 3 December 2019 JUDGE: Richards DCJ ORDER: Appeal dismissed. CATCHWORDS: APPEAL – CHILD PROTECTION ACT 1999 – CHILD WELFARE AND GUARDIANSHIP – ERROR OF LAW – where a learned Magistrate made final consecutive custody orders - where all parties accept that the orders made by the Magistrate did reflect the best interests of the child - whether the learned Magistrate erred in his interpretation and application of ss 61 and 62 of the Child Protection Act 1999 (Qld) – whether the learned Magistrate went beyond the proper scope of the powers of the Child Protection Act 1999 (Qld) by ordering consecutive custody orders - whether the legislation allows for an interpretation which permits consecutive orders in appropriate cases – whether the language of the Child Protection Act 1999 (Qld) requires the examination of extrinsic material to assist in the interpretation of the Act – whether parliament intended for an order take effect from the date the order was made – whether the orders made by the learned Magistrate were consistent with the purposes of the Act. -- 1 of 10 -- 2 Legislation Child Protection Act 1999 (Qld), ss 5B, 5BA, 5C, 61, 62 Acts Interpretation Act 1954 (Qld), s 14B Penalties and Sentences Act 1992 (Qld), ss 92(2), 144(6), Industrial Relations Act 2016 (Qld), s 188 Cases Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 MDS v Director of Child Protection Litigation & Ors (2017) QChC 6 COUNSEL: B Dighton for the Appellant R Logan for the First Respondent K Goodwin for the Second Respondent SOLICITORS: Office of the Director of Child Protection Litigation for the Appellant Queensland Indigenous Family Violence Legal Service for the First Respondent Aboriginal and Torres Strait Islander Legal Service for the Second Respondent [1] An originating child protection application was filed on 3 December 2018. That application sought a 12 month protective supervision order. A temporary custody order was made by the magistrate on 12 December that year and it was in force until 17 December 2018. The appellant then filed an amended child protection application to be heard on 13 December 2018 seeking custody to the Chief Executive for two years. That application was adjourned and the child was ordered into the custody of the Department with a direction that the first and second respondents were not to have contact direct or indirect, other than when a person approved by the Chief Executive was present. [2] A court-ordered conference was held on 29 Mach 2019 and an agreement was reached in relation to the proposed child protection orders. The agreement was for child protection orders to run consecutively, with a protective supervision order to commence and run until the respondent father’s release from prison on parole, at which point custody would revert to the Chief Executive. That application went before a magistrate on 13 June 2019. The court was told that the father was due for -- 2 of 10 -- 3 release on 1 September 2019.1 At that hearing there was a discussion about whether the court had the power to make proposed consecutive orders and an adjournment was sought.2 The magistrate at that stage heard submissions and then made an order with the proposed consecutive orders. The magistrate held3:- “Well I disagree with that interpretation, I must confess. And it – the orders that or – the orders that have been presented to me today, it seems to me to be eminently suitable to the circumstances, having regard to the background to it and the material, the circumstances which now exist and which potentially may exist in the future. It provides a very safe system it seems to me. It provides, for example the Chief Executive complete kinship carer assessment during the period of the protective supervised order. And then gives the direction then – while the Director’s got custody until 1 September 2020 I would have thought it’s well and truly eminently sensible, in all the circumstances. And I think it provides all the protective needs in respect of the child that are – particularly in this community, where the parties don’t have the facilities and don’t have the services that may be available in the – you know – the cities. And I think that – you know as an overall consideration that we must look at that.” [3] This appeal is made on the basis that there are no powers to order consecutive orders under the Child Protection Act 1999 (Qld) and, although all the parties accept that the orders made by the magistrate did reflect the best interests of the child, the question is whether there was the power to make the custody order in the form that it ultimately took, particularly when one has regard to s 61 and s 62 of the Act. [4] The Child Protection Act 1999 (Qld) is set up with the primary purpose of the protection of children. Its paramount purpose is found in s 5A of the Act namely:- “The safety, well-being and best interests of a child, both through childhood and the rest of the child’s life are paramount.” 1 Transcript of hearing dated 13 June 2019 at p 1-14, 1 41. 2 Transcript of hearing dated 13 June 2019 at p 1-3, 1 26. 