S (A Child) v Chief Executive Officer of the Department for Child Protection

[2008] WASC 229

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   S (A CHILD) -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION [2008] WASC 229

CORAM:   JENKINS J

HEARD:   4 JUNE 2008

DELIVERED          :   30 OCTOBER 2008

FILE NO/S:   SJA 1031 of 2008

BETWEEN:   S (A CHILD)

Appellant

AND

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION
First Respondent

CB
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE T G SCHWASS

File No  :PE 1602 of 2008

Catchwords:

Protection and care of children - Appeal - Power of magistrate to make interim contact order during the course of protection proceedings - Considerations relevant to the exercise of the power

Legislation:

Child Welfare Act 1947 (WA), s 47A, s 47B, s 47C, s 47D
Children's Court of Western Australia Act 1988 (WA), s 41(2), s 42(1), s 43(1)
Children and Community Services Act 2004 (WA), s 3, s 7, s 35(3), s 133, s 143, s 155, s 240
Criminal Appeals Act 2004 (WA), s 6, s 8, s 9

Result:

Application for leave to appeal granted
Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr R I M Bannerman

First Respondent           :     Mr I A Allen

Second Respondent      :     No appearance

Solicitors:

Appellant:     Bannerman Solicitors

First Respondent           :     Department for Child Protection

Second Respondent      :     No appearance

Case(s) referred to in judgment(s):

Barnett and N1 v N2 (Unreported, WASC, Library No 950461, 30 August 1995)

Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210

Hughes v Gales (1995) 14 WAR 434

PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228

Samuels v State of Western Australia (2005) 30 WAR 473

State of Western Australia v JJS (a child) (2004) 145 A Crim R 403

JENKINS J: 

The decision under appeal

1. This is an appeal from the decision of a magistrate sitting in the Children's Court of Western Australia at Perth on 26 March 2008.  The appellant appeals against the magistrate's refusal to grant an interim order for contact between herself and her infant son, who was the subject of a protection application (until 18) which was then before the magistrate.

Proposed grounds of appeal

1. On 1 May 2008 McKechnie J ordered that the application for leave to appeal and appeal be heard at the same time.  The sole proposed ground of appeal is that the magistrate erred in law when he found that he did not have the legal power to make an interim order for contact.

Details of the application before the magistrate

1. On 4 March 2008 a magistrate issued a warrant (provisional protection and care) pursuant to the Children and Community Services Act 2004 (WA) s 35(3) (the Act). The warrant authorised the police to find the appellant's infant son, to take the child into provisional protection and care and to take the child to such a place as the first respondent, the Chief Executive Officer of the Department of Child Protection (the Department), directed. The infant was found and placed with a departmental foster carer.

2. On 19 March 2008 the Department applied to the Children's Court for a protection order in respect to the infant until he reached the age of 18 years.

3. On 26 March 2008 the application was mentioned in the Children's Court.  The appellant was represented by counsel.  The infant's father, who has a limited guardianship order in place in respect to him, had assistance from a representative of the Public Advocate.  Neither the father nor the representative of the Public Advocate took an active part in the proceedings.

4. The substantive application was not ready to be heard. The Department sought interim orders that pursuant to the Act s 133(2)(b) the infant remain in provisional protection and care. The Department sought a further order that leave be granted, pursuant to the Act s 240 to enable it to disclose identifying information in relation to notifiers and a copy of the proceedings to the other parties to the proceedings. Otherwise, the Department sought an adjournment of the application.

5. The adjournment was not opposed and neither were the other orders sought by the Department.

6. The appellant's counsel made an oral application to the court for an interim order that the appellant have contact three times a week with her infant.

7. The magistrate made enquiries of the Department's counsel and ascertained that the Department had not filed a proposal for the care and protection of the child, as is required under the Act s 143. There was no criticism of the Department for this failure, given the short period of time the application had been on foot. The magistrate made the comment that it was inappropriate to make orders for contact if it was not the Department's intention for the infant to be raised by the appellant. The Department's legal representative advised the magistrate that the Department had not yet determined whether it was appropriate for the child to be raised by the appellant and that the appellant and infant were booked into Ngala, a residential facility for parents and babies, in approximately six weeks time, from 26 March. The appellant's ability to care for the infant would be assessed at that time.

