CP v Director-General of Community Services Directorate and Ors
[2017] ACTSC 394
•21 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | CP v Director-General of Community Services Directorate and Ors |
Citation: | [2017] ACTSC 394 |
Hearing Dates: | 1, 2 and 7 April 2015 |
DecisionDate: | 21 December 2017 |
Before: | Refshauge J |
Decision: | 1. The appeal be upheld. 2. The parties be heard as to consequential orders. |
Catchwords: | APPEAL – APPEAL FROM THE CHILDRENS COURT – Care and protection order – alleged error in interpretation of withdrawal of cross-application – whether concession that the children required an order had been made – alleged error in concluding appellant agreed that the orders were necessary – alleged inadequacy of written reasons by Magistrate – alleged breach of Browne v Dunn – challenge to the finding that each child was in need of care and protection – fresh evidence – appeal upheld CHILDREN – CHILD WELFARE – Intervention – care and protection order – abused or neglected or at risk of abuse or neglect – “willing and able” to protect the children – capacity to protect the children – “Emergency Action” – weight of evidence of events leading to Emergency Action – Children and Young People Act 2008 (ACT) |
Legislation Cited: | Childrens Act 1999 (ACT), s 156 Children and Young People Act 2008 (ACT), ss 7, 8, 9, 11, 16, 17, 342, 343, 344, 345, 345(1)(a), 345(1)(b), 349, 350, 350(1)(a), 350(1)(b), 352, 353, 354, 356, 366, 368, 403, 409(1), 427, 428, 433, 433(3), 464, 464(1)(c)(i), 464(1)(c)(ii), 464(5), 464(5)(a), 464(8), 465, 467, 476, 481, 482, 716, 723, 835, 836, 836(1), Pts 10.3, 14.2, Dictionary Court Procedures Rules 2006 (ACT), rr 492, 504, 509, 6421 |
Cases Cited: | A and B v Director of Family Services (1996) 132 FLR 172 A and B v Director of Family Services (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 31 May 1996) Zeccola v Barr (1978) 19 ACTR 1 |
Texts Cited: | J H Wigmore, Evidence (Chadbourn rev., 1972) Andrew Ligertwood and Gary Edmond, Australian Evidence (LexisNexis Butterworths, 5th ed, 2010) Oxford English Dictionary (Clarendon Press, 1989) Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009) Thea Brown and Renata Alexander, Child Abuse and Family Law (Allen & Unwin, 2007) Hayley Boxall et al Historical review of sexual offence and child sexual abuse legislation in Australia: 1788-2013 (Australian Institute of Criminology, 2014) R S Kempe and C H Kempe, Child Abuse (Fontana, 1978) Keiran O’Hagen, Emotional and Psychological Abuse of Children (Open University Press, 1993) |
Parties: | CP (Appellant) Director-General of Community Services Directorate (First Respondent) LC, JP, GP, DP and NP (Second to Sixth Respondents) |
Representation: | Counsel Mr P Walker SC and Ms H Robinson (Appellant) Mr K Archer (First Respondent) Ms R Dwyer (Second to Sixth Respondents) |
| Solicitors Women’s Legal Centre (Appellant) ACT Government Solicitor (First Respondent) Strong Law Pty Ltd (Second to Sixth Respondents) | |
File Number: | SCA 56 of 2014 |
Decision under appeal: | Court/Tribunal: Childrens Court Before: Magistrate Fryar Date of Decision: 24 June 2014 Case Title: In the matter of an application for interim and final Care and Protection Orders by the Director-General of the Community Services Directorate in respect of JP, GP, DP, LC and NP Court File Numbers: KE 2572, 2573, 2574, 2575 and 2576 |
REFSHAUGE J:
The appellant, CP, is the mother of eight children. Three of the children, not directly relevant to this appeal, have been, and two still are, subject to care and protection orders placing them under the authority and responsibility of the Director-General of the Community Services Directorate, the first respondent.
The care of the other five children are the subject of this appeal. They are the second to sixth respondents. They have some challenging behaviours and have been known to Care and Protection Services of the Directorate for some time. Although “child” is defined in s 11 of the Children and Young People Act 2008 (ACT) (the Childrens Act), to be a person under 12 years old and, in s 12, a “young person” is defined to be a person 12 years or older but not an adult, and although one of CP’s children the subject of the appeal was at the relevant time 13 years old, it is convenient to call the second to sixth respondents, the children or, individually, the child, without intending any disrespect to or to demean the older child in any way.
On 12 July 2013, the Director-General made an application to the Childrens Court for a care and protection order in respect of the five children for two years and, pending that final order, an interim care and protection order.
On 10 October 2013, the Director-General filed an amended Originating Application, seeking a final order for care and protection until the children were 18 years of age.
On 24 June 2014, a final care and protection order was made until the children attained the age of 18 years, effectively placing the children under the authority and responsibility of the Director-General.
CP has now appealed from that order.
Jurisdiction
The power to appeal against an order of the Childrens Court is provided for in ss 835 and 836 of the Childrens Act. Section 836(1) permits an appeal against a care and protection order. I described the provisions in JL v Director-General, Community Services Directorate [ECD] [2015] ACTSC 24 at [6]-[14]. In summary, what I there held was:
1. The appeal is subject to Pt 4.5 of the Magistrates Court Act 1930 (ACT).
2. Such an appeal is in the nature of a rehearing.
3. That means that it is conducted on the evidence before the Childrens Court together with any further evidence admitted by this Court as the appeal court.
4. The appeal court is required to exercise restraint on the appeal especially where facts are found based on the assessment of the credibility of witnesses because of the advantage that the Childrens Court has in seeing and hearing such witnesses.
5. The appeal court will intervene where the Childrens Court has fallen into an error of law, has made a finding of fact that is clearly wrong or has exercised a discretion on a wrong principle or in a way that is clearly wrong.
6. The decision of the appeal court is not restricted to the decision that should have been made by the Childrens Court but must have regard to the circumstances existing at the time of the appeal and may make its own decision in these circumstances.
7. The challenge to the exercise of a discretion must be based on a claim that the Childrens Court acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect the decision, mistook facts, did not take into account material considerations or made a decision that was unreasonable or plainly unjust.
These are the principles I shall apply in this case.
The appeal
The Notice of Appeal was filed on 21 July 2014, and pleaded a large number of complex grounds. It was, however, amended on 11 March 2015 by leave granted on 5 March 2015. The amended Notice of Appeal pleaded that CP would seek to put further evidence before the Court.
It again pleaded a large number of complex grounds as follows:
4.Grounds of Appeal
4.1The Magistrate was in error in her interpretation of the consequence of the Appellant withdrawing her cross application seeking dismissal of the Respondent’s application. It led her to make the following errors:
a)The withdrawal ‘was apparently a concession that the evidence presented to the court established that each of the children were in need of case [sic] and protection.’;
b)‘... the mother is not now able to revive her primary application as she had apparently endeavoured to do through her counsel’s submissions.’; and
c)that the Appellant was ‘seeking two year orders’.
5.The Magistrate was in error in concluding that the Appellant had agreed in her evidence that the orders were necessary ‘because of her inability to act protectively and her failings in the care of her children.’
6.The Magistrate has failed to make any or sufficient findings of fact to justify her making care and protection orders in respect of the children who were the subject of the application. Without limiting the generality of the ground but in particular there were inadequate primary findings of fact to justify:
a)the Magistrate’s findings of abuse and neglect;
b)that care and protection orders should be made until each child attains the age of 18;
c)the Magistrate’s finding that the mother had not provided adequate stimulation and discipline to the children;
d)the Magistrate’s condition of the house in which the children lived; and
e)the failure of the Magistrate to make findings individually in respect of each child whether that child was in need of care and protection and what was the appropriate order to make in relation to each child if there was such a finding.
7.The Magistrate was in error in concluding that the children were in need of care and protection.
8.The Magistrate was in error making orders in respect of each child to the age of 18.
9.The Magistrate failed to take into account when the following events occurred.
iThe abusive relationship with [CP’s partner].
ii.The move to Sydney.
iii.The circumstances of the family’s return to Canberra.
iv.The finding of abuse and neglect.
v.The ‘mother’s seeming inability to cope with dealing appropriately with’ the children’s needs.
viAny exposure to violence.
viiAny exposure to emotional abuse.
viiiAny failure to follow up medical care.
10.The Magistrate failed to take into account the circumstances of the matters outline [sic] in 7.
11.The Magistrate was in error in concluding that the Appellant has a ‘demonstrated incapacity to meet [the children’s] emotional and social needs and well-being and that no matter what assistance is provided to her that she is simply incapable of protecting the children and helping them to thrive.’
12.The Magistrate was in error in placing the weight she did on the events of 10 July 2013 when determining the applications in respect of the children.
13.The Magistrate failed to comply with section 352 of the Children and Young People’s Act 2008.
14.Irrespective of whether the Magistrate was in error or not, in light of the fresh evidence, the appellant says that a long term parental responsibility order should not be made at all.
Further evidence
Under s 276 of the Magistrates Court Act, this Court on appeal has power to receive what is referred to in that section as “further evidence”. This is sometimes called “fresh evidence” but, in my view, that term should be avoided as it is used commonly for what the common law allows as evidence to be adduced on appeal as described in Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435. As a result of the High Court’s decision in CDJ v VAJ (No 2) [1998] HCA 67; 197 CLR 172, that approach does not apply in these proceedings.
