LM v Chief Executive Officer Department of Health and Families

[2010] NTSC 73

LM v Chief Executive Officer Department of Health and Families

[2010] NTSC 73

PARTIES:	LM
v
CHIEF EXECUTIVE OFFICER DEPARTMENT OF HEALTH AND FAMILIES
RE:	KM, TM, KMM and MM
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:	12 of 2010 (21004286)
DELIVERED:	20 December 2010
HEARING DATES:	11 August 2010
JUDGMENT OF:	SOUTHWOOD J
CATCHWORDS:

FAMILY LAW – Child welfare – judicial review – Care and Protection of Children Act – powers of the Chief Executive Officer of the Department of Health and Families to place children in his care with interstate carers – best

interests of the children – application dismissed

Care and Protection of Children Act s 13, s 21, s 22(1), s 22(2)(a),
s 22(2)(b), s 42(2), s 67(1)(b), s 70(1), s 70(2), s 73, s 77, s 78(1), s 81,
s 128, s 135(1)(a)(i), s 135(1)(a)(ii), s 135(2), s 137(1), s 137(2), s 137(3),
s 140, s 155(f) s 155(g), s 155(h), s 157(1)(b), s 160(e), s 160(f), s 161(b),
s 163(b)(viii), s 177, s 319(1), s 319(2)(a), s 319(4)(b), s 320
Community Welfare Act s 43(5)(d)
Interpretation Act s 46A(3)
Northern Territory (Self-Government) Act 1978 (Cth) s 6
Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24
PVS v Chief Executive Officer, Department for Child Protection [2010]
WASCA 168
RL v Minister for Health and Community Services [2006] NTSC 34
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1

Youngman v Lawson (1981) 1 NSWLR 439

REPRESENTATION:

Counsel:

Plaintiff:	M Abbott QC
Defendant:	S Brownhill
Children:	M Giacomo

Solicitors:

Plaintiff:	North Australian Aboriginal Justice Agency
Defendant:	Legal Services Division
Department of Health and Families
Children:	Ward Keller

Judgment category classification: B

Judgment ID Number:	Sou1012
Number of pages:	38
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

LM v Department of Health and Families [2010] NTSC 73

No. 12 of 2010 (21004286)

BETWEEN:

LM

Plaintiff

AND:

CHIEF EXECUTIVE OFFICER
DEPARTMENT OF HEALTH AND

FAMILIES

Defendant

RE:

KM, TM KMM and MM

CORAM:  SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 20 December 2010)

Introduction

1. This is an application for judicial review of two decisions made by a

   delegate of the defendant under Care and Protection of Children Act[1]. The

   application is made by an originating motion filed on 3 February 2010.

2. The plaintiff seeks the following orders. First, five principal declarations:

(1)	The defendant has no power under the Act to remove a child declared “in need of care” from the Northern Territory when he has not made a lawful decision to remove the child.
(2)	The defendant has no power under the Act to remove a child declared “in need of care” from the Northern Territory in the absence of an order of the Local Court allowing him to remove
the child.
(3)	The defendant has no power under the Act to remove a child declared “in need of care” from the Northern Territory when the protection order in respect of the child has not been
transferred to the relevant participating State under Ch 2, Pt 2.4, Div 2 of the Act.
(4)	The defendant has no power under the Act to remove a child declared “in need of care” from the Northern Territory.
(5)	The defendant’s decision to remove KM, TM, KMM and MM from the Northern Territory and relocate then in Queensland was unlawful.

1. Secondly, orders in the nature of certiorari removing the decisions of the

   delegate of the defendant made on 16 November 2009 and 8 January 2010 to

   the Court and quashing them on the basis that each order was unlawfully

made in breach of the Act. Thirdly, orders in the nature of mandamus
directing the defendant to return KM, TM, KMM and MM to the Northern

Territory and to comply with his obligations under the Act.

1. The defendant is the Chief Executive Officer of the Department of Health

and Families[2]. Under the Act the defendant has certain powers and
functions which are to be exercised for the protection and well-being of

children. The plaintiff is the biological mother of KM who is a 15 year old boy, TM who is a 14 year old girl, KMM who is a 12 year old girl, and MM

who is an 11 year old boy[3].

1. On 22 December 2008 the Local Court in Darwin declared that each child

remains “a child in need of care” and made directions under the Act granting
parental responsibility for each child to the defendant until each child

attains the age of 18 years. In accordance with the Act, the defendant
placed the children in the day to day care of carers who were residing in

Darwin.

1. In February 2009 the children’s carers decided to move to Queensland. On

   8 January 2010 Ms Leonie Jane Warburton, the Acting Director of ‘Out of

   Home Care Services’ within the Northern Territory Families and Children

   Division of the Department, permitted all of the children to go to

   Queensland with their carers permanently. Ms Warburton is a delegate of

   the defendant under the Act[4]. The children wanted to go to Queensland with

   their carers, with whom they had formed a close bond, and the children’s

   father consented to the children going to live in Queensland. However,

   Ms Warburton permitted the children to go to Queensland without obtaining

   the plaintiff’s consent or an order of the Local Court transferring the

   children’s protection orders to Queensland.

2. In the absence of either the plaintiff’s consent or orders of the Local Court

transferring the children’s protection orders to Queensland, the plaintiff
contends that the defendant and his delegate had no authority or power to
permit the children to go to Queensland with their carers.

The Issue

1. There are two principal issues in the proceeding. First, did the defendant

   have power to permit the children to go interstate without the consent of the

   plaintiff and without obtaining a transfer order from the Local Court under

   Ch 2, Pt 2.4 of the Act? Second, did Ms Warburton have a delegation from

   the defendant which authorised her to permit the children to go to

   Queensland?

2. In my opinion both the defendant and his delegate had the power to permit

the children to go to Queensland. It is in the best interests of the children
that they remain in the care of their primary carers.