8. The magistrate enquired of the Department's counsel what contact regime was proposed in the meantime.  The Department's counsel responded:

   Currently - at this stage it's hoping for twice a week, your Honour.  But it depends on whether the department can organise transport, workers and so on.  So we are up against a resource issue there.

9. The appellant's counsel made submissions concerning her client's position.  She submitted that, given the placement at Ngala was some time away, the appellant could not bond with the infant with one hour's contact, once or maybe twice a week.  She submitted that it would be in the infant's best interest to have an opportunity to bond with the appellant.

10. The following exchange took place between the magistrate and the appellant's counsel:

    HIS HONOUR:  The difficulty I have is of course making an order that are not going to be complied with or can't be complied with.

    TOMLINSON‑CLEMENS, MS:  With respect, your Honour, the department will be required to comply with the orders and make the best endeavours to do so.

    HIS HONOUR:  What if they come back in a fortnight's time and say, 'We would like to comply with your order but we simply don't have the resources.'

    TOMLINSON‑CLEMENS, MS:  I haven't yet come across that situation where a magistrate has made an order before this court and the department hasn't complied, your Honour, in respect of contact.

    HIS HONOUR:  Yes, it would be nice to have that power but I'm of the view that I don't.  The situation is that the department have indicated that they will do their best given their resources.  Whatever view I might have as to the adequacy of that or otherwise makes no real odds as to what the department will do.

11. The matter was then adjourned for a week without a contact order being made.

12. It is unnecessary for me to detail the background to the Department's application to the Children's Court.  It is sufficient for me to say that the infant was born at the end of January 2008.  The appellant is approximately 17 years of age.  The father of the infant is 19 years of age and has an intellectual disability.  The application for interim contact between the appellant and the infant did not involve the father having contact with the infant.  Given the appellant's personal circumstances, which I need not detail, the authorities became concerned about her ability to look after her infant.  To further complicate matters, in February 2008, the infant was diagnosed with Velo‑Cardio‑Facial Syndrome, a chromosomal defect.  This diagnosis gave rise to further concerns that the infant needed a greater level of care than the appellant was able to give.  Those circumstances resulted in the Department seeking the warrant and, subsequently, making the protection application to the Children's Court.  Whilst there was some information before the magistrate to the effect that the appellant had not devoted herself to the care of her infant as it might have been hoped she would, there was no evidence to suggest that she would endanger her infant.  There was evidence to suggest that the appellant needed supervised contact with her child in order to improve her parenting skills.

Jurisdiction to hear appeal from refusal of Children's Court magistrate to make an interim order

1. There is a preliminary issue as to whether this court has jurisdiction to hear an appeal from a refusal of a Children's Court magistrate to make an interim contact order (the jurisdictional issue).  In PR v Chief Executive Officer of the Department of Child Protection [2008] WASC 228 I delivered ex tempore reasons for deciding that an appeal from an interlocutory decision of the Children's Court in protection proceedings was competent. In these reasons I expand on my construction of the relevant statutory provisions.

2. The Children's Court of Western Australia Act 1988 (WA) (CC Act) s 42(1) provides:

   (1)Subject to this Act, where the Court, when constituted so as not to consist of or include a judge, makes any finding, order, or other decision on the hearing of an application under Part 4 or 5 of [the Act] the finding, order or decision may be the subject of an appeal made in accordance with Part 2 of the Criminal Appeals Act 2004, as if it were a decision by a court of summary jurisdiction, by ‑ 

   (a)the CEO as defined in section 3 of [the Act];

   (b)the parent or guardian of the child in relation to whom the application was made;

   (c)the child in relation to whom the application was made; or

   (d)the person by whom the application was made.

3. In the Criminal Appeals Act 2004 (WA) (CA Act) an appealable 'decision' of a court of summary jurisdiction is defined to cover eight types of final orders or orders related to final orders. The appellant concedes that she cannot rely on those eight types of orders. This is not only because they relate to final determinations of proceedings but also because they are specific to criminal prosecutions.

4. Therefore, the appellant seeks to establish that the magistrate's refusal to make an interim order for contact between herself and the infant was a 'finding, order, or other decision on the hearing of an application under Part 4 or 5' of the Act. She submits that, if it was, the CC Act s 42(1) gives a right to appeal to this court against the refusal of the magistrate to make an interim order.

