SL v Secretary, Department of Family and Community Services

[2016] NSWCA 124

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

SL v Secretary, Department of Family and Community Services [2016] NSWCA 124

Hearing dates:

17 March 2016

Decision date:

25 May 2016

Before:

Basten JA at [1];
Ward JA at [82];
Simpson JA at [83]

Decision:

(1)   Dismiss the application for leave to appeal.

 

(2)   Dismiss the amended summons seeking review of the judgment of the District Court.

 (3)   Order that the applicants pay the costs of the Secretary in this Court.

Catchwords:

JUDICIAL REVIEW – review of decision of District Court on appeal from Children’s Court – whether error of law on the face of the record or jurisdictional error established – whether District Court applied correct provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

 

CHILD WELFARE – care and protection of children – child protection orders – where mechanism of injuries unexplained – no realistic possibility of restoration – challenge to Children’s Court order conferring parental responsibility on maternal grandparents until aged 18

 

STATUTORY INTERPRETATION – application of amended legislation – whether rights and liabilities accrued under pre-amendment legislation for purposes of s 30, Interpretation Act 1987 (NSW) – relevant rights and liabilities arising from court orders under review

 

CIVIL PROCEDURE – independent legal representative, s 98A Children and Young Persons (Care and Protection) Act 1998 (NSW) – whether a child the subject of care proceedings who is incapable of giving instructions should be a party to proceedings

WORDS AND PHRASES – “new hearing” – s 91, Children and Young Persons (Care and Protection) Act 1998 (NSW)

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9, 10A, 38A, 60, 61, 69, 71, 72, 73, 76, 79, 79A, 81, 83, 86, 86A, 91, 98, 99, 99A, 99B; Pt 10, Sch 3, cll 32, 33, 34, 35, 36, 37, 39; Ch 5, Pt 2
Children and Young Persons (Savings and Transitional) Regulation, cl 16
Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19; Pt 3
Criminal Appeal Act 1912 (NSW), s 5B
Interpretation Act 1987 (NSW), s 30
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 50.18

Cases Cited:

ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18
AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629
Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39
Gianoutsos v Glykis [2006] NSWCCA 137; 162 A Crim R 64
Maxwell v Murphy (1957) 96 CLR 261
Mulder v Director of Public Prosecutions [2015] NSWCA 92
Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46
Re Anthony [2008] NSWLC 21
Re Jayden [2006] NSWSC 1428
Re Jayden [2007] NSWCA 35
Re Kerry (No 2) [2012] NSWCA 127
Re M (No 5) – BM v Director-General, Department of Family and Community Services [2013] NSWCA 253
Re Tracey [2011] NSWCA 43
Spruill v Director-General of the Department of Community Services [2001] NSWCA 413
T v H (unrep, 19 December 1985)
“V V” v District Court of New South Wales [2013] NSWCA 469

Category:

Principal judgment

Parties:

SL (First Applicant)
AB (Second Applicant)
Secretary, Department of Family and Community Services (First Respondent)
Independent Legal Representative (Second Respondent)
District Court of NSW (Third Respondent)

Representation:

Counsel:
Mr I Coleman SC/Ms L Goodchild (Applicants)
Mr M Anderson (First Respondent)
Mr P Singleton/Ms A Rose (Second Respondent)

  Solicitors:
Hansen Legal (Applicants)
Crown Solicitor’s Office (First and Third Respondents)
Legal Aid NSW (Second Respondent)

File Number(s):

2015/109585

Publication restriction:

Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, directing that there be no publication of the name of or material likely to identify the child the subject of these proceedings on the basis that such an order is in the public interest, including that reflected in s 71 of the Civil Procedure Act, and s 105 of the Children and Young Persons (Care and Protection) Act which significantly outweighs the public interest

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Appeal

Date of Decision:

18 March 2015

Before:

Olsson DCJ

File Number(s):

2013/371286

HEADNOTE

[This headnote is not to be read as part of the judgment]

On the morning of 10 September 2011, child M (then 5 months old) suffered life-threatening head injuries, causing him to undergo extensive surgery and to be hospitalised in intensive care for a period of months. His mother, SL, who had been diagnosed with juvenile myoclonic epilepsy for which she had been prescribed anti-convulsants, had sought to explain M’s injuries as resulting from her dropping him several times onto the concrete floor of her apartment car park whilst experiencing an epileptic fit.

Responding to medical reports concerning M’s injuries, the Secretary (Department of Family and Community Services) commenced proceedings in the Children’s Court on 18 October 2011 seeking a care order under s 61 of the Care and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”) providing for parental responsibility to be shared between the Minister and M’s maternal grandparents. Further care proceedings were heard before the Children’s Court at Parramatta between December 2012 and June 2013 with final orders made on 12 November 2013 allocating parental responsibility for M until age 18 to his maternal grandparents. They also gave several undertakings to the Court which included not allowing unsupervised contact between M and his parents until age 12. The child’s parents unsuccessfully appealed these orders in the District Court. In affirming the Children’s Court orders, the District Court judge was satisfied that the injuries suffered by M were “non accidental” and that M was a child in need of care and protection pursuant to s 71 of the Care and Protection Act. The parents sought judicial review in the supervisory jurisdiction of this Court.

Issues raised on the application for review were:

(i)   whether it was reasonably open to the trial judge to find that the injuries to M were unexplained;

(ii) whether the District Court judge had applied the correct legislation, the Care and Protection Act being subject to relevant amendments in 2014;

(iii)   whether it was reasonably open to the trial judge to find that M continued to be in need of care and protection;

(iv)   whether there had been a failure to make an appropriate contact order;

(v)   the adequacy of the reasons provided for permanency planning; and

(vi)   the role of the independent legal representative in care proceedings.

The Court held, (Basten JA, Ward and Simpson JJA agreeing), in dismissing the application.

In relation to (i)

1. The trial judge had accepted the medical evidence which demonstrated on the balance of probabilities that the explanation provided by SL for M’s injuries was insufficient. The trial judge’s finding that the injuries to M were “non accidental” was reasonably open on the evidence: [17], [20], [21].

In relation to (ii)

2. The trial judge erred in holding that the amending legislation did not apply to the appeal. That followed from a consideration of the transitional and saving provisions, and because the rights and liabilities to protect the safety, welfare and wellbeing of a child only arose pursuant to the Court order under appeal. Consequently they could not be said to have accrued or been incurred until the appeal was determined. On an appeal in which the Court has to determine whether a child “is” in need of care and protection, the applicable law is that current at the time of the appeal. Despite the suggested error, the amended legislation was applied. Further, the consideration required by each provision was found not to be materially different: [33], [34], [36], [68].

(Per Simpson JA)

3. An appeal under s 91 Care and Protection Act is by way of a “new hearing”, allowing for fresh and additional evidence, in which the District Court exercises the functions and discretions of the Children’s Court. The District Court on appeal is not obliged to determine care and protection issues by reference to principles which were declared by the legislature to be out-dated: [101], [108].

In relation to (iii)

4. It was not correct to say that the judge had not considered the child’s current need for care and protection. Where existing care and protection arrangements were found to be satisfactory in removing the present need for protection from the parents, the terms of s 72(1) Care and Protection Act were satisfied: [63].

T v H (unrep, Hodgson J, 19 December 1985); “V V” v District Court of New South Wales [2013] NSWCA 469, referred to; BM v Director-General, Department of Family and Community Services [2013] NSWCA 253 applied.

In relation to (iv)

5. The power conferred on the Court by s 86 of the Care and Protection Act to allocate parental responsibility, is discretionary and may deal only with specific aspects of parental responsibility, including contact. Contact orders which specified restrictions on unsupervised parental contact but no restriction on duration or frequency of contact, satisfied the discretion: [72]-[73].

In relation to (v)

6. In making a final care order where the Secretary has determined that there is no realistic possibility of restoring the child to the care of its parents, the court is required to find that the Secretary has “appropriately and adequately addressed” permanency planning, pursuant to s 83(7) of the Care and Protection Act. Reasons supporting such a finding which related back to the finding that the issues which caused the child to be placed in care had not been adequately addressed by the parents, satisfied this requirement: [77].

In relation to (vi)

7. The Care and Protection Act confers power on the Court to appoint a legal representative to act for a child if satisfied that the child needs to be represented (ss 99, 99A). In circumstances where a child can give no instructions, there may be doubt as to the value of joining the child as a party. The practices and procedures with respect to the role and representation of children with no capacity are anomalous and may need re-evaluation: [53], [91].

Re Jayden [2006] NSWSC 1428, Re Jayden [2007] NSWCA 35, referred to.

Judgment

1. BASTEN JA: The applicants in these proceedings seek judicial review of a decision of Judge Olsson in the District Court with respect to the allocation of parental responsibility for their child, M.