The Facts

1. The following affidavits were read in evidence: an affidavit of Anthea Jean

   Motter sworn on 7 January 2010, an affidavit of LM sworn on 6 March

   2010, an affidavit of Claire Elizabeth Henderson affirmed on 6 April 2010,

an affidavit of Clare Gardiner-Barnes affirmed on 17 May 2010, an affidavit
of Chloe Martin affirmed on 20 May 2010, an affidavit of Leonie Jane
Warburton affirmed on 24 May 2010, an affidavit of Shelley Maree Neale

affirmed on 25 May 2010, a further affidavit of Claire Elizabeth Henderson
affirmed on 30 June 2010, a further affidavit of LM sworn on 9 July 2010,
and a further affidavit of Leonie Jane Warburton affirmed on 8 August 2010.
In addition, the following exhibits were tendered in evidence: a court book

containing various documents, a Substitute Care Case Plan/Case Review
dated 19 August 2009, and a Substitute Care Case Plan/Case Review dated

19 March 2010.

1. Having considered all of the evidence I make the following findings of fact.

2. Between January 1998 and 17 March 2000, under s 62 of the Community

   Welfare Act, a number of Temporary Custody Agreements involving the care

of one, some or all of the children were entered into between the plaintiff
and the Minister who administered that Act. The agreements were entered
into on the application of the plaintiff and they granted temporary custody

of the child or children involved to the Minister.

1. On 17 March 2000 the Family Matters Court declared each of the children to

   be “in need of care” under s 43(4)(a) of the Community Welfare Act and the

sole rights of guardianship in respect of each child were transferred to the
Minister for three months[5]. The orders were extended on two occasions. On

6 December 2000 each of the children was again declared “in need of care”

under the Community Welfare Act and the sole rights of guardianship of each
of them were transferred to the Minister for two years. On 20 December
2002 each child was again declared “in need of care” under the Community

Welfare Act and the sole rights of guardianship in respect of each child were

transferred to the Minister until each child attains the age of 18 years.

1. In July 2007 KM was placed in the care of Ms NT and Mr MC. In June

   2008 TM was placed with the same carers. She has remained with these

   carers since that time. On 23 October 2008 KMM was placed with the same carers. She has remained in that placement since that day. On 22 June 2009 MM was placed with the same carers.

2. On 8 December 2008 the Community Welfare Act was repealed by s 311 of

   the Act. The transitional provisions of the Act provide as follows. A

   guardianship order made under s 43(5)(d) of the Community Welfare Act is

   to have effect as if it was a protection order under the Act specifying a long

   term parental responsibility direction.[6] Proceedings and records of the

   Family Matters Court were transferred to the Family Matters jurisdiction of

   the Local Court.[7] The Local Court was required to deal with the

   proceedings and records so transferred as if the Community Welfare Act had

not been repealed[8]. However, if the Minister would otherwise have been
given guardianship of a child, the Chief Executive Officer must instead be

given “parental responsibility” for the child[9].

1. On 17 December 2008 the carers sought assessment by the Department to

   become the primary carers for the children. On 17 March 2009 the carers

were registered as the primary carers for the children. The carers were re-
assessed by Departmental staff on 18 March 2010 and they continue to be
approved as the primary carers for the children.

1. On 22 December 2008 the Local Court declared each of the children to

   remain “a child in need of care”[10] and directed that the defendant be granted long term parental responsibility for each of the children until they reach the

age of 18 years. The defendant was excused from the obligation under
s 135(1)(a)(i) of the Act which required him to give the children’s parents
information about where the children were residing. The orders made by the

Local Court were “protection orders” within the meaning of the Act11

because they contain a long term parental responsibility direction within the

meaning of s 123(1)(d) of the Act.

1. Since 22 December 2008 the children have been children who are “in the

   defendant’s care”12. By virtue of the protection orders made by the Local

   Court on 22 December 2008, the defendant is entitled to exercise all the

   powers and rights and has all the responsibility for the children that would

ordinarily be vested in the parents of the children13. The defendant has daily
care and control of the children14 and is entitled to exercise all the powers
and rights and all the responsibilities for the day to day care and control of
the children15. Further, the defendant is entitled to exercise all the powers
and rights and has all the responsibilities for the long term care and
development of the children16.

1. In February 2009 the carers advised the Department that they would like to

   leave the Northern Territory and live in Queensland. At that time three of

   the children were permanently residing with the carers.

2. On 27 October 2009 the Specialist Care Unit of the Families and Children

   Division of the Department engaged Dr Dianna Boswell to conduct an

   independent psychological assessment of the children and provide a report.

   The reasons for obtaining the assessment and the report were to assess the

   quality of the childrens’ and carers’ relationships and the extent to which

   the children wished to remain in contact with their extended biological

   family, and to obtain information about whether the children should remain

   in permanent care of their carers when the carers moved to Queensland and

   advice about support strategies for the children’s placement in Queensland.

3. On 16 November 2009 the childrens’ carers met with Ms Warburton.

   Following the meeting, Ms Warburton sent an email to Ms D Morriss and

   Ms A Motter who are also employed in the Department. So far as is relevant

   to this proceeding, the email states:

   An update of my meeting with [Ms NT] and [Mr MC] today -

   Couple discussed their plans to relocate to [Queensland].

• Confirmed that the movement to Queensland is not a decision of the Coroners Court. That as the guardians of the children NTFC can make decisions regarding their short and long term well-

being.

• That an objective, professional assessment of the placement was required to ensure that the very best information was available to inform the long term decision making [about] the children.

• That if the extended family challenged the placement decision, NTFC had the necessary professional assessment to state that it was a carefully planned and assessed decision in the children’s best interest.

• The couple will not be leaving prior to the end of the school year and want to make plans to settle before a new school year commences.

• [Ms NT] would, if needs be, stay with the children in Darwin if [Mr MC] had to leave early to source work and a new home.

• The family are experiencing the turmoil of the pending Coronial [Inquest] and uncertainty about what the future holds.

• NTFC recognises the trauma these children have already experienced in their lives and want to minimise the stress on the children and their [carer] family.

• Discussed the importance of the children establishing new beginnings with the rest of the family, and that travelling to a new home was a critical part of a shared ‘new beginning’.

• The recommendations from the [Coroner] are not expected to be handed down for a few months so unreasonable for the family to wait for those prior to making a determination on their relocation

[emphasis added].

