LP v Director-General of the Community Services Directorate
[2016] ACTSC 57
•8 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | LP v Director-General of the Community Services Directorate |
Citation: | [2016] ACTSC 57 |
Hearing Date: | 13 October 2015 |
DecisionDate: | 8 April 2016 |
Before: | Burns J |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – Appeal from Childrens Court – emergency action taken by Director-General – Magistrate made final care and protection order until child turns 18 years – whether final order could be made – whether the appellant had parental responsibility for the child – meaning of “willing and able” under s 345 of the Children and Young Persons Act 2008 (ACT) (CYPA) – test of significant risk under s 344 of the CYPA – appeal dismissed. |
Legislation Cited: | Children and Young Persons Act 2008 (ACT) ss 15, 16, 17, 19, 20, 344, 345, 403, 405, 406, 409, 410, 433, 455, 456, 457, 464, 474, 836, 837 Magistrates Court Act 1930 (ACT) s 274 |
Cases Cited: | Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1 Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149 Watson v Lee (1979) 144 CLR 374 |
Parties: | LP (Appellant) Director-General of the Community Services Directorate (Respondent) |
Representation: | Counsel Self-Represented with Mr B M (Appellant with McKenzie friend) Ms A Tonkin (Respondent) Ms J Heinze (Independent Children’s Lawyer) |
| Solicitors Self-represented (Appellant) ACT Government Solicitor (Respondent) Infinity Legal (Independent Children’s Lawyer) | |
File Number: | SCA 35 of 2015 |
Decision under appeal: | Court: Childrens Court of the ACT Before: Magistrate Morrison Date of Decision: 27 March 2015 Case Title: In the matter of an application by the Director-General, Community Services Directorate and in the matter of a cross-application by [LP] in respect of [the child] Court File Number: No.KE 2535 |
Burns J:
The appellant, LP, is the mother of XCP, a child who was born in 2013. For convenience, I will refer to XCP as the child. Sadly, the appellant suffers from mental illness, described in the expert reports in the proceeding below as borderline personality disorder. She has three other children who were born in 1997, 2004 and 2007 respectively. The first of these children was placed in the care of his father on 6 July 2011, and the other two were placed in the care of the Director-General following emergency action on 24 June 2011.
The day after the child was born, the Director-General took emergency action under the Children and Young Persons Act 2008 (ACT) (the CYPA), removing the child from custody of the appellant and placing her in foster care. On 6 May 2013, the
Director-General applied for a care and protection order and also an interim care and protection order. The proceedings were adjourned and interim orders were made by consent. Amongst the consent orders made were orders transferring “daily care responsibility” and “long-term care responsibility” to the Director-General. The proceedings were thereafter adjourned from time to time and the interim orders were continued. The application for a final care and protection order was heard by a Magistrate over nine hearing dates between July and December 2014. On the last of those hearing dates, 9 December 2014, the Magistrate reserved his decision and ordered that the interim order continue “until determination of the application”.
On 27 March 2015, the Magistrate made a final care and protection order until the child turns 18 years of age, and providing that the “daily care responsibility” and the “long-term care responsibility” for the child be transferred to the Director-General.
The appellant appeals from the orders made by the Magistrate. Her Amended Notice of Appeal sets out the following grounds:
1.The Childrens Court erred in law in failing to take into account section 17 of the [CYPA] in deciding whether or not the statutory requirements in section 345(1)(b) of the [CYPA] had been met.
2.The Childrens Court erred in law in finding that the statutory basis set out in section 345(1)(b) of the [CYPA] could be satisfied by the appellant’s inability to protect the child from the risk of abuse or neglect because by operation of section 17 of the [CYPA] the appellant did not have parental responsibility for the child.
3.The Childrens Court erred in holding that the second limb of the definition in section 345(1)(b) of the [CYPA] requires a finding that the appellant is unable to protect the child from the risk of abuse or neglect because by operation of section 17 of the [CYPA] the appellant did not have parental responsibility for the child as required by section 345(1)(b).
4.The Childrens Court erred in law in proceeding on the basis that the question of the appellant’s “ability to protect against risk (for the preliminary purpose of determining whether [the child] is in need of care and protection) is to be approached on the basis of her willingness to apply and abide by the conditions set out in the orders sought [by the appellant]” because by operation of section 17 of the CYPA the appellant did not have parental responsibility for the child as required by section 345(1)(b) of the CYPA.
