Director-General, Community Services Directorate v BQ and KQ
[2024] ACTCC 2
•6 May 2024
CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director-General, Community Services Directorate v BQ and KQ |
Citation: | [2024] ACTCC 2 |
Hearing Date: | 14 February 2024 |
Decision Date: | 6 May 2024 |
Before: | Magistrate Stewart |
Decision: | See [90]-[93] |
Catchwords: | CARE AND PROTECTION – JURISDICTION, PRACTICE AND PROCEDURE – Care Proceeding – Parental responsibility – Out of home care - Extension of short-term parental responsibility – Acts of Parliament – Interpretation – Rebuttable presumption for long-term parental responsibility – Rebuttable presumption not engaged |
Legislation Cited: | Children and Young People Act 2008 (ACT) ss 7, 8, 9, 10, 15, 16, 17, 18, 349, 350, 456, 471, 472, 477, 482, 486, 529JA, 854 Legislation Act 2001 (ACT) ss 139, 140, 141, 142, 143, 145 |
Cases Cited: | Blue Metal Industries v Dilley [1969] UKPCHCA 2; (1969) 117 CLR 651 Calatzis v Jones [2024] ACTSC 42 Civil and Civic Corp Pty Ltd v Nova Builders Pty Ltd [2023] ACTCA 30 Director-General, Community Services Directorate v NW and LW [2023] ACTCC 3 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Hudson v ACT Magistrate Court and Anor [2014] ACTSC 192 JH v Director-General, Community Services Directorate [2012] ACTSC 30 Minister for Immigration & Ethnic Affairs v Wendy Susan Baker [1997] FCA 105 Stowe Australia Pty Ltd v Kelly [2013] ACTCA 18 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 The Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd, Krone Ag and Krone Gmbh [1994] FCA 1209, [1994] 51 FCR 540 Walsh v Tattersall (1996) 188 CLR 77 WS v Director-General, Community Services Directorate [2018] ACTSC 144 |
Texts Cited: | Explanatory Statement, Children and Young People Act 2008 (ACT) Department of Disability, Housing and Community Services and Department of Justice and Community Safety, ACT Government, Second Report on Key Findings: Review of the Children and Young People Act 1999 (Report, December 2006) |
Parties: | Director-General, Community Services Directorate ( Applicant) Respondent Father Respondent Mother Child Representative Maternal Grandmother |
Representation: | Counsel Katrina Musgrove ( Applicant) Hugh Jorgensen ( Respondent Father) Desmond Leyden (Respondent Mother) Cesira Mussato (Children’s Representative) Maternal Grandmother, Self-Represented |
| Solicitors ACT Government Solicitor ( Applicant) Aboriginal Legal Service (NSW/ACT) ( Respondent Father) Des Leyden and Associates Lawyers (Respondent Mother) Legal Aid ACT (Children’s Representative) Maternal Grandmother, Self-Represented | |
File Number: | CP 98 of 2023 CP 99 of 2023 |
MAGISTRATE STEWART:
Background
BQ and KQ are now aged eight years and six years respectively. On 9 March 2021, they were taken into care by way of emergency action. On 20 July 2021, a Magistrate of this Court made a final care and protection order for two years. On 11 July 2023, the Director-General, Community Services Directorate (the DG) filed an originating application seeking to extend the care and protection orders for each child until they attain the age of 18 years.
Part way through the hearing of the application to extend the orders to 18 years the father sought a ruling about the applicability of s 477 of the Children and Young People Act 2008 (ACT) (CYP Act).
The Applicant and other parties sought to file written submissions on the interpretation of s 477. The proceedings were adjourned by consent to enable a determination to be made.
The names of the children and parties have been anonymised to protect the children from being identified.
A Rebuttable Presumption of Extension of Short-Term Parental Responsibility
Section 477 of the CYP Act creates the statutory framework for the extension of a short-term parental responsibility provision in a care and protection order.
This section requires the Court to be satisfied that it is in the best interests of the child or young person to extend a short-term parental responsibility provision. It also creates a rebuttable presumption based on the age of the child or young person that it is in their best interests to be subject to a long-term parental responsibility provision where certain conditions are met:
477Short-term parental responsibility provision—extension
(1) The Childrens Court may extend a short-term parental responsibility provision in a care and protection order (the extension decision) if satisfied that extending the provision is in the best interests of the child or young person.