Relevant to the consideration of this issue is that the appeal must be decided on the circumstances existing at the time of the appeal, which circumstances of the children may have changed since the final care and protection order was made. Further, as explained in Sobey v Nicol and Davies [2007] FCAFC 136; 245 ALR 389 at 403; [70], the subject matter of the appeal, which, in this case, involves the rights and interests of the children, is relevant to the question of whether to admit further evidence. Also relevant is that s 352 of the Childrens Act requires a decision-maker, which includes the appeal court, to give children or young people a reasonable opportunity to express their views, which views appear to be included in the further evidence.
I set out the principles concerning the admission such evidence in
JL v Director-General Community Services Directorate [ECD]at [43]-[48]. In this case, there was no objection to the admission of the further evidence. The further evidence was set out in two folders which were tendered. I admitted the contents of the folders.
The proceedings below
As noted above (at [3]), the Director-General initially applied to the Childrens Court, by Originating Application dated 12 July 2013, for a final care and protection order for two years, and, pending the final hearing, an interim care and protection order. In support, a lengthy affidavit of Kira Barbaric, a Child Protection worker of Care and Protection Services, was filed.
The Originating Application was returnable on the afternoon of the day on which it was filed. All parties were represented and interim orders in terms of those sought in the Originating Application were made by consent in favour of the Director-General until the date to which the proceedings were otherwise adjourned, namely 18 July 2013.
The proceedings were then adjourned from time-to-time, with the consent interim orders being continued, until the final orders were made on 24 June 2014.
On 10 October 2013, however, the Director-General filed two amended Originating Applications, one in respect of the child, LC, and the other in respect of the children JP, GP, DP and NP, apparently substituting for the original Originating Application. It is not quite clear why the proceedings were so separated as they were all heard at the same time. The amended Originating Applications were returnable on the next date for mention, namely 17 October 2013. Two further affidavits of Ms Barbaric were also filed, one each supporting each of the two amended Originating Applications relating to the children the subject of each respective amended Originating Application.
Despite r 504 of the Court Procedures Rules 2006 (ACT), I could find nothing in the material before me to show that leave had been granted for the amendments to the Originating Application. The amended Originating Applications included in the Appeal Papers did not comply with r 509.
Nevertheless, no point was taken about this at trial, or on the appeal, and the proceedings thereafter seem to have proceeded as if such leave had been given for amendment and a proper document compliant with the Rules had been filed.
The significant change (and, in the absence of compliance with the helpful requirements set out in r 509 of the Court Procedures Rules, I did not minutely compare the original and amended documents) was that the Director-General now sought a care and protection order until the children were 18 years old.
On 5 February 2014, CP filed a cross-application in respect of three of the children, JP, GP and DP, seeking that the amended Originating Application of the Director-General in respect of these three children be dismissed. She also filed on that day a further cross-application in respect of the other two children, LC and NP, seeking that a care and protection order be made for two years for those children in favour of the
Director-General. Affidavits of CP were filed in support of these cross-applications.
Subsequently, on 23 April 2014, CP filed a further cross-application, said to replace the earlier one, in respect of LC and NP, seeking that the amended Originating Application of the Director-General be dismissed.
Then, on 24 April 2014, CP filed a single document said to be an amended
Cross-Application, in respect of all the children, seeking that the amended Originating Applications of the Director-General be dismissed or, in the alternative, that a care and protection order be made for two years. This document also failed to comply with r 509 of the Court Procedures Rules.
The final hearing commenced on 23 April 2014. There was an initial discussion about the cross-application filed on 5 February and 23 April 2014. Counsel for the
Director-General submitted that, if all CP wished to do was to put the Director-General to proof of the necessary pre-conditions for making a care and protection order, then it was not necessary to file a cross-application.
That is correct. Actions commenced by Originating Application are not subject to the rules of pleadings. The orders sought are just that – the relief claimed. If a defendant wishes to oppose the granting of that relief, it is not necessary to file any process. At the hearing, the defendant may argue any defence available. If no evidence is adduced by the defendant, then it will be difficult, if not impossible, to argue a defence that relies on any facts not in the evidence adduced by the plaintiff.
This, of course, restricts the arguments that can then be made; they will include that the plaintiff has no standing, that the plaintiff has no maintainable cause of action or that the evidence does not justify the court in granting relief. There may be others, such as questions of jurisdiction and, of course, any defence available as disclosed in the plaintiff’s evidence.
If the defendant wishes to make a positive defence, then that is usually done by filing an affidavit or affidavits which will set out the evidence from which the facts that justify such a defence may be found by the court. A cross-application is only required if a defendant seeks to have the court make an order, other than dismissing the
Director-General’s application, that seeks different orders, such as a shorter term for the care and protection order or different provisions in the order from those sought in the Originating Application including by reference to those provisions listed in s 464(2) of the Childrens Act (including by reference to s 465). An affidavit or affidavits may need to be filed in support of such a cross-application.
This general approach is well supported by the Childrens Act, though the Act includes more procedural matters than usual in Acts, where such matters are usually, and generally preferably, left to the Court Procedures Rules, which the court can usefully craft to take account of relevant matters and which, as procedure must adapt to changing practices and needs, can be amended more readily.
Nevertheless, s 428 of the Childrens Act provides for a cross-application where a defendant wishes to seek “a different provision” in a care and protection order or “different terms in a provision” of such an order.
Thus, the wish of CP to have a two year final order made instead of a final order until the children were 18 would be a different provision and require a cross-application. On the other hand, a claim simply that the Director-General’s application be dismissed is not seeking that the Court make a different provision, so if that is all that is sought, the defendant does not need to file a cross-application.
A further matter was raised by the Director-General’s counsel, however; it was suggested that the cross-application for a two year final order needed to be served on persons not then appearing as parties to the proceedings, namely the fathers of the children. That is not correct.
Certainly, s 427 of the Childrens Act requires an Originating Application to be served on various persons, including each parent of the child or young person the subject of the application. In my view, that section does not apply to a cross-application. The Act makes a clear distinction between the two documents and does not suggest that a cross-application is a species of Originating Application. At the stage of filing a
cross-application, the proceedings have commenced and the parties, including the active parties, are known, all of whom will have been served with a copy of the Originating Application.
The structure of Pt 14.2 of the Childrens Act makes all this clear and it would be inconsistent with usual practice to require a cross-application to be served on a person not a party unless the Court specifically directed that it be done. In any event, r 6421 of the Court Procedures Rules would provide that service on a person who had been served with an Originating Application, but who had not filed a Notice of Intention to Respond, would be effective if the relevant document were merely filed, as happened here.
I do note that there were, in the Appeal Papers, no affidavits of service of the
Director-General’s Originating Application on the father of LC or the father of JP, GP, DP and NP, despite s 427 of the Childrens Act. Neither father was present nor represented. An affidavit of service would normally then be required. There was a mention in the transcript of the hearing on 23 April 2014 of LC’s father being served but not of the other father. No point was taken about this on the appeal.
The proceedings then became confused. Counsel for CP appeared to withdraw the cross-applications which merely sought to have the amended Originating Applications by the Director-General dismissed as, for the reasons set out above, it was not necessary in order that CP might controvert the Director-General’s claims.
Unfortunately, the references to CP’s cross-applications were not entirely clear. Thus, the cross-application of 23 April 2014 was withdrawn. There was no reference to the already filed two cross-applications of 5 February 2014. One was in the same terms as that which had been withdrawn and may be assumed also to have been, or intended to have been, withdrawn. The other, however, sought a final order for two years. It does not appear that the latter one was formally withdrawn.
There was then, further, a rather confused discussion about that. It was suggested that by including a claim for a two year final order in that cross-application, CP had somehow conceded that a care and protection order should be made. It was, however, perfectly proper for CP to file such a cross-application in the alternative, a procedure well-known at law. In such a case, it was necessary for the general traverse claimed by CP, that no order should be made, to be expressly claimed, so as to make it clear that the two-year order claim was an alternative. That could be done orally or, perhaps, more conveniently in a cross-application. Such a claim in the alternative did not admit that the children were in need of care and protection.
In the first place, a claim is not evidence. Thus, it cannot be an admission. It is
well-known for inconsistent claims to be made without becoming an admission. In Coote v Ford [1899] 2 Ch 93, Lindley MR, with whom Rigby LJ agreed, had to consider a claim where the plaintiff sought damages and an injunction, alternate and inconsistent remedies. The defendant denied the plaintiff’s claim but made a payment into court in respect of the damages. The Court held, that even if the plaintiff accepted the sum paid into court, the defendant could still deny the plaintiff’s claim for an injunction.
In the case of relief, inconsistent relief can be claimed as long as it is claimed in the alternative, and the claiming party will not be fixed with an admission asserted to arise from the claimed relief. Thus, in United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 30, Lord Atkin explained:
I therefore think that on a question of alternative remedies no question of election arises until one or other claim has been brought to judgment. Up to that stage the plaintiff may pursue both remedies together, or pursuing one may amend and pursue the other: but he can take judgment only for the one, and his cause of action on both will then be merged in the one.
Since CP, by her cross-application, was in effect a plaintiff, this approach applies to her claims in this case.
It is unfortunate that this confusion arose from some suggestions as to procedure, which were unhelpful and incorrect. This incorrect understanding of the position with service and the alternate claims led counsel for CP to seek an order under s 723 of the Childrens Act dispensing with any service required on either of the fathers to the children with the cross-application. This was unnecessary.