5.The Childrens Court erred in law holding that the requirement in section 344 of the [CYPA] that “there is a significant risk of the child ... being abused or neglected” can be satisfied by a risk analysis that “takes into account both the likelihood of the consequences that flow from it”.
6.The Childrens Court erred in law in considering the care plan prepared by the Director-General for the child in the absence of evidence that the care plan has been prepared in accordance with the requirements of Division 14.3.4 of the [CYPA].
Relevant provisions of the CYPA
The proceeding in the Childrens Court was an application for a care and protection order. The Childrens Court is empowered by s 464 of the CYPA to make such an order:
464Care and protection order – criteria for making
(1)The Childrens Court may make a care and protection order for a child or young person if the court –
(a)is satisfied that the child is in need of care and protection; and
(b)has considered the care plan prepared by the director-general for the child or young person; and
(c)is satisfied that –
(i) the provisions included in the order are necessary to ensure the care and protection of the child or young person; and
(ii) making the order is in the best interests of the child or young person.
...
A child is in need of care and protection, relevantly for present purposes, if the child is at risk of abuse or neglect: s 345 of the CYPA. A child is at risk of abuse or neglect “if, on the balance of probabilities, there is a significant risk of the child ... being abused or neglected”: s 344 of the CYPA.
The child was the subject of emergency action by the Director-General the day after she was born. “Emergency action” means transferring daily care responsibility for the child to the Director-General: s 405 of the CYPA. Such action may be taken where the
Director-General believes on reasonable grounds that the child is in need of emergency care and protection: s 406 of the CYPA. A child is in need of emergency care and protection if the child is in immediate need of protection, or is likely to be in immediate need of care and protection if emergency action is not taken: s 403 of the CYPA. The effect of the Director-General taking emergency action is that the Director-General has daily care responsibility for the child: s 409 of the CYPA. The duration of the transfer of daily care responsibility to the Director-General by reason of emergency action is limited to two working days, or slightly longer if a long weekend intervenes, without an order of the Childrens Court: s 410 of the CYPA.
The Director-General made an application for a care and protection order and an interim care and protection order on 6 May 2013. Interim orders were made by consent on that day. An interim order may be made by the Childrens Court where an application for a care and protection order for a child has been made but not finally decided, and the court believes on reasonable grounds that the child is in need of care and protection, or would be in need of care and protection if the interim order was not made: s 433(1) of the CYPA. The Childrens Court must include in an interim order, inter alia, a parental responsibility provision if the court is satisfied it is in the best interests of the child: s 433(2) of the CYPA. The length of an interim order must be stated in the order, and the order must end on, or before, the day the application is decided.
A parental responsibility provision means a provision about who has a stated aspect of parental responsibility for the child. Section 474 of the CYPA provides that this may include, inter alia, one or more of the following directions:
(a)that a stated person has daily care responsibility for the child;
(b)that a stated person has long-term care responsibility for the child; and
(c)that parental responsibility for the child is shared between stated people.
10. Parental responsibility for a child, means all the duties, powers, responsibilities and authority parents have by law in relation to their children, including daily care responsibility and long term care responsibility for the child: s 15 of the CYPA. Each parent of a child has parental responsibly for the child, subject to that responsibility being transferred or shared under the provisions of the CYPA: s 16 of the CYPA. Parental responsibility may be transferred from one person to another under emergency action, a care and protection order including a parental responsibility provision or a court order under the CYPA or another law in force in the ACT: s 17(1) of the CYPA. If parental responsibility is transferred from one person to another, only that aspect of parental responsibility expressly stated to be transferred is transferred.
11. The CYPA does not specifically define the term “aspects of parental responsibility”, but it may be inferred from s 15 of the CYPA that, at its most general level, it encompasses daily care responsibility for the child and long-term care responsibility for the child.
12. A person who has daily care responsibility for a child has responsibility for, and may make decisions about, the child’s daily care: s 19(1) of the CYPA. A person who has long-term care responsibility for a child has responsibility for the long-term care, protection and development of the child, and the powers, responsibility and authority a guardian of the child has by law in relation to the child: s 20(1) of the CYPA.
13.