(2) However, for subsection (1) it is a rebuttable presumption that it is in the best interests of the child or young person for the child or young person to be subject to a long-term parental responsibility provision if—
(a) for a child who is younger than 2 years old when the extension decision is made—
(i) the director‑general has had an aspect of daily care responsibility or long-term care responsibility for a total of at least 1 year before the extension decision is made; and
(ii) the child or young person has been living with a stated person under a care and protection order for a total of at least 1 year before the extension decision is made; or
(b) in any other case—
(i) the director‑general has had an aspect of daily care responsibility or long-term care responsibility for—
(A) the 2 years immediately before the extension decision is made; or
(B) a total of at least 2 years in the 3 years immediately before the extension decision is made; and
(ii) the child or young person has been living with a stated person under a care and protection order for—
(A) the 2 years immediately before the extension decision is made; or
(B) a total of at least 2 years in the 3 years immediately before the extension decision is made.
(3) To rebut the presumption, a person who is a parent of the child or young person, or someone else who has had parental responsibility for the child or young person during the term of the order, must satisfy the Childrens Court that—
(a) the person is likely to be able to resume care of the child or young person during the period of extension; and
(b) it is in the best interests of the child or young person for the person to resume care of the child or young person during the period of extension.
(4) In subsection (2):
stated person means—
(a) the carer under the care and protection order; or
(b) one parent to the exclusion of another parent; or
(c) a family member who is not a parent.
Note 1 A short-term parental responsibility provision may be extended, amended or revoked under pt 14.5.
Note 2 If an application has been made to the Childrens Court for a care and protection order and the application is adjourned, any parental responsibility provision that is in force at the time of the adjournment may be extended until the end of the adjournment or revoked (see s 431).
The issue in this decision is how the section should be interpreted, and, ultimately, whether the rebuttable presumption under s 477(2)(b) is able to be relied upon by the DG in the circumstances of this matter.
The section provides for two preconditions to be satisfied before the rebuttable presumption for extension of a care order is engaged. The first precondition relates to whether the DG has held an aspect of daily care responsibility or long-term care responsibility for the child or children in the previous two or three years.
The second precondition appears at s 477(2)(b)(ii) and relates to the living circumstances of a child or children in the previous two or three years. It is the interpretation of this precondition that has given rise to this decision. Put broadly, the question to be answered is this: Should this subsection be read to mean that any number of placements with any number of carers for the previous two years or two out of three years will satisfy the second precondition of the presumption to extend orders (“the multiple placement argument”), or should s 477(2)(b)(ii) be interpreted to read that the second precondition for the engagement of the presumption of extension of orders requires a stable placement with one carer for the previous two years or two out of three years (“the singular placement argument”)?
10.Further, does “a stated person” mean one placement with one out of home carer or more than one placement with one out of home carer?
11.It is an important issue as, for a multiplicity of reasons, not all children in the care of the DG are able to be placed in singular placements during short term orders.
12.It is also important because if the presumption is engaged the onus of proving the best interests of the children and where they should be placed falls upon the respondent parents (who are often unrepresented) and (potentially) the Children’s Representative (CR) rather than the DG who is usually relying upon the section to assist in her application to extend the orders until age 18.
13.The previous paragraph should not be read to mean that where the presumption for extension does apply the DG has to do nothing in terms of evidence and has no onus of proof at all. The Court must decide what is in the best interests of each child regardless of who has the onus of proof.[1] Necessarily the DG must provide evidence of what has occurred since her intervention in a child’s life and what is planned for the future to show what she says is in a child’s best interests. Further, if the DG was to simply rely on the rebuttable presumption and adduce no evidence it might make the respondent’s case far easier to prove.
[1] Children and Young People Act 2008 (ACT) ss 349 and 471(1) (CYP Act).
14.However, it is clear that the DG’s tactical preparation for, and presentation of a case where there is no such presumption and it carries the burden of proof (for example where the child is older than two years old and had been subject to parental responsibility provisions in an order for 18 months or is an 18 month old who has been subject to orders for nine months), might be quite different to a case where it had the benefit of the presumption of an order continuing until age 18.
15.Like any party to a proceeding, the DG has a discretion to choose how to prepare her case. It may be in some cases that it is more expedient, or fairer, or it would be of assistance to the Court for the DG to ignore the statutory presumption and press on proving her case on what is in the best interests of a child on the civil standard of proof. It is the very nature of litigation that each case is different and that some call for novel approaches.
