W v Director-General, Community Services Directorate
[2014] ACTSC 404
•25 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | W v Director-General, Community Services Directorate |
Citation: | [2014] ACTSC 404 |
Hearing Date: | 25 September 2014 |
DecisionDate: | 25 September 2014 |
Before: | Mossop M |
Decision: | The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL – appeal from decision of Magistrates Court to refuse leave to apply for an amendment to a care and protection order – where appellant not a party to original proceedings – where submissions do not disclose an appropriate basis for overturning the discretionary decision of the magistrate – whether the appellant was a person who had at the time of the original proceedings “daily care responsibility, or long-term care responsibility, for the child or young person” – whether magistrate erred by failing to consider incorrect advice given to the appellant by department officers – whether magistrate erred by incorrectly exercising a discretion available to him – whether it is appropriate to make an “order otherwise” than that each party should bear its own costs pursuant to Children and Young People Act 2008 (ACT) s 724 |
Legislation Cited: | Children and Young People Act 2008 (ACT) Magistrates Court Act 1930 (ACT) |
Cases Cited: | Australian Capital Territory v Bell [2004] ACTCA 2 Coulton V Holcombe (1986) 162 CLR 1 |
Parties: | W (Appellant) Director-General, Community Services Directorate (First Respondent) [not published] (Second Respondent) [not published] (Third Respondent) [not published] (Fourth Respondent) [not published] (Fifth Respondent) |
Representation: | Counsel: Mr J Moffett (Appellant) Ms A Tonkin (First Respondent) Ms C Poulton (Second to Fifth Respondents) |
| Solicitors: Welfare Rights and Legal Centre Limited (Appellant) Australia Capital Territory Government Solicitor (First Respondent) Darryl Perkins Solicitors (Second to Fifth Respondents) | |
File Number: | SCA 30 of 2014 |
Decision under appeal: | Court/Tribunal: Childrens Court of the Australian Capital Territory Before: Magistrate Morrison Date of Decision: 25 March 2014 Case Title: In the matter of an application to amend a Care and Protection order pursuant to section 466 of the Children and Young People Act 2008 Court File Numbers: KE2483, KE2484, KE2485 |
Introduction
This is an appeal brought by the maternal aunt of three children, in relation to whom care orders were made by the Childrens Court on 25 September 2013. The appellant was not a party to the original proceedings. After final orders were made she brought an application under s 466 of the Children and Young People Act 2008 (ACT) (CYP Act) for amendment of the care and protection order. Section 466(1) of the CYP Act only permitted such an application where the Childrens Court had given leave for it to be made. On 25 March 2014 the Magistrates Court refused to grant the appellant leave. She appeals from that refusal.
Appeal provision
Section 836 of the CYP Act permits a party to proceedings to appeal from a decision of the Childrens Court making or refusing to make an order or other decision. Section 837 applies the provisions of part 4.5 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) to an appeal as if it were an appeal from a judgment or order mentioned in s 274(2) of that Act. Section 838 of the CYP Act provides that the Supreme Court must not make an order or other decision that is not an order or other decision that could have been made by the Childrens Court in the proceedings appealed from.
As the Chief Justice recently pointed out in Goreski v de Costa [2014] ACTSC 233 an appeal pursuant to s 274 of the Magistrates Court Act is a rehearing on the evidence with a power to receive new evidence. The appellate court must conduct a “real review”, weighing conflicting evidence and drawing its own inferences from the undisputed and established facts, but bearing in mind the advantages of the primary judge in relation to fact-finding (including a great advantage in assessing the credibility of witnesses): Warren v Coombs (1979) 142 CLR 531 at 551, Fox v Percy (2003) 214 CLR 118 at 127-128; see also Urbaniak-Bak v Prail [2014] ACTSC 171 at [51]-[54].
In the present case the grounds of appeal do not assert that the magistrate made wrong findings of fact or failed to make findings of fact which he ought to have made. Rather, the grounds of appeal assert errors of law and errors in the exercise of his Honour’s discretion as to whether or not to grant leave under s 466(1)(b).
Where the appeal is from a discretionary decision, the principles in House v The King (1936) 55 CLR 499 at 504-505 are applicable. Because several of the submissions made by the appellant appear to misconceive the function of this Court on appeal, it is necessary to set out what was said by Dixon, Evatt and McTiernan JJ in House:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Basic chronology of events
In order to understand the grounds of appeal and submissions made on appeal it is necessary to have regard to the following chronology of events.
