Re Jeremy

[2017] NSWCA 220

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220
Hearing dates:	16 August 2017
Decision date:	01 September 2017
Before:	McColl JA at [1]; Basten JA at [2]; Adamson J at [45]
Decision:	(1)   Set aside the orders made by the District Court on 11 July 2016 dismissing the applicants’ appeal and confirming the orders of the Children’s Court.  (2)   Remit to the District Court the appeal brought by the applicants from the Children’s Court, to be determined according to law.
Catchwords:	SUPERVISORY JURISDICTION – review sought of judgment of District Court on appeal from Children’s Court – application for leave to apply to vary care orders – whether District Court erred in law in failing to apply provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90 – whether relief futile or unnecessary   CHILD WELFARE – care and protection of children –application for leave to vary care orders – whether “significant change in any relevant circumstances” – whether applicants had arguable case
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 82, 86, 90, 91; Ch 2, Pt 2 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.4
Cases Cited:	JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 King v Goussetis (1986) 5 NSWLR 89 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 S v Department of Community Services [2002] NSWCA 151; 29 Fam LR 144 Wade v Burns (1966) 115 CLR 537; [1966] HCA 35
Texts Cited:	M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017)
Category:	Principal judgment
Parties:	DM (First Applicant) MM (Second Applicant) Secretary, Department of Family and Community Services (First Respondent) Independent Legal Representative for Jeremy and Nikki (Second Respondent) District Court of New South Wales (Third Respondent)
Representation:	Counsel: Second Applicant self-represented Mr M Anderson (First Respondent) Ms M Neville (Second Respondent) Submitting Appearance (Third Respondent)   Solicitors: Applicants self-represented Crown Solicitor’s Office (First and Third Respondents) Rowley & Associates (Second Respondent)
File Number(s):	2016/249033
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 11 July 2016 Before: Hatzistergos DCJ File Number(s): 2015/263192

Judgment

1. McCOLL JA: I agree with Basten JA.

2. BASTEN JA: The female applicant is the mother of four children, two of whom were placed in the care of the Minister pursuant to orders made on 20 June 2013 under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”). The male applicant was the step-father of one of the children removed from the family and was the natural father of the other three children. (Sadly, he died in the short period while judgment has been reserved.) To avoid possible contraventions of the non-publication orders made by the Court at the commencement of the proceedings, the children have been given pseudonyms for the purposes of this judgment. Parental responsibility for the oldest child (Jeremy) and his sister (Nikki) was allocated to the Minister pursuant to orders made by the Children’s Court on 20 June 2013. The younger brothers, Andy and Daniel, remain in the care of the applicants. The present circumstances of the father will be discussed below.

3. On 4 March 2015 the mother sought rescission of the orders made on 20 June 2013 and the allocation to her of sole parental responsibility for Jeremy and Nikki. The application was varied on two occasions; pursuant to an amended application filed on 14 July 2015, a more modest claim was made, namely that, pursuant to s 86 of the Care and Protection Act, the children should have unsupervised contact with the mother in accordance with a prescribed regime.

4. Pursuant to s 90 of the Care and Protection Act, the mother required leave of the Court to make the application. On 20 August 2015 Children’s Magistrate Sheedy rejected the application for leave. The magistrate was not satisfied that there had been “a significant change in any relevant circumstances since the care order was made”, for the purposes of s 90(2) of the Care and Protection Act. Further, she was not satisfied that the mother had made an arguable case for increased contact with the children, for the purposes of s 90(2A)(e) of the Care and Protection Act.

5. On 8 September 2015, the mother lodged an appeal with the District Court, pursuant to s 91 of the Care and Protection Act. That appeal was by way of a new hearing and the District Court had the functions of the Children’s Court, with power to confirm, vary or set aside the decision of the Children’s Court. On 11 July 2016, Judge Hatzistergos refused the application for leave, confirmed the orders of the Children’s Court and dismissed the summons.

6. There being no appeal from an order of the District Court made on an appeal from the Children’s Court, the father commenced proceedings in this Court by way of a summons seeking judicial review of the District Court judgment, relying on the supervisory jurisdiction of the Court conferred by s 69 of the Supreme Court Act 1970 (NSW). (The mother was joined as co-applicant by direction of the Registrar.) That jurisdiction depends on the applicants establishing jurisdictional error on the part of the District Court, or error on the face of the District Court record. (The record includes the reasons of the Court.)