The Submissions of the Parties
A. SUBMISSIONS OF THE DG AS APPLICANT
16.Through her counsel, the DG advanced a multiple placement argument as being the correct interpretation of s 477(2)(b)(ii).
17.The DG pointed out that the first precondition for the rebuttable presumption contained in s 477 was satisfied because the DG has had an aspect of daily care responsibility for BQ and KQ for two years before the extension decision will ultimately be made. In fact, that responsibility has been held by the DG for over three years since emergency action was taken on 9 March 2021.
18.The DG submitted that the second precondition was also satisfied, because she submitted that both children had been living with ‘a stated person’ under a care and protection order for the two years immediately prior to an eventual order being made.
19.The DG submitted that the legislative drafter was free to use the terms “a single stated person” or “the stated person” or “one stated person”, but instead chose to use the term “a stated person”.
20.The DG pointed to the definition provided in s 477(4) of the CYP Act:
(4) In subsection (2):
stated person means—
(a) the carer under the care and protection order; or
(b) one parent to the exclusion of another parent; or
(c) a family member who is not a parent.
21.The DG submitted that Minister for Immigration & Ethnic Affairs v Wendy Susan Baker [1997] FCA 105 was authority for her proposition that the word “or” in s 277(4) should be used conjunctively rather than disjunctively, or, as Von Dousa J said in The Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd, Krone Ag and Krone Gmbh [1994] FCA 1209, [1994] 51 FCR 540 each option should “be construed as an alternative, but not as mutually exclusive alternatives.”[2]
[2] See paragraphs 17 and 18 of his Honour’s decision for context.
22.The DG submitted that the combination of this showed that the legislature did not intend for a requirement of one carer.
23.Further, the DG submitted that in relation to the term “the carer”, s 145(b) of the Legislation Act2001 (ACT) should be observed and that it should be read as a plural.
24.The DG submitted that this decision should be made in the broader interests of all children and young people rather than in the interests of BQ and KQ and pointed to the operation of ss 7, 8, 9, 349 and 350 of the CYP Act in this regard and for the context in which s 477 should be construed.
25.The DG submitted that ss 141 and 142 of the Legislation Act 2001 (ACT) allowed for secondary material to be considered by the Court, and in particular, the explanatory statement (ES) to the Children and Young People Bill 2008 (ACT) to work out the meaning of the CYP Act and s 477 specifically. I accepted that submission.
26.The DG finally submitted that a narrow or restrictive interpretation of s 477(2)(b)(ii) would be contrary to the stated intention as it would artificially and unnecessarily reduce the applicability of the section and that “a stated person’ should be read as being any one or combination of the various definitions of stated person in s 477(4).
B. SUBMISSIONS OF THE CR
27.The CR pointed out that the children in this matter have been in their current kinship placement since December 2023 – about five months.
28.The CR advanced singular placement argument submissions. She submitted that the ES made it clear that s 477 was introduced to give stability to children and young people who had entered out of home care.
29.The CR submitted that the word “stability” in the ES should be read to include ensuring stability in a child’s care arrangement, bringing permanency and certainty at an earlier stage to the child and consistency in who is making parental responsibility decisions.
30.The CR pointed out two other references to the term “the carer” in the CYP Act and submitted that the term seems to refer to a single person in those other places in the same act:
a.Section 529JA(5)(b), which allows the DG to provide financial assistance “if the previous out-of-home carer was a foster career – to the foster carer’s approved kinship and foster care organisation, for the organisation to provide to the carer.”
b.Section 854 which I repeat in full here:
854Out-of-home carer and approved kinship and foster care organisation-giving information necessary for responsibilities
(1)A carer may give someone protected information, that is not sensitive information, about a child or young person if-
(a)the carer considers that giving the information is necessary for the proper exercise of the carer’s responsibilities for the child or young person; and
(b)the giving of the information is in accordance with any directions given by the director-general.
(2)In this section:
carer means-
(a)an out-of-home carer; or
(b)an approved kinship and foster care organisation.
31.The CR submitted that s 482(b) of the CYP Act should be afforded scrutiny as it also uses the term “a stated person” as that section, on her case, clearly envisages a stated person being one person only. Section 482 does, however, contain a different definition of ‘stated person’ to s 477:
“stated person means the person to whom the court proposes to transfer daily care responsibility and long-term care responsibility for the child or young person under the proposed enduring parental responsibility provision.”