On 22 June 2011 the three children were placed in the care of their maternal aunt, the appellant, after a “Voluntary Care Agreement” was entered into by the children’s mother and the Director-General. This was planned to last one month.
On 20 July 2011 a further Voluntary Care Agreement was signed for one month.
On 22 August 2011 a further Voluntary Care Agreement was signed for a period of three months.
On 16 November 2011 the appellant countersigned a “Specific Parental Authority” made pursuant to s 516 of the CYP Act authorising the appellant to “exercise” daily care responsibility for the children. The authority states as condition 3 that “the child or young person has been placed with the above named person in accordance with section 511 of the Children and Young People Act 2008”. It also states as condition 5, “[t]his Authority will lapse automatically when the placement ends.”
On 21 November 2011 a further Voluntary Care Agreement was signed for a period of one month.
On 31 December 2011 the final Voluntary Care Agreement expired. After this date the children remained in the care of the appellant with the agreement of their mother.
In March 2012 a “comprehensive kinship assessment” was prepared by the Director-General.
On 31 August 2012 the Director-General filed an application seeking care and protection orders to the age of 18 years in respect of the children.
On 6 September 2012 interim orders were made by the Magistrates Court with the consent of the parents, including contact, residents, supervision, daily care responsibility and long-term care responsibility provisions in favour of the Director-General.
On 26 September 2013 the proceedings were adjourned for three months following the mother’s completion of a drug rehabilitation program.
On 12 April 2013 the appellant signed a “Care & Protection Services Specific Parental Authority” issued by the Director-General in relation to one of the children. That authority was subject to conditions 3 and 5 same terms as the authority signed on 16 November 2011. Although the evidence was not clear it is likely that such authorities were also signed in relation to the other two children.
On 11 July 2013 a developmental assessment was undertaken by Dr Bragg of the Child at Risk Health Unit at the Canberra Hospital.
On 29 July 2013 officers of the Director-General attended the appellant’s home and informed her that, as a result of the developmental assessment, it was the intention of the Director-General to seek an alternative long-term placement which would be able to better meet the needs of the children. The appellant accepted this position at that time.
By 8 August 2013 the appellant had changed her position and contacted an officer of the Director-General communicating that she wanted the children to stay with her and that she believed she was the best person to care for them. She was told that she should seek legal advice and an application to the ACT Civil and Administrative Tribunal was mentioned in relation to her challenging the Director-General’s decision. No reference was made to the Childrens Court.
On 4 September 2013 the Director-General filed care plans with the Childrens Court providing for a permanent placement.
On 25 September 2013 final orders were made by the Magistrates Court, including contact, residents, supervision, daily care responsibility and long-term care responsibility provisions in favour of the Director-General. The mother and father of the children were parties to the proceedings and were legally represented. The appellant was not a party to the proceedings.
On 18 November 2013 officers of the Director-General attended the appellant’s house and informed her that permanent carers had been identified and approved. The appellant did not accept that decision.
On 20 November 2013 the children were removed from appellant’s care and placed with new foster carers.
On 14 January 2014 the appellant filed an originating application in the Childrens Court seeking leave to be joined as a party and leave to seek revocation of the orders made on 25 September 2013. She subsequently filed an amended application in the Childrens Court.
On 5, 21, 25 March 2014 the application for leave was heard by the Magistrates Court. For the purposes of those proceedings the appellant relied upon affidavits of the appellant dated 13 January 2014 and 21 March 2014. The Director-General relied upon affidavits of Kui Worthington dated 14 March 2014 and Andrew Stead dated 17 March 2014. Four exhibits were also admitted into evidence. The appellant, Ms Worthington and Mr Stead were cross-examined upon their affidavits.
Reasons for decision
The magistrate gave an ex-tempore decision on 25 March 2014.
It is important to note that, in contrast with the position taken by the appellant on the appeal, at that stage she was seeking leave to bring proceedings which sought that daily care responsibility for the children be transferred to her, that long-term care responsibility for the children be transferred to the Director-General and that the children reside with her until the age of 18 years.
His Honour’s reasons must be understood in the light of the fact that he was being asked to grant leave for proceedings which may ultimately terminate the existing long-term foster placement that had, at the time of his Honour’s decision, been in place for four months, and return the children to the care of the appellant on a permanent basis.