7. Both the mother and the father were applicants in this Court. Legal Aid having been refused, they were unrepresented. The father, who at age 35 is sadly in the advanced stages of a cancer which has metastasised, was unable to attend. The mother, who has the care of her two younger children, attended by telephone and made oral submissions.

Nature of proceeding in District Court

8. Before turning to the reasoning of the District Court, it is convenient to set out relevant parts of s 90, being the provision under which the application was made.

90   Rescission and variation of care orders

(1)   An application for the rescission or variation of a care order may be made with the leave of the Children’s Court.

…

(2)   The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.

(2A)   Before granting leave to vary or rescind the care order, the Children’s Court must take the following matters into consideration:

(a)   the nature of the application, and

(b)   the age of the child or young person, and

(c)   the length of time for which the child or young person has been in the care of the present carer, and

(d)   the plans for the child, and

(e)   whether the applicant has an arguable case, and

(f)   matters concerning the care and protection of the child or young person that are identified in:

(i) a report under section 82, or

(ii)   a report that has been prepared in relation to a review directed by the Children’s Guardian under section 85A or in accordance with section 150.

…

(5)   If:

(a)   an application for variation of a care order is made or opposed by the Secretary, and

(b)   a ground on which the application is made or opposed is a ground that has not previously been considered by the Children’s Court,

the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order.

(6)   Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration:

(a)   the age of the child or young person,

(b)   the wishes of the child or young person and the weight to be given to those wishes,

(c)   the length of time the child or young person has been in the care of the present caregivers,

(d)   the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,

(e)   the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f)   the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

(7)   If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so:

(a)   it may, by order, vary or rescind an order for the care and protection of the child or young person, and

(b)   if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.

9. The terminology of s 90(2) is ambiguous. There is no doubt that it confers a power to grant leave if the Court is satisfied that there has been a significant change in any relevant circumstances; it does not say “only if” that condition is satisfied, nor does it prohibit a grant of leave in the absence of a significant change. Nevertheless, this Court has accepted that “the power to grant leave is only triggered where the Children’s Court is satisfied that a significant change in circumstances has occurred.”[1]

   1. JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [200] (in my judgment, Meagher JA agreeing); see also at [118] (McColl JA).

10. Section 90(2A) identifies matters which must be taken into consideration “[b]efore granting leave”. One mandatory consideration, but not identified as a precondition to the grant of leave, is that the applicant have an “arguable case” for a variation of the care order; indeed, it is listed as the fifth out of six mandatory considerations. The other mandatory considerations, it may be inferred, must be taken into account in determining whether the applicant has an arguable case; if they were treated as free-standing considerations, there would be little purpose in imposing a separate leave requirement.

11. In JL, in a passage cited by the primary judge, McColl JA reiterated two long standing propositions articulated by this Court in S v Department of Community Services,[2] namely:[3]

“[23]   I should observe that a person seeking leave to apply for the rescission or variation of a care order is not required to prove on such an application that, if leave be granted, the person would be entitled to the order sought. The first step is simply to establish that there has been a change of sufficient significance to justify the consideration of an application for rescission or variation of the care order.

…

[27] … Section 90(2) uses the expression ‘a significant change in relevant circumstances’. This requires a comparison between the situation at the time when the application was heard and the facts underlying the decision when the order was made or last varied.”

2. [2002] NSWCA 151; 29 Fam LR 144 (Davies AJA, Heydon and Hodgson JJA agreeing).

3. JL at [123].

12. That exercise having been undertaken, the power to grant leave is engaged; it is then necessary to undertake a consideration of the factors identified in s 90(2A), having regard to the changed circumstances.

Reasoning of primary judge

13. After setting out some matters of background, the primary judge appropriately identified the relevant circumstances at the time when the orders were made. He concluded: [4]

“Before me and the Magistrate the case proceeded on the basis that the significant factor in the children’s removal was the physical violence and exposure to extreme violence perpetrated by [the father] and the failure of [the mother] to adequately protect the children.”