It was then suggested that a further complete cross-application be prepared and filed and this is how the cross-application of 24 April 2014 came to be filed, which specified the relief as in the alternative, first as to dismissal of the Director-General’s amended Originating Applications and then, in the alternative, two year final orders. This was entirely proper. It was filed on the second day of the hearing. It did not comply with r 509 of the Court Procedures Rules and, although her Honour remarked on that, she did not decline to receive it; to do so would have been inappropriate, not least because the Director-General’s amended Originating Applications, which were admitted, suffered the same problem, as I noted above (at [18]).
The Law
The law applying to care and protection orders is contained in the Childrens Act. The Act also contains many matters of procedure. This is not always desirable, for procedure is likely to need reform more frequently than substantive law to meet a range of needs, including changes in technology or court processes, or to meet unintended consequences of provisions which create problems that can complicate proceedings.
An example of this is in respect of the provisions relating to cross-applications, which clearly were confusing and, indeed, may have led to CP compromising her position as a result. This can readily be rectified were the provisions to be found in rules of court rather than in an Act.
In any event, even excluding the procedural provisions, the substantive law in the Childrens Act about care and protection orders is extensive and complex. That may be entirely appropriate, given the significance of a decision to make a care and protection order and, in effect, sever the day-to-day relationship between child and parent.
Under the Childrens Act, the Childrens Court can, in its discretion, make a care and protection order if certain criteria are met as set out in s 464 of the Act, as follows:
464 Care and protection order – criteria for making
(1) The Childrens Court may make a care and protection order for a child or young person if the court –
(a) is satisfied that the child or young person is in need of care and protection; and
(b) has considered the care plan prepared by the director-general for the child or young person; and
(c) is satisfied that –
(i) the provisions included in the order are necessary to ensure the care and protection of the child or young person; and
(ii) making the order is in the best interests of the child or young person.
...
(5) The Childrens Court –
(a) must not merely accept the admission of the parties to the proceeding that the child or young person is in need of care and protection; but
(b) must satisfy itself that the child or young person is in need of care and protection.
The length of the order was clearly an important issue in these proceedings and that is provided for in s 465 of the Childrens Act by reference to ss 476 and 481. The effect of these provisions is that the Childrens Court may make an order for “short-term parental responsibility” (s 476) for a period that is not longer than two years. Alternatively, the Childrens Court may make an order for “enduring parental responsibility” (s 481) which is in force until the child is 18 years old. The length of the order must be stated in the order.
Before making an order which contains provisions with enduring parental responsibility, the Childrens Court must be satisfied that the criteria set out in s 482 of the Childrens Act are met. That provision is relevantly as follows:
482 Enduring parental responsibility provision – criteria for making
(1) The Childrens Court may, on application or on its own initiative, include an enduring parental responsibility provision in a care and protection order for a child or young person if –
(a)no-one with parental responsibility for the child or young person (other than under a care and protection order) has had care of the child or young person for –
(i)the 2 years immediately before the order is made; or
(ii)a total of at least 2 years in the 3 years immediately before the order is made; and
(b) the child or young person has been living with a stated person under a care and protection order for –
(i) the 2 years immediately before the order is made; or
(ii) a total of more than 2 years in the 3 years immediately before the order is made; and
(c) the court is satisfied that –
(i) no-one with parental responsibility for the child or young person (other than under a care and protection order) (a previous carer) is willing or able to exercise daily care responsibility or long-term care responsibility for the child or young person; or
(ii) it is not in the best interests of the child or young person for a previous carer to exercise those responsibilities for the child or young person; and
(d) the court is satisfied that –
(i) it is unlikely that a previous carer of the child or young person will be willing or able to exercise daily care responsibility or long-term care responsibility for the child or young person before the child or young person is 18 years old; or
(ii) it is unlikely that it would be in the best interests of the child or young person for a previous carer to exercise those responsibilities for the child or young person before the child or young person is 18 years old; and
(e) the court is satisfied that the stated person is willing and able to exercise daily care responsibility or long-term care responsibility for the child or young person; and
(f) the court is satisfied that including the provision is the best way to meet the child’s or young person’s need for emotional security in the long-term;
...
As can be seen from s 464 of the Childrens Act, the Childrens Court must be satisfied that the child the subject of an application for a care and protection order “is in need of care and protection”. That phrase is defined in s 345, as follows:
345 When are children and young people in need of care and protection?
(1) For the care and protection chapters, a child or young person is in need of care and protection if –
(a) the child or young person –
(i) has been abused or neglected; or
(ii) is being abused or neglected; or
(iii) is at risk of abuse or neglect; and
(b) no-one with parental responsibility for the child or young person is willing and able to protect the child or young person from the abuse or neglect or the risk of abuse or neglect.
(2) Without limiting subsection (1), a child or young person is in need of care and protection if –
(a)there is a serious or persistent conflict between the child or young person and the people with parental responsibility for him or her (other than the director-general) to the extent that the care arrangements for the child or young person are, or are likely to be, seriously disrupted ...
Section 344 of the Childrens Act provides that a child is “at risk of abuse or neglect” if, on the balance of probabilities, there is a significant risk of the child being abused or neglected. Examples are given in that section which, under ss 126 and 132 of the Legislation Act 2001 (ACT), may extend, but not limit the meaning of the section. None are directly relevant and no party relied on any in these proceedings.
The terms “abuse” and “neglect” are themselves also defined in ss 342 and 343 of the Childrens Act respectively as follows:
342 What is abuse?
In this Act:
abuse, of a child or young person, means –
(a) physical abuse; or
(b) sexual abuse; or
(c) emotional abuse (including psychological abuse) if the child or young person has experienced the abuse or is experiencing the abuse in a way that has caused or is causing significant harm to his or her wellbeing or development; or
(d) emotional abuse (including psychological abuse) if –
(i) the child or young person has seen or heard the physical, sexual or psychological abuse of a person with whom the child or young person has a domestic relationship, the exposure to which has caused or is causing significant harm to the wellbeing or development of the child or young person; or
(ii) if the child or young person has been put at risk of seeing or hearing abuse mentioned in subparagraph (i), the exposure to which would cause significant harm to the wellbeing or development of the child or young person.
343 What is neglect?
In this Act:
neglect, of a child or a young person, means a failure to provide the child or young person with a necessity of life if the failure has caused or is causing significant harm to the wellbeing or development of the child or young person.
Examples—necessities of life
1 food
2 shelter
3 clothing
4 health care treatment
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
The jurisdictional issue of a finding that the children are in need of care and protection, however, is only the first stage of making a care and protection order. The court then has a discretion whether to make such an order, as noted above (at [46]). The obligation of the Childrens Court in this complex and sensitive matter is underpinned by overarching principles which it must consider in addressing the discretionary issue of whether to make a care and protection order. In particular, s 464(1)(c)(ii) of the Childrens Act requires the Court to be satisfied that making the order “is in the best interests of the child”. That phrase is also defined in s 349 of that Act and the Court, as a decision-maker, is required to apply the care and protection principles set out in s 350 of that Act. Those sections are in the following terms:
349 What is in best interests of child or young person?
(1) For the care and protection chapters, in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that are relevant to the child or young person:
(a) the need to ensure that the child or young person is not at risk of abuse or neglect;
(b) any views or wishes expressed by the child or young person;
(c) the nature of the child’s or young person’s relationship with each parent and anyone else;
(d) the likely effect on the child or young person of changes to the child’s or young person’s circumstances, including separation from a parent or anyone else with whom the child has been living;
(e) the practicalities of the child or young person maintaining contact with each parent and anyone else with whom the child or young person has been living or with whom the child or young person has been having substantial contact
(f) the capacity of the child’s or young person’s parents, or anyone else, to provide for the child’s or young person’s needs including emotional and intellectual needs;
(g) for an Aboriginal or Torres Strait Islander child or young person – that it is a high priority to protect and promote the child’s or young person’s cultural and spiritual identity and development by, wherever possible, maintaining and building the child’s or young person’s connections to family, community and culture;
(h) that it is important for the child or young person to have settled, stable and permanent living arrangements;
(i) for decisions about placement of a child or young person – the need to ensure that the earliest possible decisions are made about a safe, supportive and stable placement;
(j)the attitude to the child or young person, and to parental responsibilities, demonstrated by each of the child’s or young person’s parents or anyone else;
(k) any abuse or neglect of the child or young person, or a family member of the child or young person;
(l) any court order that applies to the child or young person, or a family member of the child or young person.
(2) For the care and protection chapters, in deciding what is in the best interests of a child or young person, a decision-maker may also consider any other fact or circumstance the decision-maker considers relevant.
350 Care and protection principles
(1) In making a decision under the care and protection chapters in relation to a child or young person, a decision-maker must apply the following principles (the care and protection principles) except when it is, or would be, contrary to the best interests of a child or young person –
(a) the primary responsibility for providing care and protection for the child or young person lies with the child’s or young person’s parents and other family members;
(b) priority must be given to supporting the child’s or young person’s parents and other family members to provide for the wellbeing, care and protection of the child or young person;
(c) if the child or young person does not live with his or her family because of the operation of this Act – contact with his or her family, and significant people, must be encouraged, if practicable and appropriate;
(d) if the child or young person is in need of care and protection and the child’s or young person’s parents and other family members are unwilling or unable to provide the child or young person with adequate care and protection (whether temporarily or permanently) – it is the responsibility of the government to share or take over their responsibility;
(e) if the child or young person does not live with the child’s or young person’s parents because of the operation of this Act – the safety and wellbeing of the child are more important than the interests of the parents;
(f) a court should make an order for a child or young person only if the court considers that making the order would be better for the child or young person than making no order at all.