32.The CR, in closing, submitted that a singular placement approach to s 477 remains consistent with the objects and principles of the CYP Act and observed that in her experience, such an approach would have little impact on the majority of cases in any event.
C. SUBMISSIONS OF THE RESPONDENT PARENTS
33.The respondent mother declined to file submissions. No inference is to be drawn from that.
34.Through his legal representatives, the respondent father of the children advanced a singular placement argument at the hearing and in written submissions. He submitted that the rebuttable presumption in s 477 cannot apply to this matter as it should only apply where the child or young person has been in the same living arrangement with the same carer for two years (or two out of three years).
35.The father commenced by mounting an argument that the present care orders[3] contained orders that were already long-term parenting provisions on each order and, therefore, s 477 does not apply:
[3] Court Book, pages 282 and 283.
(g) That the daily care responsibility for the child be transferred to the Director-General, for a period of 2 years
(h) that long term care responsibility for the child be transferred to the director-general, for a period of 2 years; and…
36.I found that this to be a flawed argument. The CYP Act is clear at s 479 that a long- term parental responsibility provision is one in force until 18 years old that transfers daily care responsibility and long-term care responsibility to the DG or another stated person.
37.Parental responsibility is defined at s 15 of the CYP Act to include daily care responsibility as well as long-term responsibility. It is probably unfortunate then that the Act re-uses “long-term” when defining orders to 18 years and ‘short term orders” when defining one or two year orders. The submission cannot succeed when the sections are read together – as confusing as they might appear to be. I reject this argument and find that s 477 does potentially apply to the present application because it is an application to extend short-term (as in two year) parental responsibility provisions.
38.As to interpreting what a ‘stated person’ is under s 477(2)(b)(ii), the father submitted that the definition of a stated person under s 477(4) means the carer under the care and protection order (a), one parent to the exclusion of another parent (b), or a family member who is not a parent (c) without listing the DG or simply anyone with parental responsibility.
39.The father submitted that only where the child or young person has been in the same household is the presumption enlivened and that this is different to a situation where a child or young person has been under the care of the DG in multiple living arrangements. The father further submitted that the differentiation in the two requirements is a deliberate attempt by the drafters of the legislation to shape the presumption.
40.The father submitted that the ES contained the suggestion that stability in out of home care was the basis for the s 477 presumption.
41.The father made the point that the two-stage test in s 477 (the two preconditions for enlivening the presumption) was unnecessary if the intention was that the presumption should apply to all children in the care of the DG. Such an intention could have been executed by using the first precondition at s 477(2)(b)(i) without any requirement for the second at s 477(2)(b)(ii). The father submitted that this meant that stability of out of home placement must be a requirement before a parent’s right or ability to challenge an application for 18-year orders is made more difficult by the presumption.
42.It was submitted that the term “the carer” rather than “a carer” in the definition at s 477(4) suggests an intention to personalise the application of the provision.
43.Importantly, the father submitted that the children had been “living with their maternal grandmother (MGM) since December 2023 following a series of different placements throughout the course of the 2-year order put in place in July 2021”. I asked for clarification of this after submissions were closed and the parties provided a list of placements that the children had been placed in since being in the care of the DG.
44.Finally, the father submitted that in the overall context of the CYP Act and, in particular, s 350 which sets out that the primary responsibility for care of children lies with the parents and priority must be given to supporting the parents in this role.[4]
[4] See CYP Act s 350(1)(a) and (b).
D. SUBMISSIONS OF THE RESPONDENT MGM
45.The MGM is the present carer for the two children as has been so since 20 December 2023. She advanced a singular placement argument but posed the question of whether singular placement was an aspirational or actual requirement of s 477.
46.The MGM set out the amendment history of the CYP Act and referred to WS v Director-General, Community Services Directorate [2018] ACTSC 144 and Director-General, Community Services Directorate v NW and LW [2023] ACTCC 3, concluding that both decisions did not shine light on the issue at bar as both cases appeared to deal with extension applications where there had been settled long-term out-of-home placements. I agree.
47.The MGM pointed out that in the ES there appeared a recurring theme of stability in placements and that in three separate places the document referred to a desire for stability for children and young people.[5]
[5] See the Explanatory Statement, Children and Young People Act 2008 (ACT) 3, 6 and 127.