3 Transcript of hearing dated 13 June 2019 at p 1-16, 1 9. -- 3 of 10 -- 4 There are other general principles contained in ss 5B, 5BA and 5C of the Act. Relevantly for the purposes of this application they provide: “Section 5B – Other general principles The following are general principles for ensuring the safety, well- being and bests interests of a child— (a) a child has the right to be protected from harm or risk of harm; (b) a child’s family has the primary responsibility for the child’s upbringing, protection and development; (c) the preferred way of ensuring a child’s safety and well-being is through supporting the child’s family; (d) if a child does not have a parent who is willing and able to protect the child, the state is responsible for protecting the child; (e) in protecting a child, the state should only take action that is warranted in the circumstances; (f) if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interest; (g) If a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long term alternative care; (h) If a child is removed from the child’s family, consideration should be given to placing a child, as a first option, in the care of kin; (i) If a child is removed from the child’s family, child should be placed with the child’s siblings, to the extent that is possible; (j) A child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with a capacity to care for the child with assistance or support); (k) A child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child; (l) A child should be able to know, explore and maintain the child’s identity and values, including the cultural, ethnic and religious identity and values; -- 4 of 10 -- 5 (m) A delay in making a decision in relation to a child should be avoided, unless appropriate to the child.” [5] The appellant submits that there was an error of interpretation of the application of ss 61 and 62 of the Act by implying that the orders could commence on the date other than the date that the order was made. The appellant submits that when one looks at the purpose of the Act the section should be interpreted to fulfil the purposes of the Act, namely the protection of children. [6] Sections 61 and 62 of the Act provides as follows: “Section 61 Types of child protection orders The Children’s Court may make one or more of the following child protection orders so that the court considers to be appropriate in the circumstances – (a) An order directing a parent of the child to do or refrain from doing something directly related to the child’s protection (b) An order directing a parent not to have contact, direct or indirect – (i) With the child; or (ii) With the child other than when a stated person or a person of stated category is present; (c) An order requiring the Chief Executive to supervise the child’s protection in relation to the matter stated in the order; (d) An order granting custody of the child to – (i) A suitable person, other than a parent of the child, who is a member of the child’s family; or (ii) The Chief Executive; (e) An order granting short term guardianship of the child to the Chief Executive; (f) An order (a long term guardianship order) granting long term guardianship of the child to – A suitable person, other than a parent of the child, who is a member of the child’s family; or (i) Another suitable person, other than a member of the child’s family, nominated by the Chief Executive; or (ii) The Chief Executive; -- 5 of 10 -- 6 (g) An order (permanent care order) granting long term guardianship of the child to a suitable person, other than a parent of the child or the Chief Executive, nominated by the Chief Executive. Section 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 an order that does not grant custody or guardianship of the child must not be more than 1 year after the day it is made. (3) If no previous child protection order has been made for the child and the order grants custody or short-term guardianship of the child, the stated time for the order must not be more than 2 years after the day it is made. (4) If a previous child protection order has been made for the child and the order grants custody or short-term guardianship of the child, the stated time for the order must not be— (a) if, immediately before the making of the order, the child has been in continuous care since the making of the earliest child protection order for the child—later than 2 years after the day the earliest order was made; or (b) Otherwise—later than 2 years after the day the earliest child protection order for the child made during the relevant continuous care period was made. (5) However, despite subsection (4), the stated time for an order to which subsection (4) would otherwise apply must not be more than 2 years after the day it is made if— (a) it is in the best interests of the child to have a longer stated time for the order than the time provided for under subsection (4); and (b) the Children’s Court considers that reunification of the child with the child’s family is reasonably achievable within the longer stated time. -- 6 of 10 -- 7 (6) The stated time for an order that grants long-term guardianship of the child must be the end of the day before the child turns 18 years. (7) The order ends at the stated time unless it is extended or earlier revoked. (8) Regardless of subsections (1) to (7), the order ends when the child turns 18.” [7] It can be seen from those two sections that the Act is silent on when a child protection order must or may commence and where more than one child protection order is made whether those orders can be made to run consecutively. [8] I have already outlined the principles governing the Child Protection Act 1999 (Qld). Schedule 1 of the Act contains the “Charter of Rights for a Child in Care” which provides in part that: a) the child has the right to be provided with a safe