Outcome: I have granted approval for the children to travel to
Queensland with the family after the school year is finished. This
may not occur until early January [2010], unless settlement on their
property occurs sooner. The Coronial [Inquest] will be complete by
then.
[Ms NT] and [Mr MC] advised that if any information were to come
to hand from the assessment by Dianna that this was not a placement
for their long term future, NTFC as guardians would have authority
to bring the children home.

Recommendation based on:

• Couple already been assessed as suitable NTFC carers.

• [Ms NT] previously assessed as suitable Family Day Care carer.

• Some of the siblings have already been in the placement for [2 years and six months].

• If any issues of concern about the placement had arisen NTFC would have raised these for discussion.

• The children had discussed their wishes to relocate to Queensland with their own legal representative.

• It is in the best interests of the children to retain a sense of stability and continuity in their lives, especially having recently experienced the Coronial [Inquest].

• The children’s representative is advocating that the children have a decision made about the transition to Queensland as it is in their best interests.

• No other family member placement options have been found suitable.

1. In the affidavit which she made on 24 May 2010, Ms Warburton stated that

at the meeting on 16 November 2009 she told the carers that, subject to the
finalisation of the Coronial Inquest into the death of the children’s eldest

sister and receipt of the report from Dr Boswell, she supported the
relocation of the children to Queensland. While this statement may not be
completely accurate, it is fair to say that any approval Ms Warburton
granted on 16 November 2009 for the children to travel to Queensland was

only granted on an interim basis.

1. On 23 November 2009 the Coronial Inquest into the death of the children’s

eldest sister commenced. On 19 January 2010 the Coroner delivered his
findings.

[24]   On 15 December 2009 the plaintiff instructed Ms Claire Elizabeth

Henderson, who was an employed solicitor with the North Australian

Aboriginal Justice Agency, to contact the Northern Territory Families and

Children Division of the Department and ask if the plaintiff could contact

her children before Christmas 2009. This was the first time the plaintiff had

asked to have access to the children since 8 January 2008 when she last had
access to the children. For a number of years prior to December 2009 the
plaintiff’s contact with the children was very intermittent and she frequently

missed access appointments. At the Local Court on 22 December 2008 the
plaintiff asked if she could contact the children while they were in the

defendant’s care and she was given a contact card to arrange contact with

them through the Department. However, it does not appear that the plaintiff

attempted to contact her children until she instructed Ms Henderson to do
so.

1. Although it had been some time since the plaintiff had contacted her

children, it was to be expected that the plaintiff would want to contact them
shortly after the start of the Coronial Inquest into the death of her eldest
daughter. Such a desire is a perfectly human reaction to the tragic

circumstances leading to the Coronial Inquest.

1. At 3.35 pm on 18 December 2009 Ms Henderson had a telephone

   conversation with Ms Anthea Motter who is employed by the Families and Children division of the Department. Ms Motter is a team leader with the

   Families and Children Specialist Care Program. Ms Henderson told

   Ms Motter that the plaintiff would like to contact her children before

   Christmas. Ms Motter replied that she would discuss the plaintiff’s request

with more senior staff. At 4.10 pm Ms Motter left a voicemail message for
Ms Henderson stating the relevant people in the Department would like to

arrange a meeting with the plaintiff after Christmas to discuss her having
contact with her children. Contact would not be possible before Christmas.

1. On 21 December 2009, which was only three days after Ms Henderson first

   spoke to Ms Motter, Ms Motter sent Ms Henderson an email which states:

   As per our discussion today, as well as on 18 December 2009, we envisage the focus of the meeting with [the plaintiff] to be as follows:

• To provide [the plaintiff] with an overview of the Specialist Care Program;

• To provide [the plaintiff] with some photographs of the children;

• To discuss [the plaintiff’s] request for access with the children;

• To discuss the children’s request for a gravestone at the cemetery, and [the plaintiff’s] wishes with regards to the subject;

• To provide [the plaintiff] with an update regarding the children including the plan that is in motion for the children to relocate interstate in January. We can talk through how/why the decision

was made; and

• To provide any information we have in regards to DM’s belongings.

As I indicated to you Claire, Deb (Manager) and myself view this meeting as important and want to provide [the plaintiff] with an opportunity to discuss her views and plans.

Can you let me know as soon as possible a date/time/venue for the meeting, whether [the plaintiff] will have a support person with her and any agenda items.

1. There is a dispute between the parties about whether, during the telephone

   discussions they had on 18 and 21 December, Ms Motter told Ms Henderson,

that there were plans in motion for the children to relocate to Queensland.
However, nothing of any significance turns on this difference in

recollection.

1. On 23 December 2009 Ms Henderson wrote to Ms Motter asking if a

   decision had been made to relocate the children interstate and requesting

   formal notification of such a decision under s 158 of the Act. The letter also

advised Ms Motter that the plaintiff had never been given notice of any such
decision and she had not consented, nor did she consent, to the children

being placed interstate. On the same date Ms Henderson also sent an email

to Ms Motter advising her that the plaintiff and her lawyers would be able to

meet with Ms Motter at the offices of the North Australian Aboriginal
Justice Agency on 5, 6 or 8 January 2010.

[30]   In December 2009 Dr Dianna Boswell conducted a psychological assessment

of the children. On 23 December 2009 Dr Boswell informed Ms Deborah
Morriss, who is employed by the Department as the Manager of the Families

and Children Specialist Care Program, that in her opinion, the children felt
safe within their placement with Ms NT and Mr MC and they did not feel
that way with their own family. The children wished to move interstate with

their carers and the children’s needs were being met in the placement with

their carers. There were positive interactions between the carers, the

children and the biological children of the carers. Further, the children
would require ongoing support at critical times in their lives due to having
had ‘extraordinary lives’.

1. On 30 December 2009 Ms Motter replied to Ms Henderson by email. In the

   email Ms Motter stated:

   Thank you for your email. Deb and I are available on Tuesday 5 at 3:00 pm for a meeting with [the plaintiff], her support person and yourself. Still need to confirm if anyone from the legal branch will also be in attendance. We are able to come to NAAJA on this day. There is little room to change the day or the time next week, as we both have very tight schedules, so hopefully this will fit with everyone.

