WS v Director-General, Community Services Directorate
[2018] ACTSC 144
•22 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | WS v Director-General, Community Services Directorate |
Citation: | [2018] ACTSC 144 |
Hearing Dates: | 28 August, 10 November 2017 |
DecisionDate: | 22 May 2018 |
Before: | McWilliam AsJ |
Decision: | See [121] |
Catchwords: | APPEAL – APPEAL FROM THE CHILDRENS COURT – extension of care and protection order – where magistrate declined to consider whether child in need of care and protection – error established CHILDREN – CHILD WELFARE – intervention – extension of care and protection order – where father asserted he was willing and able to take parental responsibility for the child – whether previous findings of the Family Court of Australia concerning historical allegations of abuse in relation to a different child were misunderstood or misapplied – error established |
Legislation Cited: | Children and Young People Act 2008 (ACT) ss 7, 8, 9, 336, 345, 349, 350, 422, 428, 464, 466, 467, 471, 472, 477, 479, 724, 725, 835, 836, 837, 838, Ch 19 Magistrates Court Act 1930 (ACT) ss 274, 287 |
Cases Cited: | Briginshaw v Briginshaw (1938) 60 CLR 336 CP v Director-General of Community Services Directorate and ors [2017] ACTSC 394 Theodolorelos v Nexus Products Pty Ltd [2009] ACTSC 149 |
Parties: | WS (Appellant) Director-General, Community Services Directorate (First Respondent) [not published] (Second Respondent) WO (Third Respondent) |
Representation: | Counsel Ms L Snelling (Appellant) Mr J Kellaway (First Respondent) Mr D Brown (Third Respondent) |
| Solicitors ACT Government Solicitor (First Respondent) Jeanine Lloyd & Associates (Third Respondent) | |
File Number: | SCA 60 of 2016 |
Decision under appeal: | Court: Childrens Court of the ACT Before: Magistrate Dingwall Date of Decision: 5 August 2016 Case Title: In the matter of an application to extend orders under Part 14.5 of the Children and Young People Act 2008 Court File Number: KE No. 2414 of 2000 |
This is an appeal concerning final care and protection orders made on 5 August 2016 under the Children and Young People Act 2008 (ACT) (CYPAct) in relation to a young girl, who will be referred to as ‘WO’. She was born in 2010 and is presently 7 years old.
The orders were made in the Childrens Court (as it is known pursuant to s 287 of the Magistrates Court Act 1930 (ACT), but hereafter referred to as the Children’s Court). The orders were to the effect that until WO attains the age of 18 years:
(a)WO is placed under the supervision of the Director-General of Community Services Directorate (Director-General);
(b)The Director-General is authorised to decide where and with whom WO may live, and when and with whom she may have contact; and
(c)The Director-General has the long-term and daily care responsibility for WO.
Parties
The Director-General was the successful applicant in the Children’s Court and is the first respondent on the appeal.
The biological father of the child is the appellant, referred to in these reasons as the ‘father’. Before the Children’s Court, the father had sought an order (by way of cross-application) that the Director-General’s application be dismissed (the basis being that the child was not in need of care and protection because he was willing and able to care for WO). In the alternative, the father sought that WO reside with him and that he have the daily care and responsibility for her, with long term responsibility being shared with the Director-General.
The biological mother (referred to in these reasons as the ‘mother’) was the second respondent on the appeal and had also filed a cross-appeal on 7 June 2017. However, after attending earlier directions hearings, including one on 30 June 2017 when the hearing date of 28 August 2017 was confirmed, she failed to appear at, and to make any arguments in support of, her appeal. In light of the non-attendance, the cross-appeal must be taken to have been abandoned.
WO is the third respondent and was represented by an Independent Children’s Lawyer, who adopted the submissions of the Director-General.
Issues and summary of findings on appeal
The father commenced proceedings in this Court on 1 September 2016, amending the notice of appeal on 6 January 2017. However, when the hearing of the appeal commenced on 28 August 2017, the grounds were further revised through the oral arguments put by counsel for the father. The proceedings were then adjourned to 10 November 2017 to permit the Director-General to address the issues on appeal as presented in writing and orally.
The ‘grounds’ of appeal as ultimately propounded (and addressed by the Director-General) were as follows:
(a)Failure to give appropriate weight to the principles under s 350 of the CYP Act (Ground 1).
(b)Failure to take into account material considerations caused by:
(i)Lack of procedural fairness in relation to expert evidence addressing the placement of WO with the father;
(ii)The consequent absence of expert evidence addressing the placement of WO with the father, which denied the Children’s Court the opportunity to consider ss 349(1)(a), (c) and (e) and 350(1)(a), (b), (c) and (e) of the CYP Act; and
(iii)Failure to assess the alleged or asserted risk that might befall WO (Ground 2).
(c)The decision was unreasonable and not in the best interests of the child (Ground 3).
As will be seen from the reasons that follow, I have found that the orders of the Children’s Court must be set aside because there were two separate errors, both of which were material to the outcome.
First, the Children’s Court magistrate (the magistrate) erred in construing the CYP Act, in that he did not take into account the requirements of s 464 of the CYP Act. This affected the approach taken to the determination of the proceedings, including matters of weight and what evidence was put before the Court. The consequence was that the magistrate erred in failing to give appropriate weight to s 350 of the CYP Act.
The second and separate error was the magistrate’s treatment of historical allegations made against the father concerning a different child and in different circumstances from those that existed in relation to WO. I have found that the magistrate misconstrued the previous findings in relation to that different child, and that, perhaps as a consequence of that misunderstanding, the magistrate both failed to properly assess the asserted risk to WO and made a decision that was unreasonable.
Finally, had it been necessary to determine, I would have found that the magistrate’s reasons were not reflected in the terms of the orders made. The magistrate’s express reasoning (emphasised below) was that the child should have regular contact with the father. Regrettably, that has not occurred since the orders in the Children’s Court were made, and accordingly, had the orders in the Children’s Court below stood, I would have amended them to give operational effect to the reasons of the magistrate, which appear to have been largely ignored by the Director-General in terms of facilitating WO’s ongoing regular contact and positive relationship with her father. However, given the outcome of this appeal, there is no need to address that matter further.
The Court’s jurisdiction on appeal
The nature of appeals to this Court from orders made by the Children’s Court was discussed by Refshauge J in JL v Director-General Community Services Directorate [2015] ACTSC 24 (JL), which was referred to by Murrell CJ in ES v The Director-General of the Community Services Directorate (No 2) [2016] ACTSC 7.