(2) The care and protection principles must be applied in addition to the principles under section 9 (Principles applying to Act) and section 10 (Aboriginal and Torres Strait Islander children and young people principle).
Note The Maori children and young people principle may also apply if an order or proceeding is transferred to the ACT from New Zealand (see s 678).
In this case, Emergency Action was taken initially on 10 and 12 July 2013. While there was some disagreement between the parties as to the effect of this in the proceedings, it is relevant to outline the provisions. They have been helpfully summarised by Burns J in LP v Director-General of the Community Services Directorate [2016] ACTSC 57 at [7] as follows (the reference to “CYPA”, of course, being to the Childrens Act):
‘Emergency Action’ means transferring daily care responsibility for the child to the Director-General: s 405 of the CYPA. Such action may be taken where the Director-General believes on reasonable grounds that the child is in need of emergency care and protection: s 406 of the CYPA. A child is in need of emergency care and protection if the child is in immediate need of protection, or is likely to be in immediate need of care and protection if Emergency Action is not taken: s 403 of the CYPA. The effect of the Director-General taking Emergency Action is that the Director-General has daily care responsibility for the child: s 409 of the CYPA. The duration of the transfer of daily care responsibility to the Director-General by reason of Emergency Action is limited to two working days, or slightly longer if a long weekend intervenes, without an order of the Childrens Court: s 410 of the CYPA.
The evidence
The reasons published by the learned Magistrate (the Reasons) were relatively short (21 paragraphs occupying nine pages). That is not a criticism in itself; indeed, there is much virtue in brevity, especially (but, it may be mentioned in the context of some of my decisions, not only) in the lower courts.
The difficulty for me in this case is that the evidence consisted of ten affidavits filed which, with annexures and exhibits, occupied 715 pages of the Appeal Book, and two days of oral evidence. Tendered exhibits which were also admitted totalled 45 pages. Thus, the material was extensive and there were differences and contradictions between the assertions by witnesses that needed to be resolved.
Her Honour, however, made few specific findings of fact and addressed none of the matters contested on the evidence though, as Ken Archer, counsel for the
Director-General, accurately pointed out, her Honour was not much assisted in this task by the submissions of CP’s counsel.
Without the findings of the Court below, it is difficult for an appeal court to know what the facts were in order to address the appeal. Indeed, it may be said that this is the gravamen of the grounds of this appeal, that there were no such findings and, on the evidence, the orders were not justified.
As a result, it is necessary for me to set out, somewhat more extensively than would otherwise be required, the evidence before the learned Magistrate.
It is, of course, well-known that a trial court enjoys a particular advantage over an appellate court when evaluating the evidence that the trial court has seen and heard being given, but that does not relieve an appellate court of its responsibility on rehearing. See, for example, Heywood v Bishop [2015] ACTCA 58; 73 MVR 426 at 444; [57]-[58], Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd [2016] ACTCA 49 at [53]-[54].
There was, in this case, affidavit evidence. While that evidence can be evaluated as effectively by the appeal court as by the trial judge, that is complicated where the deponent is subject to cross-examination, as here.
The Director-General filed seven affidavits, all made by Ms Barbaric, the Child Protection worker employed by the Directorate with “responsibility for the management of the cases” of the five children. As there were two sets of proceedings, one in respect of LC and the other in respect of the four male children, some affidavits were for one proceeding and some for the other. There was considerable overlap between the affidavits in the respective proceedings.
Ms Barbaric holds the qualifications of an Advanced Diploma in Community Service awarded by the Canberra Institute of Technology in 2007 and a Bachelor Degree in Social Work from the Australian Catholic University, also awarded in 2007. She had been employed as a Child Protection caseworker with the Community Services Directorate in September 2011. Prior to that she had, after graduation, worked as a care worker, support worker, social worker and case worker with young people and families, principally with the Marymead organisation, a non-profit children’s care organisation in Canberra, but also on a short-term contract with the Katherine (NT) Remote Aboriginal Health and Related Services organisation. She became responsible for management of the cases of the five children in May 2013.
The basic facts deposed to in the affidavits were not in dispute and may be set out shortly. Much of it came, of course, from Ms Barbaric’s inspection of the Directorate’s files, given her then relatively recent assumption of responsibility for management of the cases of the five children.
The appellant, CP, is the mother of the five children the subject of this appeal and three other children. OI is the father of two of the other children, SC is the father of the other child and also one of the children, LC, the subject of this appeal; BP is the father of the other four children the subject of this appeal.
The subject children were born in the following years: LC in 2001, JP in 2002, GP in 2004, DP in 2006 and NP in 2008.
Care and Protection Services had been involved with the children of CP for some time. Two of the children, not the subject of this appeal, are subject to care and protection orders until they are 18 years old with, it appears, the usual authorities, supervision and daily and long term care responsibilities vested in the Director-General.
Ms Barbaric’s first affidavit deposed to 36 reports made to Care and Protection Services, between 10 December 2002 and 25 June 2013, about some or all of the eight children of CP. Not all of the reports related to the children the subject of these proceedings. A summary of those reports was set out in Ms Barbaric’s affidavits.
The affidavit uses some technical terms when referring to the reports. Thus, the reports are all “child concern reports” which, under s 353 of the Childrens Act are voluntary (s 354) or mandatory (s 356) reports where the reporter “believes” or “suspects” that a child is being, or at risk of being, abused or neglected. It is not a high threshold, though a mandatory report, but not a voluntary report, must be based on “reasonable grounds”. It was not clear whether any of the reports were mandatory reports as this was not stated.
It also refers to an “appraisal” which appears to be a care and protection appraisal under s 366 of the Childrens Act. That is, essentially, an investigation of the circumstances of a child or young person. It can involve a visual examination of the child or young person, an interview with the child or young person, or seeking information or making inquiries of other people. Under s 368, an appraisal can only be conducted by order or by agreement with at least one of the parents or persons with daily care and responsibility for the child or young person. It is not specified, but one would expect that there would be a report or result of an appraisal. Without such an investigation, a child concern report remains simply an allegation.
It is difficult to summarise the reports, but the following comments seem to me to give a picture.
Some of the reports were generalised without a clear outcome. For example, on 13 July 2004, a child concern report was received suggesting that the children were “at risk of neglect”. It was stated that “an intervention was started … [and a] comprehensive family assessment was sought”. No description of the intervention was provided and no reference was made to the contents, findings, recommendations or implementation of any such recommendations, of any assessment, if conducted. So far as being helpful in these proceedings, it was difficult to see the relevance of such a report. It is by no means clear how that information is to be considered by the Childrens Court when the issues that the Court was required to decide come to be decided. There were similar comments in relation to reports received on 2 November 2004, 20 June 2015, 21 April 2009, 20 May 2009 and 29 June 2009; again, no details of what was done, if anything, or any outcome achieved, was provided.
On the other hand, there were some more significant reports: there were reports on 10 December 2002 of allegations of physical abuse of the second son of CP by his stepfather and of neglect by CP. Again, however, despite an “intervention [being] started”, the “[a]ppraisal was incomplete and ‘work load managed’”. This leaves the matter as a mere allegation which cannot be used as evidence of any actual abuse of the child.
There was a report on 13 October 2004 of physical injuries to LC, including marks seen on her wrist consistent with bite marks said to have been made by JP and sighting of bruising and scratches to her cheek, legs and upper arm. These are more useful as evidence. Further, bite marks were seen on LC on 2 November 2004. Bruises were reported on 22 February 2005 and 22 November 2005, said to have been caused by her mother, but without any clarity as to whether this was confirmed in any way. Other injuries to LC were noted on 8 May 2007, 14 September 2007, 10 January 2008, 4 July 2008, 4 September 2009 and 23 November 2012, though not all of these were alleged to have been caused by her mother. While the sighting of the injuries is relevant evidence, there was little evidence as to how they occurred, apart from general allegations, not obviously being investigated. Even some of the hearsay reasons were quite unhelpful. It was, however, said that LC was prone to accidents and workers did observe an example of that when they saw her run into a door resulting in a mark on her head. That, of course, is unlikely as a cause of bite marks.
There were a number of subsequent disturbing reports about LC’s behaviour which included a suggestion of possible sexual abuse, of her disrobing and exposing herself and of her engaging in sexualised behaviour. Again, it was not always clear whether these were hearsay reports or whether Child Protection workers had observed the behaviour.
There were other complaints but, for the most part, they appeared to be allegations and there was no evidence that they had been verified or even assessed in some cases. That is a matter of concern for it could be suggested that the picture was of 36 occasions where there had been problems, but that is not what was set out in the affidavit, rather complaints, the validity or full circumstances of which were not stated. As such, they could not form a basis for any findings as to the care provided for the children.
The reference to 36 reports is also arguably accurate but misleading in itself. I say “arguably accurate” because there are 36 dates when, it appears, there are records or entries in records of report or action in respect of CP and her family by or to Care and Protection Services. In fact, there were 37 dates recorded by Ms Barbaric. This may be because there were two reports of 22 November 2005, the second being described as “a multiple report of the same date”. That may explain the 37 entries for what was said to be 36 reports. Unfortunately, however, the reports of 4 September 2009, 11 October 2012 and 2 January 2013 were also described as being the same or multiple reports of earlier reports, suggesting that there were, in truth, 33 reports. This inaccuracy is a concern when, given the nature of the reports, as I have described them, the intention seems to have been to use the number of reports as some evidence of the need for court intervention, since the detail is often so vague and unhelpful.