2. Because the proceedings in the District Court were by way of an appeal from a decision of the Children’s Court, there is no right of appeal to this Court, but proceedings may be brought by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). [1] For this Court to intervene, the applicants must establish error of law on the part of the District Court, appearing on the face of the record of that Court, or jurisdictional error.

   1. Spruill v Director-General of the Department of Community Services [2001] NSWCA 413 at [24]; Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46.

3. Without seeking to imply any particular characterisation, there were, in practical terms, two issues to be resolved in the District Court. The first related to the manner in which the child M had suffered massive head injuries on 10 September 2011. It was the hospitalisation of the child with those injuries which led to the Secretary seeking an order removing the child from the care of his parents. That issue was somewhat elliptically identified by the District Court judge as whether the injuries suffered were “non accidental”.

4. The second issue was whether the child M had a continuing need of care and protection. That is, accepting there was such a need at the time the order was made by the Children’s Court in November 2011 and subsequently in December 2012, was it proper to conclude that the need extended until the child attained the age of 18 years.

Factual background

5. The child M was born on 14 March 2011; accordingly, on the date he suffered injury, he was four days short of six months of age.

6. His mother, SL, had a medical history which included epilepsy. In February 2002 she was diagnosed with juvenile myoclonic epilepsy. She was prescribed an anti-convulsant, Epilim, by Dr Alistair Corbett, who has been her neurologist since that time. She was free of seizures for the whole of the period until 24 July 2009, when she ceased taking Epilim and continued free of seizures until about 28 March 2011, some four days after the birth of M. Because she was then breastfeeding, Dr Corbett prescribed a low dose of Tegretol. However, she had a further seizure two months later in May 2011 which lasted for about two hours. The dosage was increased. When undergoing a myoclonic seizure, SL experienced a series of involuntary jerks and twitches. However, on 13 July 2011 the myoclonic seizures culminated in a grand mal seizure and she was admitted to hospital.

7. According to SL, on the morning that M suffered his injury, SL drove her partner, AB, to Rookwood Cemetery, where he was required to attend pursuant to a community service order. She then returned to the units in Ashfield where they were living and parked in the car park under the units. According to SL’s evidence, she experienced convulsions while carrying M from the car to the lifts in the building. He was propelled out of her arms by the jerk and landed on the concrete floor. She also gave evidence that she had picked up and dropped him on three further occasions, as a result of continuing convulsions. She eventually carried him to the lift and was able to reach her apartment where she placed him on a lounge chair. She called her mother on her mobile phone and also called an ambulance, not on her phone, but on a mobile phone borrowed from her neighbour.

8. The trial judge considered the evidence of the events of that morning as recounted by SL, the recorded 000 call for the ambulance, the evidence of the ambulance officers who attended at the apartment about 10 minutes after the call was made, the account given to Dr Mark Dexter who was in charge of the surgical epilepsy program at Westmead Hospital and operated on M, and the evidence of conversations with officers of the Child Protection Unit at the hospital.

9. The primary judge noted the injuries suffered by M in the following terms:[2]

“His injuries were identified to include:

(a)   Bilateral multiple, complex and comminuted skull fractures of the occipital and parietal bones;

(b)   Large hyperacute subdural haematoma with marked mass effect;

(c)   Bilateral large subgaleal haematomas;

(d)   Hypovolemic cardiac arrest;

(e)   Bilateral multilayered retinal haemorrhages.”

2. Judgment at [9].

10. Dr Dexter, a paediatric neurosurgeon, began operating on M at about 10.30am. As the judge noted, he was the only person who witnessed the injures to the head at first hand. She observed:[3]

“He was unshaken in his view that the constellation of injuries he saw on 10 September was simply not consistent with the falls described by the mother.”

Dr Dexter described C’s skull as “shattered into multiple fragments and on both sides of his head”,[4] and, in addition, M had “a very large subgaleal haematoma which means that the scalp has been sheared off the skull”. [5] Dr Dexter also said that at the time of operating, he did not expect M to survive the day. In fact M did survive and apparently has remarkably few consequential disabilities.

3. Judgment at [200].

4. Judgment at [207].

5. Judgment at [208].

11. The primary judge had an extraordinary volume of evidence to consider. In addition to the lay witnesses, the District Court heard evidence from some eight health professionals, and received reports from two or three others. The hearing took 12 days in December 2014 and February 2015. It is not the function of this Court to review that evidence. The judge concluded that, on the “preponderance of evidence … it is possible that M may have died or sustained a head injury from a fall such as that described by his mother.”[6] However, the judge reminded herself of the need to consider the injuries as a whole stating:[7]

“M’s skull was shattered, the veins in his head between his scalp and skull and skull and dura were avulsed to such a degree that he almost bled to death on the operating table. Both eyes sustained extensive haemorrhages within the multiple retinal layers.”

6. Judgment at [273].

7. Judgment at [276].

12. The judge also sought to place this evidence in context :[8]

“Dr Dexter said that babies suffer falls frequently: parents drop their babies. They fall from change tables from parents’ shoulders, from beds, from the arms of siblings. He and his team see babies and children with injuries from falls every week at the hospital. However they rarely have fractured skulls and if they do, it is usually linear or simple fracture. He said that in his experience, which is considerable, multiple, comminuted, complex fractures such as that suffered by M occur in incidents such as high speed accidents, falls from great heights (balconies for example) or from being swung in a formed movement against a hard surface, such as a wall.”

8. Judgment at [275].

13. The judge accepted the evidence of Dr Dexter, which was supported by the expert evidence of Doctors Stachurska, Hing and Hilton. [9] She concluded:[10]

“As a result of the evaluation of the expert and lay evidence, I am satisfied on the balance of probabilities that the proximate cause of the injuries sustained by M [was] non accidental.”

9.    Judgment at [277] and [280].

10. Judgment at [283].

14. Before dealing with the care orders which were thought appropriate in those circumstances, it is convenient to deal with the allegations of error in respect of these findings.

Challenges to findings of fact

15. Grounds 4 and 5 alleged error on the part of the primary judge in finding that she was “left with injuries to M that are unexplained”[11] and, in the passage set out above, that the injuries sustained by M were “non accidental”. [12]

    11. Judgment at [265].

    12. Judgment at [283].

16. The applicants identified the effect of these two findings as in substance a finding that, whilst the injuries were unexplained by the mother, they were “deliberately or intentionally” inflicted. [13] It was therefore the “mechanism” of the injury which was unknown. [14] It was further submitted that, on the basis of what were described as findings of “primary facts” [15] the conclusion that the injuries were unexplained was “not reasonably open” and that the approach adopted by the primary judge “resulted in an onus of proof being impermissibly … placed on the mother to disprove that the injuries to the child were caused by intentional abuse of the child, rather than requiring the Secretary … to prove that the child was in need of care and protection due to alleged intentional abuse of the child.” [16] Indeed, the submissions went so far as to say that there were only two possible explanations for the child’s injuries, namely that the mother had propelled the child during an epileptic episode, or that she had simply dropped the child during an epileptic episode. [17]

    13.    Applicants’ written submissions at par 54.

    14.    Applicants’ written submissions at par 55.

    15.    Applicants’ written submissions at par 50.

    16.    Applicants’ written submissions at par 48.

    17.    Applicants’ written submissions at par 49.

17. This process of reasoning was flawed in key respects. First, to identify findings of primary fact which favoured one of the two explanations said to be the only reasonable explanations was to ignore significant evidence of the experts, including that of Dr Dexter referred to above. The judge accepted that the mother “was experiencing epileptic seizures on 10 September 2011”,[18] a finding which undoubtedly provided a basis for concluding that the injuries were involuntarily caused by the jerks or twitches constituting the seizure. However, the problem faced by the judge was that powerful medical evidence (which she was entitled to accept) demonstrated that such an explanation was insufficient and, on the probabilities, did not explain the injuries which were identified at the hospital.

    18. Judgment at [263].

15. Secondly, to describe the judge’s reasoning as placing an impermissible burden on the mother to explain what happened was not right. There was the inescapable fact that the child had suffered a life-threatening and almost fatal injury. Further, the mother had recounted a cause of the injuries which was found to be no more than a possible explanation. Finally, the mother’s account was entirely inconsistent with the possible intervention by a third person, with the inevitable conclusion that she alone was the cause of the injuries, whether through neglect, involuntary conduct in the course of an epileptic seizure or some form of intentional abuse.