4.    Judgment, 11/07/16, p 6.

14. The judge then identified, correctly, the changes in circumstances relied on by the applicants. Four matters identified by the mother were summarised in the following terms: [5]

    5.    Judgment, p 7.

1. “the number of education and parenting courses undertaken by [the mother and the father]”;

2. the fact that “the parents have had two further children … [who] have been satisfactorily parented and no longer is it necessary for the Department [to] be involved in supervising their care”;

3. “domestic violence which previously characterised the relationship between the Plaintiffs is no longer relevant”;

4. “[Jeremy] has had eight different placements and the placements have not worked; …he is currently being held in a hotel run by the Marist Brothers youth workers and … there are significant issues with his behaviour in that he wants to hurt himself and no longer recognises [the father] as his father.”

15. With respect to the father, the primary judge noted that three additional matters were raised: [6]

1. “The father is now able to prove his Aboriginal heritage and as such [Nikki’s] care should reflect that culture”;

2. “[t]he father’s alcohol and cigarette consumption has ceased. He ceased drinking approximately 12 months ago and stopped smoking cigarettes approximately six to seven months ago”; and

3. “[i]t was asserted that he had sought help with his inability to contain his strong emotions as to his children’s circumstances. He has willingly undertaken a significant amount of counselling and completed courses in anger management. He reiterated that the family home has been free of domestic violence since 2010.”

   6.    Judgment, p 8.

16. It is clear that these elements are not entirely independent of each other. For example, the value of the education and parenting courses referred to as the first item identified by the mother and the third item identified by the father are relevant to whether their relationship involved an element of domestic violence in the past, which is no longer so, as asserted in relation to the third item in each list.

17. In any event, the judge dealt with this aspect of the history in some detail. In substance he rejected the applicants’ claims on the following bases. First, much of the education and counselling took place before the children were taken from the applicants and therefore did not involve a change in circumstances. Secondly, there was a continuation during supervised access of aggressive and confrontational behaviour by the father. (That appears not only to have been treated as a continuation of existing circumstances, but also as a reason why the parents would not be allowed unsupervised access.) Thirdly, the judge took careful note of the apparent deterioration in the behaviour of Jeremy, which had resulted in eight different placements, none of which had worked, together with the expressed wish of Jeremy not to see his step-father again. All of this evidence provided a reasonable basis for not granting the applications, but it is less clear that it demonstrated an absence of change in circumstances.

18. With respect to the father, the judge concluded that: [7]

“[He] has a strong desire to reunite his family. He clearly is a person who remains in need of treatment and support to contain his emotions and to prevent inappropriate behaviours. Whatever he has learnt from the various courses and treatment he has undertaken thus far has clearly had a limited impact.”

7.    Judgment, p 16.

19. With respect to the mother, the judge concluded: [8]

“[She] has clearly been unable or unwilling to prevent the aggression and the abuse to workers during contact visits. She has defied directions, on a number of occasions including facilitating the attendance of [the father] at a sibling contact visit on 8 July which I referred to, which was not authorised, putting [the father] on the phone to talk to [Jeremy] on 16 April 2015 and informing the children of her pregnancy in circumstances where she was directed by staff not to.”

8.    Judgment, p 16.

20. The reference to the contact visit “on 8 July” appears to have been a reference to a visit on 10 July 2014, to which the judge had referred earlier in the judgment, that being two years before the date of the hearing.

21. The judge’s conclusion with respect to the present parenting skills of the applicants was identified in the following passage: [9]

“The positive view in relation to [Daniel’s] care was supported by the letter dated 19 November 2014 from Ms Hennessy, which I have referred to earlier in these reasons. It suffices to state that neither the Secretary nor the independent legal representative raised any issues adverse to the Plaintiffs in respect of their parenting of the two children in their care at the present time. To an extent, this demonstrates the parents’ capacity to apply the knowledge that they have acquired from various courses and the services that they have utilised.”

9.    Judgment, p 12.

22. There was no express finding as to whether or not this evidence satisfied the precondition to the engagement of the power to grant leave. The apparent contrast between the parents’ conduct with respect to the younger children and the ultimate finding that there had been no significant change with respect to the older children was not addressed.

23. The judge also set out in some detail the history of Jeremy’s placements. However, there was no reference to the extent to which Jeremy’s behaviour had changed since he was placed in care. There was no finding as to whether his difficulties constituted a significant change in a relevant circumstance. The submissions addressed that issue, partly in the context of the s 82 reports, to which further reference will be made below.