Of the 33 reports, it should be noted that five were “not rated for appraisal”, in one the appraisal was incomplete, two did not proceed to appraisal and two were not appraised. That leaves 23 reports that were serious enough to involve appraisal, intervention or Emergency Action. One of these related to the second son of CP, not the subject of these proceedings.
Of the reports, 18 related to LC alone, two to JP and two to LC and JP. This important differentiation between the children did not seem to be in any way reflected in the findings of the learned Magistrate or the Reasons her Honour delivered on 24 June 2014.
Ms Barbaric then deposed to the events giving rise to the Director-General taking Emergency Action. These were as follows.
Ms Barbaric and a fellow Child Protection worker, Stacey Davis, arrived at the family home on 10 July 2013 for an “unannounced home visit”. The children were on holidays at the time; only JP, GP and DP were at the home. LC and NP were at holiday camp.
CP appeared annoyed at the attendance of the workers as she said that “she had just gotten the children to settle”. CP appeared to Ms Barbaric to be exhausted, perhaps unsurprising with five children under 13 years old on holidays. CP, however, said that the three children there had been misbehaving and that she had had difficulties managing this.
Ms Davis went to see the children and returned saying that they had climbed out the window and onto the roof of the house. GP told Ms Barbaric that CP had punched JP in the nose, though CP said that she and JP had been wrestling and that “he gets blood noses all the time”. There was no further evidence to contradict what CP said.
GP then shouted that there were “kids in the garage smoking bongs”. Ms Barbaric seems to have gone straight to the garage and found BI (the eldest of CP’s sons and not a subject of these proceedings) who was 17 years old. He was with his girlfriend and “two or three friends”. Ms Barbaric observed an “extremely strong smell of spray deodorant (Lynx or similar)” and, while not observing any drug paraphernalia, believed that the young people were recently smoking cannabis, a belief apparently “due to all young people actively avoiding eye contact and the recent, overpowering smell of spray”.
Ms Barbaric suggested to the children on the roof that she and Ms Davis would leave if they came down, but they refused. GP and JP then started throwing rocks or cement particles off the roof aimed at the feet of the two workers.
When the workers moved back and engaged less with the boys, the boys started spitting off the roof. While the workers contacted Barnardos, which was providing support to the family and who suggested that the workers move away, further up the street, it does not appear from the evidence that the workers took this advice and actually moved away.
Ms Davis was then told by GP that BI and his girlfriend “have sex in front of us”; BI’s girlfriend was said to have heard him say that but did not deny it.
CP remonstrated, saying that she hoped that the workers were “happy, this is your fault, I had them calm before you came”.
The children continued to misbehave, throwing dirt and then turned a hose on the workers. Ms Barbaric and Ms Davis returned to their car. DP was still on the roof but GP and JP followed the two workers and attempted to get into the car and, when unable to do so, climbed on the bonnet and roof.
Ms Barbaric said that CP had made little attempt to get the boys off the roof and no attempt to get them off the car. Ms Barbaric then requested police assistance. Police arrived and, when they spoke to CP, she said that the boys’ behaviour was the fault of Ms Barbaric and Ms Davis for attending the property.
Ms Barbaric deposed that she formed the view that JP, GP and DP were in need of care and protection “as there was no parent willing or able protectively to meet their needs”. Police then picked up each child and took them to the police station and CP was advised that Emergency Action had been taken. Perhaps, unsurprisingly, CP reacted angrily and ordered the workers to leave her property.
Ms Barbaric deposed that she explained to the children at the police station what she had done. She added that, when she discussed the allegations, some of the children spoke. She told JP that “it wasn’t ok that he was hurt” and he responded “but I was bad”.
Ms Barbaric’s second affidavit annexed a Care & Protection Services Child Protection Assessment Report (Care and Protection Assessment Report) she had prepared in respect of LC. It was a detailed, comprehensive document.
That Care and Protection Assessment Report, however, dealt not just with LC but included material relevant to all the children, though the primary focus was on LC.
It is clear from it that LC has an intellectual disability and behavioural challenges, though there had been some disagreement over some of the diagnoses she had received. She presented with sexualised and violent behaviours. She had a strong sense of family and clearly loved CP, her mother.
The description of what was said to relate to CP’s capacity to parent successfully was detailed but I found it somewhat difficult to identify the precise basis for the conclusions. Some had to be gleaned from anecdotes, such as that, while the children “presented as reasonably clean and tidy and there were no concerns with their physical presentation”, it was noted that when they entered care they had head lice. I note that, while in out-of-home care, they also had head lice, but that did not cause their removal.
It was asserted that some of their medical needs had not been met but details were scant so it was not clear the extent or seriousness of this. Examples given did not appear to be particularly serious, though the apparent care of DP’s asthma did not appear to be optimal; precise, helpful evidence was lacking.
The issue of safety centred around allegations that the children were exposed to their older brother’s drug use, which appears to be confined to cannabis use. There was also mention of the sexualised behaviour of LC and the incident referred to above when the boys climbed onto the roof. It mentioned that past relationships of CP had exposed the children to family violence, drug use and criminality, though it was not clear that this was current, other than the drug use of CP’s eldest son.
The Care and Protection Assessment Report raised issues of whether there was sufficient stimulation provided for the children, though it did not directly describe the inadequacy of this, if that was the conclusion, which was itself also unclear. It did record that CP acknowledged that she struggled to implement boundaries for the children. There was some disagreement about the form of discipline she used but no suggestion that CP engaged in illegal or excessive discipline.
The Care and Protection Assessment Report noted a degree of instability in schooling, living arrangements and carers, though other evidence did not seem to bear this out, except in the case of JP. It recorded, however, CP’s close emotional ties to the children and the fondness they have for her.
It attached a number of records of visits occurring after Emergency Action had been taken, to give the children ongoing contact with CP, particularly by LC and NP, and these showed reciprocated pleasure and generally a good interaction of the children with CP and her with them.
The case analysis in the Care and Protection Assessment Report set out the risks it identified for LC. It described LC as “a sweet girl … who has reduced intellectual ability, developmental delay and is about to commence puberty”, requiring a carer “who is very able to act protectively given her intellectual disability and sexualised behaviour … [who has] a high level of insight and ability to ensure [LC’s] safety and wellbeing”. Inferentially, it suggests CP does not have this capacity, but it did not expressly state it.
It noted that CP engaged with parenting assistance but that the support did not seem “intensive enough”. CP’s IQ of 74 was said to “raise concerns” about her ability “to implement the necessary routines, boundaries and engage in the appropriate developmental activities to meet the children’s needs”. The wording is elliptical; it seems that “raise concerns” is somehow code for “does not have” the abilities there described without actually saying so, or giving a basis for the “concern”. Indeed, this is a significant basis for me noting the absence of an independent report on CP’s parenting capacity, a concerning feature of these proceedings.
It noted that CP could identify the children’s difficulties and that she had a genuine desire to assist them, but asserted that she “has not shown the ability to meet all of the children’s needs in her care”. Again, the implication seems to be not merely that she cannot meet “all” of the needs but that she cannot meet enough of them, but this is neither stated nor explored, despite being at the heart of the issues that the Childrens Court had to address.
The Care and Protection Assessment Report further noted that the ability of CP to ensure safety and well-being “is also of concern”. Again, this may intend to infer that she cannot ensure these important matters, but it did not say so. In such a serious matter, the evidence needs to be direct and clear, for “concerns” are not sufficient to show CP’s lack of parenting capacity.
The drug use was a major matter and was apparently exacerbated by CP’s denials of its existence despite evidence to the contrary. In addition, the further “concern” was expressed of the sexualised behaviour of LC.
The Report then set out its conclusions and recommendations as follows:
The information included in this assessment as well as the developmental delays and behavioural difficulties the children present with is indicative of cumulative harm that has occurred over the course of their lives.
[CP], whilst it is clear she would not intentionally place the children at risk, has failed to protect them from exposure to family violence, drug use and associated criminality and has not been able to ensure their immediate safety.
It is evidence that whilst [CP] clearly loves her children that she has been unable to keep them safe and ensure all the children’s needs are met.
[CP] has a genuine desire to meet all the children’s emotional and developmental needs however given the children’s high needs, behavioural difficulties and the need for a higher level of parenting [CP] would not be able to.
Given the above concerns it is respectfully recommended that [LC] be made subject to a Care and Protection Order with provisions including parental responsibility, supervision, residence and contact until [LC] reaches the age of 18 years.
Ms Barbaric’s third affidavit annexed a Care and Protection Assessment Report prepared in respect of JP, GP, NP and DP.
Unsurprisingly, and intended as no criticism, much of it covered the same ground as the one annexed to the second affidavit in relation to LC; indeed, the background, in particular, seemed to be virtually word-for-word identical.
The detailed assessments of the four children was, however, individualised and addressed the issues relating to each child separately and comprehensively.
The sections on the children’s development were also quite individualised.
In relation to JP, it recorded that he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder and mild intellectual disability, but was responding well to prescribed medication and, apart from this, required no other medical intervention. He displayed significant behavioural problems at school and, at one school, his behaviour was threatening and disruptive, but the school had managed to work through this and, at his then current school, it was being dealt with reasonably successfully.
GP had also a diagnosis of ADHD and Oppositional Defiant Disorder but was also responding well to prescribed medication. He was achieving reasonably sound results at his school in his academic work before Emergency Action was taken but displayed behavioural difficulties including threatening violent and aggressive behaviour, leading to several suspensions. His current schooling was reasonable, but with some reports of bullying behaviour.
