DN v Secretary, Department of Communities and Justice

[2023] NSWSC 595

Supreme Court

New South Wales

Medium Neutral Citation:

DN v Secretary, Department of Communities and Justice [2023] NSWSC 595

Hearing dates:

26 April 2023

Date of orders:

2 June 2023

Decision date:

02 June 2023

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Amended summons dismissed

Catchwords:

CHILD WELFARE — Jurisdiction — Children’s Court of New South Wales — Care order — Variation —Where children outside of New South Wales

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Interpretation Act 1987 (NSW)

Cases Cited:

DRZ v Barnardos Australia [2020] NSWCATAP 47

Hollingsworth v Commissioner of Police (2007) 160 IR 456; [2007] NSWIRComm 7

Laurie v Carroll (1958) 98 CLR 310; [1958] HCA 4

LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9

Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54

Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226

S v Department of Community Services [2002] NSWCA 151

S v Department of Community Services [2002] NSWCA 151

Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1459

TF v Department of Family & Community Services [2015] NSWSC 694

Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434

Texts Cited:

M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press)

Category:

Principal judgment

Parties:

DN (Plaintiff)
Secretary, Department of Communities and Justice (First Defendant)
CT (Second Defendant)
Mr A (Third Defendant)
Ms L (Fourth Defendant)
Children’s Court of New South Wales (Fifth Defendant)

Representation:

Counsel:
Mr M Green SC with Mr B Dean (Plaintiff)
Dr D Kell SC with Mr C McGorey (First Defendant)
Solicitors:
NLS Law (Plaintiff)
Crown Solicitors (First Defendant)

File Number(s):

2022/359509

Publication restriction:

Names pseudonymised

 Decision under appeal 

Court or tribunal:

Children’s Court of New South Wales

Jurisdiction:

New South Wales

Citation:

N/A

Date of Decision:

16 June 2022

Before:

Children’s Magistrate McCarron

File Number(s):

2020/126155; 227-228/09

JUDGMENT

Summary

1. This is an application brought in the Court’s supervisory jurisdiction for review of a decision of the Children’s Court (the CC). The plaintiff, DN, is the birth mother of Michael (aged 14) and Mary (aged 13) (pseudonyms) (the children). The first defendant is the Secretary of the Department of Communities and Justice (the Secretary). The second defendant is the birth father of the children.

2. The proceedings arise from an unusual set of circumstances. In 2010, the CC made final care orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”) allocating all aspects of parental responsibility for the children to the Minister for Families and Communities (the Minister). In late 2017, Michael and Mary were placed with the third defendant, Mr A, and the fourth defendant, Ms L (the carers). The carers are both citizens of the United Kingdom.

3. On 15 July 2020, Ms L and the children travelled to the UK to visit Mr A, who had left Australia because his work visa had been cancelled. Although Ms L and the children had originally intended to return to Australia, their return flights were cancelled due to the Covid-19 pandemic. Since then, the children have resided with the carers in the UK.

4. In April 2020, prior to the children leaving NSW, the plaintiff filed an application, under ss 86 and 90 of the Care Act seeking parental responsibility and contact. In October 2020, after the children had left NSW, the carers sought to be joined to the plaintiff’s application. In March 2021, the carers filed their own application seeking parental responsibility over the children.

5. On 16 June 2022, the CC made orders allocating parental responsibility with respect to contact and culture to the Minister, and parental responsibility with respect to all other matters to the carers. The plaintiff submits that, at that time, the CC did not have jurisdiction over the children.

6. The essential question for determination in this appeal is whether the existence of a care order is itself sufficient to enliven the CC’s jurisdiction to determine an application to rescind or vary a care order under s 90 of the Care Act. For the reasons that follow, the learned magistrate was correct to find that the CC had jurisdiction under s 90. In summary, there are two essential reasons for this conclusion.

7. First, on the proper construction of the Care Act, the jurisdictional fact necessary to engage the Court’s power under s 90 is the fact of a final care order having been made. Section 4 of the Act is not relevant.

8. Second, if s 4 of the Act is relevant, then a child or young person who, under the Care Act, became subject to a care order as a result of being subject to an event or circumstances that gave rise to a report within the meaning of s 4(c) — continue to meet that description notwithstanding that the event or circumstances have passed. Section 4(c) is an example of the historic present tense.

9. The Court also rejects the plaintiff’s alternative contention that there was an error on the face of the record because, particularly in the case of an Aboriginal person, a suitable person under s 79(1) of the Act could never be a person who resided out of Australia. In summary, this is because who was a “suitable person” was not limited by the text of s 79, and insofar as other considerations were relevant, including the Aboriginal placement principles, they were subject to the paramountcy principle in s 9(1) of the Act. There is no textual warrant in the Act to conclude that, having regard to the paramountcy principle, a suitable person could never be a person who resided out of Australia.

10. Mr M Green SC and Mr B Dean of Counsel appeared for the plaintiff. Dr D Kell SC and Mr C McGorey of Counsel appeared for the first defendant.

Facts

11. The facts were not in dispute.

12. Michael is 14 years old. Mary is 13 years old. Both children, like their mother, are Aboriginal.

13. The children were removed from the care of their mother in October 2009 because of serious concerns regarding the parenting capacity of the biological parents. On 12 October 2009, the Minister applied to the CC for final orders pursuant to s 79(1) of the Care Act (proceedings 227-228/09).

14. On 26 August 2010, the Children’s Court made final orders giving the Minister sole parenting responsibility over Michael and Mary, until each respectively attains 18 years of age.

15. After removal from their mother, the children moved between multiple carers. Attempts were made to place the children with family members including, for a short time, with a maternal aunt, however this was unsuccessful. From 2015, it became increasingly difficult to find a suitable long-term placement and, as a result, it became likely that the children would be separated.

16. In late 2017, Ms L — who was familiar with the children, their difficulties in finding a suitable carer, and the high likelihood of their separation if a suitable placement could not be found — volunteered to care for Michael and Mary. In December 2017, Ms L and her husband Mr A became the authorised carers for the children. There were no Aboriginal carers available who could care for the children at that time. The children have been under the care of Mr A and Ms L ever since.

