ZA v Director-General, Community Services Directorate
[2021] ACTCA 27
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | ZA v Director-General, Community Services Directorate |
Citation: | [2021] ACTCA 27 |
Hearing Dates: | 15, 17 September 2021 |
DecisionDate: | 17 September 2021 |
Before: | McWilliam AJ |
Decision: | See [27] |
Catchwords: | PRACTICE AND PROCEDURE – APPLICATION – care and protection proceedings – decision under appeal – whether orders sought are appropriate to granted on an interlocutory basis – whether an interim order can be made |
Legislation Cited: | Children and Young People Act 2008 (ACT) ss 836, 838, 433, Pt 24.1 Court Procedures Rules 2006 (ACT) r 5602 |
Parties: | ZA (Appellant) Director-General Community Services Directorate (Respondent) Children’s Representative (Child Representative) |
Representation: | Counsel Self-represented (Appellant) K Musgrove (Respondent) J Banwell (Child Representative) |
| Solicitors Self-represented (Appellant) ACT Government Solicitor (Respondent) Legal Aid ACT (Child Representative) | |
File Numbers: | AC 39 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court Before: Loukas-Karlsson J Date of Decision: 9 August 2021 Case Title: ZA v Director-General, Community Services Directorate Citation: [2021] ACTSC 243 |
McWilliam AJ:
Before the Court is an application in proceeding filed 18 August 2021. The application has been filed by the appellant (ZA), who is the mother of the two young people who are the subject of this proceeding (the young people).
There are eight interlocutory orders sought in the application. They have been paraphrased as follows:
(a) Order 1 seeks that a number of people become parties to the proceeding that is currently being pursued in Court of Appeal proceedings number AC 39 of 2021.
(b) Order 2 seeks for the young people to have one hour of phone or video call contact on a weekly basis with each of the appellants (being the mother and those referred to in Order 1). In particular, I take that request to be one for contact with the mother, who has forcefully agitated the present application.
(c) Order 3 primarily seeks for the young people to have fortnightly personal visiting contact with their mother at an address in South Australia. There are some associated matters concerning the costs of such a visit.
(d) Order 4 seeks contact between the young people, the mother, and other persons who are relatives or close family members, during certain school holidays in 2021 and 2022.
(e) Order 5 seeks that the young people move to reside with ZQ, AX, YN and RX, pending the final orders of the Court of Appeal in the appeal proceedings.
(f) Order 6 seeks that the young people be able to study in school immediately, and again, to then come to live in an address in South Australia and be supported by their mother, pending the final resolution of the Court of Appeal proceedings.
(g) Order 7 seeks that the young people’s contact, visitation, and living arrangements in accordance with particular orders dated 30 October 2017 be amended immediately to reflect the orders sought in 1 to 6 above.
(h) Order 8 seeks for the residence of the young people to be transferred to South Australia, so that the young people may have weekly contact with their mother and with other family members.
The application also seeks final relief being that orders made in the Children’s Court on 30 October 2017 and 11 November 2020 be set aside immediately and that the young people be returned to their mother and other family members.
The matter has come before me as Acting Judge in the Court of Appeal, supported by affidavit evidence, submissions and further submissions of the appellant and by the respondent.
The appellant was self-represented. The Court was assisted by counsel who appeared for the Director‑General, and by the Children’s Representative, who is independent from both parties and has taken steps to speak with each of the young people during the hearing of the application (which was adjourned for that purpose).
Power of the Court
The Court’s power to make any of the orders sought by way of ‘interlocutory relief’ was affected by matters set out in the respondent’s submissions on the application.
Children and Young People Act 2008 (ACT)
Given this application in proceeding arises in the context of an appeal, Part 24.1 of the Children and Young People Act 2008 (CYP Act) applies. It deals with appeals. Section 838 of the CYP Act provides:
On an appeal mentioned in section 836, 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 proceeding appealed from.
The present appeal falls under section 836(1)(a) of the CYP Act. Section 838 thus limits the orders or decision the Court of Appeal can make to those that could be made by the Children’s Court in care and protection proceedings.
It was submitted for the respondent that, pursuant to the limitation imposed by s 836 of the CYP Act, s 433 of the CYP Act precludes the Court from making interim orders regarding contact for the young people in the current circumstances. Section 433 is in the following terms:
1) The Children’s Court may, on application or on its own initiative, make an order (an interim care and protection order) for a child or young person, if –
a) an application for a care and protection order for the child or young person has been made to the court and not finally decided; and
b) the court believes on reasonable grounds that the child or young people is in need of care and protection or would be in need of care and protection if the interim care and protection was not made.
2) …
In the current circumstances, the respondent contended that an interim order is not available to be made, as the criteria in section 433(1)(a) of the CYP Act have not been met.
Further to this asserted statutory limitation for interim orders regarding contact, the Director-General impressed upon the court that the Final Orders in respect of the two young people currently place the full authority to determine who the young people may have contact with and any conditions under which that contact may occur in the hands of the Director-General.