5. Another issue arises as the CC Act s 42(1) does not specify the grounds on which an appeal may be made. The CA Act s 8 specifies the grounds on which an appeal can be made from a decision of a court of summary jurisdiction. The grounds are that the court of summary jurisdiction:

   i.made an error of law or fact, or of both law and fact;

   ii.acted without or in excess of jurisdiction; or

   iii.imposed a sentence that was inadequate or excessive.

6. An appeal may be also be taken on the ground that there has been a miscarriage of justice.

7. It is obvious that not all of these grounds apply to nor can they be adapted to apply to appeals from decisions of magistrates made in respect to protection proceedings governed by the Act.

8. Another issue arising from the purported application of the provisions of the CA Act to decisions made by the Children's Court in protection proceedings is whether Parliament intended that each ground of appeal would require the leave of this court. The CA Act s 9 provides that leave of this court is required for each ground of appeal from a decision of a court of summary jurisdiction. Although the CC Act s 42(1) is silent on whether leave to appeal is required for each ground of appeal in an appeal under that section, I infer that leave is required for each ground of appeal. This appears to follow from the provision in s 42(1) that the relevant finding, order or decision may be the subject of an appeal, 'as if it were a decision by a court of summary jurisdiction'.

9. Correspondingly, a similar test for granting leave to appeal in respect to a proposed ground of appeal should apply to an appeal from a decision of a Children's Court magistrate as applies to an appeal from a decision of a court of summary jurisdiction.  That is, leave to appeal on a proposed ground must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.  In Samuels v State of Western Australia (2005) 30 WAR 473 [55] ‑ [61], the Court of Appeal said that, in order for leave to be granted, a ground of appeal must have a rational and logical prospect of success, bearing in mind that the purpose of the provision in s 9 is to weed out unmeritorious appeals.

10. Before I consider the merits of the proposed ground of appeal, it is necessary for me to determine the jurisdictional issue.  If this court does not have jurisdiction to hear the appellant's appeal, leave to appeal should not be granted in respect to the sole proposed ground of appeal, whether or not the magistrate erred, as alleged.

11. There are two sub‑issues involved in the jurisdictional issue. One is whether an appeal from an interlocutory decision of the Children's Court is competent? This is particularly relevant, as the CA Act s 6 is clear that an appeal from an interlocutory decision of a court of summary jurisdiction is not competent. The second is whether a refusal to make an order is a 'finding, order or other decision' of the Children's Court?

12. In respect to the first issue, Murray J held in Barnett and N1 v N2 (Unreported, WASC, Library No 950461, 30 August 1995) that an appeal brought under the CC Act s 42(1)(a), in its then terms, could only be brought in respect to 'something in the nature of a final determination made in the proceeding' before the Children's Court (6). Although some of his Honour's reasoning is still relevant, I must construe the present terms of the relevant statutory provisions. Given that the statutory provisions changed after 1995, the decision in Barnett is not directly applicable to the question before me.

13. The appellant seeks to rely on the present terminology in the CC Act s 42(1). She submits that the phrase 'finding, order, or other decision on the hearing of an application under Part 4 or 5' of the Act is 'intended to capture' any ruling made under pt 4 or pt 5 of the Act. The respondent did not make any submissions in respect to the jurisdictional issue.

14. The application for an interim order for contact was made pursuant to s 133 of the Act states:

    133.Interim orders

    (1)The Court may at any time in the course of protection proceedings make an interim order ‑

    (a)on its own initiative; or

    (b)on the application of a party.

    (2)An interim order is an order as to any one or more of the following ‑

    …

    (f)contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child's life, including that a person specified in the order is not to have contact (whether direct or indirect0 with the child;

    (g)any other matter that the court considers appropriate.

15. Section 133 is contained in pt 5 div 2 of the Act. Consequently, any 'finding, order, or other decision' made on the application for an interim order for contact would be made under pt 5 of the Act; not pt 4. Part 5 deals primarily with the procedure to be followed by the parties and the Children's Court in protection proceedings. Protection proceedings are defined in the Act s 3 to be:

    … proceedings in respect of, or in connection with, a protection application or other application to the court under Part 4 (excluding an application under s 65, 73 or 126).