24. The final two pages of the judgment were important. After referring to the reasoning of this Court in S v Department of Community Services, the judge continued: [10]

“The test is whether … there had been a significant change to justify the consideration of an application for rescission or variation of the care order. In my view the facts as I have outlined plainly reveal that this has not occurred so as to justify the consideration of the unsupervised access as the parents seek. In my view the facts clearly demonstrate no basis to justify consideration of a variation application.

Even if I am wrong in this view, I would not exercise the discretion to grant leave under s 90(2). This is an application for a variation to provide for unsupervised visits. The visits I have referred to and the incidents which have arisen have occurred in front of the children. Concerns for [their] safety [exist] and they have emphasised why these visits must remain supervised.

… Bearing in mind the factors in s 90(6), I do not consider the case for the Plaintiffs as arguable, particularly in light of the capacity demonstrated by the parents, and the risks to the children of psychological harm if the care arrangements were varied or rescinded.”

10.    Judgment, p 17-18.

25. There is no doubt that the concept of “a significant change in any relevant circumstances” is a test which must be understood in its statutory context; namely, a conditional power to grant leave for an application to rescind or vary a care order. Nevertheless, to link the context and the precondition so as to fuse them into a single test of changes, being sufficient to “justify” the particular application made, is apt to confuse the precondition to a grant of leave with the merit of the application. The anticipatory expression of a conclusion on the merits, if the finding as to the absence of the precondition were erroneous, supports the inference that the two questions have been run together in circumstances where the merits could only properly be addressed once relevant changes in circumstances had been identified and considered.

Grounds of review

26. Both the respondents submitted, correctly, that the summons did not clearly identify an appropriate ground of review. Although the Secretary filed a “Response” alleging a non-specific failure to comply with Uniform Civil Procedure Rules 2005 (NSW), r 59.4, neither respondent sought to have the summons struck out, perhaps because they were conscious of the difficulties faced by a litigant seeking to invoke the supervisory jurisdiction of the Court without legal representation.

26. That meant that it was necessary, for the Secretary at least, to consider whether there were grounds on which the application for relief in this Court could be supported. The possible grounds which were raised with counsel for the respondents in the course of the hearing were:

1. the absence of express findings by the primary judge that the matters relied upon by the applicants as changed circumstances either did not demonstrate “significant change”, or did not involve “relevant circumstances”; and

2. in finding that the applicants had no arguable case, the judge neither considered the significance of the changed circumstances, nor explained how other mandatory considerations in s 90(2A) had been taken into account.

28. Despite some unpromising features of the evidence, it was necessary to focus clearly on the question of changed circumstances. As to the father’s allegations, it appears that the judge accepted that the father was an Aboriginal person. He stated, referring to a letter from a support worker, Narelle Hennessy: [11]

“Ms Hennessy is the Aboriginal and Family Services co-ordinator with Anglicare. That letter … dated 19 November 2014, refers to the interactions that Ms Hennessy has had with [the mother’s] family in generally positive terms.”

There was no consideration, however, as to whether, and if so how, account should be taken of that fact in relation to [Nikki’s] care, she being his natural daughter. In particular there was an issue, which was raised by the mother, as to whether the principles with respect to Aboriginal families set out in Ch 2, Pt 2 of the Care and Protection Act were engaged. It was not a factor that had been addressed when the original care order was made.

11.    Judgment, p 9.

29. The second factor noted in the father’s claim was that he had ceased smoking and drinking, a matter which might well have reduced the likelihood of domestic violence, which, although it clearly had not ceased “since 2010”, may have ceased after June 2013. That view would have been consistent with the second factor noted by the mother, namely that the Department no longer had concerns as to the safety of the two younger children. It was not addressed in these terms.

30. Thirdly, there was a potential anomaly between the care of the older children and the two younger children. The anomaly may well have been resolvable, but it is a changed circumstance of apparent relevance. It was addressed in submissions in the District Court, but neither identified nor addressed as such in the judgment.

31. Fourthly, a further mandatory consideration on a leave application was the content of any report under s 82 of the Care and Protection Act. The judgment recorded, in the penultimate paragraph:

“In coming this decision, I have had regard to the matters concerning care and protection in the s 82 reports, I have also had regard to the objects and principles set out in ss 8 and 9 of the [Care and Protection Act] and in particular the paramount principle reflected in s 9(1) of the [Care and Protection Act].”