His Honour’s reasons (to which I have added paragraph numbers) were as follows:
1. The application before me is limited to an application for leave to apply to amend the final orders that were made on the 25th September 2013. The decision, on the grant of leave is clearly a discretionary one. The Act does not specify any criteria to be applied in the exercise of that discretion.
2. Having said that all decisions under the Act are underpinned by the statutory direction that the best interests of the child are the paramount consideration - see section 8 of the Act.
3. In my opinion, some further guidance on the proper approach to the exercise of the discretion may be obtained from what appears in section 466(3) where it says, "However, the Childrens Court may give leave to someone to apply more than once in a 12-month period, only if satisfied that there has been a significant change in any relevant circumstances since the care and protection order was made or last extended or amended."
4. The contents of that subsection persuade me that it is appropriate in the exercise of the relevant discretion to take into account the need to avoid the uncertainty of ongoing litigation in care proceedings. Doing so is of course, consistent with treating the best interests of the child as the paramount consideration.
5. In the present case the children have been in their current foster placement since November of 2013. That is a period of about four months. There is evidence of some anxiety and confusion around the change of placement. I would be surprised if that had not been the case. But the evidence does not go so far as to support a conclusion that the children are not well provided for in their current foster placement.
6. The current application is for leave to apply. If leave is granted then Ms [W]'s substantive application can proceed. That substantive application is opposed and it is unlikely that it could be set down for hearing before the middle of the year at least and probably later than that. By that time the children would have been with their current foster carers for a period of between seven and 12 months or probably longer. The orders sought by Ms [W] would result in them being removed from that placement to be returned to her care. There is, as I have said, no evidence that the children are not well cared for in their current placement.
7. Ms [W] has the care of five children of her own. There is evidence that she has struggled to some extent to meet the combined needs of her own children as well as those of [the children] when they were with her. That is perhaps unsurprising given the number of children. This leave application is not an occasion to embark upon a full analysis of the merits of the substantive application if leave is granted but some consideration of the alternate proposal for the children is appropriate given the submission that leave should be refused because the substantive application is doomed to fail.
8. Ms [W] complains that the Director-General has not adequately investigated that provision to her of additional supports necessary for the children to remain with her. It is accepted that such an assessment was recommended by Dr Bragg. I comment that the observations of Dr Bragg included that a level of support which she described as "enormous", may be required and that even that level of support may not be adequate.
9. The evidence is that following the report of Dr Bragg the Director-General decided that an alternate placement should be sought. This leave application is not an occasion to make findings on the merits of that decision other than to say that on the face of the matter it does appear to have been open for the Director-General to decide that even with a very substantial additional care and support it was unlikely that the placement with Ms [W] would have been able to meet the needs of the children.
10. As a matter of principle, kinship care is generally regarded as a desirable option if parental care is not feasible but that principle does not over-ride the requirement that the paramount consideration is the best interests of the child.
11. If the leave application is granted, Ms [W]'s substantive application will be asking the court to remove the children from a placement they will then have been in for some seven to 10 months or perhaps longer and to return them to her care.
12. That order would be sought under circumstances, where at the time the final orders were made an assessment had been made that, in effect, Ms [W]'s care was not at that time meeting the needs of the children and that it may - and I stress - it appears that at that time it could have been put no higher than may - have been able to meet their needs with some unknown but apparently very substantial level of additional assistance and support.
13. There is some evidence that since the making of the final order the circumstances of Ms [W] and of the children while they remained in her care have improved in some respects but that evidence is by no means comprehensive and is, of course, largely untested.
14. The prospects of success of Ms [W]'s substantive application are such that they would of themselves ordinarily justify refusing leave, in particular, against the background of the assessment I had earlier made that it is appropriate to take into account the need to avoid the uncertainty of ongoing litigation in care proceedings.
15. There is, however, another factor to be taken into account in the circumstances of this case. Ms [W] complains that she did not fully understand her rights in relation to the proceedings. If l was persuaded that the department had actively sought to mislead Ms [W] as to her legal rights, or as to the nature of the orders being sought, then her leave application would have to be considered in a different light.
16. The evidence of Ms [W], that is her oral testimony, was not completely clear, but it does appear that she knew that final orders removing the children from her care would be made, although apparently then or perhaps at a later stage she thought that they may be returned to her if certain conditions were met.