The respondent submitted that given the breadth of the order and scope of the power, Until the final orders are amended or revoked, the Court cannot fetter the discretion exercised by the Director-General as to how those orders are administered. The exercise of the discretion on a daily basis is informed by the evidence of experts and caseworkers, and the current and changing circumstances of the children, and no evidence on any of these matters was before the Court on the present application.
Supreme Court Act and Court Procedures Rules
Attention was drawn to the general powers of the Court of Appeal provided in s 37O(1) of the Supreme Court Act. The first three are relevant to the present application, as follows:
37O Orders on Appeal
1) The Court of Appeal has the following powers in relation to the order appealed from:
a) to confirm, reverse or amend the order;
b)to give any order it considers appropriate, or refuse to give an order applied for;
c)to set aside the order (completely or in part) and remit the proceeding to the court constituted by a single judge for further hearing and decision, subject to any directions the Court of Appeal considers appropriate; …
It was submitted however, that in the case of appeals regarding care and protection orders under the CYP Act, that section must be read as subject to the specific restrictions as set out s 838 of the CYP Act above.
For completeness, the respondent also drew attention to directions that may be made about the conduct of appeals set out in r 5602 of the Court Procedures Rules, which govern procedural matters, rather than substantive rights.
Consideration
The orders sought by the applicant
I have had regard to the information that has been supplied to me by way of submission by the mother of the proceedings. It appears to me that of the orders sought, only Order 2 is an order that it would be appropriate for the Court to consider on an interlocutory basis.
The other orders sought all relate to matters of substance that have a character of permanence. They are not orders that are in the nature of preserving the status quo. Rather, they appear to be directed to the final relief that might be obtained either if the appeal proceedings in the Court of Appeal are successful, if the matter is any way remitted, or if a further application is made directly to the Childrens Court. Even assuming the Court of Appeal had the power to make any of those orders even on an interim basis, it is not appropriate to do so.
In relation to Order 2, the Director General has confirmed that a contact plan is already in place and has proffered an undertaking to the Court agreeing to abide by the requirements of that contact plan. In particular, the undertaking includes that there will be contact offered between the mother and each of the young people who are the subject of these proceedings by an audio-visual method, namely Skype. Such contact will be offered to each of those two young people every second Sunday evening, commencing this Sunday, 19 September 2021.
The reason the Director-General has proffered that undertaking is because the Director‑General currently considers it to be in the best interest of the young people that such contact occurs. It is already recorded in the contact plan and, as I understand the position, is part of the papers that are available to the young people at the residence where the young people are staying in the ACT.
In light of the fact that such an undertaking has been given, I consider it unnecessary to delve further into the effect of the statutory powers set out above, or to make an order in the terms that have been sought by the appellant.
The appellant will achieve substantially what has been sought in Order 2, albeit on a more limited basis. It is well‑appreciated that what the appellant has sought is video call contact with the young people on a weekly basis for one hour with herself, and each of the other applicants/appellants that she seeks to join to this proceeding. The difficulty with granting this order to the extent sought is that the independent Children’s Representative has relayed to the Court the wishes of the young people.
The young people who are the subject of these proceedings are 13 years and 14 years old. They are at an age where they are well-entitled to express their wishes, and the Court must have some regard to them, even though they are still young people. The understanding of the Children’s Representative is that despite being offered contact on a regular basis (and indeed on a weekly basis), one of the young people has refused to speak to her mother. Faced with those circumstances, it is difficult to see how it would be appropriate on the current evidence before the court for any interim order to be made that contact occur on a weekly basis.
It must be remembered that these young people are the subject of much evidence led in the Children’s Court below about the extreme trauma that has been experienced in their past, and even interim orders which might disturb the status quo may have a deleterious consequence in terms of the psychological impact on the young people. Accordingly, it is not appropriate for the Court to make the order in the terms that have been sought in respect of the elder female young person.
With regard to the male young person who is the subject of these proceedings, he has communicated directly with the Children’s Representative, and has indicated that he is happy to have contact with his mother once a fortnight. He has expressly been asked the question as to whether or not he wishes that contact to increase to a weekly basis, and presently, he says no. I have taken that into consideration, both in considering the undertaking that has been offered by the Director General, and in relation to the order that has been sought by ZA.
I appreciate that not achieving weekly contact will be a source of great disappointment for ZA. It is very clear to me that she is desperate to maintain an ongoing relationship with her children, notwithstanding that she is in South Australia, and notwithstanding the care orders and the difficulties and challenges that her children are facing.
There is great sympathy in a mother trying to do what she sees is the best she can for her children in the situation that is occurring. It is a very difficult and complex set of circumstances. The Court must tread very carefully when dealing with care matters and balance the interests of everyone in the way that it best sees fit, but with the paramount consideration being the best interests of the young people.
Conclusion and Orders
Accordingly, the orders are as follows:
Upon the undertaking given to the Court by the Director‑General to abide by the requirements of the contact plan in respect of the young people the subject of this application, and in particular to offer audio-visual contact between the mother and each of the young people every second Sunday evening, commencing 19 September 2021:
1. The application in proceeding is dismissed.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice McWilliam. Associate: Date: 30 September 2021 |
2
0
0