16. Protection applications made under pt 4 are also defined as applications for protection orders which, pursuant to the Act s 43, are of four types, being a protection order (supervision), a protection order (time‑limited), a protection order (until 18) or a protection order (enduring parental responsibility).  The Department's application for a protection order in respect of the appellant's infant until he reached the age of 18 was a protection application and the court proceedings in respect to it were protection proceedings.

17. The power to make, extend or vary protection orders and to make related orders is contained in the Act pt 4. Additionally, s 155 in pt 5 div 6, empowers the Children's Court to dispose of frivolous and vexatious protection proceedings. If Parliament's intention had been to only grant a right to appeal against a final order, there was no need to refer, generally, to pt 5 in the CC Act s 42(1).

18. The Act pt 5 div 2 empowers the Children's Court to adjourn protection proceedings and to make interim orders, including interim contact orders.  Division 3 empowers the Children's Court to make orders referring an application for a protection order to a pre‑hearing conference and related orders.  Division 4 empowers the Children's Court to order a report on any matter relevant to the wellbeing of a child the subject of protection proceedings and related orders.  Division 5 does not empower the Children's Court to make any orders.  Division 6 empowers the Children's Court to make orders related to the identification of parties, to provide for the legal representation of a child, to dispense with service and to dispose of frivolous or vexatious proceedings.

19. Thus, findings, orders and other decisions that the Children's Court is empowered to or may make on the hearing of an application under the Act pt 5 are not, in the main, final orders. As, apart from the power in s 155, there is no power for a final finding, order or decision to be made on the hearing of an application under pt 5, and as, apart from an order made under s 155, the only finding, order or decision made on the hearing of an application under pt 5 will be interlocutory in nature, Parliament, by including all findings, orders or decisions made on the hearing of an application under pt 5 in the CC Act s 42(1), must have intended to make an interlocutory finding, order or decision made under pt 5 subject of an appeal to this court. To find otherwise would place too narrow a construction on s 42(1).

20. Due to the express terms of the Act pt 5 div 2 an interim order for contact is 'an order' for the purposes of the Act. However, the magistrate did not make the interim order applied for by the appellant. Rather, by inference, he declined to make such an order. Is then a refusal of an application for an interim order a 'finding, order, or other decision' for the purposes of the CC Act s 42(1)? This is the second sub‑issue for my determination.

21. The Butterworths Australian Legal Dictionary defines a 'finding' as 'a conclusion reached by a court following an enquiry of fact'.  I am not persuaded that the refusal of the magistrate to make the interim order for contact amounted to a finding made on the application for the order.

22. As to the meaning of 'order', in Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210 Spigelman CJ said:

    In its natural and ordinary meaning, the word 'order' would not encompass a refusal to make an order.  As Fullagar J said in R v Blakeley; Ex parte The Association of Architects Engineers Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 90: 'Here the Commissioner has not made any award or order: he has simply refused to make an award or order. In the absence of some special definition … or some special context the word "order" does not include a refusal to adjudicate.'

    His Honour referred to Boulter v Kent Justices [1897] AC 556 at 567 where Lord Herschell said:

    'When the licensing justices grant an application for a licence they sign a certificate by means of which the licence is obtained.  But where they refuse the application they make no order at all.  They simply do not grant the licence applied for.  An order is never drawn up, and to speak of the act of the justices in not granting a licence as an order would be, I think, a misuse of the term.'

    (See also Grayndler v Cunich (1939) 62 CLR 573 at 599. Compare the case in which the statutory formulation is more expansive, for example, R v East Riding of Yorkshire Quarter Sessions; Ex parte Newton [1968] 1 QB 32 at 52 ‑ 53; Davies v Ryan (1933) 50 CLR 379 at 382 ‑ 383.)

    Nevertheless, the word 'order' may, in its context as Fullagar J acknowledged, have a wider meaning, extending to a refusal to make an order.  As Bridge J said in R v Recorder of Oxford; Ex parte Brasenose College [1970] 1 QB 109 at 114:

    'The word "order" in relation to legal proceedings in itself is ambiguous; clearly it may mean -- perhaps a linguistic purist would say that its most accurate connotation was to indicate ‑‑ an order requiring an affirmative course of action to be taken in pursuance of the order, but it is equally clear that the word may have a much wider meaning covering in effect all decisions of courts … Which of the two meanings is appropriate must of course always depend on the context …' [33] ‑ [35].

