W v Director-General, Community Services Directorate - [2014] ACTSC 404

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 Fox v Percy (2003) 214 CLR 118 Goreski v de Costa [2014] ACTSC 233 House v The King (1936) 55 CLR 499 JH v Director-General, Community Services Directorate [2012] ACTSC 30 Penfold v Penfold (1980) 144 CLR 311 Urbaniak-Bak v Prail [2014] ACTSC 171 Warren v Coombs (1979) 142 CLR 531
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] ACTSC 404
Decision Date: 25 September 2014

CaseChat Overview and Summary

In this case, the appellant, W, sought an appeal from the decision of the Magistrates Court to refuse leave to apply for an amendment to a care and protection order. The dispute arose from the appellant's claim that she had not been properly advised on how to challenge the decision to place her children in a long-term foster placement. The appellant argued that she had daily and long-term care responsibility for her children at the time of the original proceedings and that she was misled by department officers regarding the appropriate legal avenues available to challenge the decision. The court was required to determine whether the appellant had established an appropriate basis for overturning the discretionary decision of the magistrate and whether the magistrate erred in his consideration of the appellant's claims.

The court examined the appellant's submissions and found that they did not disclose a basis for overturning the magistrate's decision. The appellant's claims that she had been misled by department officers were not supported by the evidence, as the magistrate concluded that there was no contribution to her misunderstanding about the return of the children to her. The court also found that the magistrate did not err by failing to consider incorrect advice given to the appellant, as the proceedings in this jurisdiction are about the interests of the children and not about the rights of their carers. The court further held that the magistrate correctly exercised his discretion in denying leave for the appellant to apply for an amendment to the care and protection order.

The appeal was dismissed, and the appellant was ordered to bear her own costs. The court found that it was not appropriate to make an "order otherwise" than that each party should bear its own costs pursuant to the Children and Young People Act 2008 (ACT) s 724. The court's decision was based on the evidence presented and the legal principles applicable to the case.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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, 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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