Section 835 of the CYP Act provides for appeals to the Supreme Court in relation to a matter arising under the CYP Act, in accordance with s 836 of the CYP Act, which is (relevantly) in the following terms:
836 Appeals to the Supreme Court—care and protection chapters
(1)An appeal from any of the following decisions of the Childrens Court under the care and protection chapters may be made to the Supreme Court:
(a) the making of an order or other decision;
…
(2)The following people may appeal under this section:
(a) a party to the proceeding in which the decision was made;
(b) a person named in the order or other decision;
....
Such an appeal is as of right: see s 274(2) of the Magistrates Court Act and LP v Director-General of the Community Services Directorate [2016] ACTSC 57; 308 FLR 452 at [14].
Section 837 incorporates into such appeals the provisions of the Magistrates Court Act, in particular s 276, which provides:
In an appeal, the Supreme Court must have regard to the evidence given in the proceeding in the Magistrates Court out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.
An appeal brought under s 836 of the CYP Act is by way of rehearing. A rehearing is not a retrial. The appellant still carries the onus of showing that the decision appealed from ought to be reversed: Powell v Streatham Manor Nursing Home [1935] AC 243 at 249.
In Theodolorelos v Nexus Products Pty Ltd [2009] ACTSC 149, Refshauge J described the nature of such an appeal at [78] (emphasis added):
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
Pursuant to s 838 of the CYP Act, the Supreme Court may make an order or decision that the court below could have made.
Factual background giving rise to the proceedings in the Children’s Court below
The father’s relationship history is relevant due to the allegations that were made against him. It has been taken from the evidence before the Children’s Court and the joint chronology of events before this Court on appeal. I did not understand any of these facts to be controversial.
The father was first married for almost eleven years, from 1982 to 1993. During that time he had two sons who are now adults. His first wife and two sons swore affidavits testifying, among other things, that there was no domestic violence at any time during the marriage, or separation, or afterwards.
Following the breakdown of his marriage, the father commenced a relationship with another woman in June 1993. In 1994, they had a child together, referred to here as ‘WJ’. However, the relationship broke down in 2001. In 2002, a parenting plan for the child WJ was filed with the Family Court of Australia. It provided, in effect, for residence of WJ to rotate on a twelve monthly basis. WJ lived with her mother for 2002. At the beginning of 2003, WJ commenced living with the father.
In September of 2003, WJ disclosed conduct to her mother that suggested to her mother she had been sexually abused by the father. A custody battle ensued between the father and WJ’s mother in the Family Court of Australia, with Steele J delivering a judgment on 17 December 2004, during the course of which his Honour made no finding that sexual abuse had occurred (but also made no finding that the alleged conduct did not occur). The relevant extract appears as part of the magistrate’s reasons in the Children’s Court, set out below at [58].
In 2006, the father met the respondent mother in these proceedings and they commenced a relationship. In August 2008, the mother and father were married, and WO was born in May 2010.
The relationship ended in August 2010 (although the mother and father formally divorced some years later). The mother alleged domestic violence towards her on the part of the father.
In September 2010, the mother presented to the Canberra Hospital emergency department for assessment by the Mental Health Crisis Assessment and Treatment Team.
The Director-General became involved at that point and a voluntary care agreement was entered into on 6 September 2010, with WO being placed into temporary foster care. The father was not contacted by anyone at Child and Youth Protections Services (CYPS) and says he did not know that his daughter had been placed in emergency foster care.
WO was restored to the mother’s care in November 2010.
In February 2011, the Federal Magistrates Court (now the Federal Circuit Court) made orders that WO reside with her mother and spend unsupervised time with the father every Saturday and Sunday or at such other times as may be agreed.
In May 2011, the Federal Magistrates Court made further orders which included that WO spend unsupervised time with the father every Saturday and Sunday.
In June 2011, the mother alleged that WO had been sexually abused by the father during a contact visit. WO was assessed, but no evidence of any alleged sexual abuse was presented at that time and therefore no further action was taken. Concerns were raised about the mother’s mental health and impact upon her parenting capacity.
In August 2011, after the initial allegation had been made, the mother (through her legal representative at the time) proposed that the father have overnight unsupervised contact with WO every second weekend from 2pm on Saturday until 5pm Sunday.
In November 2011, the father met his now current wife, hereafter referred to as ‘BC’. From that point, there were increasing concerns for the mother’s mental health.
On 14 December 2011, the mother alleged that WO was displaying what she considered to be sexualised behaviour. Again, WO was examined. The report prepared by the Child at Risk Health Unit on 16 December 2011 found that there were no immediate signs of abuse, whilst being unable to exclude any past abuse that had taken place.
On 20 December 2011, emergency action was taken to remove WO from the mother’s care. An interim care and protection order was made for WO to remain in foster care.
On 21 December 2011, the Director-General filed an originating application in the Children’s Court, seeking both interim orders and final care and protection orders for two years placing WO under the care and supervision of the Director-General.
On 12 January 2012, the father lodged a cross-application to have WO placed in his care, with the interim orders continuing in the meantime.
On 16 February 2012, the Director-General amended the orders it was seeking to provide for a shared parenting responsibility between the mother and the Director-General.
On 21 May 2012, WO was fully restored to her mother’s care.
On 10 July 2012, the Director-General further amended the application decreasing the duration of the final orders sought in respect of the care of WO to one year.
In March 2013, the father withdrew the cross-application with the result that final care and protection orders were made in the Children’s Court on 13 March 2013 for the Director-General to share the parental responsibility with the mother. The orders were to operate for the period of one year.
In June 2013, the father remarried and in December 2013 his third wife (BC) immigrated to Australia.
In January 2014, the father met with CYPS employees with a view to resolving the future care and protection arrangements for WO.
In February 2014, CYPS submitted a new care plan which reduced his 5 hours supervised contact with WO per week to 3 hours access per month.
On 6 March 2014, one week before the existing orders of the Children’s Court ceased to have effect, the Director-General filed an originating application seeking an extension of the care and protection order made for a further two years.
On 10 June 2014, WO was removed from her mother’s care and placed into foster care.
On 30 June 2014, the Director-General amended the originating application, to increase the period of the extension sought in the orders to operate until WO reaches the age of 18 years; that is until May 2028. That amended application is what gives rise to the present appeal.