17. The evidence, however, does not support a conclusion that any departmental officer contributed to Ms [W]’s misunderstanding about the return of the children to her. Ms [W] may well have not fully understood her rights but proceedings in this jurisdiction are about the interests of the children, not about the rights of their carers.
18. In the circumstances, while I accept that Ms [W] may have not fully understood her rights in relation to the final orders being sought by the Director-General, the circumstances overall, including my assessment of the prospects of success of her proposed substantive application, do not justify the grant of leave and the application for leave is refused.
In summary, his Honour’s discretion turned on:
(a)the undesirability of further uncertainty for the lives of the children arising out of further litigation;
(b)the poor prospects of success of the substantive proceedings if leave was granted; and
(c)the absence of any active misleading on the Director-General’s part as to the appellant’s legal rights or the nature of the orders sought.
Grounds of appeal
The grounds of appeal are set out in the appellant’s further amended notice of appeal dated 15 August 2014. The appellant sought leave to supplement the grounds of appeal and I granted that leave.
The grounds of appeal set out in the further amended notice of appeal are as follows:
A.An application for the hearing of the appeal is made to the Court pursuant to section 836 of the [CYP Act]. The legislation does not indicate that an error of law is required. In the alternative, that the Childrens Court erred in its application of section 466 of the [CYP Act].
B.The best interests of the children would be served by being returned to the Appellant’s care or, in the alternative, by allowing frequent overnight contact between the Appellant and the children.
C.The learned Magistrate erred by not granting leave.
D.The learned Magistrate erred by incorrectly exercising a discretion available to him.
E.The learned Magistrate erred by relying upon evidence that was not tested when exercising a discretion available to him.
F.By not granting leave the learned Magistrate did not give the Appellant an opportunity to be substantially heard.
G.The learned Magistrate placed insufficient weight on advice provided by the First Responded to the Appellant which directly precluded her from being a party to proceedings (KE2485) and subsequent final orders made on 25 September 2013.
The appellant sought leave to amend ground G to include references to proceedings KE 2483 and 2484 so that this ground of appeal referred to the proceedings in relation to each child. I granted that leave.
The additional ground of appeal which I granted leave to include was:
H.That the First Respondent did not serve upon the Appellant Applications No. KE2483, No. KE2484, No. KE2485 as required by section 427(1)(c) of the [CYP Act].
A further ground of appeal was identified but at the hearing of appeal the application to amend the notice of appeal to include it it was not pursued.
Grounds E and F were not pressed on appeal. The appellant accepted that ground A was not in fact a ground of appeal but rather a submission about the scope of the appeal provided for by the CYP Act. I have dealt with the scope of the appeal above.
Consideration
I will deal below with each of the remaining grounds of appeal.
B. The best interests of the children would be served by being returned to the Appellant’s care or, in the alternative, by allowing frequent overnight contact between the Appellant and the children
The appellant did not press this ground of appeal in so far as it sought that the children be returned to the appellant’s care.
The appellant did, however, submit that leave should be granted so that formal orders could be made with respect to the appellant having “frequent overnight contact with the children”.
The appellant submits that the final orders made on 25 September 2014 made no specific provision for the appellant to see the children. She points out that since the children were removed the appellant has only seen them on a single occasion. The appellant submits that the lack of contact is not in their best interests and hence does not conform to the main objects of the legislation set out in Part 1.2 of the CYP Act.
The submissions made by the appellant do not disclose an appropriate basis for overturning the discretionary decision of the magistrate. The contention that it is in the children’s best interests that they have frequent overnight contact with the appellant does not disclose any error in the making of the decision by the magistrate.
First, the magistrate was dealing with an application for leave to apply for the amendment of the care and protection order. That application sought not that the appellant have frequent overnight contact with the children but instead sought that daily care responsibility be transferred to her until the children attained 18 years of age and that the children reside with the appellant until they attained 18 years of age. Thus, his Honour was not asked to consider an application for leave on the basis that the children have frequent overnight contact with the appellant. Failing to consider a proposition which was not part of the application before him did not constitute an error on the magistrate’s part.
Further, in so far as the appellant sought to agitate a grant of leave for the purposes of seeking orders giving her “frequent overnight contact” that is not something that I would permit on this appeal even though it is an appeal by way of rehearing. The possibility of frequent overnight contact was an issue upon which evidence could have been given at the hearing had that been the contention of the applicant.
