MC v The Director General of the Community Services Directorate
[2017] ACTSC 354
•27 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
MC v The Director General of the Community Services Directorate
Citation:
[2017] ACTSC 354
Hearing Date:
15 August 2017
DecisionDate:
27 November 2017
Before:
McWilliam AsJ
Decision:
The appeal is dismissed.
Catchwords:
APPEAL – Appeal from Childrens Court – final care and protection orders – nature of appeal – whether judicial discretion involved in statutory test
CHILDREN – whether making of order pursuant to s 424 of the Children and Young Persons Act 2008 (ACT) is a discretionary exercise of power – whether there was an improper exercise of discretion – whether the appellant was afforded procedural fairness – whether care and protection principles were considered – whether orders made in relation to contact were appropriate
Legislation Cited:
Children and Young People Act 2008 (ACT) ss 8, 342, 343, 344, 345, 349, 350, 424, 455, 464, 466, 467, 485, 716, 835, 836, 837, 838
Family Violence Act 2016 (ACT)
Human Rights Act 2004 (ACT)
Magistrates Court Act 1930 (ACT) ss 274, 276, 287
Personal Violence Act 2016 (ACT)Court Procedures Rules 2006 (ACT) rr 30, 1401
Cases Cited:
Bauskis v Liew [2013] NSWCA 297
Buck v Bavone (1976) 135 CLR 110
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124
ES v The Director-General of the Community Services Directorate (No 2) [2016] ACTSC
Hamod v New South Wales [2011] NSWCA 375
House v The King (1936) 55 CLR 499
JL v Director-General Community Services Directorate [2015] ACTSC 24
LP v Director-General of the Community Services Directorate [2016] ACTSC 57
McKenzie v McKenzie [1971] P 33
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611
Powell v Streatham Manor Nursing Homes [1935] AC 243
Re F (Litigants in Person Guidelines) [2001] FamCA 348; 161 FLR 189
The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Theodolorelos v Nexus Products Pty Ltd [2009] ACTSC 149
W v Director-General, Community Services Directorate [2014] ACTSC 404Warren v Coombes (1979) 142 CLR 531
Parties:
MC (Appellant)
Director-General, Community Services Directorate (First Respondent)
[not published] (Second Respondent)
[not published] (Third Respondent)
[not published] (Fourth Respondent)
[not published] (Fifth Respondent)
Representation:
Counsel
Self-represented (Plaintiff)
M Bayer (First Respondent)
A Aidman (Fourth and Fifth Respondents)
Solicitors
Self-represented (Plaintiff)
ACT Government Solicitor (First Respondent)
Elringtons Lawyers (Fourth and Fifth Respondents)
File Number:
SCA 3 of 2017
Decision under appeal:
Court/Tribunal: ACT Childrens Court
Before: Chief Magistrate Walker
Date of Decision: 9 December 2016
Case Title: In the matter of an application for interim and final Care and Protection Orders pursuant to section 433 and 424 of the Children and Young People Act 2008
Court File Numbers: KE 2991; KE 2992
1. This is an appeal pursuant to s 836 of the Children and Young People Act 2008 (ACT) (Act). The appellant’s amended notice of appeal filed on 19 April 2017 appeals from orders made by the Chief Magistrate on 9 December 2016 in the ACT Childrens Court, (as it is known, pursuant to s 287 of the Magistrates Court Act 1930 (ACT), notwithstanding that the lack of an apostrophe after ‘Children’ means that such title is not grammatical).
Orders appealed
2. The orders made by the Chief Magistrate were final care and protection orders, granting parental responsibility and care of the appellant’s two children to the Director-General of the Community Services Directorate (Director-General), with certain conditions attached for a period of one year.
3. These orders provided, inter alia, that both the daily and long-term care responsibility for the subject children be transferred to the Director-General.
4. The Director-General was also given discretion regarding contact and where the children may live in the following terms:
(a)The Director-General be authorised to decide with whom the child may have contact and to decide any condition for the contact, for a period of one year.
(b)The Director-General be authorised to decide where or with whom the child may live, for a period of one year.
5. Other ancillary orders were made to facilitate the carrying out of the substantive orders.
The parties to the appeal
6. The appellant is the biological mother of the two children the subject of the orders appealed from. The children are the fourth and fifth respondents to this appeal and were represented by an independent children’s lawyer. The children have been identified as having an indigenous background. At the time the orders of the Court below were made, the children were 6 years old and 19 months old, having been born in 2010 and 2015 respectively.
7. The first respondent is the Director-General and was really the only active respondent in the appeal.
8. The second respondent is the father of the fourth respondent, the 6 year old. He had been served with submissions filed in the proceedings and had received a number of letters confirming the listing of the matter for hearing on that date. A letter confirming service and notice of the proceedings, dated 7 June 2017, was tendered on the appeal (Exhibit 1).
9. The Court was also informed by the parties that the third respondent was aware of the hearing and did not wish to participate.
10. The appellant was self–represented at the hearing. I granted leave for the appellant’s father to assist the appellant, pursuant to r 30 of the Court Procedures Rules 2006 (ACT) (Rules) and the well-established principles set out in McKenzie v McKenzie [1971] P 33.
Proceedings in the Court below
11. On 17 June 2016, the Director-General took emergency action under the Act, removing the children from the care of the appellant.
12. By way of an originating application dated 20 June 2016, the Director-General sought interim care and protection orders for the two subject children, pursuant to s 424 of the Act. An amended originating application dated 16 September 2016 was subsequently filed in relation to both children, seeking a final order for a period of one year.
13. The hearing before the Chief Magistrate occurred over three days, on 4 November 2016, 15 November 2016 and 17 November 2016.
14. The appellant opposed the Director-General’s application and was self-represented at the hearing. The third respondent on this appeal indicated on the first morning of the hearing that he was supportive of the mother’s position, and he took no further part in the proceedings.
15. The Director-General’s application was supported by the independent children’s lawyer. It was also supported by the second respondent to this appeal.