16. There is one other factor to be taken into account in considering the two findings under challenge. The judge commenced by addressing a submission that “M was propelled from his mother’s arms as a result of her epileptic seizure and that he was further injured as she endeavoured to secure his safety from traffic whilst managing her ongoing seizures.”[19] The judge noted that SL did not say that the child was “propelled” in her initial descriptions of what had happened; she said that she had dropped him. [20] Further, there were no witnesses to the event in the car park and there was no traffic from which SL needed to protect her child. The judge considered that there were probably “blanks” in SL’s memory, which she had consciously or unconsciously filled over time. In evaluating her evidence, the judge was “not satisfied as to what, if anything, occurred in the car park on the morning of 10 September 2011.”[21]

    19. Judgment at [256].

    20. Judgment at [257].

    21. Judgment at [262].

17. The conclusion that the injuries were “unexplained” was identified by reference to the mother’s evidence and that of those with whom she had immediate contact. The judge then turned to what she described as the “most compelling medical evidence” which came from the child’s treating doctors. [22] Consideration of that evidence led to the conclusion that the injuries were “non accidental”.

    22. Judgment at [266].

18. There was no substance to the submission that these findings were not reasonably open. On the contrary, the reasoning of the trial judge was careful and compelling, given her assessment of the medical evidence. The factual challenges in grounds 4 and 5 must be dismissed; it is not necessary to consider whether, if made good, they would have demonstrated error of law.

Justification for care order

22. On 18 October 2011, the Secretary commenced proceedings in the Children’s Court, seeking a care order under s 61 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), (“the Care and Protection Act”). The initial orders provided that parental responsibility would be shared between the maternal grandparents and the Minister for a period of 12 months. After that period, parental responsibility was to be allocated to the maternal grandparents until M attained 18 years of age. However, there was to be a further period of 12 months involving supervision by the Secretary. The maternal grandparents provided a number of undertakings to the Court which included not allowing unsupervised contact between M and his parents until M attained 12 years of age and not allowing either parent to remain overnight in their household, again until M turned 12.

23. Further care proceedings were heard before the Children’s Court at Parramatta over five days in December 2012 and a further six days between late March and mid-June 2013. Magistrate Keogh handed down her decision on 10 September 2013, final orders being made on 12 November 2013.

24. On 10 December 2013 the applicants filed an appeal in the District Court. The orders sought were either a dismissal of the proceedings brought by the Secretary, or, in the alternative, an order that they be allocated parental responsibility for M, but with supervision by the Secretary for a period of 12 months. The appeal was dismissed and the orders of the Children’s Court were confirmed.

Procedural issues

25. Before addressing the grounds on which intervention was sought in this Court, it is convenient to deal with three procedural matters.

(a)   relevant statutory provisions

26. On 29 October 2014, in the course of the hearing before the District Court, amendments were made to the Care and Protection Act by the Child Protection Legislation Amendment Act 2014 (NSW) (“the 2014 Amendment Act”). One purpose of the amendments was to introduce new “permanent placement principles” which are now to be found in s 10A of the Act as amended. The 2014 Amendment Act also provided a new mechanism to allow the Secretary to enter into “parent responsibility contracts” with primary care givers for a child. [23] The amendments also replaced s 79 (dealing with orders allocating parental responsibility), and made significant changes to s 86 (dealing with contact orders).

    23. Care and Protection Act, s 38A.

27. Judge Olsson noted the commencement of the amendments, but stated that they did not affect “any legal proceedings in relation to the rights, privileges, obligations or liabilities accrued prior to the hearing of this appeal”. [24] This statement reflected the terms of s 30 of the Interpretation Act 1987 (NSW), to which reference was made in ADCO Constructions Pty Ltd v Goudappel. [25] The Secretary adopted a similar position in this Court, which was accepted by the other parties, both in the District Court and here.

    24. Judgment at [4].

    25. (2014) 254 CLR 1; [2014] HCA 18 at [26]-[27] (French CJ, Crennan, Kiefel and Keane JJ) and [48]-[52] (Gageler J).

28. Indeed, the submissions for the applicants went further. In support of the conclusion that the 2014 amendments did not apply the applicants referred to cl 16 of the Children and Young Persons (Savings and Transitional) Regulation, which was (and is) in the following terms:

16   Existing proceedings

If proceedings under the old Act in the Children’s Court or the District Court have been commenced but not completed before the repeal of Division 4 of Part 5 of the old Act, the proceedings are to be continued and completed under the old Act in all respects as if the old Act (or any relevant provision of the old Act) had not been repealed.

29. The written submissions containing that proposition, in two places, were signed by three counsel, including senior counsel; they were filed in three versions, the last being at the hearing in this Court. Even the most cursory consideration should have revealed that the submission was legally untenable.

30. First, the provision was stated to be as at 12 July 2013, some 15 months before the 2014 amendments came into force. 12 July 2013 was when the Regulation was last amended. Secondly, a quick reading of cl 16 would invite the question, ‘Pt 5, Div 4 of which Chapter of the Care and Protection Act was said to have been repealed?’ That in turn might have led the reader to see if the phrase “the old Act” was a defined phrase: indeed, as cl 3 of the Regulation indicated, it is and it refers to the Children (Care and Protection) Act 1987 (NSW).

31. On being pressed in oral argument, counsel for the applicants conceded cl 16 had no application to the 2014 Amendment Act.

32. More importantly, there are three reasons why the conclusion that the 2014 Amendment Act was not applicable should be rejected. First, the reasoning failed to have proper regard to the savings and transitional provisions inserted as Pt 10 in Sch 3 of the Care and Protection Act. Thus, the following provisions had direct relevance to the orders sought in the present case:

33   Contact orders

(1) An application may be made under section 86 (1A), as inserted by the amending Act, by a party to proceedings commenced (irrespective of whether or not finally determined) before the commencement of the insertion.

(2) Section 86A, as inserted by the amending Act, extends to the variation of a contact order made before that insertion.

…

35   Other orders allocating parental responsibility

(1) An order that is in force under section 79(1)(a)(iii) of the Act (immediately before the substitution of that subparagraph by the amending Act) allocating all aspects of parental responsibility for a child … at a place other than the usual home of the child … to a relative or kin of the child … until the child … reaches 18 years of age (the original order) is taken, on the commencement of section 79A, to be a guardianship order allocating all aspects of parental responsibility for the child … to that relative or kin.

(1A)   A guardianship order that is taken to have been made under subclause (1) is taken to have allocated aspects of parental responsibility to the relevant relative or kin referred to in that subclause only and not to any other person.

(2)   Despite section 135(3)(b1) (as inserted by the amending Act), a relative or kin of a child … who, immediately before being taken to have parental responsibility for a child … under a guardianship order by the operation of subclause (1), was being provided with financial assistance under section 161 may … continue to be provided financial assistance under that section as if the child … were still in out-of-home care for the purposes of this Act.

…

39   Preparation of permanency plan

Section 83 (4), as amended by the amending Act, extends to a plan prepared, but that has not been submitted to the Children’s Court in accordance with section 83 (3), before the commencement of the amendment.

33. The effect of these provisions is that the order made by the Children’s Court allocating parental responsibility to the grandparents was taken, on the commencement of the provisions, to be a guardianship order under s 79A. Similarly, the power to vary the contact order made by the Children’s Court, conferred by s 86A, expressly extended to variations of orders made before the amendments.

34. Secondly, in considering the operation of s 30 of the Interpretation Act, while the orders made in the Children’s Court created rights and liabilities in those subject to the orders, those rights and liabilities were not of the conventional kind determined in civil proceedings but based on pre-existing legal obligations. Rather, they involved rights and liabilities created by the Court to protect the safety, welfare and wellbeing of the child, in place of those imposed by law on the parents. Furthermore, the relevant rights and obligations resulting from earlier orders made by the Children’s Court, were precisely those under review in the District Court and could not be said to have accrued or been incurred until the appeal was determined.

35. Thirdly, the issues in ADCO were remote from those in the present case and nothing said there about common law principles of statutory interpretation provides any assistance. ADCO was concerned with the validity of a regulation involving savings and transitional provisions, based on its consistency with the relevant Act. There, the unsuccessful worker sought to argue against retrospective extinguishment of an accrued right to compensation. [26] The joint reasons restated the general law principle as expressed by Dixon CJ in Chang Jeeng v Nuffield (Australia) Pty Ltd:[27]

“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption.”

26. ADCO at [26].

27. (1959) 101 CLR 629 at 637-638; quoting his own judgment in Maxwell v Murphy (1957) 96 CLR 261 at 267.

36. Even the limited expression of the general law presumption simply had no application in the present case. The only relevant past event was that which inflicted shocking injuries on M. That did not, of itself, give rise to rights or obligations under the relevant legislation in any person. Furthermore, as was central to the applicants’ case, the function of the District Court was to determine whether M “is” in need of care and protection as at the date the orders are made. The Court on an appeal of the kind discussed below, must apply the law as it stands at the time of judgment. The relevant provisions of the 2014 Amendment Act did not purport to vary retrospectively the rights or obligations of any person.