NP presented as more complicated as he had earlier remained for a time in Sydney with his father. CP and the children had gone there when his father, BP, wanted to return to be near his mother. Later, CP and BP separated and she returned with the children, except NP, to Canberra. He himself later returned to Canberra. While a healthy child, he had significant communication skills deficits and eye problems. He had “significant global development delays and probably has a mild intellectual disability”. He had a constellation of other features, including a cardiac murmur and hypotonia. He had a high level of medical and psychological needs but these were said not to have really been addressed by CP. He was progressing at school but was academically behind his peers. His confidence, however, was growing.
DP had a significant problem with asthma and some developmental delays. His growth was otherwise normal, though he has been recommended to receive speech pathology assistance. His schooling has been uneventful without significant difficulties with behaviour, academic ability or peer interaction.
The sections of the Care and Protection Assessment Report on the Assessment of Parenting Capacity and Extended Family or Environmental Factors were, with minor exceptions, identical to the sections in the Report relating to LC, to which I have referred above (at [93]-[97]). Apart from three individualised paragraphs, the section on case analysis is also identical to that equivalent section in the one relating to LC.
It is, perhaps, unsurprising, that the Conclusions and Recommendations were, apart from the references to JP, GP, NP and DP, in the last paragraph, identical to those in the Report relating to LC quoted above (at [106]).
Also attached were reports from the Child at Risk Health Unit relating to DP, JP and NP (three reports), as well as many detailed reports of supervised contact visits which were the same as had been annexed to the Care and Protection Assessment Report relating to LC.
Ms Barbaric’s fourth affidavit related to the application in respect of LC and provided some updated information.
In it, she noted that CP “has continued to communicate and engage well with Care and Protection Services”.
It referred then to a social media posting CP had made on “Facebook”, a copy of which was attached. The posting was part of some family interactions, including some controversy. CP said of a person I will refer to as B:
Now he likes little girls after what he did to [LC] and [LC] don’t be
In the affidavit, Ms Barbaric referred to a meeting with CP where CP had explained that LC had told her that B had “felt up her legs”. He had also been inappropriate with her, CP, as a child. Ms Barbaric commented, perhaps as a submission, rather than evidence, that this raised “concerns” that CP had been aware of LC’s possible exposure to inappropriate behaviour without reporting the incident. The basis for the “concerns” was not explained, though perhaps to be inferred.
There were also annexed further contact reports. The reports again showed good reciprocated warmth, affection and interaction between CP and the children, though there were times when one or more children did not attend. There were problematic incidents from time-to-time, though generally CP seemed to have been able to manage them.
These reports also showed that there were some problems with LC’s carer. On one occasion, when case workers came to collect her, they could hear yelling and swearing from the carer’s home and LC said on another occasion that she did not like living with her carer.
LC had made contact with her birth father and a connection between the two seemed to be proceeding satisfactorily, despite earlier allegations of violence that he had perpetrated. This did not seem to raise “concerns”. Nevertheless, it was reported that LC still exhibited behavioural problems: losing her temper, disobedience and engaging in inappropriate ways of gaining attention.
Ms Barbaric’s fifth affidavit related to updating the situation with the four boys. It was, in some ways, an odd affidavit. In parts, it was identical to her third affidavit, that is in connection with the issue about the posting on Facebook, even though it did not apparently set out to deal with LC in respect of whom the posting was relevant. It also annexed the same contact reports that had been annexed to the third affidavit.
The further information was that the boys continued to reside with the same carers, appearing settled and happy and calling the carers “Mum” and “Dad”, which was said to be unprompted. The boys were attending school and the principal had said that they had started well without any issues.
Medical reports also annexed relating to JP noted that he had made improvements to his behaviour, said to be from the new home environment. He had, however, experienced recurrent infestations of head lice, not, it appears, attributable to CP, who no longer had day-to-day care of him.
A medical report also annexed related to GP and noted that he had been very unsettled at first but his behaviour had also significantly improved and he seemed happy and well-behaved. His stimulant medication has also improved his attention span and ability to complete school work.
Ms Barbaric’s sixth affidavit related also to the four boys, again bringing the position up-to-date.
In relation to JP, he was noted “very much” to wish to continue contact with CP, which he enjoyed and that he wished to return to her care. He remained in a placement at Boorowa where he called his carers “Mum” and “Dad” and presented as happy and settled with a “huge improvement” in his behaviour. His carers were wishing to care for him and his two brothers on a long term basis. There were still some behavioural problems at school, especially with name calling and belittling of other students.
GP had now attended contact with CP more regularly, but there were still occasions when he refused to go but no reason was given. He, too, called his carers “Mum” and “Dad” but was reported to have used offensive language at times and be verbally abusive. He had settled into school, making significant growth in his learning and improving his classroom behaviour, but could become verbally abusive with other students. He had expressed a wish to manage his anger.
DP also regularly attended contact with CP and said that he particularly liked to see NP at contact. He also called his carers “Mum” and “Dad” and showed affection towards them. He was also doing well at school.
NP was in a separate placement in Canberra. He was keen to maintain contact with CP and wished to return to her care. He was the only child in his placement but presented as happy and settled. His behaviour had also improved as had his speech difficulties. He was doing well at school.
Ms Barbaric’s seventh affidavit related to the then current situation with LC.
She deposed that LC continued to attend contact with CP and “articulates a strong desire to attend”.
LC was now living with her paternal grandparents, but there had been some suggestions that they made negative comments about CP. LC was initially cautious about the move but now said that she liked being there and spending time with them. LC has had difficulties at school but overall was regarded as doing well, engaging with her lessons and her peers, showing a “very caring attitude” to some of the high needs students at the school.
Before referring to CP’s evidence, it is appropriate to deal with Ms Barbaric’s oral evidence which may be summarised as follows.
In relation to LC, she gave some further oral evidence-in-chief setting out the various placements she had had since Emergency Action had been taken, confirming that she was now with her paternal grandparents.
In relation to NP, he was with a foster carer through Barnardos, another children’s non-profit care agency, and he was the only child at the placement, but it was supportive and he received a high level of attention.
JP, GP and DP were placed with carers at Boorowa who had one other foster child. Another foster child had turned 18 but continued to have contact with the carers.
Ms Barbaric recounted that, for a time, CP and the children (and their father or stepfather) moved to Sydney, but little information was available about their time there from the NSW authorities. They returned in January 2012 but Care and Protection Services were not aware until a child protection report was made.
Contact was then made and became more intensive over time. Ms Barbaric became involved in May 2013.
Initially, the family stayed with various family members until they obtained public housing through the YWCA. Issues arose as to the tenancy and a previous case worker had reported that the tenancy was at risk because, Ms Barbaric said, of police attendance, allegations of drug use and complaints by members of the public. A notice to quit was served, but, after the matter became a matter of public controversy, arrangements were made for the family to remain in the house.
Ms Barbaric was aware that other agencies were assisting CP through the children’s school and Barnardos as well, for a time, as was the YWCA. Both the latter agencies had a high level of contact with CP. There was some limited support from Therapy ACT and other agencies.
A meeting of nine relevant agencies was held on 7 June 2013. These agencies had been providing support to CP and to the children. The report of the meeting identified a number of tasks required to support the children, identifying also a timescale and responsible agency.
Ms Barbaric gave evidence of her attendance at CP’s home in May 2013 when police executed a search warrant relating to CP’s eldest son’s drug use. He was, it appears, living in the garage of the house with his girlfriend who, herself, had been involved with Care and Protection Services. Photographs of the interior of the garage were admitted into evidence. It is not entirely clear what they showed, but there was to be seen an item that could be a “bong”, that is a device for smoking cannabis, but it was not so identified in the evidence.
Ms Barbaric gave evidence of her interaction with CP, whom she attempted to visit weekly. She was aware of the behavioural problems exhibited by the children. There was then some evidence of the visit on 10 July 2013, which is set out in the affidavit and referred to above (at [80]-[91]).
She accepted that LC’s biological father, SC, had been violent to CP during their relationship, but confirmed that he now had access to LC, supervised by SC’s mother.
Ms Barbaric gave some oral evidence in response to affidavit evidence of CP. It is appropriate to deal with it when I have referred to CP’s affidavit evidence.
She was asked further about the circumstances of Care and Protection Services taking Emergency Action. She identified the following issues:
· the allegation that JP had been hit, though CP denied that; CP asserted that he had had to be restrained for his escalating behaviour and the stress made his nose bleed; there was no other evidence that he had been hit;
· the children saying that they had witnessed CP’s eldest son and his girlfriend engaging in sexual activities; the only support for this was the lack of denial by the girlfriend who was said, but who did not admit, to hearing this allegation said;
· the children engaging in “very, very unsafe behaviour”, namely being on the roof of the house, running over it to the neighbour’s house and spitting from the roof while “leaning quite far over”; and
· “cumulative harm” from the matters that were of ongoing concern to Care and Protection Services, though these were not expressly identified.
Ms Barbaric said that while the primary position of Care and Protection Services was the restoration of children to their parents, there was concern about CP’s ability to meet the children’s needs, ensure their safety and support them. As a result, restoration was not considered to be in the children’s best interests.
Ms Barbaric acknowledged that CP “loved her children very, very much” but that she was unable, for example, to take what was said to her by agencies and medical professionals and put it into practice in her home, despite her willingness to engage.
Ms Barbaric acknowledged that CP had, since the Emergency Action had been taken on 10 July 2013, undertaken some parenting courses, but expressed no view about CP’s response to them.
Ms Barbaric was cross-examined by both counsel for CP, Gary Hill, and the separate children’s representative, Rhiannon Dwyer.