16. Following the receipt of further written submissions from the parties after the conclusion of the hearing, the Chief Magistrate delivered oral reasons for judgment on 9 December 2016.
Findings of the Chief Magistrate
17. The Orders were based on the following key findings:
(a)The children are in need of care and protection.
(b)There is no one with parental responsibility both willing and able to provide that care and protection.
(c)Having regard to the care plans before the Court, it is in the children’s best interests that the orders sought are made.
18. In finding that the children were in need of care and protection, the Chief Magistrate found that the overwhelming issue was the appellant’s psychological state and its impact upon her children. Her Honour referred to the appellant being an admitted long-term cannabis user, found that there had been highly inconsistent parenting and that there was clear evidence that the appellant’s inability to self-regulate has caused the children significant harm in terms of emotional abuse.
19. The Chief Magistrate accepted the evidence of Child and Youth Protection Services (CYPS) that the children had at times been inappropriately clothed, unclean, poorly fed and improperly supervised. Her Honour accepted the evidence of Dr Connor, psychologist, that each child was developmentally delayed. Although Dr Connor’s report was not prepared for diagnostic purposes, she observed that the appellant appeared to meet the diagnosis for complex posttraumatic stress disorder, attributable to the appellant’s own long-term severe neglect as a child.
20. The Chief Magistrate further found that in light of the appellant’s inability to perceive either the seriousness of her own psychological state or its impact upon her children, along with the uncertainty regarding the appellant’s likely return to drug use, there was a continuing significant risk of future abuse, neglect and consequent harm.
21. In finding that there was no one with parental responsibility both willing and able to provide that care and protection, the Chief Magistrate considered the position with respect to the second and third respondents. It was intended that the second respondent be assessed for his ability to provide care and protection to his child, but that had not occurred at the time of the hearing. It was uncontroversial that up until the first day of the hearing, the third respondent had not demonstrated any willingness to be involved in providing care and protection to his child.
22. The Chief Magistrate was satisfied that the mother was willing to care for her children, that she loved them and desired to support them. Her Honour accepted the evidence that there was clearly a bond between the appellant and her children, that the appellant had made attempts to improve her parenting capacity, and that those employed in the services with which the appellant had engaged had reported in positive terms.
23. Ultimately however, the Chief Magistrate found that despite the support, the appellant had been unable to develop an insight into her own psychological difficulties and the impact of those upon her children, with the result that she had been unable to reach a level of emotional regulation which would allow her to provide consistent and indeed safe parenting to her children.
24. The Chief Magistrate then turned to the children’s best interests and referred to s 349 of the Act. Her Honour addressed each of the factors set out in that section.
25. Of relevance to this appeal, the Chief Magistrate expressly considered the contact the children would have with their biological parents if they continued to remain in foster care. Further, her Honour considered the children’s need for stability and was satisfied that a return to their mother would not provide the stability required for their safety and development.
26. The Chief Magistrate gave particular consideration to the care plans for the children, ensuring that they were current. Her Honour expressly finalised the matter ‘based on the care plan currently before the Court’, making the orders sought by the Director-General.
Issues on appeal
27. There were 10 grounds raised, which may be briefly paraphrased as follows:
1. A lack of legal representation (Ground 1).
2. Insufficient weight given to the appellant’s evidence (Ground 2).
3. Too much weight given to erroneous evidence from the Director-General (Ground 3).
4. Prevented from giving evidence by Judge (Ground 4).
5. Third respondent’s evidence not given sufficient weight (Ground 5).
6. Immediate restoration of the appellant’s children (Ground 6).
7. There is a fundamental tenet of Australia public policy to keep children in the family setting which was ignored (Ground 7).
8. The Court did not take the children’s abuse while in care into account (Ground 8).
9. Too much weight given to the second respondent’s evidence (Ground 9).
10. Too much weight given to family assessment and recommendations by Dr Connor, a psychologist who gave evidence for the Director-General (Ground 10).
28. During the hearing, the appellant clarified the above complaints, and in doing so it became apparent that some of the appeal grounds could be consolidated and others were really directed to the particular relief sought.
29. The grounds of appeal have thus been grouped as raising three issues:
(a)First, whether there was an improper exercise of discretion by the Chief Magistrate, in particular in relation to the weight given to particular evidence and the possible exclusion of some evidence by the Chief Magistrate (Grounds 2, 3, 5, 8, 9 and 10).
(b)Second, whether procedural fairness was afforded to the appellant (Grounds 1 and 4).
(c)Third, whether the reasons of the Chief Magistrate satisfactorily address the mandatory requirements of s 350 of the Act (Ground 7).
30. The grouping of the appeal grounds was put to the appellant at the hearing and accepted by her. Each of those issues is dealt with below. It is unnecessary to consider further Ground 6, as the appellant accepted that was a reference to the actual relief sought, rather than a basis for it.
31. However, there are two preliminary issues as to the nature of the Court’s task on appeal, and the evidence before this Court on appeal.
Jurisdiction and nature of the appeal
32. The nature of appeals to the Supreme Court from orders made by the Court below was discussed by Refshauge J in JL v Director-General Community Services Directorate [2015] ACTSC 24 (JL), which was referred to by both Murrell CJ in ES v The Director-General of the Community Services Directorate (No 2) [2016] ACTSC 7 (ES) and by Mossop M, as his Honour then was, in W v Director-General, Community Services Directorate [2014] ACTSC 404.
33. Section 835 of the Act provides for appeals to the Supreme Court in relation to a matter arising under the Act, in accordance with s 836 of the Act, which is (relevantly) in the following terms:
836 Appeals to the Supreme Court—care and protection chapters
(1)An appeal from any of the following decisions of the Childrens Court under the care and protection chapters may be made to the Supreme Court:
(a) the making of an order or other decision;
…
(2)The following people may appeal under this section:
(a) a party to the proceeding in which the decision was made;
(b) a person named in the order or other decision;
....