and stable living environment, b) to be placed in care that best meets the child’s needs and is most culturally appropriate and c) to maintain relationships with the child’s family and community amongst other things. The combination of these principles and rights seek to create a scheme to protect the child by providing stability through orders that are made without undue delay, that provide some certainty and that protect the child from known harm. [9] The argument by the appellant is that whilst the Act states when the order must end, because it does not state that the order may start after the date of the court order, that it must be assumed that the order starts on the date the order is made. The argument is that because there is a two-year limit on short term custody or guardianship orders being made that it must rationally follow that the stated time for the two years to run must be from the date of the order. It is submitted on behalf of the appellant that this follows from the notion that the duration of the order is not anchored to the date the order commences but rather the date the order is made. The appellant relies on extrinsic material to support this argument. [10] The respondents both submit that the legislation allows for an interpretation which permits consecutive orders in appropriate cases. It was submitted that the language of the sections are clear and that there is no need to resort to any other material. It is further submitted that the only limit by virtue of the provisions in s 62 of the Act are -- 7 of 10 -- 8 that the orders in whatever form they may take cannot extend past a total of 2 years unless the exception under s 62(5) is satisfied. [11] I adopt the words of the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue4: “This Court has stated on many occasions that this task of statutory construction must begin with the consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.” [12] This statement of principle is adopted in s 14B of the Acts Interpretation Act 1954 (Qld) which states as follows: 14B Use of extrinsic material and interpretation (1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation— (a) if the provision is ambiguous or obscure— to provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or (c) in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision. (2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to— (a) that the desirability of a provision being interpreted as having its ordinary meaning; and (b) the undesirability of prolonged proceedings without compensating advantage; and (c) other relevant matters. 4 (2009) 239 CLR 27 at [46] – [47]. -- 8 of 10 -- 9 “Ordinary meaning” means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purposes of the Act.” [13] I agree that the language in the Act is clear and does not require an examination of extrinsic material to assist in its interpretation. [14] In relation to child protection orders it can be seen from the act that the focus is on making an order that is of the shortest possible duration and one that allows for the reunification or preservation of the family unit if possible. A number of matters can be seen from the operation of ss 61 and 62 of the Act: • The act allows the court to make more than one order.5 • The orders can be restrictive on the parent, supervisory, short term custody, short term guardianship or long term guardianship.6 • The short term orders must be no longer than 2 continuous years in total if the custody or guardianship is short term. This applies even if there is more than one order.7 • The order can be longer than 2 years if the court decides it is in the best interests of the child and reunification is possible in that time8 • The order must state the time when it ends.9 [15] If parliament intended that the order must take effect from the date the order was made it could easily have inserted the words in the section. This is the usual manner in which such an intent is signalled.10 Although it would be an unusual case in which consecutive orders would be considered appropriate, this was a case where there was a fixed parole date which necessitated the more intrusive orders made after that date. The mother in this case, who was caring for the child adequately at the time of the hearing, had a difficult and violent relationship with the father and his release from 5 Child Protection Act 1999 (Qld), s 61(a). 6 Ibid, s 61. 7 Child Protection Act 1999 (Qld), s 62. 8 Ibid, s 62(5). 9 Ibid, s 62(1). 10 See the Penalties and Sentences Act 1992 (Qld) s92(2) in relation to probation orders and s 144(6) in relation to suspended sentences; see the Industrial Relations Act 2016 (Qld) s 188 in relation to the duration of Scope Orders. -- 9 of 10 -- 10 prison meant that it was likely that the mother would return to the father and the child would be placed in danger. Given the remote nature of the community in which the child and her parents lived this was, as all parties agreed a sensible and pragmatic order. It was, in my view, not inconsistent with the Act and entirely consistent with the purposes of the Act. Although this issue does not appear to have been argued fully before, I note the above approach was also adopted by His Honour Judge Morzone QC in MDS v Director of Child Protection Litigation & Ors (2017) QChC 6. [16] In my view the learned magistrate properly interpreted the provisions of ss 61 and 62 of the Act correctly. The appeal is dismissed. -- 10 of 10 --