Initially, Mr Hill asked Ms Barbaric to repeat the disability of each of the children, and the medication prescribed; she did so. He then turned to the day of 10 July 2013 when Emergency Action was taken. She agreed with him that, had the children taken their medication in the morning, then, by the time Ms Barbaric and Ms Davis arrived for their unannounced visit, the effect of it would have been wearing off.
The first challenge was to the learned Magistrate’s finding that CP could not meet the children’s social needs. What these needs were was not explained by her Honour. In particular, it is not clear what “social needs” is meant to involve when considering the statutory test for the terms “abuse” and “neglect”. Without that, it is difficult to assess whether the statutory test has been applied. No party addressed this issue.
If the absence of CP meeting the social needs of the children do not lead to abuse or neglect, then CP’s failure, whatever it may be, is not probative of her incapacity to protect the children and thus cannot meet the test of whether the children are in need of care and protection.
The evidence was that all the children, except for JP, go to school, apparently, regularly. She had kept Care and Protection Services advised of the difficulties with JP. He has had difficulties with school while in out-of-home care as well. He has been, for a time, placed on half-time schooling, as he had in previous schools apparently while under CP’s care. That does not seem to have been a significant source of concern for Care and Protection Services.
There is no doubt that the use of cannabis by CP’s eldest child, who lived in her garage, but apparently had left at the time of the hearing, is a matter of concern. By itself, however, it may not have the necessary connection with abuse or neglect that is required. That he had left the home by the time of the hearing also needed to be addressed.
While CP said that she was not aware of his use of cannabis at home, the evidence was that the children knew and she did not know that. This is a matter of significance. The extent to which it amounts to abuse or neglect was not explored. However undesirable, it needs to be shown to be abuse or neglect.
The fact that CP was nearly evicted from her premises is also clearly a matter of significance. There is no doubt that her inability to provide a house for the children would constitute neglect. Of course, in this case, there was no gap in the provision of a home for the children. Whether that was a result of the publicity given in The Canberra Times to CP’s impending eviction or not the evidence does not reveal. Perhaps it is irrelevant since the children were, in fact, never homeless.
It was submitted by CP that the concern about the state of the house was not really an issue. Briefly, reliance was placed on a police report which described the house as “in a state of messiness, although still liveable”. In addition, Ms Dwyer accepted, on the appeal, that the house was not dirty; her reliance was simply on the fact that a Notice to Remedy had been served, regardless of whether CP disputed the basis for it.
Mr Archer was less clear but made no final submission that the house was dirty, avoiding the need for Mr Walker SC to tender an inspection report of 6 March 2013.
The Director-General also relied on the tenancy breaches. A Notice to Remedy dated 25 March 2013 was admitted into evidence. The Notice in evidence did not state in its terms any matters “needing concern”. It stated that “the level of cleanliness and upkeep of the property is unsatisfactory” for the landlord. This CP disputed.
There was no evidence about the level required or the failings. There was no report of the condition of the house. It is not difficult to describe a house which would meet an unsatisfactory state so that it could be compared with what was unreasonable. See, for example, R v JM at [31]-[38]. In the light of the matters set out above (at 593), I do not need to consider this matter further.
The grounds for the Notice to Vacate were as follows:
· Two Notices to Remedy have previously been issued to you [CP] in relation to tenancy breaches.
· The property remains at an unsatisfactory level of cleanliness and repair.
· Illegal substances and property have been kept on the premises.
· Violence has occurred towards people lawfully on the property.
· Concerns have been raised during the time of your tenancy with the YWCA HSS of the children’s welfare and safety.
· Complaints have been received via external organisations of neighbourhood disturbances.
· Police attendance has been required on more than one occasion.
CP submitted that the “principal concern” behind the Notice was the drug use of CP’s eldest son and the police attendance at the premises to execute a search warrant seeking drugs and stolen property. This, indeed, with complaints by members of the public, is how Ms Barbaric summarised the reasons for the Notice to Vacate. I am not satisfied, however, that this is the inference that, in the absence of other evidence, can properly be drawn. While these matters are obviously part of the concern, there is no suggestion that lack of cleanliness or repair were less significant or less relevant; indeed, these were the second matters mentioned on the Notice after the reference to the two prior Notices to Remedy.
On the other hand, CP did, in her evidence, challenge the assertion that she did not clean her house or keep it tidy, indeed, she said, “spotless”, and she was not challenged on this in cross-examination. She denied that it was unclean, despite the Notice to Remedy saying that it may not have met the landlord’s requirements. I have dealt with this above (at [593]).
No mention was made by her Honour of the “Circle of Security” course completed by CP at Barnardos or the course “Turning into Teens: Emotionally Intelligent Parenting” conducted by Belconnen Community Service in which she had enrolled.
Other matters not mentioned included the rewards chart process, which worked, but only for a while, and changes to her medication which made her more patient.
Despite this, it is to be accepted that CP had, at the time Emergency Action was taken, nine different organisations involved in considering the issues involved in the family. These, however, included the children’s schools and Housing ACT, which were not involved in direct support of CP. It was acknowledged that, to her credit, CP engaged well with the agencies actually supporting her. Ms Barbaric, however, suggested that the gains achieved from this engagement had, nevertheless, not been effective to ensure the developmental needs of the children.
Ms Barbaric expressed the view, both orally and in the Care and Protection Assessment Reports, that CP did not have the capacity, despite support, to be able to “ensure the children’s needs are met”.
I note, however, that the Children’s Representative conceded, at the hearing of the appeal, that it would have been beneficial, especially in the context of determining whether the care and protection order should be for two years or until the children are 18 years old, for there to have been an independent assessment of CP’s parenting capacity. It is not clear to me why that was not done.
An assessment of this ground of appeal continues to be bedevilled by the failure to identify with appropriate precision the abuse or neglect or both said to be suffered by each of the children or of which they were at risk of suffering and the failure to address the ability of CP to protect them from that abuse or neglect or risk.
The failure to obtain an independent assessment also is troubling.
For these reasons, I do not consider that I can find that, on the evidence before the learned Magistrate that she could not, were the failures of the test in relation to abuse or neglect or both properly addressed, have found that CP did not have the capacity, but that this really did not address the length of the order and whether all the children were required to be subject to the order so, in that sense, the ground has substance. It may well be that, were LC and NP to be subject to an order, CP would have had the capacity to protect the other children. This was a proper consideration that was simply not addressed, partly because there appeared not to be any individualised consideration of the issues. To that extent, these grounds are made out, though the consequences for the appeal are not straightforward.
Events of 10 July 2013 when Emergency Action taken (Ground 12)
The events of 10 July 2013, when an unannounced visit was made by Ms Barbaric, involved extreme behaviour by the children.
The outline of the events has been set out above (at [80]-[91]). It is to be noted that it only involved JP, GP and DP as LC and NP were at camp at the time. They were, however, also the subject of Emergency Action when they returned home on 12 July 2013, even though they were not part of the events in question. The justification for Emergency Action for them is unclear.
Earlier on 10 July 2013, it appears that there had been an outburst by JP. He became worked up, apparently from his ADHD, and this led to a nose bleed. Nevertheless, CP had successfully quietened him down. All the children were settled when the two Child Protection workers, Ms Barbaric and Ms Davis, arrived.
In cross-examination, Ms Barbaric accepted that two of the children suffered from ADHD and Oppositional Defiance Syndrome which made an interaction with authorities complex. Her response that Ms Davis “wasn’t following them in order to instruct them to behave in a certain way” seems to me to miss the point; it is not the intention of the person in authority that is relevant, but the actual effect as perceived by the children. Her apparent lack of appreciation of the difference is somewhat troubling.
In any event, this led to extreme behaviour on the part of the children; climbing onto the roof, throwing concrete dust, spitting at the workers, and later jumping on their car.
Mr Walker SC pointed out that this was not the first time that children in general have engaged in dangerous behaviour such as climbing on roofs or trees or the like. While that may be accepted, this seems to me to be rather more extreme than that. In any event, CP could not control them while the workers were present. Further, their behaviour was more that the rather limited “got on roofs or climbed trees or did something of that nature” expressed by Mr Walker SC. It included the other behaviour and was clearly extreme. While the workers were there, CP did not appear to be able to get the children to come down or stop their behaviour.
Interestingly, despite the Child Protection Service workers attempting to assist CP with getting the children from the roof, they were apparently easily diverted from that task by GP shouting that “there are kids in the garage smoking bongs, go have a look!” Instead of continuing to try and get the children off the roof and apparently out of danger and to safety, Ms Barbaric then went, apparently directly, with CP to the garage.
She said that, when she went there, she could see no direct evidence of any smoking of cannabis – no bong, for example, as had earlier apparently been found. She relied on circumstantial matters to come to the conclusion that the occupants of the garage, including CP’s eldest son and his girlfriend, had been smoking cannabis. There was a strong smell of deodorant and the occupants “actively avoiding eye contact”. There was no explanation of how the occupants would have known that Ms Barbaric was coming to the garage so as to clear away any evidence of cannabis smoking and apparently disguise the smell with deodorant if that was what was being implied. She also did not explain why the avoidance of eye contact was not an ordinary adolescent or young adult behaviour to authority figures. On the other hand, the circumstances were certainly such as to invite suspicion.
The children obviously did get off the roof at some stage, for Ms Barbaric said that two of them went inside to get food and a saucepan and then got a hose and turned it on her and her colleague, unlikely to have occurred while they were on the roof. It appears that DP remained on the roof, while JP and GP got onto the bonnet of the workers’ car.