48.The MGM submitted that there had been a report published entitled the “Second report on key findings from the review of the Children and Young People Act 1999” and that at page 22 that report had “described considerable interest and concern whether the care and protection system can provide stability given that over 20% of children in care experience more than three placements”.[6]
[6] Maternal Grandmother’s submissions at page three.
E. SUBMISSIONS IN REPLY FROM THE DG
49.The DG filed further submissions on 24 April 2024. No party objected to the Court receiving them.
50.The DG submitted that the Second Report on the Key Findings “Review of the Children and Young People Act 1999 referred to a concern about multiple short term orders rather than multiple placements. This cannot be refuted.
51.The DG re-emphasized the contents of the ES and its reference to stability in orders and not on stability of placement. This cannot be refuted.
52.The DG pointed out that s 482 has its own definition of ‘stated person’ and therefore could not assist with the interpretation of ‘stated person’ in s 477. This cannot be refuted.
53.The DG made the following submissions on the definition of ‘carer’:
'The carer'
1.The term 'the carer' is not defined in the Children and Young People Act 2008 (ACT) (CYP Act). In considering what 'the carer' in section 477(4){a) means, literal comparisons to other sections using the term are not of assistance. Rather, the CYP Act as relates to who may provide care to child or young person pursuant to a care and protection order needs to be considered as the sub-section reads:
Stated person means:
a) The carer under the care and protection order; ...
2.That is, it is relating to the carer for the child or young people pursuant to a care and protection order as is in place. That then requires consideration of who can be a carer of a child or young person pursuant to care and protection orders.
3.Part 15.4 CYP Act relates to out-of-home carers. Section 509 provides that if the Director-General has daily care responsibility for a child or young person, then the Director-General must place that child or young person with an out of home carer, subject to exceptions such as placement in a health facility or an independent living arrangement for a young person over 16 years.4 Section 508 defines who is an out-of home carer as:
508 Who is an out-of-home carer? In this Act:
Out- of- home carer, for a child or young person, means -
a) A kinship carer of the child or young person; or
b) A foster carer for the child or young person; or
c) A residential care service for the child or young person.
4. Division 15.4.2. CYP Act provides that if the Director-General has daily care responsibility or long-term care responsibility for a child or young person, they may authorise a kinship carer5, a foster carer6, and a residential care service7 to exercise that daily care or long-term care responsibility for the Director-General.
5. Any one of those listed 'out-of-home carers' could be 'the carer' for a child or young person under and care and protection order at any point of time. That includes a residential care service, which by its very nature is not an individual person but an organisation providing residential care.
6. Further, none of the sections allowing for the Director-General to authorise an out-of home carer are exclusive in their language; that is, nothing on the face of the sections excludes multiple out-of-home carers being authorised at the same time. Indeed section 474 CYP Act, which provides what a parental responsibility provision is, specifically allows for parental responsibility for a child or young person to be shared at 474(b)(iii).
7. In all of the circumstances, when the provisions of the CYP Act, particularly those relating to who may be out-of-home carers pursuant to care and protection orders, are looked at holistically, there is no basis to read 'the carer' under section 477(1)(a) on a narrow or singular basis.
.
The Placement History of BQ and KQ in Out of Home Care
54.Bearing in mind that BQ and KQ are now aged eight years and six years respectively and have been in the DG’s care since 9 March 2021, on my reckoning on the information provided by the parties by email on 17 April 2024, the children had been in 15 different foster or kinship placements prior to going into the care of the MGM on 20 December 2023. This figure of 15 does not include the many different respite placements in the same period.
55.Whilst no party has made any submission on this information, it is safe to take judicial notice of the fact that these two children being subject to such in stability in placements could not be in their best interests.
Working out the Meaning of s 477
56.Her Honour Penfold J was considering the meaning of s 470 of the CYP Act in JH v Director-General, Community Services Directorate [2012] ACTSC 30 at 25 (‘JH’):
“However, the drafter’s failure to put the matter beyond doubt in such a way is not the end of the matter. It is still necessary to work out what meaning is to be given to the provision, and in particular to the words “before the application is heard”.