That is particularly so where there was a newly established long-term foster placement which was apparently successfully established. There was likely to be evidence available as to whether frequent overnight contact with the appellant and her family would be in the children’s best interest in those circumstances.
In Coulton V Holcombe (1986) 162 CLR 1 at 7, the High Court said:
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418, at p 438; Bloemen v. The Commonwealth (1975) 49 ALJR 219.
In this Court see also Australian Capital Territory v Bell [2004] ACTCA 2 at [10].
These principles may be subject to some qualification in the context of an Act such as the CYP Act, particularly having regard to the terms of s 8. However, in my view, even seeking to give effect to s 8 would I would not permit the appellant to succeed on this ground in circumstances where it was not run below and would have been the subject of evidence.
For these reasons, this ground of appeal is not made out.
C. The learned Magistrate erred by not granting leave
In support of this ground the appellant submitted that the magistrate fell into error for two reasons:
(a)the Director-General did not comply with s 427 of the CYP Act in so far as she did not give a copy of any of the three applications to the appellant; and
(b)the evidence of Mr Stead that:
(i)he could not recall if he provided the appellant with a copy of the care plans to be relied upon by the Director-General to obtain final orders;
(ii)he did not direct the appellant to the Childrens Court and did not advise her about applications KE 2483, KE 2484, and KE 2485; and
(iii)he suggested to the appellant that if she was aggrieved with a decision to remove the children from her care she should make an application to the ACT Civil and Administrative Tribunal.
Section 427: I will deal first with the submission in relation to s 427 of the CYP Act. As at 31 August 2012 (the date when the proceedings were commenced) s 427 of the CYP Act provided:
427Care and protection orders—who must be given application
(1)The applicant for a care and protection order for a child or young person must give a copy of the application to the following people at least 3 working days before the application is to be heard by the court:
(a)the child or young person;
(b)each parent of the child or young person;
(c)each other person (if any) who has daily care responsibility, or long-term care responsibility, for the child or young person;
(d)if the applicant is not the Director-General—the Director-General;
(e)the public advocate.
(2)This section does not apply if the Director-General or a police officer has daily care responsibility for a child or young person under part 13.1 (Emergency action).
Note For s (2), the Director-General need only give a copy of the application to people before the application is heard by the court (see s 413).
As at that date the applications were filed in the Childrens Court the children were being cared for by the appellant with the consent of the children’s mother. The issue is whether or not the appellant falls within the scope of s 42(1)(c), namely, whether or not she is a person who had at that time, “daily care responsibility, or long-term care responsibility, for the child or young person”.
The concepts of daily care and long term care responsibility referred to in s 427 are explained in Division 1.3.2 of the CYP Act. As at 31 August 2012 s 15 of the CYP Act provided:
15What is parental responsibility?
In this Act:
parental responsibility, for a child or young person, means all the duties, powers, responsibilities and authority parents have by law in relation to their children, including the following aspects of parental responsibility:
(a)daily care responsibility for the child or young person;
(b)long-term care responsibility for the child or young person.
Note Daily care responsibility is dealt with in s 19. Long-term care responsibility is dealt with in s 20.
Sections 19 and 20 of the CYP Act provided:
19Daily care responsibility for children and young people
(1)A person who has daily care responsibility for a child or young person has responsibility for, and may make decisions about, the child’s or young person’s daily care.
Examples—daily care responsibilities and decisions
1where and with whom the child or young person lives
2people with whom the child or young person may, or must not, have contact
3arrangements for temporary care of the child or young person by someone else
4everyday decisions, including, for example, about the personal appearance of the child or young person
5daily care decisions about education, training and employment
...
20Long-term care responsibility for children and young people
(1)A person who has long-term care responsibility for a child or young person has—
(a)responsibility for the long-term care, protection and development of the child or young person; and
(b)all the powers, responsibilities and authority a guardian of a child or young person has by law in relation to the child or young person.
...
Thus, the daily care responsibility and long-term care responsibility are components of parental responsibility as that concept is defined in s 15.