The two workers then requested police assistance. They may have left the premises as had been recommended, but the evidence was not entirely clear.
CP’s evidence was that the children did come down from the roof but that seemed to be after the workers had departed as recommended by their supervisor, if they did. The evidence was a little unclear, but it appears that the children went back up onto the roof when the Child Protection workers returned.
The police arrived and Ms Barbaric told them that she believed that the children were “in need of care and protection as there was no parent was willing and able to act protectively and meet their needs” and so the children were the subject of Emergency Action. This was not, of course, the actual statutory test for Emergency Action. I note in passing, that the police report shows that NP was taken into care on that day, though he was not, in fact, there. It appears to be an error and should have been referred to DP. It is an unfortunate and undesirable error that shows some problem with the process.
The learned Magistrate found as follows (Reasons at [14]):
Quite clearly the children’s behaviour that day was out of control. Whether it can be attributed to the ADHD and oppositional defiance disorder that they have been diagnosed as suffering from is beside the point. The reality is that the mother was quite incapable of regaining control of the situation, that the children paid the mother’s attempts at discipline no regard and continued with their dangerous and extreme behaviour. That incident itself is not one of the determining issues in this case, but it is simply an example of the problem as a whole. The behaviours of the children were indicative of the significant issues that these children face and the real issue in this matter is whether the mother is capable of managing them and working with others in the children’s best interests. As the caseworker stated in her evidence, cumulative harm was the ongoing concern for these children.
CP complains that the role of the Care and Protection workers in the escalation of the behaviour of the children is “not to be overlooked”. I am not so clear how this is relevant. It is clear that CP had the children calm, but there was no allegation that, apart from the actual presence, the workers engaged in what could fairly be deemed provocative behaviour.
Certainly the visit was unannounced but that was known by CP to be part of the arrangements with her and Child Protection Services. Indeed, it would be expected that this was the case because, as Ms Barbaric pointed out in her evidence, such visits would “give a more accurate reflection of what is happening in the home” as noted above (at [156]).
While there may be some connection with the visit and the boys’ behaviour, it was not the first time that Care and Protection workers had visited the home. It was suggested that, at the time, the effect of the medication that the boys were taking had been wearing off, but that does not detract from the fact of the behaviour and its seriousness and riskiness, nor the fact that CP had difficulty in controlling them. It is accepted that she, rather than the workers, did get the boys off the roof, but they did go back and came down in order to engage in challenging behaviour with the workers.
CP submitted that the disclosures of the drug use in the garage, though unconfirmed, the explained bleeding nose of JP, not caused by CP striking him, or that CP’s eldest son had engaged in sexual intercourse in front of the children, did not justify Emergency Action.
That may be so. This is not really in issue in these proceedings, however, for the appeal concerns the care and protection orders and not the Emergency Action. Certainly, the children were at risk of physical injury while climbing on the roof. The need of a child for Emergency Action is defined in s 403 of the Childrens Act to mean the “immediate need for care and protection”, though it includes the notion of the children being in need of care and protection as statutorily defined. It was not the test that Ms Barbaric explained to police. That test and her opinion would not necessarily justify Emergency Action. It is a more limited concept than that which Ms Barbaric articulated. Whether it was satisfied on 10 July 2013 is not a matter I need to decide. It seems quite doubtful that it was satisfied for LC and NP.
While the learned Magistrate did rely on the events of 10 July 2013, her Honour did so to show that CP did not have the capacity to protect the children, in this case, from the risk of physical harm by the boys climbing onto and remaining on the roof. This could, in my view, constitute neglect by risk of serious physical harm to the boys.
I do not consider this ground discloses an error in the Reasons nor a basis for successfully challenging the orders made.
Failure to comply with s 352 of the Childrens Act (Ground 13)
Section 352 of the Childrens Act requires a decision maker, including a court to take into account the views and wishes of the children. It is an important provision to demonstrate the respect with which the Childrens Act requires to be afforded to children who are subject to actions of various kinds under its care and protection provisions.
The ground is not pressed, however, and I do not need to address it further.
Fresh evidence (Ground 14)
Evidence that was not before the learned Magistrate was adduced before me.
The basis of the tender was that the evidence would be relevant if I found that the orders of the Childrens Court had to be set aside and other orders made.
Under this heading, however, CP addressed another issue, namely whether the learned Magistrate was correct in finding, as she did, that there was unchallenged evidence that the children were “doing much better in their current placements”. This relied not on evidence that was tendered in the appeal and which her Honour had not seen, but also on evidence of contact visits with CP and the children and assessments of the placements of the children’s out-of-home care conducted by agencies since the Emergency Action was taken, some of which was before her Honour.
There is no doubt that there had been problems experienced by the children since Emergency Action was taken and interim orders made. For example, LC had experienced some sexual abuse and JP and DP took knives to school and threatened other children. There were a number other matters on which CP relied to submit that the placements were not in the interests of the children.
Against, this, there were gains reported in various areas. For example, DP’s behaviour was said to have “settled” and the response to his medication while in care was suggestive that “he was not being managed appropriately at home”. NP had improved his reading habits. JP’s behaviour had improved while in out-of-home care. The same is true for GP. As noted above (at [507]), DP’s asthma was well controlled.
This issue, however, was not linked to the statutory regime and so it was difficult to see how CP put the issue.
Once a child or young person is found to be in need of care and protection, the Childrens Court has jurisdiction to make a care and protection order. In this case, each order gave the Director-General the authority to decide where the child was to live and with whom he or she may have contact and it gave the Director-General supervision, daily care responsibility and long-term care responsibility for the child or young person.
The Court did not decide where the child or young person was to live; the
Director-General was given that authority.
Whether there would be a power of judicial review of a decision of the Director-General as to with whom a child or young person was to live is not a matter I have to decide. In this appeal, the issue was whether the care and protection orders should have been made and, if so, whether they should have been made until the children reached the age of 18 years.
Thus, the question of whether each child was in a good foster home or not is not strictly relevant to the question of whether a care and protection order is made or, if so, for how long.
It may be that, if the Director-General did not have a place for the child or young person to live at all, that may justify the Childrens Court, even where it decides that the child or young person is in need of care and protection, to decline to make such an order.
The legislation gives the Childrens Court a discretion as to whether to make a care and protection order even if the child or young person is in need of care and protection: s 464 of the Childrens Act. Matters such as the time when earlier events of abuse or neglect occurred, the circumstances then pertaining, subsequent events and so on will be very relevant to the exercise of this discretion as well as the options for how the Director-General is to exercise the responsibility given by the care and protection orders.
That a particular placement is a good one is a factor that the Childrens Court could take into account when exercising this discretion.
Thus, the finding of the learned Magistrate was not irrelevant but it was not determinative.
Again, it is relevant that, in the proceedings in the Childrens Court, Mr Hill, did not address this issue at all in the written submissions.
There was some brief cross-examination of Ms Barbaric as to the incident involving JP and GP taking knives to school and a later suspension of GP from school, but this was in the context of the issue that, as asked by Mr Hill, “Isn’t it the case that whoever these children are placed with, will need support to deal with these children’s behaviour?” Ms Barbaric agreed. There was no challenge to the evidence in the various reports annexed to Ms Barbaric’s affidavit that suggested that the children were, with some exceptions and acknowledging ongoing challenges, doing well – sometimes better – in their out-of-home care placements.
In those circumstances, it does not seem to me that her Honour’s finding was incorrect; the evidence of the children doing better was unchallenged, though there was evidence that they were, as would be expected in the case of such children, experiencing still some difficulties.
I do not consider that this challenge has been made out.
As to the other use of the fresh evidence, that which was actually fresh in the sense that it was not before the learned Magistrate and, for the most part, related to periods after the making of the care and protection orders (R v Nguyen [1998] 4 VR 394 at
400-1), that must await the final disposition of these proceedings.
Disposition
I have found some of the appeal grounds were made out justifying interference with the orders made by the learned Magistrate. The appeal must be upheld.
It may be that by setting aside the orders made by the learned Magistrate, the interim orders become operative again. This would be a convenient way to deal with the matter.
This depends on the effect of the order which I should make, having found that there was an error of law in the proceedings before the learned Magistrate. That ordinarily would require the orders her Honour made to be set aside. There is some uncertainty about the effect of such an order.
There is high authority to suggest that the setting aside of an order is to avoid it ab initio: Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225; MacIntosh v Lobel (1993) 30 NSWLR 441 at 459. Those decisions make it clear that actions done on reliance on the quashed order are protected. See also Faull v Commissioner for Social Housing for the Australian Capital Territory [2013] ACTSC 121; 277 FCR 61 at 80; [97]-[100].
Similarly, where an order effects a change in status, it has been held that the setting aside of such an order has the effect that it was as if the original order had never been made: Pattison v Hadjimouratis [2006] FCAFC 153; 236 ALR 1 at 6; [14]; 10-11 [51]-[58]; 30-1; [177]-[181]; De Robillard v Carver [2007] FCAFC 73; 240 ALR 675 at 702; [149]-[150]. This may apply in these circumstances.
If this is the consequence, then the interim orders would not have ended under s 433(3) of the Childrens Act by the making of the care and protection orders which have been set aside and would still apply under the hearing of the various applications.
Thus, the question of consequential orders is problematic and I expect that some submissions may be required.
The appeal must be upheld but I shall hear the parties as to the consequential orders to be made.
| I certify that the preceding six hundred and fifty-five [655] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 21 December 2017 |
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