   In your letter dated 23 December 2009, you ask whether a ‘relevant decision has been made, or if relocation of the children is merely an option being canvassed’. In response to that the children are

   relocating from the Northern Territory on 8 January 2010.

   Can you confirm the time/day suits everyone next week?

   We look forward to hearing from you soon.

2. On 31 December 2009 Ms R Brebner, a solicitor employed by the Legal

   Services Division of the Department sent an email to Ms Henderson. The

email stated that the Families and Children’s Division of the Department
intended to file applications under s 160(a) and s 160(c) of the Act, asking

the Local Court to transfer the children’s protection orders to Queensland.
The basis of the application was the plaintiff’s refusal to consent to the

children being placed with their carers in Queensland. Ms Henderson was
asked if she would accept service of the applications.

1. On the same day the defendant filed four applications in the Local Court at

   Darwin seeking orders that the protection order in respect of each child be

transferred to the State of Queensland. The applications were served on
Ms Henderson on 4 January 2010. The applications were to be heard in the

Local Court on 21 January 2010.

1. Also on 31 December 2009 Ms Motter and Ms Morriss had a telephone

conversation with the children’s father, Mr MM. During the telephone
conversation they discussed the plans for the children to move interstate
with their carers. Ms Morriss and Ms Motter provided Mr MM with an
update regarding the children and their long term plans. Mr MM told
Ms Morriss and Ms Motter that he had no objection to the children moving

interstate with their carers. He stated that they need to listen to what the

children want.

1. On 5 January 2010 Ms Henderson wrote to the defendant’s solicitors

requesting an undertaking that the children would not be removed from the
Northern Territory in the absence of an order of the Court allowing the

children to be so removed. She also advised that if the plaintiff did not
receive such an undertaking by a specified time the plaintiff would seek an
injunction preventing the children from being removed from the Northern

Territory.

1. On 6 January 2010 the children’s father participated in a telephone

   discussion with all of the children. On the same day, as the requested

undertaking was not received by the specified time, the plaintiff filed four
applications for injunctions in the Local Court. On 7 January 2010 the
Local Court refused to grant the injunctions and dismissed the plaintiff’s

applications.

1. On 7 January 2010 Ms Warburton received the final report of Dr Boswell

which was dated 6 January 2010. In her report Dr Boswell stated that all the
children have shown development gains in social functioning and in
engagement and participation in a range of satisfying school and community
activities. Of particular importance was the development of positive peer
friendships. They appeared healthy and happy and they felt good about

themselves. With the exception of MM, the children showed age appropriate

emotional self regulation, and behavioural outbursts were unusual. At
school and at home they appeared to have normal adjustment. This positive
picture was in marked contrast with reports that were received during the
children’s previous placement in kinship and other care. Dr Boswell stated
that, in the medium term, maintaining the stability of the children’s current

placement was crucial. This entailed finding ways to maintain the level of

practical and professional support that was provided to the children’s carers

to allow them to meet the needs of the children in a therapeutic manner.

Immediately, there was a priority in establishing a system of care around the

children that allowed ready access to supportive resources in the town they
were going to reside in Queensland. The Families and Children’s Specialist
Care Program and the carers would have to work collaboratively to ensure

that the best interests of the children could be met. In particular, school

placements and support would have to be arranged and that would involve

complex negotiations given the special needs of each of the children.

1. Dr Boswell stated it was hard to make predictions about what would be in

   the children’s best interest in the long term. The planning framework must

   be flexible and responsive to the individual child’s needs at any particular

   time. The overall focus should be on providing safety, emotional well-

   being, security, control, structure and predictability in the children’s lives

and opportunities for growth and development. It was likely that
maintenance of the current stable and therapeutic carer placement for each
child would be advisable.

1. On 8 January 2010 Ms Warburton signed a memorandum approving the

children travelling to Queensland with their primary carers. The
memorandum stated that this was a permanent relocation to Queensland. On
the same day the children and their carers travelled to Queensland.

1. On 11 January 2010 the defendant filed notices of discontinuance in the

   Local Court for each of the applications seeking orders transferring the

   protection orders of each of the children to State of Queensland.

2. On 16 February 2010 Ms D Morriss and Ms C Martin, the children’s current

caseworker, met with the plaintiff and Ms Henderson. Ms Martin is
employed in the Department as a Team Leader within the Families and
Children’s Specialist Care Program. During the meeting they provided the

plaintiff with copies of the children’s 2009 care plans, school reports for the

final term in 2009 and photographs taken of the children just prior to their

move to Queensland.

1. Since the children have been living in Queensland with their carers

   Ms C Martin has maintained regular telephone contact with them.

   Ms Martin also arranges appointments for any necessary medical or

   psychological treatment and confers with the children’s school teachers,

   sporting coaches and counsellors. On 17 and 18 February 2010 she travelled to Queensland to see the children and speak with them individually and meet with their service providers. Ms Martin met with the children’s school

   teachers and she made arrangements for them to provide her with monthly

updates about the children’s appearance, health, behaviour and
achievements. She also met with an agency that was able to provide respite
care for the children. She observed the living arrangements that the carers
had made for the children and she interviewed each of the children. Upon

her return to Darwin she contacted several agencies and found a suitable

child psychologist in Queensland who was able to work with the children
and their carers.

1. On 21 and 22 April 2010 Ms Martin again travelled to Queensland to

continue monitoring the children’s adjustment to their new environment.
She met with the children and their carers. Three of the children were happy

and settled in Queensland. One child was experiencing difficulty from time
to time. However, the child stated that the child was able to speak to the

carers and the psychologist about the issues that were confronting the child. It was Ms Martin’s opinion that when the child was calm, the child appeared

to be happy living in Queensland and the child was positive about many aspects of the child’s life. The child had a strong bond with the carers. Although the child required more support than the other children, the

placement was an appropriate placement.