Section 16 of the CYP Act provides that each parent of a child or young person has parental responsibility for that child or young person. Sections 17 and at 18 describe the circumstances in which parental responsibility may be transferred (s 17) or shared (s 18). Section 17 provides:
17Aspects of parental responsibility may be transferred
(1)Parental responsibility may be transferred from a person to someone else under—
(a)a family group conference agreement; or
(b)an appraisal order including a temporary parental responsibility provision; or
(c)emergency action; or
(d)a care and protection order including a parental responsibility provision; or
(e)a safe custody warrant; or
(f)a court order (under this Act or another law in force in the Territory); or
(g)a provision of another law in force in the Territory.
(2)If parental responsibility is transferred from a person to someone else—
(a)only the aspect of parental responsibility expressly stated to be transferred is transferred; and
(b)no-one else’s parental responsibility, or aspect of parental responsibility, for the child or young person is diminished except to the extent expressly stated or necessary to give effect to the transfer.
I have deleted from that recitation of the content of s 17, the content of the notes, which explain where the different contexts referred to in the various paragraphs of subsection (1) are explained elsewhere in the CYP Act. Section 18 provides:
18Aspects of parental responsibility may be shared
(1)Parental responsibility may be shared between 2 or more people under—
(a)a family group conference agreement; or
(b)a voluntary care agreement; or
(c)a care and protection order including a parental responsibility provision; or
(d)a court order (under this Act or another law in force in the Territory).
(2)If parental responsibility is shared between 2 or more people, either of them may discharge the responsibility.
...
Once again I have deleted the notes from my recitation of s 18.
Thus, the CYP Act provides a scheme where parental responsibility of the parents may be either shared or transferred pursuant to one of the mechanisms identified in s 17 or s 18 of the CYP Act.
The circumstances of the children as at the commencement of the proceedings were that they were being cared for pursuant to an intra-familial arrangement by the appellant. That arrangement did not fall within any of the categories set out in s 17(1)(a)-(g), or any of the categories in s 18(1)(a)-(d). It did not have statutory backing. As a consequence, although the appellant was, as a practical matter, responsible for the daily care of each of the children as at the date when the proceedings were commenced, she did not have, “daily care responsibility or long-term care responsibility” for any of the children at that time. As a consequence, there was no obligation under s 427(1) to give her a copy of the application in accordance with that section.
I do not accept the submission that the reference in s 427 to daily care responsibility is a reference to persons who, apart from the provisions of the CYP Act allocating parental responsibility, have, as a matter of fact, responsibility for the matters set out in s 19. It appears to me that the concept of parental responsibility, daily care responsibility and long-term care responsibility are statutory concepts which exist or are allocated in accordance with those statutory provisions. They do not cover situations where as a fact a person, in addition to the parent, has responsibility which is within the scope of s 19(1) and the examples referred to therein, but where that responsibility is not given pursuant to a transfer of or sharing of responsibility pursuant to ss 17 or 18. There may be a distinction to be drawn in relation to s 427 of the CYP Act, between the Director-General who “has” daily care responsibility, and a person who, under s 516 of the CYP Act “exercises” that responsibility “for the Director-General”. It is not necessary to determine in this case whether or not a person “exercising” daily care or long-term care responsibility for the Director-General under s 516 of the CYP Act would fall within the scope of s 427.
In relation to the position that existed from 12 April 2013 until the removal of the children from the appellant’s care, the appellant was exercising daily care responsibility for the children pursuant to the parental authority given by the Director-General under s 516. Assuming, in favour of the appellant, that the “exercise” of daily care responsibility under an authority under s 516 falls within the scope of s 427, whether or not the Director-General was obliged to notify her depends what is meant by the words “is to be heard by the court” in s 427(1). If it is a reference to the first return date of the application, then the authority of April 2013 is irrelevant because the proceedings were commenced on 31 August 2012. If, on the other hand, it refers to the date of a final hearing then the authority is relevant because that final hearing took place on 25 September 2013, after the s 516 authority was in effect.
In my view, the reference to “is to be heard” in s 427 is a reference to the first return date for the application for care and protection orders. That is, the date when the matter is first before the Court. The section secures basic procedural fairness by ensuring that the persons listed have a copy of the application prior to the matter going to court. In my view, it does not require an applicant for orders to serve copies of the applications on other persons immediately prior to the final hearing. In circumstances where matters will have progressed and evidence been obtained and served it would not be consistent with an orderly court process then to serve an originating application on some additional person who happened to have daily care responsibility at the point of a final hearing. If that was the case then it would require service of the application upon temporary foster carers arranged by the Director-General, who had only commenced exercising parental authority under s 516 as a result of an interim order made in favour of the Director-General.