There are various considerations in interpreting s 470(3). I note first that, in working out the meaning of an Act, the Legislation Act 2001 (ACT) requires the provisions of an Act to be read in the context of the act as a whole (s 140); permits consideration of various extrinsic materials (s 141); and also requires that the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation, whether or not the Act’s purpose is expressly stated (s 139). Section 138 defines ‘working out the meaning of and Act” as:
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when an apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
I note also that headings to provisions are available in interpreting provisions. Because under s 126(2) of the Legislation Act a heading is part of the provision (except in the case of a section or subsection headings dating back to before 1 January 2000).”
57.And, as the Court of Appeal stated in their joint decision in Stowe Australia Pty Ltd v Kelly [2013] ACTCA 18 at paragraph [37]:
“In working out the meaning of an Act, including resolving an ambiguous or obscure provision of an Act, the interpretation that best achieves the purpose of the Act is to be preferred to any other interpretation: s 139(1) of the Legislation Act 2001 (ACT). In working out the meaning of a provision, the provisions of the Act must be read in the context of the Act as a whole: Legislation Act s140. Also, in working out the meaning of a provision, regard may be had to any explanatory statement for the bill that became the Act, and the presentation speech made to the Legislative Assembly during the passage of the bill that became the Act: Legislation Act, s 142 and Table 142.”
58.However, there is a limit on the utility of extrinsic materials in the interpretation of statute. The plurality of the High Court noted in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at paragraph [39]:
The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
59.Regarding the interpretation of the Act within its context, the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 considered the role the broader context has in interpreting statute at paragraph [14]:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
60.Whilst later paying heed to the Legislation Act 2001 (ACT), Curtin AJ recently stated the following in Civil and Civic Corp Pty Ltd v Nova Builders Pty Ltd [2023] ACTCA 30 at paragraph [101]:
“The process of statutory construction begins and ends with the words of the statute. That oft repeated mantra does not prescribe a rigid order of analysis. Rather, it serves to emphasize the primacy of the words used in the statute.
Context must be considered in the first. In CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 Brennan CJ, Dawson, Toohey and Gummow JJ, Gaudron agreeing , said at 408:
Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at an at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy
In Federal Commissioner of Taxation v Jayasinghe (2016) 247 FCR 40 Allsop J said at [7] that that passage from CIC had been cited too often to be doubted and cited 15 joint or single judgments of the High Court in support of that proposition.
The Legislation Act 2001 (ACT)
61.The relevant sections of the of the Legislation Act 2001 (ACT) are set out here:
139 Interpretation best achieving Act’s purpose
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) This section applies whether or not the Act’s purpose is expressly stated in the Act.
140 Legislative context
In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.
141 Non-legislative context generally
(1) In working out the meaning of an Act, material not forming part of the Act may be considered.
(2) In deciding whether material not forming part of an Act should be considered in working out the meaning of the Act, and the weight to be given to the material, the following matters must be taken into account:
(a) the desirability of being able to rely on the ordinary meaning of the Act, having regard to the purpose of the Act and the provisions of the Act read in the context of the Act as a whole;
(b) the undesirability of prolonging proceedings without compensating advantage;
(c) the accessibility of the material to the public.
(3) Subsection (2) does not limit the matters that may be taken into account.
(4) For subsection (2) (c), material in the register is taken to be accessible to the public.
142 Non-legislative context—material that may be considered
(1) In working out the meaning of an Act, material mentioned in table 142, column 2 may be considered.
(2) In working out the meaning of a statutory instrument, material mentioned in table 142, column 3 may be considered.
(3) This section does not limit the material that may be considered in working out the meaning of an Act or statutory instrument.
The Words of s 477(2)(b)(ii) and s 477(4)
62.The starting point is the words of the section. The relevant part of s 477(2)(b)(ii) is “the child or young person has been living with a stated person under a care and protection order”.
63.Section 477(4) reads:
(4) In subsection (2):
stated person means—
(a) the carer under the care and protection order; or
(b) one parent to the exclusion of another parent; or
(c) a family member who is not a parent.
64.If the legislature did intend that the DG was to be included the definition of a stated person, then subparagraph (a) might well have been worded as the “Director-General or the carer under the care and protection order”. Similarly, the legislature could have included the DG as her own, separate definition of stated person under s 477(4) if that was the intention.
65.It did neither of those things and it was an obvious omission not to do so.
66.The overwhelming conclusion from the words of the section is that the DG is not to be regarded as “the carer under the care and protection order”.