1. On 20 May 2010, in consultation with the child who was experiencing

   difficulty, the carers and the psychologist, Ms Martin made a decision that

   the child would benefit from an extended period of care outside of the

   carer’s residence. Accordingly, appropriate alternative arrangements were made for the care of the child in Queensland. Ms Martin stated that it was the intention of the Families and Children Specialist Care Program that the

child would be returned to reside with the child’s siblings and their carers in
due course. The psychologist has expressed concern that the child may be

suffering from Aspergers Syndrome.

1. On two occasions since the carers and the children have been living in

   Queensland, the carers have been given respite. When this has occurred the

children have remained living in their home and other carers have moved
into the home to provide care for the children. On the last occasion the

respite carers were youth workers who travelled to Queensland from Darwin
as this was what the children requested. The youth workers had played an
active part in previous respite periods when the children resided in Darwin.

1. The children have told Ms Martin that they are interested in having some

contact with their father. Ms Martin has identified a counsellor who will be
able to provide supervision and follow up with the children regarding
telephone contact with their father.

1. In her affidavit of 24 May 2010 Ms Warburton stated that, upon receipt of

   the written consent of the Queensland liaison officer, the defendant intends to file applications in the Local Court at Darwin seeking orders transferring

   the children’s protection orders to the State Queensland.

   The submissions of the defendant

[48] The defendant made the following submissions.

1. Each of the orders made by the Local Court on 22 December 2008 gave the

defendant long term parental responsibility for each of the children until
they attain the age of 18 years. The orders also excused the defendant from

the obligation17 to give the children’s parents information about where they

are residing.

1. By virtue of the protection orders made on 22 December 2008 the defendant:

   (a) is entitled to exercise all the powers and rights and has all the

responsibilities for children that would ordinarily be vested in the parents of
the children18; (b) has daily care and control of the children19 and the

defendant is entitled to exercise all the powers and rights and all the

responsibilities for the day to day care and control of the children20; and
(c) is entitled to exercise all the powers and rights, and has all the

responsibilities in relation to the long term care and development of the
children21. The children are children who are in the “CEO’s care” within the
meaning of the Act22.

1. The defendant’s powers and rights under the Act over the children could

   hardly be more broadly expressed. The powers and rights relate to both the

   person and the property of each of the children, to the custody, care and

control of their person and to the guardianship of their property23.
Furthermore, those powers and rights are held by the defendant alone. They

are not shared with the children’s parents.

1. In accordance with their natural and ordinary meaning, the provisions of the

   Act clearly contemplate that the defendant is empowered to decide where

and with whom the children are to reside. This is confirmed by Ch 2, Pt 2.2
of the Act, which deals with “children in the CEO’s care”.

1. The defendant is obliged to prepare and implement a care plan for each

child24, being a written plan that identifies the needs of the child, outlines
the measures that must be taken to address those needs, and sets out

decisions about the daily care and control of the child, including decisions

about the placement arrangement for the child and about contact between the
child and other persons25.

1. Counsel for the defendant submitted that obviously the needs of the child

   include a place of residence. Consistent with this need the defendant must

enter into a placement arrangement26 being an arrangement for placing the
child with either his or her parent, a family member, or an individual
approved by the defendant27. The placement arrangement is the means by
which a child’s need for a place of residence is met. The children are now
all in the care of their primary carers pursuant to a care plan and a
placement arrangement entered into by the defendant. It is clear from the

provisions of the Act that the defendant has the sole right and power to

determine where and with whom the children are able to reside, whether on

a temporary or permanent basis until they attain the age of 18 years.

1. The powers under the Act enable the defendant to permit the children to

reside interstate with their carers. While the Act does not expressly so
provide there are, however, two clear indications in the Act that the

defendant may permit a child in his care (being the subject of a protection

order under the Act) to reside outside of the Northern Territory. Those
provisions are s 155(a) of the Act and s 160(a) of the Act. Section 155(a) of

the Act permits the defendant to administratively transfer a child’s

protection orders to another State or Territory (subject to the satisfaction of

certain statutory preconditions including the consent of the parents28), if a
child is residing or is about to reside in that State or Territory. Section
160(a) of the Act permits the defendant to apply to the Local Court for an

order transferring to another State or Territory the protection orders relating
to a child who “is residing, or is about to reside in that State or Territory”.

These provisions expressly contemplate that a child who is in the

defendant’s care under a protection order may, at a given point in time, be

residing in another State or Territory.

1. Section 155(a) and s 160(a) of the Act give the defendant power to transfer,

or have transferred by the Court, the defendant’s authority or jurisdiction
over a child to another State or Territory. Under either process, the
defendant must be of the view that it is appropriate for the defendant’s

interstate counterpart to take over and exercise the powers and
responsibilities over the child conferred by the protection order29, and the
interstate counterpart must be willing to accept those powers and

responsibilities and have consented thereto30. Once a protection order is
transferred and registered in the receiving State’s or Territory’s Children’s

Court it ceases to have effect as a Territory order31 and thereafter has effect

as if it were a protection order made in the receiving State or Territory
under the applicable State or Territory legislation. The defendant submits
that the processes set out in Ch 2, Pt 2.4 of the Act necessarily presuppose

the existence of authority held by the defendant over children that are

physically present and residing outside of the Northern Territory.

1. Section 88(1) of the Act confers jurisdiction on the Local Court in respect of

   family matters. It permits the Local Court in its family matters jurisdiction

   to hear and determine applications for various orders. There is no express

conferral of jurisdiction to hear and determine an application by the
defendant to permit a child in the defendant’s care to reside in or relocate to

another State or Territory.

1. The protection orders that were made by the Local Court in Darwin on

   22 December 2008 have vested in the defendant the rights and

responsibilities for the child which would ordinarily be vested in the child’s
parents. Parents do not, except in unusual or exceptional circumstances,

need a court order to permit a child to reside in any particular place, whether
within the same jurisdiction of the parent, or elsewhere. It is antithetical to
the conferral on the defendant by the Local Court of “parental responsibility

for a child” to suggest that the defendant must obtain an order from the

Local Court in order to permit a child to reside interstate. To imply such a

requirement into the Act would give rise to significant difficulties in the
defendant’s administration of the child’s care. For example, is a court order

required for a temporary relocation, or only for “permanent relocation”?
Very few interstate placements can be classed as “permanent” from the

outset because most begin on a temporary basis with the view to monitoring and subsequently forming a view as to its impact on the child’s well-being. If a court order is implicitly required for temporary relocations, is it also

implicitly required for other significant events in the child’s care, such as

serious medical treatment, or religious or education decisions? These
questions demonstrate the unlikelihood of a Legislative intent to impose a

requirement for the defendant to obtain an order of the Local Court in order
to permit a child to reside in, or relocate to, another State or Territory.