The definition of a care and protection order in the Dictionary to the CYPA does not include an interim care and protection order, so that if parental responsibility was transferred from the appellant to the Director-General by the consent interim orders made on 6 May 2013 it must be because those orders were a court order under the CYPA, as referred to in s 17(1)(f). In these proceedings, as in the proceedings below, the parties accepted that both daily care responsibility and long-term care responsibility had been transferred on an interim basis to the Director-General by the orders of
6 May 2013. In my opinion this is clearly correct.
The nature of this appeal
14. This appeal is brought pursuant to s 836 of the CYPA, which provides that a party to a proceeding under the care and protection provisions of the CYPA may appeal to this Court from “the making of an order or other decision” by the Childrens Court: s 836(1)(a). The Magistrates Court Act 1930 (ACT) (the Magistrates Court Act), part 4.5 applies to such an appeal as if it were an appeal from a judgment or order mentioned in s 274(2) of the Magistrates Court Act: s 837 of the CYPA. Such an appeal is, by virtue of s 274(2) of the Magistrates Court Act, an appeal as of right. An appeal pursuant to s 274(2) is by way of rehearing: Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1 at 3.
15. In Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149, Refshauge J described the nature of such an appeal at [78]:
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts founds based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions.
16. In the present appeal, no further evidence was received. Each of the grounds of appeal advanced by the appellant are expressed as based on an error of law by the Magistrate. Grounds 1, 2, 3 and 4 each allege an error based on the proposition that the child could not be found to be in need of care and protection because the Director-General had parental responsibility for the child, and not the appellant. Ground 5 alleged an error by the Magistrate in applying the test found in s 344 of the CYPA in determining whether the child was at risk of abuse or neglect. Finally, Ground 6 alleged that the care plan placed before the Magistrate should not have been received as there was no evidence that it had been prepared in accordance with the requirements of the CYPA.
The appeal
Grounds 1 to 4
17. A number of these grounds are not felicitously drafted, but each has at its heart the proposition that the Magistrate could not be satisfied that the child was in need of care and protection because the evidence led by the respondent could not allow a finding for the purposes of s 345(1)(b) of the CYPA that “no-one with parental responsibility for the child ... is willing and able to protect the child”. In particular, the appellant submitted that the requirements of s 345(1)(b) were not met because the appellant did not have parental responsibility for the child.
18. The Magistrate dealt with the submissions in the following way:
163.The mother’s written submissions raise a preliminary point about the interpretation of the Children and Young People Act 2008 on the question of a child being in need of care and protection. As I understand her submission it is this:
a.The Court cannot make a relevant order unless satisfied that [the child] is in need of care and protection – section 464;
b.A child is not in need of care and protection unless (relevantly) the child is at risk of abuse or neglect and no one with parental responsibility for the child is willing and able to protect the child from that risk – section 345;
c.By virtue of the interim orders made it is the Director-General which presently has parental responsibility for [the child] – that is the mother is not a person with parental responsibility for her;
d.It follows, according to the mother’s submissions, firstly that the statutory basis for the making of any order is not met and secondly that her ability to protect [the child] is irrelevant.
164.The submission can be disposed of shortly. To give the legislation that interpretation would mean that in no case where emergency action is taken and an interim order made giving parental responsibility to the Director-General could any subsequent order be made. That result is clearly absurd and contrary to the purposes of the legislation. The section should be interpreted, as it historically has been, to consider the position of the child without regard to the Director-General having parental responsibility because of previous orders.
19. In my opinion there is much to be said for the approach taken by the Magistrate, which involves a purposive rather than literal reading of s 345(1)(b), but even if this is wrong there is another reason why the appellant’s submission should be rejected.
20. The orders, which were in place concerning the child, and by virtue of which parental responsibility was transferred to the Director-General, were interim orders. An interim order, by virtue of s 433(3) of the CYPA must end on or before the day the application for a final order is decided. This is an indication that interim and final care orders are not intended to co-exist. The order made by the Magistrate on 9 December 2014, that the interim orders were to continue until determination of the application, was clearly intended to have the effect of continuing the interim orders until the day he handed down his decision. At the point in time that the Magistrate made the final care and protection order, the interim orders had lapsed as the CYPA does not contemplate co-extensive interim and final orders. The effect of this is that at the moment the Magistrate made the final care order the appellant did have parental responsibility for the child, as the interim order transferring parental responsibility to the Director-General no longer applied. In adopting this approach, there is no need to engage in philosophical debate about the existence of a point of time of which the interim order no longer existed, but the final order had not commenced. The provisions of the CYPA are intended to have practical application and are not intended to be the subject of metaphysical speculation.