34. Such an appeal is as of right: see s 274(2) of the Magistrates Court Act and LP v Director-General of the Community Services Directorate [2016] ACTSC 57 at [14].
35. Section 837 incorporates into such appeals the provisions of the Magistrates Court Act 1930, in particular s 276, which provides (emphasis added):
In an appeal, the Supreme Court must have regard to the evidence given in the proceeding in the Magistrates Court out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.
36. An appeal brought under s 836 of the Act is by way of rehearing. A rehearing is not a retrial. The appellant still carries the onus of showing that the decision appealed from ought to be reversed: Powell v Streatham Manor Nursing Homes [1935] AC 243 at 249.
37. An appeal by way of rehearing must be undertaken by reference to the subject decision. The character of that underlying decision will affect how the appeal court approaches its task: see DAO v R [2011] NSWCCA 63; 81 NSWLR 568 (DAO v R) per Allsop P (as his Honour then was) at [84], going on to state that if the decision below is a discretion, there is no doubt that the appeal court (undertaking an appeal by way of rehearing) must approach the matter by applying House v The King (1936) 55 CLR 499 at 505 (House v The King).
38. In Theodolorelos v Nexus Products Pty Ltd [2009] ACTSC 149, Refshauge J described the nature of such an appeal at [78] (emphasis added):
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 found 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. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
39. Pursuant to s 838 of the Act, the Supreme Court may make an order or decision that the Court below could have made.
Does the underlying decision involve judicial discretion?
40. The Director-General submits that the appeal involves a challenge to a discretionary judgment and accordingly, the principles articulated in House v The King apply. If those principles apply, an appellate court must exercise a greater degree of restraint. It may only interfere where the trial judge acted on a wrong principle, or allowed extraneous or irrelevant matters to guide or affect the judgement, or mistook facts, or did not take in to account material considerations, or the decision was unreasonable or plainly unjust.
41. The orders the subject of the present appeal were made under s 464 of the Act. For the present issue, the relevant part of the section is as follows (emphasis added):
464 Care and protection order—criteria for making
(1)The Childrens Court may make a care and protection order for a child or young person if the court-
(a) is satisfied that the child 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.
…
42. The emphasis is to indicate that there are various parts of the section where a discretion may be enlivened, but that does not automatically mean that the principles in House v The King apply.
43. Decisions under s 464 of the Act have been described in general terms as attracting the principles in House v The King: see JL at [14]; ES at [35]. The Court was not required in JL or in ES (given the nature of the grounds of appeal in each case) to detail the circumstances in which those principles operated by reference to the particular statutory framework. Here, however, the appellant’s grounds include complaints about the weight given to evidence on different issues arising under different parts of s 464(1) of the Act.
44. As the authorities discussed below explain, the Court’s approach to the grounds of challenge will change, depending upon whether the particular aspect of the decision challenged involves the exercise of judicial discretion.
45. Contrary to the Director-General’s submission, I do not think it can be assumed that in every case where there is a challenge to a decision made under s 464 of the Act, the principles in House v The King apply. That may be true for the majority of appeals to this Court under that section, but for the reasons that follow, it is necessary to analyse the precise ground of challenge and whether the particular finding that is challenged involves the exercise of any judicial discretion, having regard to the statutory framework.
No one meaning of ‘discretion’
46. Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 discussed the various ways in which a court might exercise judicial ‘discretion’ at [35]-[40] (emphasis added, citations omitted):
The varied use of the term "discretion" is apt to create a legal category of indeterminate reference. This is because the term is used in the description or characterisation of many acts or omissions in the law. …
The term "discretion" is sometimes used to describe the scope for selective choice in judicial determination of facts disputed on the evidence, particularly on the oral evidence. …
In other settings, "discretion" is used quite differently. Thus, the degree to which a court of equity will interfere in the administration of trusts has been held to reflect the width of discretionary powers which have been conferred on the trustees. The judicial review of administrative decisions made in the exercise of a statutory power or "discretion" attracts a body of principles which in this Court may conveniently be traced back to what was said by Latham CJ in Shrimpton v The Commonwealth. The exercise of what was called in House v The King "a judicial discretion" to impose a particular sentence or to make a particular order under a power conferred by family provision legislation, attracts, upon subsequent exercise of a "general appellate power", principles somewhat akin to those developed in public law. The well-known passage in House v The King illustrates this.
Rather different is the situation where statute creates a legal norm, in this litigation that of a "serious injury", and does so in terms which require for their operation in a given dispute the identification and evaluation of facts and assigns that fact-finding in the first instance to a judge sitting alone. The occasion for appropriate appellate intervention will depend upon the nature and scope of the particular statutory appeal for which the legislature provides. That inquiry is not advanced by describing the overall decision making process of the primary judge as "discretionary".
47. The close analogy between judicial review of administrative action in public law and appellate review of a judicial discretion has been referred to by the High Court on a number of occasions, noting that it is insufficient, for the purposes of appellate intervention in the case of the exercise of a judicial discretion, for the appellate court merely to have a different view from that of the primary judge: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 per Hayne, Kiefel and Bell JJ at [72]-[75].
48. The Court’s approach on appeal changes depending on what type of ‘discretion’ is under consideration. In DAO v R, Spigelman CJ stated at [48]:
Subject to the particular provisions creating a statutory right of appeal, there is a difference in principle between the application of a legal standard for which there ought to be a single correct answer, on the one hand, and the application of a standard or the exercise of a power for which there is no single correct answer, on the other hand. The fact that a standard of the former character involves making a judgment about which reasonable minds can differ does not make the decision a discretionary one, in the sense that a decision of the latter character is usually described.
49. However, Spigelman CJ went on to state at [50]:
…what is involved in the issue before the Court is not capable of being characterised as a simple duality. In all cases the particular power and, perhaps even more significantly, the particular appellate jurisdiction being exercised, must be analysed. The resulting degree of appellate restraint involves a spectrum rather than an on/off switch.