1. Counsel for the defendant submitted that there is no requirement for the

   defendant to obtain the children’s parents’ consent before permitting them to

   be located interstate. However, in my opinion, that is not to say that

consideration should not be given to the obtaining the parents’ consent as it
may be a factor relevant to whether any transfer interstate was in the best
interests of the children.

1. Once a direction is made under s 123(1)(b), (c) or (d), conferring daily care

and control and all parental responsibility upon the defendant the only
entitlements which the parents have in relation to a child are those contained
in the Act: (a) a right to be given information about where the child is

residing32, unless the Court makes a contrary order33; (b) a right to be given
information about any arrangement that has been made for the care of the

child34 unless the Court makes an order to the contrary35; (c) a right to be given a copy of the care plan in relation to the child, unless the defendant

considers that to be inappropriate or impracticable in the circumstances, having regard to the wishes of the child and the safety of the children36;

(d) the right to be given such information about the placement arrangement

in relation to the child as the defendant considers is appropriate in the

circumstances, having regard to the wishes of the child and the safety of the
child37; (e) a right to apply to the court for a variation, revocation or
replacement of the protection order38, although this is limited as to the types
of variations etc which a child may apply for39; and (f) a right to appeal to
the Supreme Court against a protection order within 28 days of making the

order40.

1. In particular, the defendant is not obliged by the Act to consult with parents

   in relation to the care plan, a placement arrangement or any other matter

respecting the child’s daily care and control. It follows that the defendant is
not obliged by the Act to obtain the parents’ consent in respect of such
matters.

1. While s 135(1)(b) of the Act states that the defendant must provide

opportunity for the children to have contact with the parents and other
family members of the child as often as is reasonably appropriate, this is an

opportunity which is to be granted to the children for their well-being. It is
not a right granted to the parents.

[63]   The express requirement of parental consent41 (or alternatively, the

requirement of a court process in which the parents’ wishes are expressly
required to be considered by the Local Court42) before the defendant can
transfer a child’s protection order interstate does not support the plaintiff’s

argument. The requirement simply demonstrates that the parents’ views
only become relevant when the defendant transfers and thereby relinquishes
responsibility for the child’s care43. The reason for this is that the child’s
parents lose whatever rights they have under the Act if a child’s protection

order is transferred interstate.

The submissions of the plaintiff

[64] The plaintiff made the following submissions.

1. Neither the defendant nor his delegate had any power to relocate the

children outside the Northern Territory in circumstances where the
children’s protection orders were not transferred to Queensland. The only
source of power conferred on the defendant to act in loco parentis in respect
of the children was the protection order made by the Local Court on
22 December 2008 and the long term parental responsibility direction

contained in that order. The orders made by the Local Court did not give the defendant power to remove the children to another State or Territory.

1. The defendant may only place a child with carers who reside interstate if the

child’s protection order has been transferred interstate in accordance with
the provisions of Ch 2, Pt 2.4, Div 1 and Div 2 of the Act. The decision to

relocate the children in Queensland could only be made in tandem or as a
consequence of a decision to transfer the children’s protection orders to
Queensland. Transfer of the children’s protection orders to Queensland

required either the consent of both of the children’s parents or a court order.
There is no evidence in this case that either the defendant or his delegate

turned their minds to these matters. The consent of the plaintiff was neither

sought nor obtained in this case. Accordingly, the defendant failed to
comply with s 157(1) and s 157(3) of the Act. Further, the defendant did not
obtain an order of the Local Court transferring the children’s protection
orders to Queensland. As no arrangements were made in accordance with
Ch 2, Pt 2.4 of the Act, no valid decision to relocate the children in

Queensland was ever made by the defendant or his delegate. Accordingly, Ms Warburton’s decisions of 16 November 2009 and 8 January 2010 were

made in breach of the Act and are invalid.

1. The provisions of Ch 2, Pt 2.4 of the Act constitute a code. This is made

apparent by what parliament has stated to be the object of the part. Section
152 of the Act states:

The object of this part is to enable orders in the nature of protection orders and related proceedings to be transferred between different jurisdictions, so that

(a)	children may be protected under the orders when moving from one jurisdiction to another; and
(b)	the proceeding may be determined expeditiously.

1. The existence of Ch 2, Pt 2.4 of the Act is a clear indication by parliament

   that under the Act the defendant’s powers stop at the Northern Territory

   border and the defendant only has power to deal with the children when they

   are in the Northern Territory and not otherwise.

2. Chapter 2, Pt 2.4 of the Act is specifically designed to promote the

   protection and well-being of children. The objects of the Act cannot

   possibly be advanced or met by the defendant engaging in a course of

conduct which results in the children leaving the Northern Territory and
going to Queensland in circumstances where the defendant has no control or

power in respect of the children while they are in Queensland.

1. Further, at the time that Ms Warburton made the decisions of 16 November

   2009 and 8 January 2010 to relocate the children in Queensland there had

   been no delegation to her of the defendant’s powers of parental

responsibility as defined in s 22 of the Act. The instrument of delegation
makes no mention of s 22 of the Act. In circumstances the defendant did not
delegate his powers of long term parental responsibility for the children to

Ms Warburton and she had no power to relocate the children to Queensland.

Moreover, because the defendant had no specific power to relocate the

children from Northern Territory to another State without recourse to the
provisions of Ch 2, Pt 2.4 of the Act, Ms Warburton could not acquire any

such power by delegation and her decisions were ultra vires the Act.

1. Even if it is conceded for the purposes of argument that the power to

   transfer protection orders from the Northern Territory to another State or

   Territory carries with it an implied power to relocate children who are the

subject of such orders to another State or Territory, in this case no such
relocation of the children occurred because the defendant withdrew the only
applications he made for transfer of the children’s protection orders to
Queensland and he has never renewed them. Accordingly, this Court should

find that the entire process of removing the children from the Northern

Territory and relocating them in Queensland was unlawful.