21. The appellant further submitted that the requirements of s 345 of the CRPA had not been satisfied because the evidence did not establish that there was no-one with parental responsibility for the child who was “willing and able” to protect the child. The appellant submitted this was because the Director-General had accepted that the appellant was “willing” but not “able” to protect her from the risk of abuse or neglect. There are a number of difficulties with this submission. First, it is contrary to the appellant’s primary submission that she did not have parental responsibility for the child at the time the Magistrate made the final order. As I have rejected the appellant’s primary submission, I will consider this submission as an alternative.
22. The second, and fatal, difficulty with this submission is that it mistakes the requirements of s 345. The submission by the appellant is to the effect that before an order under s 345 can be made, the Director-General must prove that each person with parental responsibility for the child is both “unwilling” and “unable” to protect the child from the risk of abuse or neglect. The corollary of this proposition, the appellant says, is that where a person with parental responsibility is willing to protect the child from the risk of abuse or neglect, but is unable to so protect the child, or vice versa, no care and protection order can be made. If this were a correct interpretation of s 345 this would be a startling, and even alarming, result. Thankfully, it is not a correct interpretation of the provision.
23. The submission made by the appellant effectively seeks to replace the word “and” in the phrase “willing and able” with the word “or”. The section requires that the court be satisfied before making an order that there is no person who has both specified qualities: a willingness to protect the child and a corresponding ability to do so. It would hardly benefit a child who is at risk of abuse or neglect to be placed under the control of someone who has the ability to protect them, but is unwilling to do so; or is willing to protect them, but has no ability to do so. The interpretation urged by the appellant is entirely contrary to the self-evident purpose of the CYPA.
24. I would add that even if the appellant’s submission were upheld, I would not simply vacate the orders made by the Magistrate and dismiss the application for a care and protection order. The Magistrate concluded the child was at risk of abuse or neglect, that the care order is necessary to ensure the care and protection of the child, and that making the order is in her best interests. To ignore these unchallenged findings and to restore the child to the appellant due to a technicality would be unconscionable. If the appellant’s submissions were accepted, the intention of the Magistrate miscarried because the appellant did not have parental responsibility for the child when the Magistrate made the final orders. The reason she did not have parental responsibility is because the interim care order was not formally vacated before the final order was made. This could be easily rectified, so that even if the appellant’s submission was accepted the appropriate course would be to remit the matter to the Magistrate to enable him to make further orders.
25. These grounds of appeal fail.
Ground 5
26. The appellant complains, in effect, that the Magistrate adopted the wrong test in determining whether there was a significant risk of the child being abused or neglected, so as to determine whether she was at risk of abuse or neglect: s 344 of the CYPA. The Magistrate approached the issue in the following way:
248.Submission were made directed to that part of section 344 which refers to a child being at risk of abuse or neglect, if on the balance of probabilities, there is a significant risk of the child being abused or neglected.
249.The submissions were directed in part to the meaning to be given to “significant” in the section. I think it both undesirable and unnecessary to attempt to assist the meaning to be given to the word “significant” by substituting the word “unacceptable” or indeed any other descriptor, provided that the risk analysis which is undertaken takes into account both the likelihood or otherwise of an event and the seriousness or otherwise of the consequences which flow from it. If the combined effect of the two is properly described as “significant: then the test is met.
250. In his evidence, Dr Roldan sets out the risks for [the child] if she is returned to the full care of[LP] . Those risks are identified in his testimony in the exchanges set out at pages 60 to 68 of the transcript. His opinion is largely supported by the opinion of Dr Knox. I accept his evidence. It satisfies me that there is a risk of abuse or neglect and that the risk is significant. I find accordingly.
27. In her written submissions on appeal, the appellant said that the Magistrate “erred in law in using the ‘likelihood’ of unacceptable risk test ... to decide if the test of ‘there is a significant risk’ in section 344 of the [CYPA] is satisfied”.
28.
The submissions made by the appellant are to the effect that counsel for the
Director-General, in the proceeding before the Magistrate, misunderstood the test to be applied by submitting that the Magistrate has to be satisfied that there was an “unacceptable risk” and that there was a “likelihood” of the child being abused in the future. She submitted that as a consequence of those submissions, the evidence led by the respondent was led to establish “unacceptable risk” and “likelihood” and therefore did not establish the existence of significant risk as required by s 344 of the CYPA. Secondly, the appellant submitted that the Magistrate erred in applying a test of “likelihood” in determining whether there was a significant risk as required by s 344.
29.