37. It follows that, subject to one qualification, the case was run by the applicants on an incorrect assumption as to the law. However, that did not affect the outcome adversely to the applicants and accordingly does not require intervention by this Court.

38. The qualification to the last proposition is that, in respect of one matter, the primary judge in fact referred to provisions of the amended Act. That, somewhat ironically, was itself the basis of a ground of challenge which will be addressed below. That too had no material effect on the outcome.

(b)   nature of appeal to District Court

39. The primary judge commenced her reasons with the following description of the appeal as one pursuant to s 91 of the Care and Protection Act:[28]

“In practical effect it is a rehearing of the matter with fresh evidence in addition to the evidence before the Children’s Court. There is no necessity to establish an error in the court below. This court exercises the powers of the Children’s Court and the decision is taken to be a decision of the Children’s Court: Gianoutsos v Glykis. [29] ”

28. Judgment at [1].

29. [2006] NSWCCA 137; 162 A Crim R 64.

40. That language was adopted by the Secretary in this Court, with the qualification that it was not “strictly a hearing de novo.” The Secretary supplemented the reference to Gianoutsos by noting the judgment of the High Court in Allesch v Maunz [30] and of this Court in Re Kerry (No 2). [31]

    30. (2000) 203 CLR 172; [2000] HCA 40.

    31. [2012] NSWCA 127 at [24].

41. Significantly, although both the primary judge and the Secretary referred to s 91 as involving “a rehearing of the matter”, s 91(2) states that the appeal “is to be way of a new hearing”. It is desirable to set out the relevant parts of s 91:

91   Appeals

(1)   A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2)   An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

(3)   Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.

(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

(5)   Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.

42. Gianoutsos was an appeal to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW). One issue before that Court concerned the nature of an appeal from the Local Court to the District Court, pursuant to Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”). In the District Court, the judge had described the appeal as “a hearing de novo.” McClellan CJ at CL stated that that was “not correct.”[32] Various issues can flow from the characterisation of an appeal in a particular way. However, the difficulties in any form of characterisation require reference to the terms of the specific legislation. Although s 91 of the Care and Protection Act and ss 18 and 19 of the Appeal and Review Act employ similar language and have various common elements, they are not identical either in language or structure. Accordingly, care must be taken in applying principles derived from one in an appeal based on another.

    32. Gianoutsos at [24].

43. Although it appears that all of the material before the Children’s Court, including the transcript, was tendered in the District Court, the principal witnesses were recalled in the District Court, together with some further evidence. It may be noted that s 91 reveals a form of confusion as to practice and procedure in a court. The term “fresh evidence”, conventionally used to refer to evidence which was not available at the time of the earlier hearing, is clearly not used in that technical sense in s 91(2) and (3). Nor should the alternatives envisaged in subs (3) be treated as mutually exclusive. (That did not happen in the present case.)

44. It is unnecessary to explore the problems that can arise from the hybrid nature of an appeal where the appellate court is invited both to rely upon the transcript of evidence given at trial and to hear further evidence. In some cases there may be significant difficulties in weighing the evidence recorded in a transcript (and possibly the credibility findings made by the magistrate) against the oral evidence adduced on appeal.

45. These issues have been discussed in Charara v The Queen; [33] Mulder v Director of Public Prosecutions (Cth) [34] and AG v Director of Public Prosecutions (NSW). [35] No issue in this Court concerned the manner in which the primary judge undertook her functions.

    33. [2006] NSWCCA 244; 164 A Crim R 39.

    34. [2015] NSWCA 92.

    35. [2015] NSWCA 218.

(c)   role of independent legal representative

46. In this Court, the child was not named as a party to the proceedings, but the “independent legal representative” was identified as the second respondent. The same course had been adopted in the District Court.

47. The procedures set out in Ch 6 of the Care and Protection Act are somewhat ambivalent as to (a) whether the child the subject of care proceedings should be a party to the proceedings; (b) the role of a guardian ad litem appointed for a child and (c) the role of an independent legal representative.

48. There is no doubt that the child has a right of appearance and a right to legal representation. [36] Indeed, where a person is unable to represent himself or herself adequately, the court may require that party to be legally represented[37] and, if satisfied that the party is incapable of giving proper instructions (as was the case with M), the Children’s Court “is to appoint a guardian ad litem”. [38]

    36. Care and Protection Act, s 98(1).

    37. Care and Protection Act, s 98(2).

    38. Care and Protection Act, s 98(2A).

49. Section 99 of the Care and Protection Act confers power on the court to appoint a legal representative to act for a child if satisfied that the child “needs to be represented in any proceedings before it.” The implication of that provision is that the child is not a necessary party to the proceedings, although he or she may be the subject of the proceedings. Where a legal representative is appointed, and there is no guardian ad litem (because the child is capable of giving instructions) the lawyer is known as the “direct legal representative”; however, the legal representative for a child who is not capable of giving proper instructions, “or” [sic] for whom a guardian ad litem has been appointed, is described as the “independent legal representative”. [39] The apparent inconsistency between the obligation of the court to appoint a guardian ad litem for a child who is not capable of giving proper instructions and the possibility envisaged by s 99A(2) that that may not have happened may be explained by the fact that the child may not be a party to the proceedings, although, in that case, it is difficult to see why the court would appoint a legal representative to act for the child.

    39. Care and Protection Act, s 99A(1) and (2) respectively.

46. In the present case, it is not clear whether the child was a party to the proceedings in the Children’s Court. Nor is it clear whether a guardian ad litem was appointed, although it is clear that an independent legal representative was appointed. That person (who was employed by Legal Aid NSW) appears to have been treated as a party, in the same way that a guardian would be treated as a party.

47. Pursuant to s 99B, there is a rebuttable presumption that a child who is less than 12 years of age is incapable of giving proper instructions. Somewhat confusingly, the Uniform Civil Procedure Rules 2005 (NSW) provide that a child of or above the age of 10 years is to be joined as a defendant in an appeal under the Care and Protection Act. [40]

    40. Uniform Civil Procedure Rules, r 50.18(1)(b).

48. In Re Jayden [41] this Court concurred in a view expressed by Simpson J[42] that a practice by which legal representatives of the children before the Children’s Court should themselves be made parties to proceedings on appeal or review should be reconsidered. [43]

    41. [2007] NSWCA 35 (Re Jayden (2007)).

    42. Re Jayden [2006] NSWSC 1428 at [19].

    43.    Re Jayden (2007) at [101]-[103] (Ipp JA, Beazley and Hodgson JJA agreeing).

49. In circumstances where a child can give no instructions, there may be doubt as to the value in joining the child as a party to the proceedings. In any event, that could only be done by the appointment of a guardian. Each party who has legal representation will either incur expense or will be a recipient from what is widely understood to be under-resourced legal aid. Apart from helpful submissions with respect to his own role, counsel for the independent legal representative in this Court had little of substance to add in respect of the grounds on which judicial review was sought. The time for re-evaluation of the practices and procedures with respect to both the role and representation of children of no capacity would appear to be long overdue.

Grounds of application

54. The challenges to the factual findings having been disposed of, it remains to deal with the challenges to the reasoning of the primary judge.

(a)   whether in need of care and protection

55. It is convenient to deal with grounds 1 and 2 together as they disaggregate reasoning which should be understood coherently. Ground 1, somewhat obscurely, said that the judge erred in law “by finding that she was satisfied that the child was in need of care and protection pursuant to s 71”. Ground 2 alleged that the judge erred in law by finding that “there is simply no basis for making a finding that although he was at risk in 2011, he is not at risk now”.

56. The reason why the two grounds should be read together is that, when developed in written submissions, ground 1 complained that the judge had stopped short with her finding that the child had been abused and had failed to continue to consider whether M was in need of care and protection, that being a separate question. Ground 2 complained that, at least by implication, the judge had accepted that there was need for care and protection in 2011, but submitted that it was “not reasonably open” to find that there was such a need in 2014.

57. Section 71 of the Care and Protection Act provides that the Court “may make a care order … if it is satisfied that the child … is in need of care and protection for any reason including … (c) the child … has been … physically … abused or ill-treated”. In this case, the judge was satisfied that M had been physically, and most seriously, ill-treated. [44] Having made that finding the judge then stated:[45]

“The pivotal issue of abuse having been determined in favour of the Secretary, the next issue to be determined is whether care orders should be made in respect of M. The court may make a care order if satisfied that M is in need of care and protection for the reason that he has been or is likely to be abused or ill-treated. The Secretary submitted that the fact of abuse having been established makes out the case for intervention; unless there is an acceptance and acknowledgment by the carers, proper safe guarding of the child is impossible. Having regard to the terms of s 71(1)(c) of the Act it is sufficient to have found that M was abused to provide the basis for a care order.”