17. Mr A and Ms L are citizens of the United Kingdom. From 2016, they resided in Australia pursuant to Mr A’s working visa. In February 2019, Mr A was made redundant. Because he was unable to find work within 90 days following his redundancy, Mr A’s visa expired. He left Australia on 25 June 2019. Ms L’s visa was linked to Mr A’s so that it was scheduled to expire on 1 August 2020. Despite exploring numerous options, Ms L was unable to find a way to have her visa extended.

18. After Mr A returned to the UK, Ms L applied for authorisation to travel with the children to visit him, which the Minister granted. They left Australia on 2 July 2019 and returned on 19 January 2020.

19. After returning to Australia, Ms L struggled to find suitable accommodation. She and the children were moved between several places. This was traumatizing for both her and the children. As a result, Ms L’s health deteriorated. She understandably missed the support of her husband and expressed a desire to return to the UK.

20. On 22 April 2020, having been made aware of Ms L’s intentions to travel overseas, the plaintiff applied to the Children’s Court (in proceedings 227-228/09), seeking parental responsibility and for contact orders to be made.

21. On 12 June 2020, the Children’s Court granted leave to the plaintiff to bring an application for contact orders. The Court also granted leave to bring an application for parental responsibility, however, only in relation to two aspects of parental responsibility—contact and the children’s culture.

22. On 10 July 2020, the Minister gave consent to Ms L to travel with the children to the UK to visit her husband, subject to the requirement that she return with the children to Australia by 26 October 2020.

23. On 15 July 2020, Ms L travelled with the children to the UK. However, due to the COVID-19 pandemic, the return flights were unavoidably cancelled. Since that time, Michael and Mary have remained in the UK with Mr A and Ms L.

24. On 14 October 2020, Mr A and Ms L filed an application seeking to be joined to the mother’s application and indicated that they would also be seeking parental responsibility for the children until they attained 18 years of age.

25. On 23 September 2020, Mr A and Ms L were informed in writing that the Secretary would not support the children moving permanently to the UK. The letter did state, however, that the Department of Communities and Justice could support the carers to remain in Australia as the children’s long-term carers, indicating that casework and financial support would be available, as well as assistance in making a visa application.

26. At a hearing on 8 October 2020, the Secretary informed the Court that, pending the determination of the application, no action would be taken to compel the children to return to Australia.

27. On 24 March 2021, Mr A and Ms L filed a separate application under s 90 of the Care Act (proceeding 2020/126155), in which they sought parental responsibility to be transferred to them.

28. The hearing of both applications took place on 8, 10 and 11 March 2022.

29. In written submissions filed on 8 April 2022, the Secretary indicated that, while it was preferred that the children and carers should return to Australia, the Secretary “supports the children remaining with the carers in the UK in the long-term”.

The decision below

30. On 16 June 2022, the learned magistrate made final orders in the proceedings, giving her reasons orally. At this time the children resided in the UK.

31. The Magistrate made identical orders with respect to Michael and Mary (the Orders):

“1. Pursuant to section 90(7) of the Children and Young Persons (Care and Protection) Act 1998, the final orders made by the Children’s Court of New South Wales at Bidura on 26 August 2010 in relation to the child, XX, are rescinded.

2. Pursuant to section 79 of the Children and Young Persons (Care and Protection) Act 1998, parental responsibility for the child in relation to:

a. contact; and

b. the religious and cultural upbringing of the child or young person,

are allocated to the Minister until the child reaches the age of 18.

3. Pursuant to section 79 of the Children and Young Persons (Care and Protection) Act 1998, parental responsibility for the child in relation to:

a. the residence of the child or young person;

b. the education and training of the child or young person; and

c. the medical and dental treatment of the child or young person.

are allocated to [Mr A] and [Ms L] until the child reaches the age of 18.

4. Pursuant to section 73 of the Children and Young Persons (Care and Protection) Act 1998, the court accepts the undertakings attached to these orders from the carers, [Mr A] and [Ms L], for the periods specified in the undertakings.

5. Pursuant to section 82 of the Children and Young Persons (Care and Protection) Act 1998, the Secretary of the Department of Communities and Justice is to provide three reports to the Court at 6 months (on or before 16 December 2022), 12 months (on or before 16 June 2023) and 18 months (on or before 16 December 2023) concerning the suitability of the arrangements for the care and protection of the child including, but not confined to, the following issues:

a. an assessment of progress in implementing the care plan; and

b. an assessment of the child’s contact with the child’s maternal and paternal families.”

32. The learned magistrate’s reasons relevant to the present appeal were:

“The Children's (Care and Protection) Act confers jurisdiction on the Court to exercise function in respect to children and young persons as identified in s 4. Section 4 of the Act sets out the children and young persons to whom the Act applies. It provides that the functions conferred or imposed by this Act and the regulations may be exercised in respect of children and young persons who ordinarily live in New South Wales; or who do not ordinarily live in New South Wales but who are present in New South Wales; or who are subject to an event or circumstance occurring in New South Wales that gives or gives rise to a report.

A report, referred to in s 4(c), is defined in the Act to be a report made under s 24, 25 or 27. These reports are concerning a child or young person at risk of significant harm, pre-natal reports that the child may be at risk of significant harm and a risk of significant harm report for a mandatory reporter. They collectively are referred to as ROSH reports, risk of serious harm reports. The children were subject to a number of ROSH reports raising concerns as to drug use, domestic violence, neglect and parenting capacity, leading to their removal and final orders being made in 2010.

Ms Renshall, solicitor as DLR for [Mary] was not instructed in relation to the issue of jurisdiction. Ms Ng, DLR for [Michael], makes no submission in relation to jurisdiction. I have received no submissions from the father. I withdraw that, now noting that I received Ms Catey's submissions when I arrived at work this morning.

The secretary's submissions were comprehensive on the point of jurisdiction, as were Mr Dean's. I do not intend to make reference to each and every aspect of the submissions received, however, it is to be taken that I have given them careful consideration. The department submits s 4(c) clearly confers jurisdiction in respect of the children, who would not otherwise be subject to the Act, as they are neither present or ordinarily reside in New South Wales.