50. Allsop P agreed with that statement at [88]:
I strongly agree with the Chief Justice that labels are apt to mislead in this context, most particularly the word ‘discretion’ and the phrase ‘House v The King review’ as an alternative to ‘Warren v Coombes review’ as the exhaustive universe of alternatives (which they are not).
51. The reference to ‘Warren v Coombes review’ is a reference to the decision of the same name (1979) 142 CLR 531 where the High Court held (at 551) that it was the duty of the appellate court to form an independent judgment about the proper inferences to be drawn from established facts. In deciding what the proper inference to be drawn is, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.
Appellate review of a decision-maker’s ‘satisfaction’ - general principles
52. As a general proposition, and in the absence of any additional statutory provisions operating on the term, the use of a statutory test based on ‘satisfaction’ of a matter confers a very wide discretion: Buck v Bavone (1976) 135 CLR 110 at 118-119; DAO v R at [28].
53. There are cases where the use of the terminology of the court’s ‘satisfaction’ as a relevant statutory test has been interpreted as being an exercise of judicial discretion, so that an appellate court should take an approach consistent with House v King: see DAO v R at [29] per Spigelman CJ, and the cases there-cited.
54. Again, a close analogy may be seen between a court’s ‘satisfaction’ and cases involving administrative action in public law, where the statutory test is a decision-maker’s ‘satisfaction’. Where the valid exercise of statutory power is conditioned by the decision-maker forming an opinion or state of ‘satisfaction’, there is an implied condition that the opinion or state of satisfaction be reasonably or properly formed: R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 where Latham CJ stated at 430:
Where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable [person] who correctly understands the meaning of the law under which [the person] acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.
55. Latham CJ went on to state at 432:
It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
56. To similar effect are Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 at [133] per Gummow J; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [73] per Gleeson CJ and Gummow J.
57. It has been said that the ‘satisfaction’ of the decision-maker below is a jurisdictional fact: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 per Gummow and Hayne JJ at [37]-[38]. If the ‘satisfaction’ obtained has no basis in the evidence or is contrary to the overwhelming weight of the material, it will involve jurisdictional error: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23]-[24] per Gummow ACJ and Kiefel J and the cases there-cited.
58. The language used in these passages echoes the approach taken in House v The King. However, regardless of whether the statute refers to the ‘satisfaction’ of a court or an administrative decision-maker, the statutory context in which the term is used remains important. If the criterion of ‘satisfaction’ is itself determined by reference to other standards or legal norms, it may be that the discretionary quality attributed to the satisfaction of the decision or judgment is removed.
The particular power exercised in the present case
59. Section 464(1) of the Act uses the word ‘may’, emphasised above. In contrast to words such as ‘shall’ or ‘must’, such a provision might be thought to involve an element of discretion not to exercise the power, and in that sense, be described as a discretionary decision or judgment.
60. Here however, the word ‘may’ in the context of the present section is used purely in a permissive or empowering sense. I do not see that there would be any situation where a trial judge could be satisfied of each of the matters set out in s 464(1) of the Act, particularly the last criterion, that making the order is in the best interests of the child, and yet not make a care and protection order as a matter of some overriding residual discretion.
61. The clear operation of s 464(1) of the Act is that once each of the three matters listed are met, an order will be made. That is not an exercise of judicial discretion that would attract the principles articulated in House v The King.
62. The Court then looks to the particular criterion of ‘satisfaction’ of the judicial officer under s 464(1)(a) or (b) of the Act, to see whether it is a truly discretionary power, and thus to be interpreted in accordance with the above authorities.
63. As to s 464(1)(a) of the Act, the requisite ‘satisfaction’ is that the child is ‘in need of care and protection’. Those words are specifically defined in s 345 of the Act – that is, there is a legal standard prescribed by the statute.
64. Section 345(1) of the Act provides:
When are children and young people in need of care and protection?
(1) For the care and protection chapters, a child or young person is in need of care and protection if—
(a) the child or young person—
(i) has been abused or neglected; or
(ii) is being abused or neglected; or
(iii) is at risk of abuse or neglect; and
(b) no-one with parental responsibility for the child or young person is willing and able to protect the child or young person from the abuse or neglect or the risk of abuse or neglect.
(2) Without limiting subsection (1), a child or young person is in need of care and protection if—
(a)there is a serious or persistent conflict between the child or young person and the people with parental responsibility for him or her (other than the director-general) to the extent that the care arrangements for the child or young person are, or are likely to be, seriously disrupted; or
(b) the people with parental responsibility for the child or young person are dead, have abandoned the child or young person or cannot be found after reasonable inquiry; or
(c) the people with parental responsibility for the child or young person are sexually or financially exploiting the child or young person or not willing and able to keep him or her from being sexually or financially exploited.
65. The words ‘abuse’ and ‘neglect’ and ‘at risk of abuse or neglect’ are defined in sections 342, 343, and 344 of the Act respectively. It is unnecessary to set out each of the definitions. None of them are in the nature of evaluating matters by reference to a number of factors so as to import discretion. They are legal standards against which the judge measures the facts of the particular case. The finding is an evaluative judgment. A comparison might be made with the tort of negligence, where a judge makes findings of a breach of duty of care on the balance of probabilities. Such a finding is an evaluative judgment to be made by reference to established norms, but not a discretionary judgment in the sense that would attract the principles in House v The King.
66. It is thus only through s 464(1)(c) of the Act that the exercise of any judicial discretion is enlivened. In particular (and of relevance to this appeal), the Court below must be satisfied that the making of a care and protection order ‘is in the best interests of the child’.