44. Judgment at [283].

45. Judgment at [284].

58. The judge then asked herself the question, “Does M remain at risk?”[46]

    46. Judgment at [285].

59. She then considered the current situation of M, who was in a settled relationship with his maternal grandparents, with the continuing involvement of the mother and father, which, at some potential cost of confusion in relation to who was his primary care giver, presently resolved the risk of further ill-treatment or abuse. The judge then noted:[47]

“The parents have acted co-operatively with the Department. There are no other psycho-social factors that are present which might be suggestive of M being at risk. As M’s age and self-protective capacity increases, so his vulnerability is likely to reduce.”

47. Judgment at [288].

60. The judge accepted that the parents loved their child and were capable of providing for him financially, emotionally and psychologically and that they had been “exemplary parents in their involvement in his rehabilitation and development.”[48] She noted the submission made by the independent legal representative for the child that there was “no current unacceptable risk of harm”, but rejected the submission in circumstances where the cause of the infliction of the injuries was unexplained, and the injury was severe and had involved great force. [49] She concluded:

“There is simply no basis for making a finding that although he was at risk in 2011, he is not at risk now.”[50]

48. Judgment at [289].

49.    Judgment at [290] and [289].

50. Judgment at [290].

61. The judge concluded that “M remains in need of care and protection but for the arrangements for the care of the child since his assumption into care”. [51]

    51. Judgment at [291].

62. It should also be noted that the structure of the judge’s reasoning was said to rely upon a passage from the reasons of Mitchell SCM in Re Anthony. [52] In fact, the passage may be traced to the judgment of Hodgson J in the Equity Division in T v H, [53] explaining why he was satisfied that the child in that case would be in danger if he were to be returned to the care of his parents.

“Had there been an explanation of his injuries, the result may have been different. If the cause of the injuries was known, and was acknowledged by the person responsible, one could assess the likelihood of that person acting again so as to cause the injuries. It would be possible to assess the risk involved to the Plaintiff, and to weigh that against the advantages of returning the Plaintiff to his parents. However, in the absence of any explanation, it is far more difficult to assess and weigh the relative advantages and disadvantages in this manner.” [54]

52. Judgment at [281] referring to Re Anthony [2008] NSWLC 21 at [18].

53.    (Unrep, 19 December 1985) p 18.

54.    The trial judge changed the last word from “manner” to “matter”.

63. Before returning to the grounds, one other point should be made by way of explanation. The reference to there being a need for care and protection “but for” the existing arrangements, which, being found to be satisfactory, removed the present need for protection from the parents, reflected the terms of s 72(1). That provision required a finding either that the child be in need of care and protection or that, even if not then in need of care and protection, “was in need of care and protection when the circumstances that gave rise to the care application occurred” and “would be in need of care and protection but for the existence of arrangements” for his care and protection.

64. It may be seen from this account of the judge’s reasoning that it was incorrect to say that she did not consider the child’s current need for care. Ground 1 was without substance.

65. Ground 2 contended that the judge had misconstrued s 72(1), referring to passages in the judgment of this Court in “V V” v District Court of New South Wales. [55] How that judgment assisted was unclear: the passages which were referred to in the written submissions either dealt with another section, [56] or were consistent with the reasoning of the primary judge. [57] As noted in V V,[58] the construction of s 72(1) was that approved in Re M (No 5) – BM v Director-General, Department of Family and Community Services. [59]

    55. [2013] NSWCA 469 (Barrett JA, Ward and Leeming JJA agreeing).

    56.    V V at [45]-[53], dealing with s 71.

    57.    V V at [32]-[33].

    58. V V at [42].

    59. [2013] NSWCA 253 (Sackville AJA, Macfarlan and Ward JJA agreeing) at [47], an application for review of an earlier judgment of Olsson DCJ.

(b)   application of s 79(3) – least intrusive intervention

66. Section 79(3), as in force before the 2014 Amendment Act, required that the Court not make an order allocating parental responsibility “unless it has given particular consideration to the principle in section 9(2)(c) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.” Section 9(2) identified a number of principles, all subject to the child’s safety, welfare and wellbeing being paramount, including the principle at par (c) that “the course to be followed must be the least intrusive intervention in the life of the child … that is consistent with the paramount concern to protect the child”.

67. The challenge to the reasoning of the primary judge appeared to turn upon two propositions. The first was that, despite concluding that the Act as in force prior to the 2014 Amendment Act continued to apply, at [17] the judge set out the terms of s 10A(3) dealing with “permanent placement principles”, which were introduced by the 2014 Amendment Act. Section 9(2)(c) was not amended, but a new par (g) was added stating that “[i]f a child … is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act … regarding permanent placement of child….” Section 79(3), now requires that particular consideration be given to the permanent placement principles, rather than to the least intrusive intervention principle.

68. There are two difficulties confronting the applicants with respect to this challenge. The first is to demonstrate that the judge in fact applied the new law, rather than the old. In reaching findings, she made no reference to the principles in s 10A(3). But even assuming that those principles were given particular consideration, in the circumstances of this case the consideration required by each provision was not materially different from the other. Once it was accepted that M was at risk in the unsupervised care of his parents, it was inevitable that he be placed in the care of others. The judge said that “M has been and will continue to be cared for within the family and enjoy a close and continuing involvement with his mother and father”,[60] the disadvantages of which were also considered; that arrangement satisfied the requirement to give particular consideration to the least intrusive intervention, consistent with the protection of M, in the circumstances of the case. Accordingly, if there were an error involved in engaging with the terms of s 10A(3) and the new s 79(3), it was not shown to be a material error.

    60. Judgment at [287].

69. The second difficulty facing the submission is that, for the reasons noted above, if the judge did address the new provisions, there was no error in law, because they were applicable. It would follow that, despite the approach adopted by the parties below, intervention would be futile, because (again on the assumption that the new provisions have been applied) the matter would go back for the same exercise to be undertaken on the same basis as before, in accordance with the applicable law. That would be an exercise in futility and, regardless of the materiality of the error, relief would not be granted.

70. There was another basis upon which the applicants sought to challenge this part of the judge’s reasoning, by reference to the decision in this Court in Re Tracey. [61] However, the problem identified in that case was that the least intrusive intervention principle had been applied as if it protected the existing care arrangement, rather than the normal family structure. There was no basis to suggest that such an error had been made in the present case. Accordingly, ground 3 provides no basis for intervention.

    61. [2011] NSWCA 43 at [79] (Giles JA, Spigelman CJ and Beazley JA relevantly agreeing).

(c)   failure to make contact order

71. The complaint with respect to contact appeared to be that none of the orders made by the Children’s Court (and confirmed by the District Court) expressly stipulated the minimum requirements for the frequency and duration of contact between M and his parents. Section 86 (as in force at the time of the Children’s Court orders) relevantly provided: [62]

86   Contact orders

(1)   If a child … is the subject of proceedings before the Children’s Court, the Children’s Court may, on application made by any party to the proceedings, do any one or more of the following:

(a)   make an order stipulating minimum requirements concerning the frequency and duration of contact between the child …and his or her parents, relatives or other persons of significance to the child ….

62.    The section was amended in 2014, but not so as to require different consideration in this case.

72. This challenge was supportable only upon a formalistic basis. First and foremost, the power conferred by s 86 is undoubtedly a discretionary power and not one which the court is obliged to exercise separately in every case. That follows from the fact that an order allocating parental responsibility may deal with “specific aspects of parental responsibility”, including contact. [63]

    63. Care and Protection Act, s 79(2)(b).

73. Secondly, the orders did deal expressly with contact. Order (1) allocated parental responsibility to the Minister for 12 months. Order (3) provided that after that period, parental responsibility for contact was to be shared between the Minister and the maternal grandparents, for a further period of 12 months. Thereafter, all aspects of parental responsibility were allocated to the maternal grandparents. Further, the undertakings given by the grandparents, which provided that “unsupervised contact” was not to be permitted to the parents until the child attained 12 years of age, and that the parents were not to reside in the home of the grandparents until the child attained 12 years of age, demonstrated that there was to be no restriction on contact between the parents and their child either by reference to the frequency of visits, or their duration. The evidence before the District Court demonstrated that one or other parent had access every day of the week for between three and four hours. No further order was required.

74. The gravamen of the challenge appeared to be based on some inconsistency between that arrangement and the fact that, on an interim basis, the judge had allowed unsupervised access by way of an interim order from 19 December 2014 until the date of the final judgment, on 18 March 2015. No doubt the applicants hoped that this arrangement would continue, although in giving reasons for the interim order, the judge made it perfectly clear that she had reached no final conclusions as to the outcome, in circumstances where the evidence was incomplete. In particular, Dr Dexter, whose evidence, on one view, was highly influential as to the final outcome, had not yet been called. In any event, the existence of the interim order could provide no basis for intervention by this Court in the exercise of its supervisory jurisdiction with respect to the final orders.