The relevant timing for determining the Children's Court jurisdiction is when it is invoked, namely at the time the application is filed. The children in this present case are each subject to an event or circumstance occurring in New South Wales that gives rise to a report. Section 4 does not state a requirement that the event or circumstance which gives rise to a report must have occurred within any defined period. In the present case, nine ROSH reports were made regarding circumstances that occurred in the State of New South Wales and indeed led to the children's removal.

The Children's Court regularly makes orders for children who are very young, orders that, unless varied or rescinded, are said to be in force until the child reaches the age of 18. Of course, over the course of childhood the children's circumstances will change, their carer's circumstances will change and their birth family's circumstances will change. The terms of s 4 focus, in my view, on the circumstances of the child, the child's residence, whether the child is present in New South Wales or whether there was an event or circumstance in New South Wales in respect of the child that gave rise to a report of significant harm.

The mother submits the language of s 4(c) is framed in the present tense. If parliament had intended that being previously subjected to an event or circumstance in New South Wales that gave rise to a report or reports could provide a basis for the exercise of a function conferred or imposed by that Act, one would expect to see that clearly reflected in the language of s 4. The Court rejects the submission of the mother in this regard. The phrase, "are subject to an event or circumstances," are words of broad meaning. There is nothing in the wording of 4(c) which would confine it to an event or circumstance or a report which is immediate or recent, or to confine it to a period after the making of final orders. It is possible to remain subject to an event even if that event occurred in the past. The term "subject to" requires that the connection remains or is currently operating. An example of this is that an order of parental responsibility for a baby made a decade ago is an order which the child remains subject to whilst the order continues to be in force.

In Favetti Bricklaying Pty Ltd v Benedict, Bellew J summarised the principles to be applied to the task of statutory construction as follows:

"The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute. The task of statutory construction begins and ends with the consideration of the statutory text. The text must not be read in isolation from the enactment of which it forms a part. To do so offends against the cardinal rule of statutory interpretation that requires the words of the statute to be read in their context. Accordingly, the meaning of the provisions must be determined by reference to the language of the instrument when viewed as a whole.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, such conflict must be alleviated so far as possible by adjusting the meaning of the competing provisions to achieve the result which will best give effect to their purpose and language, while maintaining the unity of provisions as a whole. Legislative history and extrinsic materials cannot display the meaning of the statutory text, nor is there examination in itself. It is preferable to adopt a construction of legislation that will avoid a consequence which appears irrational or unjust. It is also preferable to adopt a construction that will avoid an absurd outcome or consequence."

The objects and principles of the Act can be found in s 8 and 9. Section 8 sets out that children and young persons receive such care and protection as is necessary for their safety, welfare and wellbeing, having regard to the capacity of their parents or other persons responsible for them and recognition that the primary means of providing for the safety, welfare and wellbeing of children and young persons is by providing them with long term safe, nurturing, stable and secure environments through permanent placement in accordance with permanent placement principles, and that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity. The appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of child rearing responsibilities in order to provide a safe and nurturing environment.

Section 9 principles, all parties in this Court are well familiar, and I do not intend to reiterate the s 9 principles. The aim and purposes of the Act is to protect and advance the safety, welfare and wellbeing of children. The objects of the Act include that children receive such care and protection as is necessary for their safety, welfare and wellbeing. The principles of the Act include that the safety, welfare and wellbeing of a child are paramount; that the least intrusive intervention is the course to be followed, consistent with the paramount concern to protect the child from harm and promote the child's development, and that children are entitled to a safe, nurturing and stable and secure environment, and unless contrary to the child's best interests to retain a significant relationship, the purpose, objectives and principles of the Act apply to every child.

On the construction of s 4 urged on the Court by the mother, the Court would be in a position of not being able to vary or rescind its own orders for the children in relation to their care and protection. The Court would have no jurisdiction even if those orders were contrary to the child's best interests. Knowing that children's needs and circumstances change over time, as do the circumstances of their parents and carers, it could not have been the intention of parliament that those orders could never be varied or rescinded, except in limited circumstances. Such a construction would be contrary to the objects and principles of the Act, would provide an irrational and sometimes unjust result, and could result in leaving children at risk.

The Children's Court must have proper regard to the nature of the jurisdiction under which the orders were granted and the nature of the original order itself. The orders were under the Act, where the criteria for the making of the order is the child's safety, welfare and wellbeing. It would be startling if an order made in relation to a child's welfare could not be the subject of review by the Court and be rescinded or varied, if appropriate, in cases where there has been a change of circumstances that affects the welfare of the child.

The Court remains seized of the child's welfare during the course of proceedings and accordingly must have jurisdiction to vary or rescind orders as required by the child's best interests as the Court's paramount consideration. Not to have such a power would be inconsistent with the overriding objective and principles of the Act.

On the date the initiating application was filed these children were both resident in NSW and subject to ROSH reports from events and circumstances that occurred in New South Wales. The Children's Court made final orders and each of those children remained subject to those final orders. I am of the view, therefore, that the Children's Court has jurisdiction to hear and determine the application.”

The appeal

33. By an amended summons filed on 12 December 2022, the plaintiff seeks the following orders with respect to the orders made on 16 June 2022:

“1. An order pursuant to s 69 of the Supreme Court Act 1970 that the orders of the Children’s Court made on 16 June 2022 are quashed for want of jurisdiction.

2. In the alternative:

a. an order pursuant to s 69 of the Supreme Court Act 1970 that the orders of the Children’s Court made on 16 June 2022 are quashed, and

b. the applications giving rise to the orders made on 16 June 2022 are remitted to the Children’s Court to be determined according to law.