There are many similarly structured provisions referring to service of document or applications before an application is “heard” elsewhere in the Act. See, for example, ss 379, 386, 419, 435, 445, 469, 541, 560, 567, 706. Where parental responsibility, in particular daily care responsibility, is the trigger for an entitlement to serve, my interpretation will mean that persons who are not, at the time of commencement of proceedings, persons with such responsibility but become so during the pendency of proceedings will not be entitled to be served with an application prior to the final hearing. That is consistent with leaving it to the Court, after proceedings are properly commenced, to decide, either on application by a party or on its own motion, whether or not it is appropriate that other persons who have not been served with the application should be formally notified of the proceedings. I accept that there are, elsewhere in the CYP Act, differently worded provisions which dissect the court process in a more detailed manner than s 427 and its similar provisions. For example, s 430 of the CYP Act, which was considered by Penfold J in JH v Director-General, Community Services Directorate [2012] ACTSC 30.
Because the obligation in s 427 applies at the point at which proceedings first come before the Court, the existence of the s 516 authority from April 2013 did not give rise to an obligation on the Director-General to serve the application filed in August 2012 on the appellant prior to the final orders being made on 25 September 2013.
Therefore I do not accept that this aspect of the appellant submissions on this ground should be accepted.
Mr Stead’s evidence: The transcript of Mr Stead’s evidence given in the Magistrates Court (pages 49 to 52 of the appeal book) indicates that, on 8 August 2013, when the appellant called him and indicated to him that she had changed her mind and wanted the children to stay with her, he recommended to her that she seek legal advice and he did mention the ACAT to her in relation to challenging the decision. He did not refer her to the Childrens Court. He was under the mistaken impression that ACAT was the avenue for the decision to be contested. The appellant did, in fact, file proceedings in ACAT on a date not disclosed by the evidence.
The issue was one of some significance. Had the appellant been joined as a party to the Childrens Court proceedings prior to the making of final orders then the Court would have been obliged to give her leave to seek an amendment of the final care and protection order: see s 466(2). Thus, the reasons why she did not make any application to be joined in the Childrens Court proceedings were of some significance.
It was clear from her affidavit of 13 January 2014 that she was aware of proceedings in the Childrens Court no later than the beginning of 2013. At the end of July 2013 she was made aware that the Director-General was of the view that the children needed a long-term foster placement. It was after that, in August, that she spoke to Mr Stead and the ACAT was mentioned. She contacted the ACAT and was told that she needed to get reasons for decision. She got advice from the Legal Aid Office, who advised her to go to the ACAT. That advice was received before the children were removed from her care. She also got some advice from the Women’s Legal Centre, although that was between the removal of the children and Christmas 2013.
She was asked why she did not do anything about becoming involved in the Childrens Court proceedings within the two months after being told that the Director-General’s intention was to seek a long-term placement. She said,
I knew that they were seeking orders or from [the mother] or whatever that happened and then I had the impressions that once the orders came through that I was going to get the children until 18 years.
She said she was waiting for the statement of reasons, which Mr Stead did not send her in the mail. She also said that she did not go to court on 29 July “because I thought that I had six months to get the children up to their age group.” It was suggested to her that she knew there was a court case on foot. She said “I didn’t know. I didn’t understand that. I thought that was [the mother’s]. And then once the Governor-General [sic] gets what he gets it then that’s what I realised after that”.
The magistrate dealt with this issue in his reasons. His Honour accurately stated that the evidence of the appellant in her oral testimony was not completely clear. He considered the evidence and concluded that the evidence did not support a conclusion that any departmental officer contributed to the appellant’s misunderstanding about the return of the children to her. His Honour said that she may well not have understood her rights but, as his Honour pointed out, the proceedings in this jurisdiction are about the interests of the children and not about the rights of their carers.
His Honour was clearly aware of the issue. He did not make any error of fact. The weight which he gave to this issue was a matter for him. He does not appear to have acted upon any wrong principle. It cannot be said that the result achieved was unreasonable or plainly unjust so as to permit this Court to infer that in some way there has been a failure to properly exercise the discretion which the law reposed in him.
Therefore, I do not accept the appellant’s submissions on this aspect of this ground of appeal.