(d)   inadequate reasons

75. A challenge was raised to the adequacy of the judge’s reasons in the event that the other grounds were unsuccessful. However, the thrust of the complaint was that, having determined that a care order was appropriate, with two qualifications (which themselves involved inadequate reasoning), the judge did no more than confirm the orders made by the Children’s Court.

76. In substance, there were only two elements to the care order: the first allocated parental responsibility to the Secretary and ultimately to the maternal grandparents; the second required supervised contact. The proposition underlying both elements was the finding that, on the probabilities, the injuries suffered by M had been deliberately inflicted combined with the absence of any explanation as to by whom they were inflicted, or in what circumstances. The reasoning to those conclusions was amply explained; the consequential orders followed from those findings, in accordance with the reasoning outlined above, which was sufficient in the circumstances.

77. The two additional elements involved the requirement that the Secretary consider whether there was “a realistic possibility of the child… being restored to his… parents” and, if not so satisfied, to prepare “a permanency plan for another suitable long-term placement for the child”. These steps were taken, in accordance with s 83(1) and (3). The court was then required to determine whether to accept the Secretary’s assessment and “must not make a final care order unless it expressly finds… that the permanency planning for the child … has been appropriately and adequately addressed”, in circumstances where there is not a realistic possibility of restoration. [64] The reasoning supporting these findings in effect related back to the earlier reasoning, namely that there was no realistic possibility of restoration because “the issues which led to M being assumed into care have not been adequately addressed by the parents and the circumstances of the child are such that he requires further protection from any risk of harm.”[65]

    64. Care and Protection Act, s 83(7).

    65. Judgment at [292].

78. The challenge to the adequacy of the reasons must be rejected. It is not necessary to inquire further into the scope of such a ground of review.

Conclusions

79. No basis having been established for review of the judgment and orders in the District Court, the amended summons brought in the supervisory jurisdiction of this Court should be dismissed. There was a misconceived application for leave to appeal which preceded the amended summons; that application should also be dismissed.

80. With respect to costs, the applicants did not seek costs either in their summons or in their written submissions, but sought an opportunity to address further in the event that they achieved some element of success. They have not. The Secretary did, however, seek an order for costs in the event that the application was unsuccessful. There being no reason why costs should not follow the event, the applicants should pay the Secretary’s costs of the proceedings in this Court. There will be no order with respect to the costs of the independent legal representative.

81. The Court should make the following orders:

1. Dismiss the application for leave to appeal.

2. Dismiss the amended summons seeking review of the judgment of the District Court.

3. Order that the applicants pay the costs of the Secretary in this Court.

82. WARD JA: I have had the opportunity of reading in advance the draft reasons of each of Basten JA and Simpson JA. Their Honours are agreed that the 2014 Amendment Act was applicable on the appeal heard by the District Court from the Children's Court decision, though they reach that conclusion by different routes. The difference in reasoning is not material to the outcome of these proceedings. I agree with their Honours that the 2014 Amendment Act was applicable and that, for the reasons they have separately articulated, there was no error of law on the part of the primary judge as contended for by the applicants. I also agree with the additional observations of Simpson JA in relation to ground 6. I agree with the orders proposed by Basten JA.

82. SIMPSON JA: Under Ch 5 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care and Protection Act”) the Children’s Court of NSW is empowered to make orders (“care orders”, s 60, and see Pt 2 of Ch 5) with respect to the care and protection of children and young persons. (The relevant provisions of the Care and Protection Act apply to children – that is, persons under the age of 16 years – and “young persons” – that is persons over the age of 16 years but under the age of 18 years. It is unnecessary, in this case, to mark the distinction. References to the legislation (except when it is quoted) will omit references to “young persons”.) On 10 September 2013, on the application of the Director-General (as the Secretary was then known) of the Department of Family and Community Services (“FACS”), the Children’s Court made care orders (under s 79) with respect to the care and protection of a child known in those and subsequent proceedings as “M”. Section 91 of the Care and Protection Act permits a person dissatisfied with a care order to appeal to the District Court, which is given all the functions and discretions of the Children’s Court (s 91(4)).

83. The present applicants are, respectively, the mother and father of M. By Summons filed in the District Court on 10 December 2013, they exercised their rights under s 91 to appeal against the care orders. On 18 March 2015 the District Court (Olsson DCJ) dismissed the appeal and confirmed the orders of the Children’s Court. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), the appellants now seek judicial review of the orders of the District Court. Relief under s 69 is available only to correct errors of law on the face of the record or jurisdictional error. The grounds relied upon by the applicants are stated in an Amended Summons filed on 20 July 2015, and are eight in number (the eighth of which was not pressed at the hearing). No ground asserts jurisdictional error. The grounds are limited to the assertion of error of law on the face of the record. I have read in draft the judgment of Basten JA. I agree with the orders his Honour proposes. The following states my own route to that conclusion. It is unnecessary to restate in detail the factual circumstances that led to the application for the care orders, which can be found in the judgment of Basten JA.

84. The proceedings involve various provisions of the Care and Protection Act, some of which have been amended, the amendments taking effect after the orders of the Children’s Court, but before their confirmation by the District Court. More detailed reference to the amendments will be necessary in due course. Whether the amended or unamended version of the provisions is applicable is an issue that arises in the proceedings.

Chronology

86. M was born on 14 March 2011. On 10 September 2011, a few days before he was six months of age, he suffered major and life-threatening traumatic head injuries, for which he was treated in the Westmead Children’s Hospital. The precise circumstances in which he suffered his injuries have never been fully resolved. The issues concerning the circumstances of his injury are outlined in the judgment of Basten JA.

87. In November 2011, by the consent of, but without admissions by, both applicants, the Children’s Court found that M was in need of care and protection, and ordered that he be placed in the care of his maternal grandparents, DL and JL. There was subsequently a contested hearing, over several days, in the Children’s Court, at the conclusion of which, on 10 September 2013, the Children’s Court made a number of orders. Although Orders 1 and 2, as reproduced, are expressed to be pursuant to s 81 of the Care and Protection Act, it seems to me to be plain that they are properly characterised as orders under s 79 (as it then stood). Put shortly, by Orders 1 and 2, parental responsibility for M (for all aspects other than medical care) was, for a period of 12 months, allocated to the Minister administering the Care and Protection Act (then the Minister for FACS); parental responsibility for medical care was, for the same period, to be shared between the Minister and DL and JL. By Orders 3 and 4, for the following 12 months, parental responsibility for M (for all aspects other than contact) was, for the following 12 month period, allocated to DL and JL; parental responsibility for contact was to be shared between the Minister and DL and JL. Order 3 was expressed to be made under s 79; Order 4 under s 81. (Section 81 authorised and required the Children’s Court, when placing a child under the parental responsibility of the Minister, to determine which aspects of parental responsibility were to be the sole responsibility of the Minister, and which the responsibility of some other person.) By Order 5 (expressed to be made under s 79(1)(a)) parental responsibility for all aspects of M’s care was allocated to DL and JL from the expiration of the 2 year period previously referred to, until M turned 18 years of age. By Order 6 (expressed to be made under s 76) M was placed under the supervision of the Director-General of FACS for a period of 12 months from the expiration of the previously stated 2 year period (that is, the period that resulted from Orders 1-4). The orders thus envisaged a period of three years of involvement of the Director-General (or the Department) of FACS, after which, until he attained 18 years of age, M was to remain in the unsupervised care of DL and JL.

88. By Order 7, pursuant to s 73(1)(a) of the Care and Protection Act, the Court accepted undertakings given by DL and JL. The undertakings included:

• undertakings not to allow unsupervised contact between M and either applicant for a period of 12 years from the date of the orders;

• undertakings not to allow either applicant to be alone with M, or to remain overnight in DL or JL’s household, for the same period of 12 years;

• undertakings not to allow either applicant to reside in their home for the same period of 12 years.

In each case the undertakings were expressed to be subject to a proviso “unless approved by the Director General during their 3 year involvement”.

The appeal to the District Court

89. The appeal under s 91 to the District Court is by way of “a new hearing”, and fresh evidence, or evidence in addition to or in substitution for evidence in the Children’ Court is permitted (sub-s (2)). Alternatively, the District Court is permitted to admit the evidence given in the Children’s Court (sub-s (3)). Importantly (as will be seen), the District Court has, for the purpose of hearing and disposing of an appeal, all the functions and discretions of the Children’s Court (sub-s (4)), and may confirm, vary or set aside the decision of the Children’s Court (sub-s (5)).