The procedural history of this matter through the Children’s Court since that date has not served the child well in terms of resolving her care arrangements. There were clearly difficulties arising from the state of the mother’s mental health and the necessity for adjournments to obtain further evidence. However, the case in the Children’s Court was protracted, with nine days of evidence, the totality of which was before this Court on appeal (and which I have read), taken over three separate occasions during November 2014, November 2015 and April 2016. From the time the application was filed in March 2014 until judgment was delivered in August 2016, a period of two and a half years elapsed. The parties were responsible for resolving the matter in the Children’s Court in a timely fashion. When the residential and care arrangements of a young child were at stake, it was presumably open to the parties to seek expedition of the hearing, so that the resolution of this case was given priority through the Court processes. However, that was not done.
Reasons of the Children’s Court
The decision of 5 August 2016 was given orally by the magistrate and page references are those of the transcript recording the reasons. It is necessary to set out the magistrate’s reasons in some detail, as they reveal an approach of the magistrate to the CYP Act and the discretion under it that features heavily in the reasons dealing with the grounds of appeal.
The magistrate noted (p 3) that the amended application of the Director-General seeking orders until WO attained the age of 18 years was made pursuant to s 466 of the Act. The magistrate also recorded an application made by the mother primarily seeking that the child live with her but sharing supervision and long-term care and responsibility with the Director-General.
The magistrate then dealt (at pp 3-4) with what he perceived to be procedural confusion in relation to the father’s application:
On 14 August 2014 [WO]’s father,…lodged an application. It purported to be a cross-application in that he did not seek leave to make an application to extend or amend the final care and protection order. Instead, he sought an order that the Director General’s amended application be dismissed. It is not clear on what basis he made this application. The Act does not provide for such an application. The court now shall ultimately dismiss it.
In the alternative, the father sought the following: a final care and protection order under the child is 18 years of age with the following provisions: …
As I’ve noted, the Director General has made an application for a care and protection order and one has been made. It is clearly not open to the father to himself make an application for a care and protection order. In order to avoid undue technicality, and bearing in mind the content of the second part of the father’s application, I shall treat it as an application to extend or amend the final care and protection order made pursuant to section 466 of the Act and I give the father leave to make such an application.
I note that both the mother’s application and the second part of the father’s application, notwithstanding his assertions otherwise in his grounds, proceed on the basis that the final care and protection order should be extended and amended, thus implicitly acknowledging that [WO] is in need of care and protection.
The magistrate then dealt with the relevant statutory provisions, referring to the objects and principles in ss 7-9 of the CYP Act, and to ss 479, 466 and 471 of the CYP Act.
At p 6 of the reasons, the magistrate discussed how he had understood the CYP Act applied to the Director-General’s application, stating (with emphasis added):
Where an application is made to extend or amend an order, the applicant is not required to establish that the subject child is in need of care and protection. This issue was determined by me in the matter of DH, a decision which I delivered on 30 March 2011. In that matter I said at page 4:
‘Section 477(1) requires the court to only be satisfied that, ‘extending or amending the order as proposed is in the best interests of the child’.
At page 6 I said:
In my view section 471 is very clear. It deals with the extension or amendment of, ‘a provision in a care and protection order.’ It is therefore premised on the existence of a care and protection order as defined by section 422. There is nothing in section 477, 471 or any other part of the Act that requires the court to review the question of whether the child is in need of care and protection when considering an application to extend or amend the care and protection order. Section 471 proceeds on the basis the child was found to be in need of care and protection when the care and protection order was made and that in considering an application for extension or amendment or that order, the best interests of the child is to be the sole determinant.
The magistrate outlined (at p 7) what he thought was an uncontroversial history of the care arrangements for WO (discussed below), and referred to the rebuttable presumption under s 477(2) of the CYP Act:
[WO] was in foster care for three to five months during this period. She was 17 months old when she entered foster care for the second time. By the time she was 20 months old she had had three out of home placements. She was then subject to final orders for a period of 12 months from 13 March 2013. [WO] lived with her mother from May 2012 to June 2014. On 10 June 2014 emergency action was taken with respect to [WO], then four years and one month old. She has remained in foster care since that time.
Her long-term placement broke down in March 2015 and by April 2015 she was transitioned to a long-term permanent placement. She has been in this placement since that time. The placement is considered stable with the current carer willing to continue to provide long-term care. Accordingly, [WO] has spent almost three years of her short life with stated person in foster care in accordance with the statutory provisions. Thus, the presumption that it is not (sic) in [WO’s] best interests to be subject to a long-term parental responsibility provision applies; noting of course it is a rebuttable presumption.
I interpolate that the last sentence in the context of the paragraph must be taken to be a finding by the magistrate that it was in WO’s best interests to be subject to a long-term parental responsibility, given the words of s 477(2), although the appellant criticises this aspect of the reasoning as reflecting an incorrect approach taken by the magistrate in applying the principles of the CYP Act.
The magistrate summarised the evidence that had been led, concluding (at p 8) as follows:
Having read all the evidence and the submissions of the Director General, the mother, the father and the independent children’s lawyer, I am firmly of the view that the orders sought by the Director General should be made, including a residence order. In my view, the mother’s application for an order that in effect [WO] reside with her cannot be made in light of all the evidence; nor can the order the father seeks, in effect that [WO] reside with him, be made in light of all that evidence.
As to the mother, the expert evidence is clear, strong and all one way. That is, due to her unfortunate mental condition, she is not capable of providing stable and consistent care for [WO]. She is limited in her capacity to adequately meet [WO]’s needs and her mental impairment would be likely to result in ongoing problems for [WO]. All three experts were of the view that it would not be in [WO]’s best interests to restore her to her mother.
The magistrate went on to state (at p 11):
In light of this evidence it would be impossible to find that it would be in [WO]'s best interest to return to her mother.