D. The learned Magistrate erred by incorrectly exercising a discretion available to him
On this ground of appeal the appellant repeats the submissions that she has made in relation to the previous ground of appeal. She submits that the magistrate should have exercised his discretion to grant leave to the appellant for her amended originating application to proceed.
In oral submissions, counsel for the appellant submitted that the discretion had miscarried because of the failure to have regard to the factors identified in s 349 of the CYP Act, in particular s 349(1)(e), and the importance of maintaining kinship care where possible. His Honour specifically dealt with that issue at what I have numbered [7]-[10] of his Honour’s decision.
I am not satisfied that his Honour failed to have regard to a matter required under s 349(1) or that there is any reviewable error in the manner that he did deal with that issue.
G. The learned Magistrate placed insufficient weight on advice provided by the First Responded to the Appellant which directly precluded her from being a party to proceedings (KE 2483, KE 2484, KE 2485) and subsequent final orders made on 25 September 2013
On this ground of appeal the appellant repeats the submissions made in relation to ground (c). She submits that the magistrate placed insufficient weight on the fact that the Director-General, “in some respects led the appellant down the garden path when he should have known to direct her to the Childrens Court.” She submits that the refusal to grant leave to the appellant to be heard was not in the best interests of the children.
While I accept the submission that the advice given by Mr Stead was inaccurate and unfortunate, it arose from his own ignorance of the legal processes that were involved. As I have pointed out above, the issue was one which was specifically dealt with by his Honour. The weight to be given to the erroneous advice by the officer of the Director-General was a matter for his Honour in the light of all of the other circumstances of the case and no error is disclosed in his Honour’s reasons or the result of his exercise of discretion. His Honour was plainly aware of his obligation to exercise functions under the CYP Act with the best interests of the children being the paramount consideration.
H. That the First Respondent did not serve upon the Appellant Applications No. KE2483, No. KE2484, No. KE2485 as required by section 427(1)(c) of the Act
In support of this ground of appeal the appellant repeats the submissions made in relation to ground C, which I have dealt with above.
She also repeats the submissions in relation to the operation of s 427 of the CYP Act, which I have dealt with above.
She submits that the failure to provide a copy of the three applications to the appellant precluded her from adducing evidence with respect to the best interests of the children before the Childrens Court.
As I have indicated above, his Honour considered the fact that the appellant “may well not have fully understood her rights” but clearly gave more significant weight to the best interests of the children as opposed to the rights of their carers. This does not appear to me to disclose an error in his Honour’s exercise of discretion.
Conclusion and orders
In the light of the above the appeal must be dismissed.
The first respondent sought costs in the event that it was successful. The appellant submitted that each party should bear its own costs and relied upon s 724 of the CYP Act. The first respondent submitted that it was appropriate to order otherwise as contemplated by s 724(2) and relied upon the authority of Penfold v Penfold (1980) 144 CLR 311 in relation to a similar provision.
In the present case, although I accept that there is power to award costs, it is significant that:
(a)the legislature has seen fit to displace the ordinary rule in relation to costs; and
(b)the terms of ss 725 and 726 of the CYP Act identify particular types of circumstances in which the Court may make costs orders.
The terms of s 724(2) are not such as to indicate that the scope of the power under that subsection is limited to the circumstances in ss 725 and 726. I do not need for the purposes of this case to analyse precisely the significance of the existence and terms of ss 725 and 726 for the purposes of the exercise of discretion under s 724(2). For the purposes of this case, I proceed on the basis, consistent with Penfold v Penfold, that s 724(2) is not conditional upon the existence of special circumstances or “a clear case” for departing from the default rule.
In the present case, the first respondent submitted that an order should be made because the final relief being sought on appeal if leave was granted was different to the final relief being sought at the time the application for leave was made and, secondly, that the s 427 point was raised for the first time on appeal.
The question of costs necessarily only arises where the party has been unsuccessful. In my view, although I have rejected the appellant’s appeal I do not consider it appropriate to make any “order otherwise” for the purposes of s 724(2). First, I am not satisfied that the appeal was so weak that it can be said that it should not have been brought. Second, in the present case, officers of the Director-General gave incorrect information to the appellant about the venue for reviewing the decisions of the Director-General and there is at least some prospect that had that incorrect information not been given, the appellant would have been a party to the Childrens Court proceedings and would not have been required to seek leave for proceedings to amend the Childrens Court order.
The order of the Court is therefore:
1. The appeal is dismissed.
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 29 April 2015 |
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