90. The hearing of the appeal commenced before Olsson DCJ on 8 December 2014, continued until 19 December, resumed on 2 February 2015, and continued until 5 February. By the time the hearing of the appeal began, the first 12 month period, during which parental responsibility for M, other than for medical care, was allocated to the Minister, had expired. Parental responsibility for all aspects of his care other than contact lay with DL and JL. The parties to the appeal were identified as the Secretary of the Department of FACS, the applicants, each of whom was separately represented, and Legal Aid NSW as “third defendant Independent Legal Representative” for M.

91. I have commented previously[66] on what appears to me to be the anomalous practice of a child’s independent legal representative being nominated as a party to proceedings involving the case of that child. The origin of that practice, and its continuation, remains a mystery to me. [67]

    66. Re Jayden [2006] NSWSC 1428.

    67. See also: Re Jayden [2007] NSWCA 35.

92. On 29 October 2014, shortly before the commencement of the hearing of the appeal, the Care and Protection Act was the subject of reasonably extensive amendment: Child Protection Legislation Amendment Act 2014 (NSW) (“the Amendment Act”). Section 76 (under which Order 6 had been made in the Children’s Court) was amended, but not in a way that calls for consideration in these proceedings. Section 79 was amended; s 81 was omitted. (The capacity to allocate aspects of parental care to the Minister and others was transferred to the amended s 79.)

93. During the course of the hearing in the District Court, a question arose as to which version of the legislation was applicable. The parties were united in the contention that the relevant legislation was that which had been in force prior to the amendments. That remained their position in this Court, although their reasoning took different paths. In part at least, this position was said to be because of the provisions of s 30 of the Interpretation Act 1987 (NSW). Reliance was also placed on cl 16 of the Children and Young Persons (Savings and Transitional) Regulation 2012 (NSW).

94. The primary judge appears to have accepted that position: see [4]. However, examination of her reasons reveals with some clarity that, in fact, she applied herself to her task by reference to at least some of the post-amendment provisions. If, therefore, the position of the parties that it was the pre-amendment legislation that was applicable were correct, error of law would be indicated (although whether in such a way as to make a material difference to the outcome would remain to be decided).

The relevant legislation

95. By s 61 of the Care and Protection Act only the Secretary (formerly the Director-General) of FACS may apply to the Children’s Court for a “care order”. By s 71(1) (both versions), the Children’s Court may make a care order if satisfied that the child is in need of care and protection. Although the reasons that a finding that a child is in need of care and protection are unlimited, sub-s (1) of s 71 spells out a number of specific instances of reasons that may found such a finding. One (s 71(1)(c)) is that the child has been or is likely to be, physically or sexually abused or ill-treated. By s 79 (both versions), if the Children’s Court finds that a child is in need of care and protection, it may make an order allocating parental responsibility, in all or specified aspects, to a person or persons in an identified category of persons. By s 72 (both versions), the Children’s Court may make a care order if it is satisfied that a child was in need of care and protection at the time that the circumstances giving rise to the application existed, and that the child would continue to be in need of care and protection but for the existence of current arrangements. By s 73(1)(a) (both versions), if the Children’s Court is satisfied that a child is in need of care and protection, it may make an order accepting such undertakings given by a responsible person for the child as it thinks fit with respect to the care and protection of the child. By s 86 (both versions), with respect to a child the subject of proceedings in the Children’s Court, the Children’s Court may, on application (inter alia) make an order stipulating minimum requirements concerning the frequency and duration of contact between the child and his or her parents, relatives, or other persons of significance (s 86(1)(a)), and may make an order that contact with a specified person be supervised (s 86(1)(b)).

96. By s 83(7) (both versions) the Children’s Court must not make a final order unless it expressly finds that permanency planning has been appropriately and adequately addressed, and that, prior to approving a plan involving restoration, there is a realistic possibility of restoration, having regard to the circumstances of the child and any evidence that the child’s parents are able satisfactorily to address the issues that led to the removal of the child from their care.

97. Although the pre- and post-amendment versions of s 79 are framed differently, under both versions two issues arise for consideration. The first is whether the child in question is a child in need of care and protection. If not, then there is no jurisdiction to go further. If, however, the child is found to be in need of care and protection, the second issue is whether an order allocating all or some aspects of parental responsibility for the child to a person or persons in any of the categories specified in the section ought to be made. To that point, there is no difference between the two versions of s 79. (In the unamended section there are three specified categories of such persons; in the amended version there are six but these do not affect the present case.)

98. There is, however, one material difference between the unamended version of s 79 and the amended version. By sub-s (3) of the unamended s 79, the Court was not permitted to make an order allocating parental responsibility unless it had:

“… given particular consideration to the principle in s 9(2)(c) and [was] satisfied that any other order would be insufficient to meet the needs of the child …”

Section 9 set out (and continues to set out) “Principles for Administration of Act”. Section 9(1) states, as a general principle, that the Care and Protection Act:

“… is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.”

A specific principle stated in s 9(2)(c) was (and continues to be):

“In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.”

This was referred to as “the least intrusive intervention principle”.

99. Sub-section (3) of the amended s 79 is in the following terms:

“(3)  The Children’s Court must not make an order allocating parental responsibility unless it has given particular consideration to the permanent placement principles and is satisfied that the order is in the best interests of the child or young person.”

The reference to s 9(2)(c) in the unamended version of s 79(3) was omitted. The “permanent placement principles” to which reference is made are to be found in s 10A(3), and are, relevantly, as follows:

“(a)  if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship,

(b)  if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person,

(c)  if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted,

(d)  if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law,

(e)  …”

(The reference in par (b) to “guardianship” is a reference to a “guardianship order” for which provision was made by s 79A, and which does not presently arise.)

100. Whichever version of s 79 was applicable, the District Court, exercising the functions and discretions of the Children’s Court, was bound not to make an order allocating parental responsibility unless it had given “particular consideration” to the relevant principle – either the “least intrusive intervention” principle if the unamended version applied, or the “permanent placement” principle if the amended version were applicable.

The application to this Court

101. Although the primary judge appeared, in [4], to accept, as the parties agreed, that the unamended version of s 79 was applicable, she directed her attention to the amended version. In [17], she said:

“Where the final care order concerned is a final order under s 79 allocating parental responsibility, an additional control of the discretionary power arises from s 79(3) which provides that the court must not make an order allocating parental responsibility unless it has given particular consideration to the permanent placement principles and is satisfied that the order is in the best interests of the child or young person. The reference to permanent placement principles is a reference to s 9(1) of the Act which provides ‘this Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and wellbeing of the child or young person are paramount’ and those in s 10A(3) …” (italics in original)

Her Honour then went on to set out the permanent placement principles.

102. There was thus a clear indication that the appeal was determined on the basis of the amended version of s 79, under which four of the orders were made.

103. This was the foundation for Ground 3 of the application, which alleged error of law in the failure of the primary judge to consider s 9(2)(c) (that is, “the least intrusive intervention” principle) and that she considered instead the “permanent placement principles”.

104. It is inescapable that, if the parties are correct in their contention that the unamended version of the legislation applies, error of law is demonstrated. The question as to which version of the legislation is applicable is therefore of considerable importance.

105. I agree with Basten JA that reliance on cl 16 of the Children and Young Persons (Savings and Transitional) Regulation was misconceived. Nor do I glean any assistance from s 30 of the Interpretation Act 1987 (NSW). That part of s 30 upon which reliance has been placed appears to be sub-par (1)(c), which relevantly provides that the amendment of an Act does not affect any:

“right, privilege, obligation or liability acquired, accrued or incurred under the [unamended] Act …”

106. The only relevant “right, privilege, obligation or liability” that I can identify is the right of the applicants to appeal under s 91 against the order of the Children’s Court. That in no way answers the question whether, in the determination of an appeal, the District Court is to apply the unamended or the amended legislation. Nor do I gain any assistance from the provisions of Pt 10 of Sch 3 of the Care and Protection Act (Savings, transitional and other provisions). Clause 32 of Pt 10 makes specific provision for the retrospective application of amendments to ss 38A-38E; cl 33 similarly provides for s 86(1A), inserted by the Amendment Act, to apply to existing proceedings; cll 34-36, 37 and 39 expressly provide for the application of the amended legislation to existing proceedings or orders.

107. So far as s 79 is concerned, cl 35 provides that an order under s 79(1A)(iii) is taken to be a guardianship order within the meaning of the newly inserted s 79A. On one view, the omission of any other reference to s 79 orders would suggest that they are not subject to the transitional provisions.

108. Two considerations finally persuade me that it was correct for the District Court judge to proceed under the amended provisions, notwithstanding her apparent acceptance that she was to apply the unamended version of s 79. The first consideration is s 91 of the Care and Protection Act. To repeat, an appeal under s 91 is to be by way of “a new hearing” at which fresh or additional evidence is permitted, and at which the District Court exercises all the functions and discretions of the Children’s Court. The second consideration is the nature of the proceedings, and the purposes of the legislation under which they are conducted, which are protective in nature. As mentioned above, s 9 states “Principles for Administration” of the Care and Protection Act. The amendments are the most recent statement of the philosophy and policy of the legislature as to the principles to be applied in proceedings with respect to the care and protection of children and young persons. It would (to me) be surprising if, on appeal, the District Court were obliged to determine care and protection issues by reference to principles that have, in effect, been declared by the legislature to be out-dated.