The magistrate then dealt with whether WO should reside with the father. One of the matters on which the magistrate placed almost total reliance was historical and unproven allegations against the father of sexual abuse in relation to a different child (WJ), being the older daughter from his previous relationship. The magistrate stated (at pp 11-12 of the reasons, and with emphasis added):
As to the father, there are two matters which in my view preclude a finding that it would be in [WO]'s best interest for her to reside with him and his wife. The first relates to an alleged allegation of sexual abuse by his daughter, [WJ] when she was eight years old. She is now 21 years old. The allegation was the subject of proceedings in the Family Court of Australia in 2004 in which the father was seeking parenting orders in respect of [WJ]. Mr Steele J delivered his judgment on the 17 December 2004. As to the allegations of sexual abuse of [WJ], he said, and I'm quoting paragraph - from passages at pages 28 and 29 of his judgment:
Although the evidence is not terribly strong, the child's version of events has been substantially consistent and I am unable to, on balance, to exclude the real possibility that the child would be subjected to an unacceptable risk of harm if unsupervised contact was ordered. The child's conduct is indicative of someone who is concerned about being alone with her father. It seems reasonably clear that she believes that on the night of the 18 September 2003, or in the early morning of 19 September 2003, her father assaulted her. Whether her belief is induced by some complex psychological process or not, it is clear that she believes it is true. In those circumstances, it seems to me it would be unreasonable to seriously contemplate a position where she would be required now to have unsupervised contact with the father. A relatively slow process which restores her confidence in her father whilst ensuring her protection seems the only practical way.
I do not find that on the balance of probabilities, sexual abuse did occur. Equally, I do not find the mother concocted a story with the child. I am satisfied the child believes she was abused. The child's complaints have, in my view, been persistent and consistent. The father's evidence left me with an uneasy feeling he may not have been telling the truth about some matters. My view is that there is an unacceptable risk of abuse if unsupervised contact is ordered. Some comfort in coming to this view is derived from the fact that both investigating authorities DOCS and [JIRT] came to [a] similar conclusion.
…
I am conscious of course that it is a most cruel blow for a father to be wrongly accused of sexual abuse of his daughter. I make it clear that I make no finding that sexual abuse has occurred. The real problem is that the evidence is such that I am unable to be sufficiently satisfied that it did not occur.
The magistrate recorded that part of the evidence before the Children’s Court was the judgment of the Family Court of Australia referred to, and “all the materials that were surrounding that decision”. At p 14 of the reasons, the magistrate delivered what appears to have been the critical finding (emphasised below):
Given the findings of Steele J in 2004 and the fact that [WJ] was not prepared to give evidence in these proceedings concerning [WO], I am left with the fact that as a result of an allegation of sexual abuse of his daughter, the court has concluded that there was an unacceptable risk that the child would be subjected to harm. In light of that finding, and the fact that [WO] is now six years old and has not reached an age where her protective mechanisms have developed adequately or at all, it is in my view inconceivable that I could find that it would be in [WO]’s best interest for her to live with her father. The second matter operating against making a finding that it would be in [WO]’s best interest for her to live with her father, is the effect of such an order would have on the mother's mental well-being and her relationship with [WO].
The magistrate went on to explain (p 14) what was meant by this, setting out the opinion given by Dr Milch, a child, family and adult psychiatrist, in relation to the impact that such an order would have on the mother and on WO:
It is my view that that would trigger a catastrophic response in [the mother] based on her reported experience of PTSD based on her intermittent preoccupation of [WO] being at risk in her father’s care … of sexual abuse and various unsubstantiated allegations with regard to child sexual abuse. I would predict that [the mother] would be extremely distressed and take an almost paranoid and obsessive response to such an issue and I think that [the mother] will be unable to cope with that and in her contact with [WO] in such circumstances, it is predictable that that would be an excessive focus for her in her interactions with [WO] and in her interactions with the authorities regarding that.
The magistrate set out further aspects of Dr Milch’s opinion, and then addressed at p 15 the father’s submission that Dr Milch’s opinion ought be given little weight for various reasons. The magistrate found at p 16:
… [T]he submission is concerning because it completely disregards [WO]’s needs and right to have as healthy a relationship with her mother as can be achieved. It also completely disregards the effects upon [WO] if her mother's mental condition is exacerbated. The submission unfortunately is reflective of what I consider to be the father's focus on the wrongs done to him and his loss of entitlements rather than (indistinct) to maturely consider [WO]’s best interest. Much of his submission is focussed upon the denial of his human rights …and his perception of animosity of care and protection workers towards him. In view of the two matters … to which I have referred, it would be clearly not in [WO]’s best interest that I order that she live with her father. I have expressed the view that neither of the orders sought by the mother, nor the orders sought by the father would be in [WO]’s best interests and that I am satisfied that the orders sought by the Director General are in her best interests.
Dealing with the conclusion and consequent orders, the magistrate stated at p 17 (emphasis added):
The mother has clearly failed to satisfy that she is likely to be able to resume the care of [WO] during the period of the extension, that is to 18 years of age and that it is in the best interest of [WO] that she resume the care of [WO] during that period. And the father has clearly failed to satisfy me that it is in [WO]’s best interest that he resume her care some six years after he had any involvement in her day to day care. In these circumstances, each have failed to rebut the presumption raised by section 477 subsection 2 of the Act [that it] is in [WO]’s best interests for her to be subject to a long term parental responsibility provision in favour of the director general.
Accordingly, I order that the care and protection order made herein on the 13 March 2013 be amended and extended so as to provide as follows, that it contain a contact provision until the age of 18 years authorising the director general to decide with whom the child may have contact and decide any condition for the contact. That it contain a residence provision until the age of 18 years authorising the director general to decide where or with whom the child may live. That it contain a supervision provision until the age of 18 years providing the child be under the supervision of the director general. That it contain long term parental responsibility provision until the age of 18 providing the daily care and responsibility of the child be transferred to the director general and that the long term care and responsibility for the child be transferred to the director general.
While the order for contact empowers the director general to decide with whom [WO] may have contact and any conditions for the contact, I agree with the submissions of the independent counsel, independent children's lawyer that [WO] should have regular substantial contact with her mother, with whom she has a strong bond and with her father, with whom she has also developed a bond. I am always concerned in these matters when I see prescriptive formulas put forward by experts governing a child's contact with their parents after an 18 year order is made. In this regard, I have in mind Dr (indistinct) recommendation that [WO]’s contact with each of her parents be reduced to six times a year for a total of four hours on each occasion and Dr Milch's view that general contact should be maintained on a monthly basis at no less than two visits a year. Whilst I recognise the reasons for each of these recommendations, it is my view that the issue of contact is not susceptible to the application of a formula and it is inappropriate to adopt a formula. The issue must at all times be determined by [WO]’s best interests and the application of the care and protection principles that are set out in section 307 of the [CYP] Act.