1. Spigelman CJ proceeded to determine that the statutory context then under consideration supported the conclusion that the jurisdiction granted to the New South Wales Court of Criminal Appeal to hear an appeal against 'any order for the payment of costs' did not grant jurisdiction to the court to hear an appeal against a refusal of a lower court to make a cost order.  His Honour said that he was unable to interpret the relevant statutory formulation as a reference to 'an order in relation to costs', being the type of order over which the court had jurisdiction to hear an appeal.

2. I perceive that the legislation in using the phrase 'any … order … on the hearing of an application under Pt … 5 of the [Act]' has used a particularly broad phrase which appears designed to avoid controversies of the above nature.

3. Nevertheless, there remains an issue as to whether the word 'order' is broad enough to cover the ruling of the magistrate in this case.  The magistrate's refusal to make the order did not involve any command to or requirement of any person to do any thing; such command or requirement usually being the hallmark of an order.

4. In the State of Western Australia v JJS (a child) (2004) 145 A Crim R 403 the Full Court of this State considered whether a dismissal by the President of the Children's Court of an application by the prosecution for compensation orders in respect to offences of criminal damage was a 'decision' as to the jurisdiction of the Children's Court.

5. At that time the CC Act s 43(1) provided that in criminal proceedings an appeal lay from a 'decision' of the Children's Court when constituted by a judge. The CC Acts 41(2), relevantly, defined decision to mean:

   (a)a decision as to the jurisdiction of the court;

   …

   (f)a decision to make an order under Part 7 of the Young Offenders Act1994 dealing with a person for an offence (whether or not the person may thereafter be further dealt with for the offence; and

   …

   (h)a penalty imposed or order made consequent on any such decision, conviction, finding, acquittal, or dismissal.

6. Malcolm CJ held that a determination whether a compensation order should be made required the making of a decision for the purposes of the CC Act [11]. His Honour also held that a decision regarding matters which were relevant to the exercise of any particular jurisdiction of the Children's Court was a decision as to the jurisdiction of the court [7]. Thus, a ground of appeal which alleged that the President erred in finding that she had to consider certain factual issues before making an order for compensation was a competent ground of appeal from a 'decision as to the jurisdiction of the court'.

7. Wheeler J agreed with Malcolm CJ that the appeal was competent. Her Honour held that the President had formulated two issues for determination. The first being whether the Children's Court had power to make a compensation order if a defendant had no means to pay it. The second being whether the Children's Court Act empowered the Children's Court to order a responsible adult to pay compensation if the defendant had no means to pay it. Wheeler J said that if either question was answered in the negative the Children's Court may not then consider whether a compensation order should be made. Thus, a decision in respect to either issue was a decision as to the jurisdiction of the Children's Court [55].

8. McKechnie J dissented from this view.  His Honour held that the President's decision was not a decision as to the jurisdiction of the Children's Court but a decision within jurisdiction.  He was also of the view that a refusal to make an order did not constitute an order made consequent upon a decision.  His Honour would have held the appeal to be incompetent.

9. Since JJS, the provisions in the CC Act which govern appeals in criminal matters heard by the Children's Court have been amended.  The appeal provisions in respect to appeals from protection proceedings have also been amended.

10. In 2004 the CC Act s 42 provided that, in respect to proceedings the equivalent of protection proceedings, an application for leave to appeal could be made by a party when the Children's Court made a finding, order, or other decision:

    (a)upon the hearing of an application to declare a child in need of care and protection under s 30 of the Child Welfare Act 1947;

    (b)upon the hearing of an application under s 47 of the Child Welfare Act 1947 for the release of a child; or

    (c)upon the hearing of an application for cancellation of an order made under sections 47A, 47B, 47C or 47D of the Child Welfare Act 1947 in respect of a child by the Minister responsible for the administration of that section and for the release of the child.

11. An application to declare a child in need of care and protection corresponded to a protection application under the Act. An application under s 47 of the Child Welfare Act 1947 (WA) was an application by a parent for the release of a child who had been committed to the care of the relevant department. An application for cancellation of an order under s 47A, s 47B, s 47C or s 47D of the Child Welfare Act was an application to cancel a committal order in respect to a child.