32. There is no doubt that the judge was conscious of the fact that he was required to take into consideration any report made under s 82 of the Act. No report was initially tendered by any party; it was the judge who raised the matter with counsel for the Secretary. [12] The judge expressly identified it as something he was required to look at. [13] The reports were eventually produced and admitted as an exhibit. [14] The most recent report was 18 months old, being dated 19 December 2014. The tender of these documents, at the heel of the hunt, resulted in further submissions being made on behalf of the applicants, [15] with a brief response from the independent legal representative. No party suggested that the reports were insignificant.

    12.    Tcpt, 08/07/16, p 18.

    13.    Tcpt, p 19-20.

    14.    Tcpt, p 24.

    15.    Tcpt, pp 24-27.

33. No party in this Court placed weight on this specific aspect of the proceedings in the District Court. Nevertheless, the written submissions filed by the mother in this Court did identify a failure to take account of submissions made on her behalf in the District Court. The respondents did not address the submissions which were in fact made and whether they had been taken into account. The respondents merely denied there had been any procedural unfairness.

34. The fact that the judge made no findings as to the contents of the s 82 reports, nor as to whether (as had been submitted to him) they revealed changed circumstances, renders it probable that they were not taken into account in the manner required by s 90(2A)(f). The fact that the Secretary came to the hearing unprepared to tender the reports, and made no submissions as to their content, supports the inference that the contents were not properly considered.

35. It was not possible for the District Court, in accordance with the approach identified at [10]-[12] above, to determine whether the applicants had an arguable case without taking into account the changed circumstances. That task is not fulfilled merely by saying, in effect, ‘if I am wrong in finding that no relevant circumstances have changed, nevertheless I am not satisfied that the applicants have an arguable case’. [16]

    16. Judgment, p 17, set out at [24] above.

36. It is clear that officers of the Department (and of the caring authorities who had had contact with Jeremy and Nikki) appreciated that, at least in the case of Jeremy, he had been severely harmed by his earlier years in a violent household. They were also of the view that his continuing anti-social behaviour would not be ameliorated by his return to his parents’ care. However, on the face of the evidence, the applicants were entitled to have the Court properly investigate the apparent anomaly between their satisfactory care of their younger children and the refusal of the Minister to allow them to care for the older children. It may be that the damage Jeremy had suffered at the hands of his step-father, without protection from his mother, would be accepted as a reason for not returning him to their care and responsibility, or even allowing greater unsupervised access. But it was also necessary to have regard to the history of unsatisfactory placements.

37. Further, none of these considerations applied to Nikki, whose circumstances received quite limited attention. For example, Nikki did not have the same problems with unsatisfactory placements as had Jeremy. Secondly, there was the difference between the situation where the male applicant was Jeremy’s step-father, but Nikki’s natural father. Thirdly, Nikki was three years younger than Jeremy and therefore closer to the age of her siblings who had remained at home. These issues were not addressed.

38. The statement as to the absence of an arguable case, in the absence of a proper consideration of all the mandatory considerations, will not lead the Court to refuse relief on the basis that to grant it would be futile. In Wade v Burns [17] a mining warden considered that he was required to refuse an application, but stated that if he had had power to grant the application he nevertheless would not have done so. The warden was held to have been wrong with respect to his first finding. As Barwick CJ explained: [18]

“It was sought to be said that the grant of a mandamus was futile because the warden in delivering his reasons for the course he took said that had he a general discretion to refuse the application he would do so. It is sufficient to say that this statement by the warden as to what he would do if he had a power which, according to his own view, he did not have has no weight, in my opinion, when the court is considering whether a writ of mandamus, which otherwise it is satisfied should issue, would be futile. The magistrate will consider the application according to law when the mandamus is issued and will no doubt then apply his mind to the matters which arise before him. His anticipatory comments are of no present consequence in relation to the granting of a mandamus.”[19]

17. (1966) 115 CLR 537; [1966] HCA 35.

18.    Wade v Burns at 555.

19. Wade v Burns has been applied by this Court in King v Goussetis (1986) 5 NSWLR 89 at 94-95 (McHugh JA; Kirby P and Hope JA agreeing).

Relief

39. For these reasons, the leave application miscarried in that the two critical conditions were not separately addressed. That gives rise to a question as to what relief should, if any, be provided.