The CYP Act
The statutory framework is not complex, but it requires detailed consideration given the magistrate’s reasons above, and in particular the dismissal and recasting of the father’s argument and approach that the application did not require consideration of whether WO continued to be in need of care and protection.
The making of care and protection orders
Section 422 of the CYP Act defines such an order as follows:
What is a care and protection order?
In this Act:
"care and protection order"—
(a)means an order about the care and protection of a child or young person; and
(b) may contain any of the following provisions:
(i) a contact provision;
(ii) a drug use provision;
(iii) an enduring parental responsibility provision;
(iv) an ACAT mental health provision;
(v) a residence provision;
(vi) a short-term parental responsibility provision;
(vii) a long-term parental responsibility provision;
(viii) a specific issues provision;
(ix) a supervision provision.
The definition is broad, being an order ‘about’ the care and protection of a child or young person. Section 464 of the CYP Act then prescribes the criteria for making a care and protection order:
Care and protection order—criteria for making
(1)The Childrens Court may make a care and protection order for a child or young person if the court-
(a) is satisfied that the child is in need of care and protection; and
(b) has considered the care plan prepared by the director-general for the child or young person; and
(c) is satisfied that –
(i) the provisions included in the order are necessary to ensure the care and protection of the child or young person; and
(ii) making the order is in the best interests of the child or young person.
…
As to when a child is in need of care and protection, s 345(1) of the CYP Act provides (with emphasis added in respect of sub-s (1)(b) only):
When are children and young people in need of care and protection?
(1)For the care and protection chapters, a child or young person is in need of care and protection if—
(a) the child or young person—
(i) has been abused or neglected; or
(ii) is being abused or neglected; or
(iii) is at risk of abuse or neglect; and
(b) no-one with parental responsibility for the child or young person is willing and able to protect the child or young person from the abuse or neglect or the risk of abuse or neglect.
(2) Without limiting subsection (1), a child or young person is in need of care and protection if—
(a)there is a serious or persistent conflict between the child or young person and the people with parental responsibility for him or her (other than the director-general) to the extent that the care arrangements for the child or young person are, or are likely to be, seriously disrupted; or
(b) the people with parental responsibility for the child or young person are dead, have abandoned the child or young person or cannot be found after reasonable inquiry; or
(c) the people with parental responsibility for the child or young person are sexually or financially exploiting the child or young person or not willing and able to keep him or her from being sexually or financially exploited.
Attention is drawn to s 345(1)(b) of the CYP Act above. If there is a parent willing and able to protect the child from the risk of abuse or neglect, then the child is not in need of care and protection.
Applications to extend, amend or revoke previous orders are ‘care and protection’ orders
The context of the dispute in the Children’s Court below centred on ss 466 and 467 of the CYP Act. Section 466 is in the following terms:
Care and protection order—extension and amendment applications
(1)A person may apply to the Childrens Court for extension or amendment of a care and protection order, or a provision in a care and protection order, if the person—
(a) believes on reasonable grounds that the extension or amendment is in the best interests of the child or young person; and
(b) has the leave of the Childrens Court to make the application.
(2)The Childrens Court must give leave to someone who was a party to the proceeding in which the care and protection order was made.
(3)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.
Section 467 of the CYP Act then follows (with emphasis added):
Care and protection order—revocation applications
(1)A person may apply to the Childrens Court for revocation of a care and protection order, or a provision in a care and protection order if the person—
(a) believes on reasonable grounds that—
(i) the child or young person would not be in need of care and protection if the order or provision were revoked; or
(ii) the order cannot be administered effectively because of the child or young person’s persistent refusal to comply with the residence provision of the order; or
(iii) it is otherwise in the best interests of the child or young person to revoke the order or provision; and
(b) has the leave of the Childrens Court to make the application.
(2)The Childrens Court must give leave to someone who was a party to the proceeding in which the care and protection order was made.
(3)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.
An order extending, amending or revoking a care and protection under ss 466 and 467 of the CYP Act is a ‘care and protection order’ as defined in s 422 of the CYP Act. Such orders are plainly orders ‘about’ the care and protection of a child or young person.
The CYP Act’s provision for cross-applications
Section 428 of the CYP Act deals with cross-applications made by parties to proceedings for care and protection orders.
Care and protection order—cross-application for different provisions
(1)A party to a proceeding for a care and protection order for a child or young person may cross-apply for a different provision to be included in the order, different terms in a provision in the order or a different order, if the party—
(a)believes on reasonable grounds that the different provision, terms or order is in the best interests of the child or young person; and
(b)has leave of the Childrens Court to cross-apply.
The provision goes on to provide examples of when a cross-application may be appropriate:
Example—different term in provision in order
An order includes a residence provision about with whom the child must live. A party may cross-apply for the residence provision to provide for the child to live with a different person.
As discussed below, and recalling that a proceeding for a care and protection order includes orders to extend, amend or revoke an order previously made, this section contemplates precisely the cross-application that was made by the father.
The power of the Children’s Court to make orders amending or extending a care and protection order
Section 471 of the CYP Act concerns the power of the Children’s Court to extend or amend a provision in a care and protection order. It provides:
Care and protection order—criteria for extensions and amendments
(1)The Childrens Court may, by order, extend or amend a provision in a care and protection order if satisfied that extending or amending the order as proposed is in the best interests of the child or young person.
(2)The court may extend a provision in a care and protection order for as long as the court considers appropriate.
(3)The court may amend a provision in a care and protection order in any way the court considers appropriate, including—
(a) substituting a provision with a different provision; or
(b) including an additional provision.
Section 472 provides the criteria for revocation of a care and protection order. Its terms are as follows:
Care and protection order—criteria for revocation
(1)The Childrens Court may, by order, revoke a care and protection order, or a provision in a care and protection order, if satisfied that—
(a) the child or young person would not be in need of care and protection if the order, or the provision in the order, was revoked; or
(b) the order cannot be administered effectively because of the child or young person’s persistent refusal to comply with the residence provision of the order; or
(c) it is otherwise in the best interests of the child or young person to revoke the order or the provision in the order.
Note In a proceeding for a care and protection order, a fact is proved if it is proved on the balance of probabilities (see s 711).
(2)Before revoking a care and protection order, or a provision in a care and protection order, the Childrens Court must consider the following matters:
(a) the age and maturity of the child or young person;
(b) the views and wishes of the child or young person;
(c) the living arrangements of the child or young person;
(d) the risk to the child or young person of harm if the order, or the provision of the order, is revoked.