67. Section 349 of the Act is relevant here. It is headed ‘What is in the best interests of [the] child or young person?’ It then provides:
(1)For the care and protection chapters, in deciding what is in the best interests of a child …, a decision-maker must consider each of the following matters that are relevant to the child …:
(a) the need to ensure that the child … is not at risk of abuse or neglect;
(b) any views or wishes expressed by the child …;
(c) the nature of the child's …relationship with each parent and anyone else;
(d) the likely effect on the child … of changes to the child's … circumstances, including separation from a parent or anyone else with whom the child has been living;
(e) the practicalities of the child … maintaining contact with each parent and anyone else with whom the child … has been living or with whom the child … has been having substantial contact;
(f) the capacity of the child's … parents, or anyone else, to provide for the child's … needs including emotional and intellectual needs;
(g) for an Aboriginal … child…—that it is a high priority to protect and promote the child's … cultural and spiritual identity and development by, wherever possible, maintaining and building the child's … connections to family, community and culture;
(h) that it is important for the child … to have settled, stable and permanent living arrangements;
(i) for decisions about placement of a child …—the need to ensure that the earliest possible decisions are made about a safe, supportive and stable placement;
(j) the attitude to the child …, and to parental responsibilities, demonstrated by each of the child's … parents or anyone else;
(k) any abuse or neglect of the child …, or a family member of the child …;
(l) any court order that applies …
(2) For the care and protection chapters, in deciding what is in the best interests of a child …, a decision-maker may also consider any other fact or circumstance the decision-maker considers relevant.
68. This section clearly involves the consideration and the balancing of various, potentially conflicting, factors. Further, sub-s (2) permits ‘any other fact or circumstance’ to be taken into account in deciding what is in the ‘best interests of the child’.
69. Accordingly, the ‘satisfaction’ of the decision-maker as to what is in the best interests of the child is an exercise of the type of judicial discretion where House v The King principles would apply. In that regard only, to the extent that the appeal grounds challenge the finding as to what is in the children’s best interests, the Court will exercise the judicial restraint according to that approach.
Material before the Court
70. The second preliminary issue is what material was put before the Court, and the way in which it came before the Court.
71. Written submissions on the appeal were filed by the fourth and fifth respondents on 3 August 2017 and by the Director-General on 8 August 2017. No written outline of argument was filed or served by the appellant prior to the hearing.
72. An appeal book was filed on 11 July 2017. During the hearing, the respondents advised that the written submission of the parties in the proceedings before the Chief Magistrate had been inadvertently omitted from the appeal book. Accordingly, the submissions of the first respondent dated 28 November 2016, the submissions of the appellant dated 4 December 2016, and the submissions of the third and fourth respondents dated 7 December 2016 were handed up to complete the appeal book.
73. Whilst the appellant indicated in her notice of appeal that she proposed to put further evidence before the Court by affidavit, at the time of hearing no such material had been filed. At the hearing however, and from the bar table, she gave evidence as to the current state of affairs regarding her access to her children. The Director-General accepted that what was being said was accurate.
74. In JL, Refshauge J set out the principles (in a series of dot points) applicable to admitting further evidence on an appeal by way of rehearing at [48]. It is unnecessary to set out those principles in their entirety again here. However, the consideration that particularly influenced my decision to accept further material at the rehearing of the matter was:
· Undisputed evidence of events occurring after the trial is more likely to be admitted even without considering the effect it may have had on the trial judge’s decision.
75. Given what was at stake for the appellant, and with a view to ensuring that a self-represented litigant had a fair opportunity both to present her case and to digest the material and arguments as they were ultimately put before the Court, I granted leave to the appellant to file and serve a written submission after the hearing, in response to the respondents’ written submissions.
76. On 30 August 2017, the appellant provided a bundle of material to the Court. This bundle of a material comprised a document containing the words ‘THIS IS MY AFFIDAVIT’, extracts of Care and Protection records, extracts of legislation, and a number of coloured photographs.
77. As a result, on 8 September 2017, the matter was listed again, to give the Director-General an opportunity to properly submit on the material provided by the appellant after the hearing, given that the material submitted was outside the grant of leave. The appellant did not appear, though a letter had been sent to the appellant advising her of the listing.
78. Part of the ‘evidence’ was really in the nature of submissions and was treated as such, although I note that, given s 716 of the Act does not bind the Court below in terms of the rules of evidence, a more relaxed approach to admissibility on appeal may have been appropriate. Much of the material contained in the bundle was not objected to as it was already in evidence. With leave, the Director-General and the children’s representative filed submissions in reply to the material submitted by the appellant.
79. As a result of the above procedural course, I have taken into account the entirety of the material submitted by the parties, save as to one further email submission that was sent to my associate on 24 November 2017, without the leave of the Court, or the consent or even apparent knowledge of either the Director-General or the children’s representative.
Issue 1: Improper exercise of discretion (Grounds 2, 3, 5, 8, 9 and 10)
80. Each of these grounds is directed to the weight given to specific evidence, the relevance of which traverses the three key findings of the Chief Magistrate, set out above.
81. On the above construction of the Act, the Court is not limited to approach its task by reference to the principles in House v The King with regard the first two of those findings (being the finding that the children were in need of care and protection, and that there was no parent willing and able at that time to provide such care and protection). However, in relation to the third finding as to what is the best interests of the children, which does involve the discretionary weighing and balancing of numerous factors, this Court’s approach is limited in that manner.
82. Turning then to the Grounds, it transpired at the hearing that Grounds 2 and 8 were essentially the same argument. The appellant’s complaint is that she gave evidence about the children suffering abuse while they were in foster care and either that evidence was not taken into account, or it was not given sufficient weight.
83. Because that evidence is directed to the conduct of people other than any parent in these proceedings, it does not have any impact on whether the children were in need of care and protection, or whether there was anyone with parental responsibility able to provide care and protection. It only arises in relation to the discretionary finding as to what was in the best interests of the children.
84. The reasons of the Chief Magistrate do not refer to the appellant’s allegations of abuse or neglect of her children while they were in the care of others. The transcript does record that the appellant gave evidence in the witness box of her concern for her children’s safety while in foster care, including her observations of the children’s health.
85. The Chief Magistrate was required to take into account the need to ensure that the children were not at risk of abuse or neglect: s 349(1)(a) of the Act. However, that does not mean the Chief Magistrate was required to refer to every item of evidence touching upon the issue.