3. Each of the parties is to bear their own costs of the present proceedings.”

34. The plaintiff advances two grounds in support of these orders:

“1. The learned Children’s Magistrate made a jurisdictional error by wrongly asserting the existence of jurisdiction based on determinations that:

a. the relevant time for determining whether the Children’s Court has jurisdiction is by reference to when the jurisdiction is invoked by a party, i.e. when the application that requires a determination is filed in the Court, rather than by reference to when the Court is required to exercise its powers under the Care Act,

b. the subject children were in New South Wales as at the date that the plaintiff filed her amended application in the Children’s Court, i.e. on 11 June 2020, notwithstanding that the subject children were not in New South Wales when her Honour exercised her powers under the Care Act, i.e. 16 June 2022, and

c. the children are subject to an event or circumstances occurring in New South Wales that gives or give rise to a report, notwithstanding that the language of s 4 of the Care Act directs attention to the currency of the event or circumstances to which a child is being subjected, and does not direct attention to the currency of the report or reports made about the child being so subjected.

2. The learned Children’s Magistrate made an error of law on the face of the record, within the meaning of s 69 of the Supreme Court Act 1970, by misconstruing the phrase “suitable person or persons” as it appears in s 79(1) of the Care Act.”

35. On 15 March 2022, the Secretary filed an amended response to the summons, opposing the relief sought by the plaintiff on the following grounds:

“1. As to ground 1, there was no error jurisdictional or otherwise in Magistrate McCarron’s construction of section 4 of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”). The defendant will say:

a. the Court was entitled to find one of the jurisdictional facts required by s. 4 of the Care Act was established on the evidence;

b. subsection 4(c) of the Care Act does not state a requirement that the event or circumstances which gives rise to a report must have occurred within any defined period;

c. any error committed by the Children’s Court in ascertaining whether its jurisdiction was established under s 4 of the Care Act was not jurisdictional because it was not material, in that the error did not deprive the plaintiff of a realistic possibility of a different outcome.

d. section 4 of the Care Act does not apply to constrain the exercise by the Court of its jurisdiction to vary or rescind a care order under s 90.

2. As to ground 2, there was no error on the face of the record or otherwise in Magistrate McCarron’s construction of the phrase "suitable person or persons" as it appears in s 79(1) of the Care Act, or in the determination that the children’s carers Mr [A] and Ms [L] are “suitable persons”. The ground has not been further articulated, but the defendant will say that the Care Act confers a wide discretion to assess the suitability of a person to hold parental responsibility, in all the circumstances of the case.

3. Further, the relief sought should be refused on discretionary grounds as the proposed orders will have no utility in circumstances where, in the event that the orders made on 16 June 2022 are quashed on the asserted grounds, the Children’s Court will have no jurisdiction to make any further orders. The defendant will say:

a. The orders previously made by the Children’s Court on 26 August 2010 provide for Minister for Families, Communities and Disability Service (“the Minister”) to retain parental responsibility for the children until they attain the age of 18 years.

b. If the Minister retains power to make decisions about where the children reside, the Department of Communities and Justice supports the children remaining in the United Kingdom with Mr [A] and Ms [L] and returning to Australia to have contact with their mother and family.

4. The first defendant says that the summons should be dismissed with no order as to costs.”

Ground 1 – DN’s submissions

36. The first ground of appeal, the plaintiff submits, is that s 4 of the Care Act did not confer jurisdiction on the CC to make the Orders:

4 Children and young persons to whom this Act applies

The functions conferred or imposed by this Act and the regulations may be exercised in respect of children and young persons—

(a)  who ordinarily live in New South Wales, or

(b)  who do not ordinarily live in New South Wales, but who are present in New South Wales, or

(c)  who are subject to an event or circumstances occurring in New South Wales that gives or give rise to a report.

37. A “report” is defined under s 3 as “a report made under section 24, 25 or 27” of the Care Act. Sections 24 and 25 provide:

24 Report concerning child or young person at risk of significant harm

A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Secretary.

25 Pre-natal reports

A person who has reasonable grounds to suspect, before the birth of a child, that the child may be at risk of significant harm after his or her birth may make a report to the Secretary.

38. Section 27 of the Care Act imposes mandatory reporting requirements on specific classes of persons.

39. The plaintiff’s contention is, contrary to the learned magistrate’s conclusion, that ss 4(a)-(c) of the Care Act were not engaged.

Relevant time to determine jurisdiction

40. The plaintiff also submits that the magistrate made a jurisdictional error when she held that:

“The relevant timing for determining the Children's Court jurisdiction is when it is invoked, namely at the time the application is filed.”

41. The plaintiff argues that the application to which the magistrate refers is the initiating application filed on behalf of the Secretary on 12 October 2009. It does not refer, the plaintiff contends, to either the initiating application filed by the plaintiff on 22 April 2020 or the initiating application filed by the carers on 14 October 2020. The plaintiff relies on the following passage from the magistrate’s judgment to support this argument:

“On the date the initiating application was filed these children were both resident in [New South Wales] and subject to [Risk of Significant Harm] reports from events and circumstances that occurred in New South Wales. The Children's Court made final orders and each of those children remained subject to those final orders. I am of the view, therefore, that the Children's Court has jurisdiction to hear and determine the application.”

42. The plaintiff asserts that this approach is erroneous. Instead, the relevant time to determine jurisdiction, the plaintiff submits, is the time at which the CC is to exercise its power under the Care Act. The plaintiff made several arguments to support this claim.

43. Mr Green SC suggested that Parliament’s use of the word “exercised” in s 4 of the Care Act accords with a reading of the section in which jurisdiction coincides with the exercise of power.

44. Mr Green SC also put that the magistrate’s interpretation — in which the functions of the Care Act might be exercised in circumstances where its preconditions are presently not met but have previously been met — is an approach not reflected in the text of the Care Act. For instance, he submitted this approach does not accord with s 72(1)(a) of the Care Act:

72   Determination as to care and protection

(1)  A care order in relation to a child or young person may be made only if the Children’s Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection—

(a)  the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and…

45. Furthermore, Mr Green SC relied on this passage from Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 at 420-1:

“The first and more significant is that a statutory definition should be approached on the basis that Parliament said what it meant and meant what it said. …It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.”

46. Mr Green SC submitted that, on the plain meaning of s 4 and consistent with the rest of the Care Act, the magistrate was required to determine whether any of the preconditions to the exercise of power in ss 4(a)-(c) were met on 16 June 2022.

47. The plaintiff accepted that, if the date of the initial application (filed on 12 October 2009) was held to be the relevant time, then her remaining arguments on jurisdiction would fail, as both children were ordinarily living in New South Wales at that time.