67.The wording of the section overall and the definition at s 477(4) is in the singular voice. If the legislature wished to convey a plural meaning, then it erred completely by using the words “has been living with a stated person” and, “the carer”, “one parent” and “a family member”.
68.At no place do the words imply that “a stated person” or “the carer” are to be read as anything other than a singular person. I do not accept the submission of the DG that there is no basis to read “the carer” on a singular basis. I find that there is no reason not to read it in the singular.
69.The ordinary meaning of the words used within the section means the section is to be interpreted as requiring a single carer for two years or two out of three years prior to engage the rebuttable presumption for extension of an order. There is nothing absurd or unreasonable about such an interpretation. It provides that where there is consistency of placement in short-term orders there should be a rebuttable presumption of long-term orders to preserve such a placement.
70.It is trite to point out that, contrary to the DG’s submissions on stability, her desired broad interpretation of the section only serves to reward placing children and young people in care in multiple out of home care placements. The only stability that such an interpretation provides is a rebuttable presumption that once a child is in care they stay in care until age 18.
The Aid to Interpretation within the Legislation Act 2001 (ACT)
71.Section 145 of the Legislation Act2001 (ACT) contains a rule that applies to the CYP Act:
145 Gender and number
In an Act or statutory instrument-
(a) words indicating gender include every other gender; and
(b)words in a singular number include the plural and words in the plural number indicate the singular.
72.However, it is not a determinative provision (see Hudson v ACT Magistrate Court and Anor [2014] ACTSC 192 at paragraph [51] (‘Hudson’); Calatzis v Jones [2024] ACTSC 42 at paragraph [84] and can be displaced by a contrary intention that is implicit rather than “manifest contrary intention” Legislation Act 2001 (ACT) ss 5, 6(2)-(4).
73.In Blue Metal Industries v Dilley [1969] UKPCHCA 2; (1969) 117 CLR 651 at 656 the Privy Council stated:
Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.
74.This was cited with approval by the High Court in Walsh v Tattersall (1996) 188 CLR 77 and Mossop J in Hudson in the context of s 145.
75.The CYP Act as a whole cannot be read as one that works to provide an aid to proving that children should remain in the care of the DG. Broadening the meaning of s 477 to be read as “The child or young person has been living with stated carers” and “the carers under the care and protection order” would mean that in every care matter where there have been orders in place for two years there is a rebuttable presumption for 18 year orders. And that would be so no matter how disruptive, inconsistent and unsettled the provision of care by the DG had been.
76.The case at bar provides a stark example of how short term orders for out of home care can provide extraordinary instability for children and young people.
77.The CYP Act speaks to stability, the primacy of children living with their family and the best interests of children:
a. Recognising that children have a right to grow in a safe and stable environment; s 7(a)(i);
b. Considering the best interests of children and young people: s 8;
c. That parents have parental responsibility: s 16;
d. That aspects of parental responsibility can be transferred and shared: ss 17 and 18
e. Recognising that it is important for children and young people to have settled stable and permanent living arrangements: s 349(h);
f. The need to ensure that the earliest possible decisions are made about a safe, supportive and stable placement: s 349(i);
g. The principle of primary responsibility for providing care and protection lying with parents and other family members: s 350 (a);
h. The principle that priority must be given to supporting parents and other family members to provide for the wellbeing, care and protection of their children: s350(b);
i. The DG preparing care plans that contain stability proposals for children and young people that include restoration plans or long term placements: s 456(3);
j. Care and protection orders being able to extended, amended or revoked if it is in a child or young person’s best interests: ss 471 and 472;
k. A rebuttable presumption that is in a child or young person’s best interest to have contact with their family: s 486.
The Explanatory Statement
78.The ES for cl 476 of the Children and Young People Bill 2008 (ACT) which became s 477 of the CYP Act stated (in part):
The Second Report on Key Findings from the Review of the Children and Young People Act 1999 identified concerns that multiple, short parental responsibility orders (between 2 and 5 years in duration) were being made for children and young people. Concern was expressed that this creates considerable uncertainty and instability for children and young people and often disrupts their attachment and relationships with new caregivers. (emphasis added) This can occur whilst intervention is occurring to return a child or young person to their parents.
The intention of this clause is to limit the making of multiple short term parental responsibility provisions (of up to 2 years in duration) and to create a presumption for the child or young person to be subject to a long-term parental responsibility provision after being in out of home care for the 2 year period of a short term parental responsibility provision.