The rebuttable presumption
The CYP Act creates a rebuttable presumption as to what is in the child’s best interests when the child has been in foster care, relevantly here, for more than two years. Section 477 relevantly provides (with emphasis to sub-s (3) added):
Short-term parental responsibility provision—extension
(1)The Childrens Court may extend a short-term parental responsibility provision in a care and protection order (the extension decision) if satisfied that extending the provision is in the best interests of the child or young person.
(2)However, for subsection (1) it is a rebuttable presumption that it is in the best interests of the child or young person for the child or young person to be subject to a long-term parental responsibility provision if—
(a) for a child who is younger than 2 years old when the extension decision is made—
(i) the director-general has had an aspect of daily care responsibility or long-term care responsibility for a total of at least 1 year before the extension decision is made; and
(ii) the child or young person has been living with a stated person under a care and protection order for a total of at least 1 year before the extension decision is made; or
(b) in any other case—
(i) the director-general has had an aspect of daily care responsibility or long-term care responsibility for—
(A) the 2 years immediately before the extension decision is made; or
(B) a total of at least 2 years in the 3 years immediately before the extension decision is made; and
(ii) the child or young person has been living with a stated person under a care and protection order for—
(A) the 2 years immediately before the extension decision is made; or
(B) a total of at least 2 years in the 3 years immediately before the extension decision is made.
(3)To rebut the presumption, a person who is a parent of the child or young person, or someone else who has had parental responsibility for the child or young person during the term of the order, must satisfy the Childrens Court that—
(a) the person is likely to be able to resume care of the child or young person during the period of extension; and
(b) it is in the best interests of the child or young person for the person to resume care of the child or young person during the period of extension.
(4)In subsection (2):
stated person means—
(a) the carer under the care and protection order; or
(b) one parent to the exclusion of another parent; or
(c) a family member who is not a parent.
Best interests of the child
Each of ss 428, 464, 466, 467 and 471 of the CYP Act makes reference to the best interests of the child. Section 349 of the CYP Act is thus relevant. It is headed “What is in the best interests of [the] child or young person?” It then relevantly provides:
(1)For the care and protection chapters, in deciding what is in the best interests of a child …, a decision-maker must consider each of the following matters that are relevant to the child …:
(a) the need to ensure that the child … is not at risk of abuse or neglect;
(b) any views or wishes expressed by the child …;
(c) the nature of the child's …relationship with each parent and anyone else;
(d) the likely effect on the child … of changes to the child's … circumstances, including separation from a parent or anyone else with whom the child has been living;
(e) the practicalities of the child … maintaining contact with each parent and anyone else with whom the child … has been living or with whom the child … has been having substantial contact;
(f) the capacity of the child's … parents, or anyone else, to provide for the child's … needs including emotional and intellectual needs;
(g) for an Aboriginal … child…;
(h) that it is important for the child … to have settled, stable and permanent living arrangements;
(i) for decisions about placement of a child …—the need to ensure that the earliest possible decisions are made about a safe, supportive and stable placement;
(j) the attitude to the child …, and to parental responsibilities, demonstrated by each of the child's … parents or anyone else;
(k) any abuse or neglect of the child …, or a family member of the child …;
(l) any court order that applies …
(2) For the care and protection chapters, in deciding what is in the best interests of a child …, a decision-maker may also consider any other fact or circumstance the decision-maker considers relevant.
Section 350 of the CYP Act, which is material to Ground 1 of this appeal, is then in the following terms:
Care and protection principles
(1) In making a decision under the care and protection chapters in relation to a child or young person, a decision-maker must apply the following principles (the care and protection principles) except when it is, or would be, contrary to the best interests of a child or young person—
(a) the primary responsibility for providing care and protection for the child or young person lies with the child's or young person's parents and other family members;
(b) priority must be given to supporting the child's or young person's parents and other family members to provide for the wellbeing, care and protection of the child or young person;
(c) if the child or young person does not live with his or her family because of the operation of this Act—contact with his or her family, and significant people, must be encouraged, if practicable and appropriate;
(d) if the child or young person is in need of care and protection and the child's or young person's parents and other family members are unwilling or unable to provide the child or young person with adequate care and protection (whether temporarily or permanently)—it is the responsibility of the government to share or take over their responsibility;
(e) if the child or young person does not live with the child's or young person's parents because of the operation of this Act—the safety and wellbeing of the child are more important than the interests of the parents;
(f) a court should make an order for a child or young person only if the court considers that making the order would be better for the child or young person than making no order at all.
(2) The care and protection principles must be applied in addition to the principles under section 9 (Principles applying to Act) and section 10 (Aboriginal and Torres Strait Islander children and young people principle).
The proper construction of the CYP Act
As can be seen from the magistrate’s reasons (see [51] and [53] above), the magistrate treated the father’s application as being an application to extend or amend the final care and protection order made pursuant to s 466 of the CYP Act, and then found that because the proceedings concerned extension or amendment, he should not consider whether WO was actually in need of care and protection.
However, the father’s cross-application was plainly made under s 428 of the CYP Act, as a party to proceedings already commenced and seeking a different order from that sought by the Director-General. It was open to the father to seek leave to make such an application. As was stated in the grounds of the cross-application, the father’s position was that he was willing and able to care for the child, and therefore WO was not in need of care and protection. If the Children’s Court had accepted that state of affairs, one of the orders that would have followed would have been to dismiss the Director-General’s application, which was the relief the father sought.
That misunderstanding of the operation of the statute was not merely procedural. It is indicative of an erroneous approach taken by the magistrate to the proceedings generally. There are four reasons why the magistrate’s approach in this case was wrong.
First, the whole premise of the father’s case was that WO was not in need of care and protection because he was willing and able to care for her. The magistrate expressly declined to deal with the fundamental issue raised by the father and erred at law in that regard.
Second, even if the father had not filed a cross-application, s 464(5) of the CYP Act required that the magistrate address the issue, because the magistrate was being asked to make a care and protection order under s 466 of the Act. The magistrate’s power to make a care and protection order only arises upon the court’s independent satisfaction that a child is in need of care and protection: see CP v Director-General of Community Services Directorate and ors [2017] ACTSC 394 (CP) at [313]-[314] per Refshauge J.