106. For these reasons I agree with Basten JA that the primary judge did not err in determining the s 79 application by reference to “the permanent placement principles” enacted in the amending legislation rather than the “least intrusive intervention principle” to which the unamended s 79 directed attention (although that remained a relevant consideration).

107. I would therefore reject Ground 3 of the application.

108. Grounds 1, 2, 4 and 5 of the application may be dealt with more expeditiously.

109. These grounds assert error in the fact finding exercise. The facts found by the primary judge challenged by these grounds are the ultimate conclusion that M was in need of care and protection (Ground 1); that his injuries were unexplained (Ground 4); that his injuries were “non-accidental” (Ground 5); and that there was no basis for a finding that, although he was at risk in 2011, he was (at the date of the hearing) no longer at risk (Ground 2).

110. On its face, each ground appears to be a challenge to a finding of fact, a challenge that is impermissible under s 69. That appearance is not displaced by examination of the written submissions or consideration of the oral submissions. The submissions argue, comprehensively, that the primary judge ought to have reached a different conclusion, and point to evidence which, they assert, would have permitted such a different conclusion. That is insufficient to establish error of law for the purposes of s 69.

111. Some semblance of an asserted error of law can be identified in the applicants’ submission that, in finding that M’s injuries were unexplained, the primary judge reversed the onus of proof to require that the first applicant disprove intentional cause of injury. That submission cannot be sustained. The first task of the primary judge was to determine whether M was in need of care and protection. That he suffered unexplained injuries was a significant factor in that evaluation, leaving open the prospect of risk of further injury – a prospect of risk that might have been allayed had there been evidence of the cause of the injury. That is not to impose an onus of proof on any party; it is merely to state a relevant fact.

112. No error of law is demonstrated in the primary judge’s approach to fact finding, nor, to the facts which she found. I would, accordingly, reject Grounds 1, 2, 4 and 5.

113. Ground 6 of the application is framed as follows:

“By proceeding by way of s 73 of the Children and Young Persons (Care and Protection) Act 1998, the learned District Court judge erred in law in not making an order pursuant to s 86 Children and Young Persons (Care and Protection) Act 1998 and by impermissibly delegating her judicial power to a non-judicial entity.”

117. As mentioned above, s 73 of the Care and Protection Act permits the Children’s Court to make an order accepting undertakings given by a responsible person with respect to the care and protection of a child; and s 86 permits the court to make an order stipulating minimum requirements concerning the frequency and duration of contact between the child and his parents.

118. With respect to contact between M and the applicants (or either of them) the effect of the orders made by the Children’s Court was that:

• for the first 12 months, responsibility for decisions concerning contact was allocated to DL and JL;

• for the second 12 month period, responsibility for those decisions was to be shared between the Minister and DL and JL;

• from the expiration of that 2 year period, responsibility for decisions concerning contact was allocated to DL and JL (but, for a further 12 month period, subject to the supervision of the Director-General).

119. The decisions of DL and JL concerning contact were, however, subject to specific undertakings given by them, and, under s 73, accepted by the Children’s Court (and the District Court). The undertakings have been outlined above; they included:

• undertakings not to allow unsupervised contact between M and either applicant for a period of 12 years from the date of the orders unless approved by the Director-General during the 3 year period of the involvement of FACS;

• undertakings not to allow either applicant to remain overnight in the household with M for a period of 12 years from the date of the orders, again, unless approved by the Director-General during the 3 year period of involvement of FACS;

• undertakings not to allow either applicant to reside in the home (of DL and JL) for a period of 12 years from the date of the orders, again, unless approved by the Director-General during the 3 year period of involvement of FACS.

120. The Summons filed in the District Court on behalf of the applicants commencing the appeal sought, in the first place, an order dismissing the application to the Children’s Court by the Minister. Alternatively, it sought an order that parental responsibility be allocated to the applicants jointly; in the further alternative, an order that M be placed under the supervision of the Director-General for 12 months. No order was then sought with respect to contact.

121. However, during the course of the hearing of the appeal, an application was made under s 86(1)(a) for an interim order for unsupervised contact with M. On 19 December 2014, the last day of the first tranche of the appeal hearing, the primary judge made an interim order allowing unsupervised contact between the applicants and M for one four hour period each week. This order was made subject to the undertaking of the second applicant not to allow unsupervised contact between M and the first applicant during that time. That arrangement continued in operation until the final orders made by the primary judge.

122. The primary judge concluded, largely because of the unexplained circumstances of M’s injury, that there was no basis for making a finding that, while he was at risk in 2011, he was not, as at the date of judgment, still at risk; that, but for the arrangements under which he was being cared for, he remained in need of care and protection; and that there was no realistic possibility of restoration to the care of the applicants (s 83(7)). She therefore confirmed the orders of the Children’s Court and dismissed the appeal without addressing the application for unsupervised contact. She did not further deal with the s 86(1)(a) application.

123. The complaint made under Ground 6 was twofold. First, error was asserted in that, in confirming the orders of the Children’s Court with respect to contact, the primary judge proceeded by way of an order accepting undertakings from DL and JL under s 73 with respect to contact between M and the applicants. Given the proviso to those undertakings (“unless approved by the Director-General …”) it was submitted that the primary judge effectively and impermissibly delegated her judicial power under s 86 to a non-judicial entity.

124. Second, it was asserted that the primary judge erroneously failed to exercise the jurisdiction conferred by s 86, and invoked by the applicant’s specific application for unsupervised contact with M.

125. In support of the first complaint, reference was made to some practical consequences of the content of the undertakings of DL and JL. Since the involvement of FACS was limited to a 3 year period from the date of the orders, it followed that the approval of the Director-General could only be given during that time (and that was explicitly recognised in the formulation of the undertakings). Thus, unless the Director-General gave approval to unsupervised contact during that 3 year period, there was no prospect of unsupervised contact until the expiration of the 12 year period from the date of the orders that the undertakings referred to. Reference was also made to the primary judge’s interim determination allowing unsupervised access as inconsistent with her later failure to make a continuing order. The latter consideration is not, in my opinion, material. That her Honour determined, on an interim basis during an adjournment of proceedings, to allow unsupervised access does not demonstrate inconsistency, and certainly does not demonstrate error in declining to do so at a later stage in the proceedings.

126. The former consideration, the practical consequences of the regime imposed by the orders, also is immaterial to Ground 6 as framed and argued. That there will be a gap of 9 years during which FACS has (subject to any further order) no involvement in supervising M says nothing about the validity of the order; it speaks only to practical consequences.

127. The fundamental problem with this aspect of Ground 6 is that s 73 expressly authorises the Children’s Court (and therefore the District Court) to take the course that was taken. If it were necessary to do so (and it is not) it is easy to explain why the legislation permits the court to proceed in the way that it did. The orders made by the Children’s Court have ongoing effect, in circumstances that are frequently volatile and subject to variation from day to day, requiring, often, expeditious responses. The only practical way of ensuring that the objects and principles of the Care and Protection Act are met in the operation of care orders is to allow a degree of flexibility in the undertakings given under s 73, including allowing a discretion in the Director-General (now the Secretary).

128. Further, it is not entirely correct to suggest that, on cessation of FACS involvement, there is no prospect of unsupervised contact for another 9 years. It is always open to the applicants to seek variation of the orders in the Children’s Court.

129. Finally, if the argument concerning impermissible delegation of the s 86 power were correct, it would apply equally to a care order that allocated all aspects of parental care (including contact) to DL and JL. There was no impermissible delegation of judicial power.

130. The complaint of failure to exercise jurisdiction is equally without foundation. As the transcript of the District Court shows the application with which the primary judge dealt on 19 December was for an interim order. Her Honour disposed of that application in the manner indicated. There does not appear to have been any application for a permanent order under s 86. The transcript of the proceedings demonstrates that the focus of the appeal in the District Court was to contest the finding that M was in need of care and protection, and to do so by resisting any suggestion that M’s injuries could be laid at the door of either applicant.

131. There was no failure to exercise jurisdiction. I would reject Ground 6.

132. By Ground 7 complaint was made of failure by the primary judge adequately to expose her reasoning process. I would reject this ground. The primary judge set out at some length the evidence concerning the injury to M. She gave careful attention to the medical evidence. Her steps in the reasoning process are set out with clarity in the section of the judgment headed “Findings”.

133. I agree with the orders proposed by Basten JA.

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Endnotes

Decision last updated: 25 May 2016