Section 4(a)

48. The plaintiff submits that, on the date that the magistrate exercised her powers under the Care Act (16 June 2022), Michael and Mary were not ordinarily living in New South Wales. It was noted by Mr Green SC that, despite the parties addressing the issue in their written submissions, the Magistrate made no finding of fact relating to where the children ordinarily live or have lived.

49. In the plaintiff’s written submissions, Mr Green SC noted that the plaintiff could not point to any authority that had directly considered the phrase “ordinarily live” in the context of the Care Act. Nevertheless, he proceeded to make several submissions relating to the construction of s 4(a).

50. First, relying upon the Macquarie Dictionary’s definition of the words “ordinary” and “live”, Mr Green SC argued that a person will “ordinarily live” in a place if they “usually dwell or reside there”.

51. Second, Mr Green SC sought to rely upon the case of LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9, where the High Court considered the phrase “habitually resided” — a phrase that the plaintiff submitted is similar to “ordinarily live[s]” and thus of some relevance — in the context of interpreting the Hague Convention on the Civil Aspects of International Child Abduction 1986:

“[25] …Yet it may be accepted that “[h]abitual residence, consistent with the purpose of its use, identifies the center of a person's personal and family life as disclosed by the facts of the individual's activities”.

…

[27] When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live… The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.”

52. The Court further held that the intention of a person will be a relevant consideration in determining whether an individual is habitually resident in a location, however, not a determinative factor (LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 [28]-[35]).

53. With this construction in mind, the plaintiff contended that, from 15 July 2020, the centre of Michael and Mary’s personal and family life has not been New South Wales. In her written submissions, the plaintiff argued this was apparent from the fact that:

“(a) The children left Australia on 15 July 2020 and have not returned.

(b) The first defendant supports the children remaining in the United Kingdom.

(c) The third and fourth defendants do not live and work in New South Wales and have no intention of leaving the United Kingdom to live in a different place.

(d) The children do not go to school in New South Wales.

(e) The children are not receiving regular medical treatment in New South Wales.

(f) The children have friends in the United Kingdom.

(g) The children have met the third and fourth defendants' extended family in the United Kingdom.

(h) The children want to live in the United Kingdom and have no desire to return to Australia to live at any time in the foreseeable future.”

Section 4(b)

54. The plaintiff contends that, if, as submitted above, the relevant time to determine jurisdiction under s 4 of the Care Act is when the CC exercises its power, then it must be accepted that Michael and Mary were not present in NSW at the relevant time on 12 June 2022, as the children have not been present in NSW since 15 June 2020. On this basis, the plaintiff argues the CC did not have jurisdiction under s 4(b) of the Care Act.

55. If, on the other hand, this Court decides that, under s 4 of the Care Act, jurisdiction is determined at the time at which the application is filed, not exercised, then the plaintiff accepts that the CC had jurisdiction to determine the application filed by the plaintiff on 22 April 2020, as on that date the children were present in NSW. The plaintiff argues, however, that in such circumstances the CC would not have had jurisdiction to determine the application filed by the carers on 14 October 2020, as by then the children had left NSW.

Section 4(c)

56. The plaintiff submits that the CC did not have jurisdiction under s 4(c) of the Care Act because, at the time of the decision, Michael and Mary were not subject to an event or circumstance occurring in NSW that gives or give rise to a report. The learned magistrate, the plaintiff contended, thus erred when she held:

The children in this present case are each subject to an event or circumstance occurring in New South Wales that gives rise to a report. Section 4 does not state a requirement that the event or circumstance which gives rise to a report must have occurred within any defined period In the present case, nine [Risk of Significant Harm] reports were made regarding circumstances that occurred in the State of New South Wales and indeed led to the children's removal.

…The terms of s 4 focus, in my view, on the circumstances of the child, the child's residence, whether the child is present in New South Wales or whether there was an event or circumstance in New South Wales in respect of the child that gave rise to a report of significant harm.

…

The phrase "are subject to an event or circumstances" are words of broad meaning. There is nothing in the wording of 4(c) which would confine it to an event or circumstance or a report which is immediate or recent, or to confine it to a period after the making of final orders. It is possible to remain subject to an event even if that event occurred in the past. The term "subject to" requires that the connection remains or is currently operating. An example of this is that an order of parental responsibility for a baby made a decade ago is an order which the child remains subject to whilst the order continues to be in force.”

57. The plaintiff argued that, under s 4(c), the questions for the CC are: first, whether there exists a report concerning a child describing an event or circumstance occurring in NSW; and second, if there is such a report, whether the child identified in the report remains subject to the event or circumstances described therein. According to the plaintiff, the CC will only have jurisdiction under s 4(c) where an affirmative answer can be given to both.

58. The plaintiff contended that the magistrate failed to direct her attention to the second element mentioned above—namely, whether the children remained subject to the event or circumstances described in the report. Mr Green SC argued that, while the magistrate was correct to find that the children had previously been subject to events or circumstances giving rise to a report, they were no longer subject to those events or circumstances at the time of the decision.

59. The plaintiff further submitted that the magistrate’s approach is not reflected in the plain language of s 4(c) of the Care Act. If Parliament had intended for s 4(c) to apply to events or circumstances that had occurred in the past but were not ongoing, then the statutory text would make this intention explicit. It would read, for instance:

“The functions conferred or imposed by this Act and the regulations may be exercised in respect of children and young persons… who are subject or were subjected to an event or circumstances occurring in New South Wales that gives or give rise or gave rise to a report.”

60. The plaintiff noted that the children are “safe and well” in the UK under the care of Mr A and Ms L, and that significant time had passed since a report had been made arising from an event or circumstances, occurring in NSW, to which the children were subject. On this basis, the plaintiff submitted that, at the time of the decision, there was no longer an event or circumstances occurring in NSW to which the children were subject that would give rise to a report. Hence, the plaintiff contends, the CC could not exercise jurisdiction under s 4(c) of the Care Act.