It may of course be easier for the Children’s Court to be satisfied of such a fact if there have been previous proceedings and a care and protection order has previously been made. The outcome of an order being made might be seen as a starting position when an application to extend, amend or revoke is lodged. In that regard, it is similar to where an admission as to the issue has been made by a party. In such a case, the Court’s obligation to be satisfied may be met all the more easily because there is no issue as to that between the parties: JL at [175], cited in CP at [314].
However, as these authorities make clear, it is not a matter that can simply be passed over, and the magistrate erred in construing the CYP Act to that effect. It was a matter of particular importance in this case, because the father’s ability to care for the child had never been actively considered. When the child was very young, the father’s understandable position was that the child should reside with the mother, providing she was well enough. If WO did not live with her mother, then she should live with him.
That was expressly confirmed during the hearing in the Children’s Court below (as extracted in the supplementary submissions of the Director-General) and is supported by the detailed history to the proceedings set out above. The father was contesting the orders sought by the Director-General until the previous application was amended, with the amendment being to allow WO to reside with the mother, but for the Director-General to have shared responsibility. It was only after that amendment was made that the father withdrew his application to take over the daily care and responsibility for WO, and the orders of 13 March 2013 were made shortly thereafter.
Third, by the time the matter had slowly advanced through the Children’s Court (but notably, not when the application to extend the orders was filed), the rebuttable presumption under s 477(2) of the CYP Act had arisen. Section 477(3), the words of which have been emphasised at [76] above, provides that a parent may rebut the presumption if he (in this case) can prove that he is likely to be able to resume care of the child during the period of extension. Those words assume that the child has been in need of care and protection, and require the Children’s Court to consider whether that is still the case.
Fourth, s 466 of the CYP Act required the magistrate to be satisfied that the making of the order was in the best interests of the child. Section 349 requires that the Children’s Court as decision-maker ‘must’ consider both the ‘capacity’ of the child’s parents to provide for the child’s needs and the attitude to ‘parental responsibilities’ demonstrated by the child’s parents.
Accordingly, s 349 of the CYP Act in substance required consideration to be given to whether WO was not in need of care and protection because a willing parent was able to care for her.
The approach taken by the magistrate was thus based on a misconstruction of the CYP Act. Had the magistrate correctly construed the statute, the weight given to the various considerations may have taken on a different complexion.
Ground 1 – Weight to the principles under s 350 of the CYP Act
It is in the context of the erroneous approach taken to the statute that Ground 1 and the weight given to the principles of s 350 of the CYP Act falls for consideration.
It is well established that a court on appeal does not ordinarily interfere with matters of weight given to the balancing of considerations in the context of a discretionary decision: House v R (1936) 55 CLR 499 (House v R) at 505. I have elsewhere analysed the type of discretion being exercised when considering what is in the best interests of the child under the CYP Act as being one that involves the application of House v The R principles: MC v The Director General Community Services Directorate [2017] ACTSC 354 at [69].
However, that was not the argument in the present case. Where the weight given to mandatory considerations is the product of an earlier error of law, being the misconstruction of the statute, that is a matter properly for the intervention of the court on appeal and that was the heart of the appellant’s complaint about weight, notwithstanding my initial reluctance to embrace that argument in the way it was put at the hearing.
The appellant argued that there had been a misapplication of the principles of law that infected how the magistrate considered or weighed the principles under s 350 of the Act. As I have found above, that submission was correct, although the reasoning here differs somewhat from how the argument was developed by the appellant.
The appellant relied upon Napier v Hepburn [2006] FamCA 1316; 36 Fam LR 395 and M v M (1988) 166 CLR 69 as illustrative of the proposition that if the court considered that an order placing WO with the father involved a risk of harm to the child, the court was required to assess whether steps could be taken that were proportionate to the risk before accepting that the evidence established an unacceptable risk of harm existed.
The Director-General’s submissions distinguished these authorities for a variety of reasons, including the fact that both decisions involved a different statutory framework. The Director-General submitted that it was for the father to satisfy the Children’s Court that it was in the child’s best interests that she live with him, and that the evidentiary onus was not discharged.
The difficulty is that in considering and weighing the considerations set out in s 350 of the CYP Act, the magistrate was required to do so against what was in the ‘best interests of the child’. For the reasons set out above, the magistrate had misunderstood that both s 349 and s 477(3) of the CYP Act required him to consider whether the child was still in need of care and protection and more particularly, whether the child was ‘at risk of abuse’ as part of considering whether the father was ‘able’ to parent WO and the principles in ss 349(1)(a) and 349(1)(k) of the CYP Act.
Had the magistrate approached the issue in accordance with the proper construction of the CYP Act, he would have actively engaged with the father’s ability to care for WO. In doing so, the weight he gave to the historical and equivocal findings of the Family Court of Australia, as part of considering what was in the best interests of this child as opposed to a different child in a different set of circumstances in applying ss 350, 464 and 466 of the CYP Act, may have been entirely different.
Alternatively, there may have been no difference in the magistrate’s reasoning or in the ultimate conclusion, but such an inference is not automatic, and in any event, would not be drawn here in light of my findings as to further errors made below.
The evidence before the Children’s Court in relation to the father was that he had a bachelor degree in engineering and maintained full-time employment, was undertaking part-time postgraduate study, appeared to be an intelligent and resourceful man, was well-organised, able to manage his time well and capable of responding to crisis situations. He did not experience any financial difficulties and lived in stable rental accommodation with his wife who was supportive of him taking WO into his care. Indeed, her evidence was that she was prepared to agree to any condition that the Children’s Court required if orders were made that WO be permitted to reside with the father.
There was no suggestion that the appellant had any difficulties with alcohol or drugs. He had suffered periods of what was described as depression when dealing with the allegations in relation to WJ but this was not stated to be a factor that affected his ability to parent WO.
It was accepted by the various professionals that the father had a positive relationship with WO and that she interacted well with him. His two elder sons had also given evidence supporting their ongoing positive relationship with their father. None of this is referred to by the magistrate.
To explain the evidence of the father’s ability and willingness to provide a stable and loving environment for his daughter is not to disregard or minimise the concerns raised by the various medical professionals as to how the father has reacted to or handled the serious allegations made against him. Even so, the father’s frustration and evident hostility to representatives of the Director-General has clearly been borne of his view that the allegations were unfounded. The father may well be a difficult man to deal with (and the totality of his evidence before the magistrate makes such a finding open), but some understanding must be accorded to a person whose every move and statement has been under the microscope of care workers and psychologists for many years.