1. Further, the plaintiff submitted that the entire process of relocating the

   children in Queensland was contrary to principle contained in s 12(4) of the Act that an Aboriginal child should, as far as practicable, be placed in close proximity to the child’s family and community. The defendant must at all

   times have regard to this principle44.

2. Finally, the plaintiff submitted that it is irrelevant whether the defendant or

members of the Department were able to have contact and render some
degree of assistance to the children. The fact of the matter is that neither

the defendant nor any member of his Department could exercise any legal

right or lawfully discharge any duty once the children were in Queensland.
The actions of the defendant and the Department in relation to these children

were ultra vires the Act and unlawful.

Were the decisions permitting the children to go to Queensland lawful?

1. Save for any qualifications contained in what I have stated below, I accept

   the submissions of the defendant.

2. Under s 46A(3) of the Interpretation Act if a power or function is delegated

under an Act, the power or function is, when exercised or performed by the
delegate, to be taken to be exercised or performed by the person who

delegated it. However, in order for the decisions made by Ms Warburton on

16 November 2009 and 8 January 2010 permitting the children to go to

Queensland to be valid, the defendant must have had the power to permit the

children to go to Queensland, he must have delegated his relevant powers to Ms Warburton, and she must have made her decisions in accordance with the

Act.

1. The scope of Ms Warburton’s delegated authority is derived from s 303 of

   the Act and the written instrument signed by the defendant and dated

   19 October 200945. The instrument states:

   I, […], Chief Executive Officer of the Department of Health and
   Families, pursuant to section 303 of the Care of Protection of
   Children Act, and with reference to sections 42 and 43 of the

   Interpretation Act:-

(a)	revoke the instrument delegating my powers and functions under the Care of Protection of Children Act, dated 2 December 2008; and
(b)	performing the duties of the office in the Department of Health and Families specified in Column 2 of the Schedule and holding the designation specified opposite Column 1 of the Schedule,

delegate to the person from time to time holding, acting in or opposite in Column 3 of the Schedule subject to the conditions specified opposite in Column 4 of the Schedule.

1. Relevantly, the Schedule to the instrument dated 19 October 2009 reveals

   that the defendant delegated his powers and functions under s 70, s 71 and

s 77 of the Act to Ms Warburton. The effect of this is that Ms Warburton
had the authority to make the decisions that she made on 16 November 2009

and 8 January 2010.

1. It is true that the defendant did not have parental responsibility for the

children under the Act until the Local Court made the direction that the long
term parental responsibility for the children is granted to the defendant.

However, the scope and content of the defendant’s powers, as the person
who has parental responsibility for the children, is provided by s 22 of the
Act and various other provisions in the Act, and the manner in which he is

to exercise those powers is regulated by the Act. There is nothing in s 22 of

the Act, or any other provisions of the Act, that results in the defendant

having any lesser rights and powers of parental responsibility than a

biological parent of a child. The intention of the legislature is that the

defendant is to possess the same rights and powers in respect of children

who are in his care as their parents did.

[79] Section 70 of the Act states:

(1) As soon as practicable after the child is taken into the

CEO's care, the CEO must prepare and implement [emphasis added] a care plan for the child.

(2) The care plan is a written plan that:

(a) identifies the needs of the child; and

(b)

outlines measures that must be taken to address those needs; and

(c)

sets out decisions about daily care and control of the child, including, for example:

(i)	decisions about the placement arrangement for the child; and
(ii)	decisions about contact between the child and other persons.

1. Section 71 of the Act states that the defendant may modify the care plan at

   any time if the defendant thinks it is appropriate to do so and s 77 of the Act states that the defendant must enter into a placement arrangement with other persons or bodies for a child who is in the defendant’s care.

[81] Subsections 78(1) and (2) of the Act state:

(1)

A placement arrangement is:

(a)

an arrangement for placing a child who is in the CEO's care with any of the following persons (the carer):

(i)	a parent of the child;
(ii)	a family member of the child;
(iii)	an individual approved by the CEO; or

(b)

any other arrangement for placing the child that the CEO considers appropriate in the circumstances.

(2)

Without limiting subsection (1)(b), the arrangement can

be one under which the child is not directly supervised by an adult.

1. In order to fulfil the responsibilities and exercise the powers that he has

under s 22 of the Act, the defendant is not only required to prepare a care
plan but to implement it. Further, the care plan is to set out decisions about

the placement arrangement for a child and the defendant is to enter into a

placement arrangement for a child. A placement arrangement is an

arrangement placing a child with a carer. All such arrangements may be
modified at any time if the defendant thinks it is appropriate. There is
nothing in s 70, s 71, s 77 or s 78 of the Act which requires a care plan to be
implemented in the Northern Territory or a child to be placed only with

carers who are residing in the Northern Territory.

1. Under the delegation Ms Warburton had from the defendant, she had

authority to prepare and implement a care plan for the children and to enter
into and modify placement arrangements with the children’s carers. The

purpose of doing so was to fulfil the defendant’s responsibilities under s 22

of the Act. In the circumstances there was no need for there to be an
express delegation to Ms Warburton of the powers the defendant has over
the children under s 22 of the Act.

1. Under s 22 of the Act a person who has parental responsibility for a child is

entitled to exercise all the powers and rights for the child that would
ordinarily be vested in the parents of the child including, the daily care and
control of the child and all the powers and rights in relation to the long-term
care and development of the child. The rights and powers that the defendant
has when he is granted parental responsibility for a child are not expressed

to be subject to Ch 2, Pt 2.4 of the Act. Parental responsibility includes all rights and responsibilities of parents previously included in the concepts of guardianship and custody.

1. In Youngman v Lawson46 Street CJ made the following comments about the

   rights of guardianship:

   Those rights may be exercised by the guardian himself or herself actually having physical custody; or they may be exercised by the physical custody being placed with others. Such other placements might be temporary and casual as, for example, allowing a child to stay with friends for a weekend. They may be on a more regular and extended basis as, for example, placing a child in a boarding school. They may be of an even more extended character as, for example, allowing the child to live with grandparents. Such placements do not remove the legal authority of the guardian over the child. Such authority will subsist until displaced by an order of a court or the operation of a statute [emphasis added].