Section 4 generally

61. The plaintiff also sought to address concerns raised by the magistrate, in her reasons, relating to the plaintiff’s approach to s 4 of the Care Act. The magistrate said:

“On the construction of s 4 urged on the Court by the mother, the Court would be in a position of not being able to vary or rescind its own orders for the children in relation to their care and protection. The Court would have no jurisdiction even if those orders were contrary to the child's best interests. Knowing that children's needs and circumstances change over time, as do the circumstances of their parents and carers, it could not have been the intention of parliament that those orders could never be varied or rescinded, except in limited circumstances. Such a construction would be contrary to the objects and principles of the Act, would provide an irrational and sometimes unjust result, and could result in leaving children at risk.

The Children's Court must have proper regard to the nature of the jurisdiction under which the orders were granted and the nature of the original order itself. The orders were under the Act, where the criteria for the making of the order is the child's safety, welfare and wellbeing. It would be startling if an order made in relation to a child's welfare could not be the subject of review by the Court and be rescinded or varied, if appropriate, in cases where there has been a change of circumstances that affects the welfare of the child. The Court remains seized of the child's welfare during the course of proceedings and accordingly must have jurisdiction to vary or rescind orders as required by the child's best interests as the Court's paramount consideration. Not to have such a power would be inconsistent with the overriding objective and principles of the Act.”

62. First, the plaintiff submitted that this reasoning is erroneous, in that the CC, under s 43(2) of the Interpretation Act 1987 (NSW), has the power rescind or vary orders previously made, provided those orders are within power.

63. Second, the plaintiff submitted that it is neither irrational nor unjust for s 4 of the Care Act to be construed in a way that provides finality to proceedings and for jurisdiction to be determined in the circumstances and at the time at which its exercise is prompted.

64. Mr Green SC argued that in most cases the power to exercise a function conferred by the Care Act would fall under ss 4(a) or (b), because children under the parental responsibility of the Minister will, in the majority of cases, be living in NSW. Furthermore, Mr Green SC submitted that, were a child to leave NSW and live elsewhere, the Minister’s ability to exercise parental responsibility over the child would be limited. Thus, the Care Act reflects these practical limits to the Minister’s power by confining jurisdiction to where the Minister may effectively exercise parental responsibility. Although Mr Green SC accepted that the Minister, exercising parental responsibility, may decide where a child ordinarily lives, he asserted that this could only extend to places in NSW so that the Minister could continue to effectively exercise parental responsibility.

65. Mr Green SC argued that, in circumstances where ss 4(a) and (b) fail to ground jurisdiction, s 4(c) is relied upon where a relevant “event or circumstances” has a “nexus” with NSW and a report has been made describing the resulting potential risk of harm to a child. Thus, s 4(c) permits the Secretary to take protective action under the Care Act in respect of a child who is not in NSW, nor ordinarily lives in NSW, but who remains subject to the event or circumstances giving rise to the harm report, but only so far as the event or circumstances persist. Otherwise, the child is under the protective regime of the other jurisdiction.

66. In oral submissions, Mr Green SC argued that ss 9, 10A, 13, 15, 16, 45, 49, 60, 61, 62, 71, 72, 73, 78A, 79, 82, 87, 90, 91, 98, 99D, 102, 105, 109A 109O, 231A, 231G, 231S, 231Z, 245 and 247 evince a legislative intention that, apart from Chapter 14A, the operation of the Care Act be geographically limited.

Ground 1 – Secretary’s submissions

67. The Secretary submits that the magistrate did not commit a jurisdictional error in finding that the CC’s jurisdiction was grounded in s 4(c) of the Care Act. This was either because the CC did in fact have jurisdiction under s 4(c), or because the Magistrate’s error was immaterial on the basis that jurisdiction would have otherwise been grounded in ss 4(a) and (c) of the Care Act. Alternatively, the Secretary argues that s 4 is irrelevant to jurisdiction exercised under s 90.

Section 4(c)

68. The Secretary submitted that the final care orders made on 12 October 2009 provided the CC with jurisdiction under s 4(c) of the Care Act.

Secretary’s construction

69. In the course of submissions, the Secretary made arguments that s 4(c) of the Care Act is properly construed in the historic present tense. This is in contrast with the plaintiff’s construction, which reads the section wholly in the present tense. Under the Secretary’s preferred construction, it is the existence of a report, arising from an event or circumstances, which engages the Secretary’s power under the Care Act and provides connection to NSW. This, the Secretary contends, is evident from the text, context, and purpose of the Care Act.

70. The Secretary submitted that reading s 4(c) wholly in the present tense ignores the temporal reality of what occurs in the making of a report. Dr Kell SC contended that the natural course is for a report to be made once an event has, or circumstances have, taken place. Thus, for a report to exist, it is natural to assume the related event or circumstances have concluded. On this reading, it is the report that provides the jurisdictional fact, not whether the event or circumstances remain ongoing. Whereas reading the section wholly in the present tense leads to an absurd construction requiring that the event or circumstances are actively giving rise to a report at the time a decision is made. This reading, the Secretary submits, ignores the nature of how a report is made. Thus, s 4(c) of the Care Act ought to be read with these temporal and sequential expectations in mind.

71. This construction, the Secretary submitted, accords with the purpose of the Care Act, which is to protect the safety, welfare and wellbeing of children and young persons in need of care and protection. Given the protective purpose of the Care Act, the Secretary contended it ought to be broadly and beneficially construed, giving paramountcy to the welfare of children.

72. Dr Kell SC further submitted that whether the requisite jurisdictional fact arises (i.e. whether a report exists) is to be determined at the time proceedings are instituted. This aligns, he argued, with the conventional approach to jurisdiction, in which (quoting Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463) judicial power is “concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted”.

Immediate statutory context

73. The Secretary submitted that this construction of s 4(c) — where the making of a report is the relevant jurisdictional fact to be determined at the time an application is filed — is necessitated by the structure of the Care Act.

74. First, the statutory process for the making of a care order under s 71(1) of the Care Act envisions that the event or circumstances giving rise to a report are, by necessity, things of the past.