40. The second respondent to the appeal was the children’s independent legal representative. She merely adopted the submissions of the Secretary, to the effect that there had been no reviewable error. She did not make any independent submissions. The Secretary relevantly submitted: [20]

“[The primary judge] referred to the appropriate authorities and considered the evidence in support of the leave application to determine that there was no significant change in relevant circumstances to justify the consideration of an application for rescission or variation of the care order. His Honour held that if he was wrong in that view, he would not exercise the discretion to grant leave under section 90(2) of the Care Act.”

20.    Secretary’s submissions, par 12.

41. It was not entirely clear what position the respondents took in this Court with respect to the remarks of the primary judge that, had he been wrong in refusing leave, he would nevertheless have dismissed the application.

42. There are, of course, circumstances in which relief may be refused in the supervisory jurisdiction on discretionary grounds. [21] Neither respondent sought to have the application dismissed on that basis; when expressly asked to address that question, each submitted that if the Court were satisfied that there was error warranting review, the matter should be returned to the District Court for reconsideration. [22] Subject to one possible qualification, that position should be accepted.

    21.    M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) at Ch 17, Pt 17.5.

    22.    Tcpt, 16/08/17, p 18(10)-(40).

43. The possible qualification arises from the circumstances of the father. The day before the hearing the Court received an email from the mother advising that he was in the advanced stages of a cancer which had metastasised and he was then in palliative care; he has since died. Although his cancer had been diagnosed at the time of the hearing before the primary judge, the seriousness of his condition was not then appreciated. Accordingly, for the most unfortunate of reasons, the household circumstances have changed dramatically in terms of the assumptions made by the primary judge and, indeed, by the Children’s Magistrate who first heard the variation application. Ultimately, these proceedings might more fruitfully have been pursued by the mother making a further application to the Children’s Court, rather than pursuing judicial review in this Court. It is possible that the next step in the proceedings will be a fresh application by the mother in the Children’s Court. Indeed, it was suggested in the course of argument that if the matter were returned by this Court to the District Court, there was a possibility that the matter might in any event be further remitted to the Children’s Court.

44. These are matters for the future conduct of proceedings in another place. Because the Court was not invited to dismiss these proceedings on a discretionary basis, and because there may be some ongoing utility in setting aside the finding in the District Court that there had been no change in circumstances, the Court should grant the relief sought in the following form:

1. Set aside the orders made by the District Court on 11 July 2016 dismissing the applicants’ appeal and confirming the orders of the Children’s Court.

2. Remit to the District Court the appeal brought by the applicants from the Children’s Court, to be determined according to law.

45. ADAMSON J: I have had the benefit of reading the reasons of Basten JA in draft and agree with the reasons proposed by his Honour. During the course of the hearing in this Court Basten JA formulated, with greater precision than the applicants had been able to do, two errors of law on the face of the record which, if made out, would warrant this Court setting aside the decision of the District Court pursuant to s 69 of the Supreme Court Act.

46. I am persuaded by the reasons of Basten JA that both grounds (set out in [27] of his Honour’s judgment) have been made out and wish to add only the following remarks of my own.

47. The power conferred on the District Court by s 90(2) of the Care and Protection Act to grant leave is subject to the requirement that it must appear “that there has been a significant change in any relevant circumstances since the care order was made or last varied”. The applicants raised various matters in the Court below which they contended met this threshold, including the birth of two further children who remained in their care, since the care orders were made. The Court below was obliged to reveal in its reasons why the circumstances raised were not “relevant”; or, if it was the case, why they were not “significant”; or, if they were both relevant and significant why the Court was nonetheless not disposed to grant leave. For the reasons which are addressed by Basten JA, the Court below did not reveal that these matters were addressed sufficiently to permit a conclusion that s 90(2) was correctly applied.

48. Further, the matters listed in s 90(2A) of the Care and Protection Act are, as the terms of the subsection provide, mandatory relevant considerations. The result is that failure to take anyone of them into account (assuming materiality in the circumstances) amounts to an error of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 39-40 (Mason J). One cannot discern from the reasons of the Court below that each matter which was required to be taken into account and was the subject of evidence and argument, was actually taken into account. Indeed, the mandatory relevant consideration, “whether the applicant has an arguable case” (s 90(2A)(e)), appears to have been addressed by the Court below after the decision that leave ought be refused had already been made.

49. In these circumstances I am satisfied that the applicants’ application for leave before the Court below was not determined in accordance with law. As referred to above, I agree that the orders proposed by Basten JA ought be made.

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Endnotes

Decision last updated: 01 September 2017