86. There was evidence before the Court (in the form of health assessment reports and the evidence of Dr Connor) that was inconsistent with the appellant’s concerns. Further, it is apparent from the reasons of the Chief Magistrate that her Honour did not share the concerns of the appellant about the care being given by the present foster carers. In this regard, the appellant’s evidence may be taken to have been impliedly rejected or alternatively, given very little weight. Because this finding is a matter of judicial discretion, the weight that the Court below gave to the appellant’s evidence is not a matter with which this Court on appeal would interfere.
87. Grounds 2 and 8 are accordingly not substantiated.
88. Grounds 3 and 10 may also be considered together, because as they were developed at the hearing, it was clear that they overlapped. The complaint is about the evidence of Dr Connor, a psychologist who provided the family assessment report and recommendations.
89. It can be seen from the reasons of the Court below that Dr Connor’s evidence was taken into account in relation to all three of the key findings. It is not necessary to go into the considerable detail of the report, which formed part of the appeal papers in this Court. What is clear is that the Chief Magistrate placed substantial reliance on the contents of the report and the opinions expressed in it.
90. Her Honour refers to the appellant’s challenge to that evidence (including through the competing evidence of Dr Wright), but accepted the expert opinion of Dr Connor over those objections.
91. Whether drawing my own inferences from the evidence in relation to the first two findings concerning the past absence of parental care and protection and the appellant’s lack of ability to provide the same, or on a more limited House v The King basis in respect of the finding with regard to the best interests of the children, I have been unable to discern any error in the acceptance of the expert opinion and recommendations of Dr Connor in respect of any of the findings of the Court below.
92. This is not a case where the findings of the Court below were contrary to the weight of the evidence before the Court. Dr Connor’s evidence was supported by the observations of officers of the Director-General and to some extent, the appellant’s own evidence as to her own history. The findings of the Chief Magistrate appear to have been well open to her Honour, for the reason given.
93. Accordingly, Grounds 3 and 10 have not been made out.
94. With regard to Ground 5, the complaint is that the evidence given by the father of the younger child (the third respondent) was not given sufficient weight. Having reviewed the entirety of the transcript, I accept the Director-General’s submission that the third respondent did not give evidence in the Court below. He appeared at the commencement of the hearing and indicated that he supported the position of the appellant. He was invited to file an affidavit and to participate as a witness for the appellant. Neither of those opportunities was taken up.
95. There was also evidence before the Court as to the number of occasions where the Director-General had attempted to engage with the third respondent, without success.
96. If the complaint is that the third respondent’s wishes ought to have been given weight or taken into account, the Chief Magistrate has referred to what occurred at the hearing and to the fact that the third respondent was supportive of the appellant’s position. I cannot see that there was any error in the approach taken by her Honour, given the lack of evidence before the Court below.
97. In those circumstances, Ground 5 cannot succeed.
98. The remaining Ground 9 is the converse of Ground 5, that too much weight was given to the position of the second respondent, who supported the application of the Director-General and was otherwise seeking that he be assessed for his ability to care for the fourth respondent.
99. In oral submissions, this ground was expanded to include the second respondent’s partner. The evidence specifically complained about related to the allegations as to the appellant’s drug use and mental health. However, a fair reading of the Chief Magistrate’s reasons discloses that no weight was placed on that aspect of the evidence before the Court. The findings made by her Honour as to the history of the appellant’s drug use referenced the appellant’s own admissions.
100. Otherwise, there was no error in the Court’s treatment of the evidence given by the second respondent. The conclusion reached by the Court below with regard to the second respondent was simply that he was willing to provide care and protection and that he was prepared to undertake an assessment as to whether he was able. That was plainly correct. It was on that basis that the Court made the orders, which were limited as to time, apparently to allow (among other thing) for such an assessment to take place in the meantime.
101. For these reasons, Ground 9 also fails.
Issue 2: Denial of procedural fairness (Grounds 1 and 4)
102. Courts have an overriding duty to ensure that a trial is conducted fairly and in accordance with law. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: Hamod v New South Wales [2011] NSWCA 375 at [309] per Beazley JA (as her Honour then was; Giles and Whealy JJA agreeing); Re F (Litigants in Person Guidelines) [2001] FamCA 348; 161 FLR 189; Bauskis v Liew [2013] NSWCA 297 at [66]-[70] per Gleeson JA (Beazley P and Barrett JA agreeing).
103. From the above principle, it can be seen that the mere fact that a person does not have legal representation does not result in a lack of procedural fairness being afforded. On the contrary, it is a litigant’s right to represent herself and indeed, the appellant did so on appeal. Rather, the Court considers whether the appellant suffered disadvantage.
104. Here, a review of the transcript of the proceedings reveals that the Court below made considerable efforts to explain the proceedings to the appellant, and otherwise afforded her additional time and assistance. The appellant was afforded the opportunity to examine all witnesses and was given leniency in relation to procedural and evidential matters so as to allow her to present her case as best she could. There was no general procedural error in the conduct of the hearing.
105. The specific complaint is that the appellant was ‘prevented’ from giving evidence concerning the appellant’s examination of a medical practitioner, Dr Wright. The appellant alleged that she was prevented from asking certain questions of her witness by the Court, who appeared by telephone on the third day of the hearing.
106. The transcript of the hearing records that the Chief Magistrate did prevent certain questions from being asked by the appellant. This was expressly because they were not relevant to the matter the Court needed to determine. Later in the examination of Dr Wright, the Chief Magistrate also requested the appellant to focus her questions. The appellant responded that she had one question left and was permitted to ask it (and complete the line of questioning that followed).
107. There is no error in the Chief Magistrate attempting to control the leading of evidence to what her Honour considered was relevant to the issues in dispute, or in requiring the appellant to focus her examination. The Court below is expressly empowered to do so under r 1401(4) of the Rules. No denial of procedural fairness has been established from the intervention of the Court below during the examination of witnesses in this regard.