75. A report contains the reasonable grounds on which a person suspects a child or young person is at risk of significant harm (Care Act, s 24). Once a report is made to the Secretary, a statutory process commences under s 30 of the Care Act, in which the Secretary investigates whether the child is at risk of significant harm. This may lead to an application being made by the Secretary, under s 61 of the Care Act, for the making of a care order under s 71 by the CC. The argument is that, by the time the CC determines a care application, the report (and the event or circumstances giving rise to it) are necessarily something of, and about, the past, as the Secretary’s actions stem from the report, and do not coincide with the making of a report.

76. In making a care order under s 71(1), the CC determines whether it is “satisfied that the child or young person is in need of care and protection for any reason”, this includes where “the child or young person is subject to a care and protection order of another State or Territory that is not being complied with” (Care Act s 71(1)(g)). The Secretary contended that, if jurisdiction is to be determined at the moment the power is exercised, the CC would need to ask the additional question of whether a condition of s 4 is satisfied. Such a reading, it was submitted, is incompatible with a beneficial construction of the Care Act because it would deprive the CC of the power to address the needs of a child in circumstances where the child has been removed from the jurisdiction and the event or circumstances giving rise to a report no longer subsist.

77. Second, the Secretary submitted that the plaintiff’s construction of s 4 would frustrate the operation of s 90 of the Care Act. In his submissions, Dr Kell SC noted that s 90 of the Care Act empowers the CC to vary or rescind a care order “in light of evolving circumstances”. Under s 90(2) of the Care Act, the CC may grant leave to vary or rescind a care order where “there has been a significant change in any relevant circumstances since the care order was made or last varied”. This relevantly “requires a comparison between the situation at the time when the application was heard and the facts underlying the decision when the order was made” (S v Department of Community Services [2002] NSWCA 151 at [27] per Heydon JA; Hodgson JJA agreeing). This necessarily includes consideration of circumstances “arising after the original orders were made” (Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 [28] per Basten JA; Ward and Emmett JJA agreeing).

78. Therefore, the Secretary contended that, not only is it unlikely that the event or circumstances triggering the original care order would still exist at the time a care order is varied or rescinded, the operation of s 90 hinges precisely on the fact that circumstances have changed. To summarise the Secretary’s argument, if s 90 of the Care Act can only be exercised when there has been a significant change of circumstances, this necessarily entails that Parliament envisioned the CC would be able to exercise its jurisdiction where the original event or circumstances had ceased, and new circumstances have emerged. The Secretary contends that the plaintiff’s construction of s 4(c) — which requires that the original event or circumstances giving rise to a report must exist at the time a power under the Care Act is exercised — would deprive the CC of its capacity to exercise its functions under s 90, because that section necessarily requires the original event or circumstances to have ceased. Thus, the Secretary contended, the plaintiff’s construction frustrates the operation of s 90.

79. Third, the Secretary contended that a further problem with the plaintiff’s construction is that, if jurisdiction is determined at the time the power is exercised, once proceedings are instituted a person may simply flee to avoid jurisdiction. The Secretary submits this construction would be both contrary to the objectives of the Care Act and incompatible with the conventional approach to jurisdiction, in which a person who flees to avoid proceedings “may be treated as under notice of the obligation of [the Court’s] command” and so be subject to the Court’s jurisdiction (Laurie v Carroll (1958) 98 CLR 310; [1958] HCA 4 at 328 per Dixon CJ, Williams and Webb JJ).

Broad statutory context

80. The Secretary submitted that the plaintiff’s construction of s 4(c) would detrimentally affect the broad set of statutory functions which operate under the Care Act. In the course of submissions, Dr Kell SC drew attention to several such functions.

81. Section 91 of the Care Act confers on parties to proceedings who are dissatisfied with a care order a right of appeal to the District Court under certain circumstances. The Secretary argued that, on the plaintiff’s reading, it would be possible for the CC to validly make a care order where, for instance, the child was ordinarily living in NSW, but for the District Court to then lack authority to hear an appeal from that order if the child subsequently moved interstate. The District Court’s authority would then rely upon s 4(c). However, circumstances having changed, on the plaintiff’s construction s 4(c) would not provide a basis for jurisdiction. Thus, the plaintiff’s reading of s 4(c), contended the Secretary, adversely effects the operation of the right of appeal conferred by s 91.

82. Section 157(1) of the Care Act vests an authorised carer with statutory authority to provide consent on behalf of a child with respect to certain matters. Under s 157(3), this statutory function is subject to the written directions of the agency which placed the child with the authorised carer. The Secretary submitted that, if a child was to subsequently move with their authorised carer from NSW, under the plaintiff’s reading of s 4(c), the carer would no longer be authorised to exercise their statutory functions under the Care Act, nor would the agency be authorised to make written directions to the carer, because the Care Act would no longer apply to the child, as they would no longer to be ordinarily living in NSW and the original event or circumstances giving rise to a report is likely to have ceased.

83. Similarly, the Secretary argued, the ability to permanently place a child with a family member who resides in another state under s 10A of the Care Act is frustrated by the plaintiff’s construction of s 4(c). Dr Kell SC contended that jurisdiction to place a child interstate would only be possible insofar as the event or circumstances giving rise to a report subsisted. Moreover, a placement would cease to be authorised once the event or circumstances had ceased.

84. Chapter 14A contains a statutory regime for the transfer of child protection orders and proceedings between States, Territories, and New Zealand. The Secretary submitted that Chapter 14A of the Care Act — in particular ss 231E, 231J and 231ZB — operate on the assumption that the Secretary and CC have sufficient jurisdiction to exercise certain statutory powers which relate to children ordinarily living outside of NSW. The Secretary contended that, if the plaintiff’s construction of s 4(c) is accepted, those functions would not be exercisable where a child ceases to be subject to the event or circumstances giving rise to a report. The Secretary’s argument is, essentially, that such a reading significantly limits the scope of these statutory powers and defeats their beneficial purpose. Furthermore, it renders the various functions of the Care Act “highly contingent and fragile”, dependent on jurisdictional facts which are volatile.

Section 43 of the Interpretation Act

85. The Secretary submitted that, contrary to the plaintiff’s submissions, s 43(2) of the Interpretation Act does not assist the plaintiff’s construction of s 4(c).