The clause creates a rebuttable presumption that it is in the best interests of the child or young person to be subject to a long term parental responsibility provision (until 18 years) when an application to extend a short term parental responsibility provision is made. This presumption can be rebutted by a parent or other person who has had parental responsibility during the term of the order by satisfying the Childrens Court that the person is likely to be able to resume care of the child or young person during the period of the extension and it also in the best interests of the child or young person for the person to resume care.
79.Unfortunately, the ES in inconsistent with the wording of the provision being explained. As the father pointed out in his submissions – if the intention was to create a presumption for extension in all matters where there had been sufficient time in care to warrant the presumption of 18 year orders, then the addition of s477(2)(a)(ii) and s477(2)(b)(ii) was superfluous and countered such an intention. Further those two subsections are not discussed in the ES, nor is there any discussion of the definition at s 477(4).
80.As Penfold J said in JH at paragraph [25] in such a circumstance:
“…the obvious carelessness in the preparation of the ES means that I would not have been inclined to allow the ES explanation of s 470(3) to displace the words of the provision if the ES had been the only reason for interpreting s 470(3) otherwise than according to its plain words.”
81.Thus, in my view the ES should not be utilised to displace the words contained in s 477.
Consideration
82.I have read and considered each submission and submission in reply of the parties carefully. In the context of this matter the question to be answered is: were the children in the care of a stated person for the two years prior to the extension decision or two out of the three years prior to that decision?
83.In this case, following the disclosure of the pattern of care experienced by BQ and KQ, the Court is informed that no individual person has had the care of BQ and KQ for a period of time that would satisfy either of those tests.
84.No person other than the DG was named in the relevant parts of the final orders dated 20 July 2021 which provided:
(g) that daily care responsibility for the child be transferred to the Director-General, for a period of 2 years;
(h) that long term care responsibility for the child be transferred to the Director-General, for a period of 2 years;
85.Plainly enough the DG is capable of being described as a person, but that is not how the section is worded. Lest it needs be stated – the DG has many children in her care, but she is not the actual carer of them in a personal sense and they do not ‘live with’ her as specified in s 477 (2)(b)(ii).
86.As set out above, I do not accept the DG’s submissions on what the plain words of s 477 amount to. Nor do I find that s 145 of the Legislation Act 2001 (ACT) should be utilised to give a very different meaning and outcome to s 477 than what is very clearly set out in the words of the section. Nor should a plural term be imported by virtue of the Legislation Act to change the singular words specifically used in the section. In both cases this is because the meaning of the words in the section itself is abundantly clear.
87.When considering the CYP Act in a purposive light it is clear that there is a deep current of intent and purpose flowing through the Act that reflects a goal of stability for children and young people. Thus, to read s 477 as creating an aid to proof for the DG in securing orders to age 18 in every single matter where there has been short term orders for two to three years is contrary to the obvious context of the section and purpose within the whole of the Act. Further, the section itself does not read in such a way as to command the reader to think that an unstable combination of placements in the previous two or three years will satisfy the preconditions for engagement of the presumption in s477(2).
88.The requirement for a child being placed with a single stated person amounts to a very clear requirement for stability and consistency of care as a pre-condition for the rebuttable provision to be engaged. It is a sensible and ‘best interests’ based requirement that, I think, reflects the whole of the Act.
89.I accept that there is a gaping chasm between the ES and such a determination. As I have stated above, the words of the section are so different to what the ES conveys that there, respectfully, must be an error (or two) in the preparation of the ES.
Decision
90.The term “the carer under the care and protection order” at s 477(4) of the CYP Act under the definition “stated person” should be read in the singular and not the plural.
91.That is, for the rebuttable presumption to be engaged where a child or young person is in out of home care, they must have been in the stable care of the same carer under the care and protection order for the periods of time described in the section.[7]
[7] For a child younger than two years old – at least one year and for older children and young people two years or a total of two years out of the previous three years prior to the extension decision.
92.Given the facts of this case and the DG’s inability to prove stability of placement with the same carer for BQ and KQ in the previous two years to the extension decision or two out of three years prior to the extension decision, the rebuttable presumption of extension at s 477 of the CYP Act is not engaged in this matter.
93.In this case the DG must prove her case for 18-year orders on the civil standard without the benefit of s 477’s aid to proof.
| I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Stewart Associate: Jonathan Pears Date: 06 May 2024 |
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