Those submissions should be rejected. The Magistrate applied the test found in s 344, using the terms of the section. Applying that test to the evidence, he was satisfied that there was a significant risk of the child being abused or neglected. That finding is not the subject of challenge in these proceedings. To the extent that counsel for the
Director-General may have misstated the test during the course of argument, the application of the correct test by the Magistrate made any such error, if it occurred, entirely irrelevant.
30. Section 344 of the CYPA is directed towards the consideration of risk of abuse or neglect. Establishing a risk that something will happen in the future is conceptually very different from establishing that something has happened in the past, or is presently occurring. To say, as s 344 does, that a child is at risk of abuse or neglect if there is a significant risk of them being abused or neglected begs the question: what is a significant risk? In my opinion the Magistrate was correct to say that in determining whether a significant risk existed it was appropriate to consider the likelihood of the risk eventuating and the consequences for the child should the risk eventuate. To describe this as applying a test of the likelihood of significant risk is incorrect; the Magistrate applied the test of whether there was a significant risk of abuse or neglect but in doing so he identified whether there was a significant risk by balancing the likelihood of the risk eventuating against the consequences for the child should the risk eventuate. This approach was sensible and had the considerable merit of imposing a degree of structure into determining whether there is a significant risk of abuse or neglect for the purposes of s 344. This imposes a greater discipline, and therefore greater certainty, into the process of determining whether a significant risk exists.
Ground 6
31.
Before making a care and protection order the Childrens Court must consider the care plan prepared by the Director-General for the child. A care plan for a child who is, or is proposed to be, subject to a care and protection order means a written plan for meeting the child’s care or protection needs: s 455(a) of the CYPA. It may include proposals for the purpose of case planning about a number of issues: s 455(b) of the CYPA. Where the Director-General is preparing a care plan, the Director-General must tell certain specified people about the proposals the Director-General intends to include in the care plan. These people are, relevantly for present purposes, the child, each person who has daily care responsibility for the child, and anyone else who would be involved in implementing a proposal: s 457(1) of the CYPA. These people must be given an opportunity to make submissions to the Director-General about the proposals. Where the care plan includes a proposal that proposes to place the child in kinship care or foster care, the
Director-General must prepare a stability proposal outlining how the Director-General proposes to ensure long-term placement in a safe, nurturing and secure environment: s 456 of the CYPA.
The appellant submitted that the provisions of the CYPA required a stability proposal to be prepared by the Director-General, and that those persons referred to in s 457 be consulted and given an opportunity to make submissions to the Director-General. A care plan was filed by the Director-General on 22 January 2014, and an updated care plan was filed in court on 9 December 2014, the last day of the hearing before the Magistrate. Whilst the updated care plan is expressed to cover the period from 2 July 2014 to 2 July 2015, it is, I think, clear from the circumstances surrounding its tender that the plan set out the proposals that the Director-General was implementing as of 9 December 2014, and which he or she intended to continue to implement in the future. No objection was taken to the tender of the updated care plan.
33. In her written submissions, the appellant faintly suggested that she had indicated to the Magistrate that she was “uneasy” about the updated care plan being filed in court, but the transcript suggests otherwise. The appellant, in fact, told his Honour that she had received a copy of the updated care plan on 8 December 2014, and that her submissions were based on that care plan.
34. In any event, the appellant’s complaint is not with the late provision of the updated care plan, or the process by which it was received by the Court. The appellant’s complaint is that there was no evidence before the Magistrate that the updated care plan had been prepared in accordance with the provisions of the CYPA and, in particular, that those persons required to be consulted by s 457 had been consulted, and had been given an opportunity to make submissions to the Director-General . The updated care plan was tendered without objection by the appellant, and no submissions were made to the Magistrate directed to the issue that the appellant now seeks to agitate. For that reason alone, this Court should decline to uphold this ground of appeal. The appellant had an opportunity to raise this issue in front of the Magistrate, which would have allowed the Director-General to adduce evidence on the issue. It would be unconscionable in the circumstances to uphold this ground, particularly when the factual findings of the Magistrate that the child is at risk of being abused or neglected if she is returned to the custody of the appellant remain unchallenged.
35. Finally, the presumption of regularity applied such that it is presumed that the updated care plan was prepared in accordance with the requirements of the CYPA: see Watson v Lee (1979) 144 CLR 374 at 381-382 per Barwick CJ
36. This ground of appeal must also fail.
Conclusion
37. The appeal is dismissed.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: D Scuteri Date: 8 April 2016 |
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