12. I observe that whilst there remains a requirement that there be a 'finding, order, or other decision' of the Children's Court to be the subject of an appeal, Parliament has broadened the type or subject matter of the relevant 'finding, order, or decision' that may be the subject of an appeal. Some amendments to the CC Act s 42(1) were required when the Act was enacted. However, I take into account that the amendments did more than replicate the previous appellate jurisdiction.

13. After this review of the relevant law, I conclude, that the magistrate's ruling that he did not have the power to make an interim order for contact amounts to 'any other decision' made on the application for an order under pt 5 of the Act.  The appeal is competent.

14. As I commented in PR's case, this is not to say that the interlocutory nature of such a decision will be an irrelevant consideration as to whether leave to appeal should be granted in respect to a proposed ground of appeal.  The well established reluctance of courts of appeal to interfere in proceedings whilst they are still on foot, except in clear cases warranting such intervention, will apply to appeals from interlocutory decisions of Children's Court magistrates under the Act:  Hughes v Gales (1995) 14 WAR 434, 439 (Malcolm CJ, Kennedy and Pidgeon JJ agreeing).

General principles relating to children

1. The Act s 7 states that in exercising a power under the Act in relation to a child the Children's Court must regard the best interests of the child as the paramount consideration. Section 8 lists a number of matters which must be taken into account by the court when determining what is in the child's best interests. These matters include the need for the child to maintain contact with his or her parents. Section 8(2) states that the matters listed do not limit the matters that may be taken into account in determining what is in the best interests of the child. However, the resources of the Department are not a specified matter that the court must take into account.

Resolution of the appeal

1. The appellant says that the only sensible way to interpret the magistrate's remarks are that the magistrate was expressing the view that he did not have the power to order contact between the appellant and the infant in circumstances where the Department had raised doubts about its ability to provide ancillary services to facilitate and supervise that contact.

2. The appellant submits that the Act s 133(2)(f) expressly provided the magistrate with the power to order contact. She submits that the power had to be exercised according to law and this required the magistrate to regard the best interests of the child as the paramount consideration when exercising that power.

3. Sensibly, the appellant does not submit that it was inappropriate for the magistrate, when exercising the power, to have some regard to the resources of the Department.  However, she submits that, contrary to the decision of the magistrate, the exercise of the power was not governed by the Department's resourcing problems.

4. The Department's counsel acknowledges that the magistrate erred in concluding that he did not have the power to make an interim contact order between the appellant and the infant.  The Department's counsel concedes that it had a responsibility to make its best efforts to comply with any interim contact order made by the court.  If it found that it was unable to comply with the order then it would have to seek revocation or variation of it.

5. This appeal raises an important point of principle.  Parliament has entrusted the Children's Court with the jurisdiction to make certain orders for the protection of children.  In particular, it has given the Children's Court power to make interim contact orders between a child and his or her parents during the course of protection proceedings.  This is an important power and it is to be exercised in the best interests of the relevant child.

6. In this case, the infant was only two months old.  The appellant's concern that her infant would not bond with her if she was given only informal contact with her infant no more than twice a week, at the sole discretion of the Department was, on the face of it, well founded and not contradicted by the evidence.

7. The magistrate was in error in concluding that he could not order contact because of the Department's concern, expressed orally from the bar table, that it may not have been able to resource that contact.

8. In saying this, I do not accept that the magistrate denied the Children's Court's jurisdiction to make an interim order for contact between a child and his or her parents. The Act s 133(2)(f) provides the source of that jurisdiction and I assume that an experienced magistrate, as this magistrate is, would be well aware of that statutory provision. Rather, I am of the opinion that the magistrate erred in deciding that he could not exercise the Children's Court's power if the Department did not support the relevant application because of doubts about its resources to provide the contact. The Department's vaguely expressed resourcing concerns should not have been determinative of this application. The magistrate's approach abrogated the court's responsibility, entrusted to it by the Parliament, to take into account all relevant matters and to determine the application for an interim contact order on the basis that the child's interests were paramount.

9. As this application raises an important matter of principle, I have determined that leave to appeal should be granted and the appeal should be allowed, even though it only relates to an interlocutory decision.  I will hear the parties as to final orders.