2. In PVS v Chief Executive Officer, Department for Child Protection47 the

   issue was whether a child under a protection order should be permitted to go

   to Germany with a carer who wanted to visit members of her family. During

   the course of his reasons Pullen JA made the following statement48:

   It is important to note that there has been one very significant change
   that has taken place since Magistrate Hogan made the observations
   that he did on 19 November 2009. That is that after the full and
   lengthy hearing for the protection order, a protection order was made
   which put S into the care of the respondent which now exercises
   parental responsibilities. Being armed with that order, it does not
   require any order of the court to take S out of the country (or to
   allow the carer to take S out of the country) if a passport can be
   obtained for S.

3. In my opinion, in the light of the extensive nature of the powers referred to

   in s 22 of the Act and the comments in the authorities referred to above, the

   defendant does have power to place children in his care with carers who are

residing interstate. He may exercise that power provided it is in the best
interests of the child and provided he and the Department have the capacity

to fulfil all of the responsibilities referred to in s 22 of the Act. In this case

the decision to permit the children to relocate interstate with their primary

carers was in their best interests and the defendant and the Department have
been fulfilling their responsibilities in respect of the children.

1. The purpose of Ch 2, Pt 2.4 of the Act is to enable protection orders to be

   transferred in circumstances where the defendant is unable to carry out the

responsibilities imposed on him under s 22 of the Act and where it is in the
best interests of the children who are residing interstate to have the full

protection of the interstate legislation. The provisions of Ch 2, Pt 2.4 of the

Act do not restrict the rights and powers the defendant may exercise under

s 22 of the Act. Section 22 of the Act is not expressed to be subject to Ch 2,
Pt 2.4 of the Act. Section 22 of the Act puts the defendant in the same

position as a parent who has parental responsibility over a child. A parent

clearly has the power to place a child with an interstate relative or friend for
the purposes of the care and advancement of the child.

1. To the extent that granting the defendant the same powers over a child, in

   his care, as a parent has over a child means that the Act has an extra-

   territorial operation, the legislature plainly intended the Act to have such

operation and the Legislative Assembly of the Northern Territory has the
capacity to pass such a law49. Any presumption to the contrary is rebutted
by the text of s 22 of the Act. Parliament intended the defendant to have the

same parental responsibility over a child in his care as a parent has for a
child.

1. The reason why the provisions of Ch 2, Pt 2.4 of the Act require either the

consent of both parents, or an order of a Court which is required to give
consideration to the wishes of both parents, is because if a protection order
is transferred to an interstate jurisdiction the defendant loses his power over

the child and the parents of the child lose their rights under the Act. Parents

are at a potential disadvantage if they lose their rights under the Act. For
example, if parents wish to enforce their rights under any interstate
legislation it would be necessary for them to commence proceedings in an

interstate court. This is likely to be substantially more difficult and costly

for them than commencing proceedings in the Northern Territory.

1. Further, the evidence establishes that all of those persons employed by the

   Department who have been involved with the care of the children have had

   full regard to the provisions of s 12 of the Act. The current care

   arrangements were entered into when it became apparent that the members of the children’s extended family were either incapable or unable to be the children’s carers.

   Conclusion

[92] In the circumstances I would dismiss the plaintiff’s application.

-------------------------

[1]  Hereafter referred to as “the Act”.

[2]  Hereafter referred to as “the Department”.

[3]  Hereafter referred to jointly as “the children”.

[4] Powers of delegation are granted by s 303 of the Act. See also s 46A(3) Interpretation Act.

[5] s 43(5)(d) of the Community Welfare Act.

[6]  Section 320 of the Act.

[7]  Section 319(1) of the Act.

[8]  Section 319(2)(a) of the Act.

[9]  Section 319(4)(b) of the Act.

[10]  Exhibit CEH-1 to the affidavit of Claire Elizabeth Henderson affirmed on 6 April 2010. The use of

the term “a child in need of care” rather than “a child in need of protection”, as used throughout the Act, was a consequence of the transitional provisions of the Act.	11	Section 13 and s 128 of the Act.
12	Section 67(1)(b) of the Act.
13	Section 22(1) of the Act.
14	Section 22(2)(a) of the Act.
15	Section 21 of the Act.
16	Section 22(2)(b) of the Act.
17	s 135(1)(a)(i) of the Act.
18	s 22(1) of the Act.
19	s 22(2)(a) of the Act.
20	s 21 of the Act.
21	Section 22(2)(b) of the Act.
22	Section 67(1)(b) of the Act.
23	RL v Minister for Health and Community Services [2006] NTSC 34 at par [45].
24	Section 70(1) of the Act.
25	Section 70(2) of the Act.
26	Section 77 of the Act.
27	Section 78(1) of the Act.
28	Section 157(1)(b) of the Act.
29	Section 155(f) and s 160(e) of the Act.
30	Section 155(g) and s 160(f) of the Act.
31	Section 177 of the Act.
32	Section 135(1)(a)(i) of the Act.
33	Section 135(2) of the Act.
34	Section 135(1)(a)(ii) of the Act.
35	Section 135(2) of the Act.
36	Section 73 of the Act.
37	Section 81 of the Act.
38	Section 137(1) of the Act.
39	Section 137(2) and s 137(3) of the Act.
40	Section 140 of the Act.
41	Section 155(h) of the Act.
42	Section 163(b)(viii) and s 161(b) of the Act.
43	Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at 45 – 46.
44	Section 42(2) of the Act.
45	Annexure LJW – 1 to the affidavit of Leonie Jane Warburton of 24 May 2010.
46	(1981) 1 NSWLR 439 at [446].
47	[2010] WASCA 168.
48	[2010] WASCA 168 at [6].
49	s 6 Northern Territory (Self-Government) Act 1978 (Cth); Union Steamship Co of Australia Pty Ltd

v King (1988) 166 CLR 1 at 9-14.