The point of briefly traversing the evidence in relation to the father is to demonstrate what does not appear in the reasons, but may have been matters the magistrate considered relevant and gave greater weight, had he actively turned his mind to the statutory task and considered precisely what the risk to this particular child was. If the magistrate had considered whether WO genuinely was in need of care and protection, unsubstantiated allegations involving the father’s conduct with a different child many years ago may not have featured as significantly in the magistrate’s reasoning towards the conclusion that the child should remain in foster care. In this regard, it should be noted that the mere fact representatives of the Director-General many years ago, who were not cross-examined, felt the allegations in relation to WJ had been ‘substantiated’, as recorded in the evidence, does not equate to the fact being substantiated at law, where the seriousness of such an allegation would require even an historical fact to be established at the level discussed in Briginshaw v Briginshaw (1938) 60 CLR 336.
For these reasons, Ground 1 has been made out and the appeal should be allowed.
Ground 3 – The decision was unreasonable
The appellant contends that two key findings of the magistrate, as set out above, were unreasonable. The first relied upon Steele J’s finding in the Family Court of Australia. The second related to a view that because the mother would not cope with the child residing with the father, the child might be impacted by the mother’s inability to cope and therefore WO should reside with the present foster carers.
The High Court has given clear guidance as to the principles applicable when considering unreasonableness in discretionary decision making. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, Crennan and Bell JJ said relevantly at [130]:
"illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the [decision-maker] came, in relation to the state of satisfaction required …, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, …it is … an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) at [28] French CJ observed:
After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
French CJ went on to state at [29] that a discretionary power conferred by statute must be exercised reasonably, and that a finding of unreasonableness does not require the identification of a specific error in the decision-making process: see also [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J).
The plurality in Li (Hayne, Kiefel and Bell JJ) said at [76] that “unreasonableness [in this sense] is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.
Turning to the first finding of which the appellant complains, both Steele J’s finding and the magistrate’s understanding of it has been set out and emphasised earlier in these reasons (see [58] and [59] above). The finding was not simply that because there had been an allegation there was an unacceptable risk of harm to WJ, who was the child in question. When the statement is read in the context of the paragraph of Steele J’s reasons, it was more nuanced than that. Steele J found that the particular child WJ had a genuine belief that she had been subject to sexual abuse in the manner described. It was this factor that meant Steele J did not consider it appropriate to grant unsupervised access to the father in relation to WJ.
There was no such issue with WO. She was so young that she did not appreciate any of the allegations being made about the father, regardless of whether they were true. She certainly did not make any allegation herself or express any belief about the father’s conduct towards her. The allegations in relation to WO were all made by the mother when there were Federal Magistrates Court proceedings involving the care and custody of the child extant. The allegations were based on scant evidence, indeed suspicion, and became exacerbated in the mind of the mother, who all mental health professionals giving evidence agreed was ultimately unfit to have the child remain in her care.
That misunderstanding of the Family Court’s finding in relation to WJ was critical in the reasoning of the magistrate and it did produce a decision that was unreasonable in the sense described in House v R as discussed in the authorities above, because it did not have an intelligible justification. Accordingly, Ground 3 has also been made out.
While it is thus unnecessary to consider whether the finding in relation to the mother’s reaction to the child residing with her father was also unreasonable, as this matter is to be remitted (for reasons given below) it is worth briefly dealing with that aspect of the argument. I consider there is a degree of illogicality in the magistrate’s finding that because one parent’s mental health would be deleteriously affected by an order that the child reside with the other parent and may have flow on effects for WO’s relationship with her mother, WO was to be deprived of the opportunity to reside in a stable family environment with her father.
The proper course was to manage the mother’s ‘paranoid fixation’ as described by the Director-General and her behaviour when she was in contact with WO. Supervised contact in public environments that did not permit the mother to influence the child or the child’s mental well-being were options that do not appear to have been properly considered in the magistrate’s reasons. The characterisation by the magistrate that the father's submission focussed on the wrongs done to him and his loss of entitlements was unfair in this regard. Having reviewed the transcript and the submissions made, that was not the father’s position. He genuinely believed WO would be best served by living with a loving parent in a stable home. Given that person could not be the mother on the evidence before the Children’s Court, he wanted to provide that for WO.
Not every lapse in logic gives rise to error, but here it is was one of two critical findings that was determinative of the outcome. Had it been necessary to determine, I would have found that aspect of the magistrate’s reasoning also caused the exercise of the discretion to miscarry.
Ground 2 – Failure to take in to account material considerations
The appellant’s success in relation to Grounds 1 and 3 on the appeal makes it unnecessary to deal with the evidentiary and procedural fairness issues raised by Ground 2. The aspect of the argument concerning failure to assess risk has already been dealt with as part of Ground 1 above.
Conclusion and Orders
For the above reasons, the appeal will be allowed. The Court has the power to substitute a decision rather than remit the matter to the court below for further determination. I have given consideration to whether such an order is appropriate in the present case. The child is approaching eight years old and may well now have the ability to express her own wishes that must be taken into account. Further, her current relationship with either or both of her parents must be considered and the professional medical and family assessment evidence will also need to be updated. Accordingly, and regrettably, the matter ought be remitted, noting the comments earlier in these reasons as to the possibility of expedition.
The appellant has been successful and ordinarily would be entitled to costs of the appeal. However, s 724 of the CYP Act provides that the parties must bear their own costs on any appeal from a decision made under the care and protection chapters in the CYP Act. Section 336 of the CYP Act defines ‘care and protection chapters’ to include Ch 19, where s 724 of the CYP Act is located.
The Court has the power to otherwise order under s 725 of the CYP Act, if satisfied of certain matters including that there are exceptional circumstances. Any party wishing to make such an application in respect of costs in these proceedings should apply within seven days of these orders.
The orders of the Court will be:
1. The appeal is upheld.
2. The orders of the Childrens Court made on 5 August 2016 in relation to the child, ‘WO’, are set aside.
3. The matter is remitted to the Childrens Court for further determination according to law.
4. The cross-appeal filed 7 June 2017 is dismissed.
5. Any party wishing to make an application for costs is directed to do so within seven days of these orders being made.
| I certify that the preceding one hundred and twenty-one [121] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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