108. The appellant also contended in oral submissions that there was an attempt to hand up her care and protection file and she was prevented from doing so, and that this amounted to a denial of procedural fairness. There are some references to the appellant’s efforts to acquire documents from the Director-General through freedom of information processes; an issue that the appellant also raised at the appeal. As traversed with the appellant during the hearing, that issue falls outside the scope of the appeal.
109. However, a review of the transcript does not support the appellant’s complaint, as it does not record that the appellant was prevented from tendering her file. Further, even if I accepted the appellant was somehow prevented from tendering the said file, it has not been established that the entire care and protection file was relevant to the questions for determination before the Court below, or what part of the file would have materially impacted the consideration of the Court below.
110. For these reasons, Grounds 1 and 4 are not made out.
Issue 3: Error of law (Ground 7)
111. The complaint is that it is a fundamental tenet of Australia public policy to keep children in the family setting, which was ignored. As put at the hearing, the complaint is a failure to apply the principles in s 350 of the Act.
112. Section 350 is in the following terms:
350 Care and protection principles
(1) In making a decision under the care and protection chapters in relation to a child or young person, a decision-maker must apply the following principles (the care and protection principles) except when it is, or would be, contrary to the best interests of a child or young person—
(a) the primary responsibility for providing care and protection for the child or young person lies with the child’s or young person’s parents and other family members;
(b) priority must be given to supporting the child’s or young person’s parents and other family members to provide for the wellbeing, care and protection of the child or young person
(c) if the child or young person does not live with his or her family because of the operation of this Act—contact with his or her family, and significant people, must be encouraged, if practicable and appropriate;
(d)if the child or young person is in need of care and protection and the child's or young person's parents and other family members are unwilling or unable to provide the child or young person with adequate care and protection (whether temporarily or permanently)—it is the responsibility of the government to share or take over their responsibility;
(e) if the child or young person does not live with the child's or young person's parents because of the operation of this Act—the safety and wellbeing of the child are more important than the interests of the parents;
(f) a court should make an order for a child or young person only if the court considers that making the order would be better for the child or young person than making no order at all.
(2) The care and protection principles must be applied in addition to the principles under section 9 (Principles applying to Act) and section 10 (Aboriginal and Torres Strait Islander children and young people principle).
113. Section 350(1) makes clear that the care and protection principles must be applied except when it is, or would be, contrary to the best interest of a child or young person (set out in s 349 of the Act above). This accords with s 8 of the Act, which establishes that the best interests of a child or young person is the paramount consideration in any decision made under the Act.
114. The Chief Magistrate expressly took into account the children’s best interests, referred to s 349 of the Act and manifestly addressed each of the factors listed.
115. The Chief Magistrate did not expressly refer to s 350 of the Act. However, on a fair reading of the reasons for decision, the Chief Magistrate applied the principles set out in s 350 of the Act at the same time as she was dealing with the question of what was in the best interests of the children, notwithstanding that there was no express reference to that section.
116. This can be seen in the Chief Magistrate expressly considering the contact the children would have with their biological parents if they continued to remain in foster care, in compliance with s 350(1)(c) of the Act. Further, her Honour considered the children’s need for stability and was satisfied that a return to their mother would not provide the stability required for their safety and development.
117. In making that finding, the Chief Magistrate manifestly applied the principle that the primary responsibility for providing care and protection lay (relevantly) with the mother under s 350(1)(a) of the Act, but balanced it against the importance for the child to have settled, stable and permanent living arrangements mandated by s 349(1)(h) of the Act.
118. The same balancing process operated with respect to s 350(1)(b) of the Act, which refers to priority being given to supporting the child’s parents to provide for the wellbeing, care and protection of the child or young person.
119. Again, although the Chief Magistrate did not refer expressly to this principle, it can be seen that the stability of the arrangements for the children was what her Honour considered to be in the best interests of the children, and was inconsistent with the application of s 350(1)(b) of the Act.
120. Earlier, the Chief Magistrate had referred to the support provided to the appellant through programs such as UnitingCare and the CC Cares program. Her Honour found that the appellant refused to acknowledge the need for or accept therapeutic intervention, and had failed to sufficiently engage with support agencies and CYPS services.
121. Further, the Court below did refer to the care plans and they included supervised contact with the children twice a week for two hours. That remains a form of supporting the appellant to provide for the wellbeing, care and protection of the children.
122. The consideration of such matters supports the position that the Court below did not ignore the principles in s 350 of the Act. Although for reasons of clarity, it may have been preferable for the Court below to expressly refer to the principles in s 350 of the Act, in circumstances where it is clear that the principles were applied to the extent that they were consistent with s 349 of the Act, the failure to do so does not bespeak error.
123. Accordingly, Ground 7 is not made out.
Further Submissions
124. The submissions of the appellant following the hearing contained further allegations about the conduct of CYPS staff. Specifically, the appellant complained about the conduct of the first respondent’s witness and the case worker at the time of the emergency action, Ms Lamerton.
125. I accept that interactions between those attempting to intervene under the Act on behalf of the Director-General and the appellant have been fraught. As recognised by the Court below, the willingness of the appellant to care for her children and her love for them is not in doubt and she is understandably very agitated by those who she perceives to be responsible for seeking the orders made in the Court below.
126. However, while the difficulties in dealing with CYPS staff may be a source of great frustration and anger for the appellant, this Court cannot take those matters into account when considering the appeal. I further note that there was an allegation of perjury made against Ms Lamerton. However, there is nothing in the material before the Court to support such a serious allegation.
127. The appellant also referred to a number of provisions of the Act and other legislation such as the Family Violence Act 2016 (ACT) and the Personal Violence Act 2016 (ACT). It is not necessary to set them out in detail here. It is suffice to say that I accept the submissions of the Director-General that the provisions were not relevant to the making of a care and protection order in the Court below, or to any appellate review.
128. As a separate matter, the appellant referred to the human rights obligations of the Director-General and related allegations which I do not set out because I consider them to be scandalous and without any foundation. It is reasonable that a person in the appellant’s position would feel very strongly about the result that her children were not able to live with her. However, as far as I have been able to determine, the decision was made lawfully and not in breach of any statutory obligation under the Human Rights Act 2004 (ACT). Any action under that legislation would, in any event, constitute a separate cause of action and not a matter to be considered obliquely as part of any grounds of appeal.