86. First, relying on the authority of Hollingsworth v Commissioner of Police (2007) 160 IR 456; [2007] NSWIRComm 7 (Walton J Vice-President, Bolland and Blackman JJ) at [31], [33], [41] and [49], the Secretary contended that s 43(2) is not a source of power to allow a court to revisit an order once “entered or perfected”.

87. Second, the Secretary argued that, even if s 43(2) could apply to an order under the Care Act, by providing specific arrangements for the variation or setting aside of care orders, s 90 negates the application of s 43(2) because it supplies a sufficient contrary intention to enliven s 5(2) of the Interpretation Act. This is particularly so, asserts the Secretary, given the CC’s status as an inferior court of record.

88. Third, the Secretary submitted that, given s 43 of the Interpretation Act enacts a principle of construction, s 43 should support a construction of s 4 of the Care Act which promotes a power to vary or rescind orders, rather than a construction which limits the CC’s jurisdiction to do so through a restricted reading of s 4(c).

89. Finally, if it is accepted that s 43(2) of the Interpretation Act provides jurisdiction to amend or set aside care orders, then it was said this implies that s 43(2) could provide jurisdiction to vary or set aside orders under s 90 in circumstances where the requirements of s 4 are not met.

The magistrate’s reasons

90. The Secretary adopted the Magistrate’s construction of s 4(c) which, it was submitted, has been mischaracterised by the plaintiff:

“59. …The plaintiff claims that the Children’s Court erroneously found that s 4(c) was satisfied because of the originating application that was filed in respect of the first set of final orders on 12 October 2009 (PS [25]-[26]). That is an unduly limiting characterisation of what the Children’s Magistrate was saying in the excerpted passage at PS [25].

60. On a full reading of the reasons of the Children’s Magistrate, what she found at WF 15 (JB 7.21-26) was that s 4(c) was satisfied because:

“… it is possible to remain subject to an event even if that event occurred in the past. The term ‘subject to’ [in s 4(c)] requires that the connection remains or is currently operating. An example of this is that an order of parental responsibility for a baby made a decade ago is an order which the child remains subject to whilst the order continues to be in force.”

61. Read fairly, the Children’s Magistrate reasoned that it is the past event or circumstances giving rise to the ROSH reports considered together with the continued operation of the final orders which establish that the connection to that past event or circumstances remains or is currently operating for the purposes of an application for variation or recission under s 90. Children who have been and remain subject to the statutory processes of the Care Act because of an originating event or circumstances in New South Wales that gives rise to a report and who as a result of that report became subject to the exercise of functions under the Care Act are properly described in the historic present tense as “subject” to that event or those circumstances.”

91. To paraphrase the Secretary’s submissions, the magistrate’s construction best promotes the purpose of s 90, in contrast to the plaintiff’s reading, which places limits on the CC’s power to vary or rescind existing care orders. Jurisdiction, the Secretary contended, is grounded on the existing care order and report, both of which were brought about by the past event or circumstances that gave rise to the report. A child will be subject to that event or circumstances so far as they continue to be subject to the report and care order that resulted from them. Thus, s 90 allows the CC to continue to exercise a supervisory jurisdiction over persons who continue to be subject to orders previously made by the CC. On this basis, the Secretary contended, the 12 October 2009 final order was sufficient to ground the jurisdiction of the CC.

Materiality – jurisdiction under ss 4(a), 4(c) and 90

92. If, however, this Court does not accept that the care orders made on 12 October 2009 grounded the CC’s jurisdiction under s 4(c) of the Care Act, then the Secretary alternatively submitted that the magistrate’s error was immaterial, and thus, not jurisdictional.

Section 4(a)

93. The Secretary contended that as of 22 April 2020 (when the plaintiff commenced proceedings under s 90) and 13 October 2020 (when the carers filed their application) the children were ordinarily living in NSW. Thus, the CC had jurisdiction by virtue of s 4(a). Dr Kell SC submitted that the phrase “ordinarily lives” must be understood consistently with the rest of the Care Act, which creates a statutory regime for the allocation and exercise of parental responsibility. Thus, where a child ordinarily lives, argues Dr Kell SC, “will generally be determined by reference to the position of the parents” (Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1459 at [22] per Katzmann J). On the relevant dates, the Minister held parental responsibility over the children and, the Secretary contends, was of the view that the children’s residence in the UK was temporary and that the children should return to NSW. Therefore, the Secretary submits, at the relevant times the CC had jurisdiction under s 4(a) of the Care Act.

150. Third, and in my opinion dispositively, the paramountcy principle in s 9(1) governs the application of all other principles, including the Aboriginal and Torres Strait Islander principles in s 13 of the Care Act. Section 9(1) provides:

This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

154. In the absence of an explicit textual limitation, the paramountcy principle does not permit a limitation of the kind proposed by the plaintiff. In reaching this conclusion, I have not overlooked the plaintiff’s submission in [132] above. I accept the Secretary’s submission set out in [145] above. Furthermore:

1. Section 13(6)(b) is subject to s 9(1) of the Care Act. For example, it is regrettably the experience of the Court that there may be cases where continuing contact between the child and his or her Aboriginal or Torres Strait Islander family is not conducive to the safety, welfare and well-being of the child;

2. How s 13(6)(b) can be complied with is quintessentially a matter for evidence, including how it might or might not be able to be complied with where the carers reside overseas. Even taking judicial notice of the significance of connection to country, I cannot accept, as a matter of law, that the section cannot be complied with whenever carers reside out of Australia (or, for that matter, New South Wales).

155. Fourth, I do not agree that the Secretary has failed to show how, on the Secretary’s construction, the Care Act protects the exercise of the Minister’s parental responsibility in circumstances where the Minister shares those responsibilities with persons ordinarily living beyond the ordinary jurisdictional boundaries of NSW. I accept the Secretary’s submissions set out in [141] above. The requirement of undertakings from the carers and ongoing reports enables those responsibilities to be both implemented and monitored. To the extent those things are not done or the reports do not support a continuation of the arrangement, the answer lies in the Secretary making a further application under s 90.

Conclusion

156. The amended summons will be dismissed. The Court will hear the parties as to costs.

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Decision last updated: 02 June 2023