CP v Director-General, Community Services Directorate

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

CP v Director-General, Community Services Directorate

Citation:

[2018] ACTCA 32

Hearing Date:

7 August 2018

DecisionDate:

28 August 2018

Before:

Burns, Elkaim and Mossop JJ

Decision:

See [60]

Catchwords:

PRACTICE AND PROCEDURE – INTERLOCUTORY APPEAL – Leave to appeal from the Supreme Court – appeal from directions consequent upon finding that children were at risk of physical abuse – significant delay in determining appeal from orders made by Childrens Court – factual basis for finding not made out – leave to appeal granted

CHILDREN – CHILD WELFARE – Care and protection orders – Appeal to the Supreme Court from a decision of a magistrate in the Childrens Court relating to care and protections under the Children and Young People Act 2008 (ACT) – finding that children were at risk of “physical abuse” – primary judge gives extended meaning to “physical abuse” – risk of physical abuse not established on the evidence – primary judge’s extended definition of physical abuse doubted – appeal allowed – respondent not entitled to cross-appeal to raise new argument having regard to conduct of proceedings – appeal upheld – application for care and protection orders dismissed

Legislation Cited:

Children and Young People Act 2008 (ACT), ss 9, 342, 343, 344, 345, 345(1), 345(1)(a), 345(1)(b), 436, 464, 464(1)(a), 464(5)

Court Procedures Act 2006 (ACT), rr 5412, 5413, 5413(1)

Supreme Court Act 1933 (ACT), s 37E(4)

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

CP v Director-General of Community Services Directorate and Ors [2017] ACTSC 394

CP v Director-General of Community Services Directorate (No 2) [2018] ACTSC 201

Parties:

CP (Applicant)

Director-General, Community Services Directorate (Respondent)

LC (Second Respondent)

JP (Third Respondent)

GP (Fourth Respondent)

NP (Fifth Respondent)

DP (Sixth Respondent)

Representation:

Counsel

P Walker SC and J Haddock (Applicant)

K Archer (Respondent)

L Strong (Children’s Representative)

Solicitors

Legal Aid ACT (Applicant)

ACT Government Solicitor (Respondent)

Strong Law Pty Ltd (Children’s Representative)

File Number:

ACTCA 22 of 2018

Decisions under appeal: 

Court/Tribunal:             Supreme Court

Before:  Refshauge J

Dates of Decisions:     21 December 2017, 20 July 2018

Case Title:  CP v Director-General of Community Services Directorate

CP v Director-General of Community Services Directorate (No 2)  

Citations: [2017] ACTSC 394

[2018] ACTSC 201

Court File Number:       SCA 56 of 2014

THE COURT:

Introduction

1. This is an application for leave to appeal against interlocutory orders of the Supreme Court and, if leave is granted, the hearing of the appeal.  The application relates to an appeal to a single judge of the Court from a decision of the Childrens Court making care and protection orders under the Children and Young People Act 2008 (ACT) (the CYP Act). For the reasons which follow, we grant leave to appeal and allow that appeal.

Proceedings in Childrens Court

1. Proceedings were commenced in the Childrens Court by an application by the Director‑General filed 12 July 2013.  That application sought final care and protection…