The Orders made
129. As set out above, the provisions of the orders made by the Chief Magistrate include that the Director-General be authorised to decide with whom the child may have contact and to decide any condition for the contact, for a period of one year.
130. Section 485 of the Act expressly envisages such a broad discretionary order might be made.
131. However, section 464(1)(b) of the Act mandates that the Court below consider the care plans prepared by the Director-General for the children. Division 14.3.4 of the Act provides further guidance as to the consultation process and content of a care plan, which is defined in s 455 as a written plan for meeting the child’s protection and or care needs. Such plans may include proposals for the case planning, including contact arrangements for the child with family members and significant people as appropriate.
132. In her Honour’s reasons, the Chief Magistrate expressly stated that the matter was finalised on the basis of the care plan currently before the Court:
HER HONOUR: In terms of the outcome of this matter, I have considered the care plan provided by the Director-General. …I just wonder whether if in light of the passage of time it might be appropriate to update the care plan. ….
MS MUSGROVE: In terms of the plan to relocate [the fourth respondent] to …
HER HONOUR: In terms of where things are at with that, given that there has been some time passed since the plan was formulated and the position perhaps in respect of [the third respondent] in particular might have changed, and whether I should finalise the matter now or whether I should await a reformulated care plan before doing that. …
MS MUSGROVE: You Honour, my instructions are that the current care plan is relevant and current. The situations have not changed significantly to warrant a change in the care plan for this point in time and if your Honour is minded to make the order now, then those care plans are relevant for the children at this point in time are my instructions.
HER HONOUR: Does anyone else wish to address the court in relation to that issue or are you content for me to finalise the matter based on the care plans before the court?
…
HER HONOUR: … in considering how to proceed in respect to this matter, I have had regard to the affidavit provided by Ms Heidi Dolan of 9 December 2016. In the circumstances, I am satisfied that it is appropriate to finalise the matter and I make care and protection orders in accordance with paragraph two subparagraphs one to four inclusive of the Director-General’s amended originating application dated 16 September 2016.
133. The care plans for both subject children, covering the period 1 November 2016 to 1 November 2017, both state that current contact arrangements are for the appellant to have supervised contact with each subject child, twice a week for two hours.
134. It is true that the care plan additionally states that contact arrangements will be subject to change dependent on the best interests and safety of the child. There is no suggestion in those words that the change could be as significant as what has occurred in the present case.
135. During oral submissions, the appellant made a request to amend her current contact arrangements so as to have more time with her children. It transpired that as at the date of hearing, the appellant’s contact with her children had been reduced to one and a half hours per fortnight with one child, and there were no contact arrangements in place with her other child.
136. The Director-General has, by the orders made, been given complete discretion as to the nature and level of contact the appellant mother has with her children, and the Court below had the power to do so, and it was within the discretion of the Court below to so order.
137. However, it does not appear to me that those orders have been carried out in accordance with the Chief Magistrate’s reasons which must be taken to inform the orders.
138. The Chief Magistrate referred to the possibility of one child relocating to a different state as being likely to create practical difficulties for maintaining the children’s relationship with their mother, but expressly found that it would be in their best interests if ongoing physical contact could be maintained as opposed to a merely telephone based relationship. The Chief Magistrate had earlier referred to the bond between the children and was satisfied that at least the elder child had demonstrated a desire to maintain a future relationship with the appellant.
139. It is of great concern that where the Court below has made such findings, the present state of affairs has arisen. In submissions in reply, the children’s representative states:
It is impossible to avoid comment entirely on the matter of the children’s current time with the [a]ppellant. Concern is expressed on behalf of the fourth and fifth respondents regarding the sizeable reduction in time between the [a]ppellant and the children following the granting of final orders by [the] Chief Magistrate…
140. I accept the submissions of the children’s representative that the lamentable circumstances do not mean that appealable error is disclosed in the decision of the Court below.
141. However, the order was made by the Court below on the basis of a care plan: it is a jurisdictional prerequisite. That care plan must be in writing and is the product of considerable consultation and work, having regard to Division 14.3.4 of the Act. It seems to run counter to the intent of the Act that the Director-General would be able to radically depart from that care plan without further reference to the Court.
142. That is particularly so in light of the alternative avenues to amend the contact arrangements set out in the Act. Section 466 of the Act provides a mechanism for any party to proceedings in which a care and protection order was made to make an application to the Court for a review of those orders, if they believe on reasonable grounds that an amendment is in the best interests of the child.
143. Section 467 is cast in similar terms and allows for an application for revocation of a care and protection order. Such an application may be made once a year, or more than once in a 12-month period with leave of the Court if there has been a significant change in any relevant circumstances since the order was made or last extended or amended.
144. It seems to me that these provisions apply equally to the Director-General. The reduction of a mother’s access to her young children, by half in one case and to nothing in the other, in the space of a matter of months, could only be the product of a significant change in relevant circumstances.
145. The Court below, not the Director-General, has been designated by the legislature as the supervisory body for changes to orders for the care and protection of a child. It may be that consideration ought be given to a form of orders in future which is more closely aligned with the care plans that found the orders, while still providing a degree of flexibility for the Director-General.
146. However, as submitted by the children’s representative, that is not a matter for this Court to address, absent any error found in the judgment.
Costs
147. The respondents who appeared at the hearing properly advised that no order as to costs would be sought in these proceedings.
Orders
148. The order of the Court is that the appeal be dismissed.
I certify that the preceding one hundred and forty-eight [148] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam
Associate:
Date: 18 December 2017
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Amendments
18 December 2017 Replace “interim” with “final” Catchwords
Replace “an interim” with “a final” Paragraph [12]
Replace “in best” with “in the best” Paragraph [68]
Replace “Grounds 2 and 10” with “Grounds 3 and 10” Paragraph [93]
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