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 Supreme Court Act 1933 (ACT) s 37O
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…

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: [2021] ACTCA 27
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered an application by a mother (ZA) seeking eight interlocutory orders in care and protection proceedings concerning her two young people. The orders sought included adding parties to the proceeding, various forms of contact between the mother and the young people, and a change in the young people's residence to South Australia pending the final resolution of separate Court of Appeal proceedings. The application also sought final relief to set aside previous Children's Court orders and return the young people to their mother and other family members.

The central legal issues before the Court were whether it possessed the power to grant the interlocutory orders sought, particularly in light of the specific provisions of the *Children and Young People Act 2008* (ACT) governing appeals in care and protection matters. The Court was required to determine if section 838 of the Act, which limits the Supreme Court's appellate powers to those that could have been made by the Children's Court, precluded the making of interim orders regarding contact. Additionally, the Court had to consider the Director-General's submission that existing final orders placed the discretion for contact arrangements solely with the Director-General, and whether section 433 of the Act, concerning interim care and protection orders, was applicable.

The Court reasoned that section 838 of the *Children and Young People Act 2008* significantly restricted the orders it could make on appeal, confining them to those the Children's Court could have made. It found that most of the orders sought by the appellant were substantive and permanent in nature, not designed to preserve the status quo, and therefore inappropriate for interlocutory relief. Regarding Order 2, which sought weekly one-hour video calls, the Director-General provided an undertaking to abide by the existing contact plan, which included audio-visual contact every second Sunday. The Court noted that the wishes of the young people, aged 13 and 14, were paramount and that one young person had refused contact with her mother, while the other preferred fortnightly contact. Given these circumstances and the Director-General's undertaking, the Court deemed it unnecessary to make a further order.

Consequently, the Court dismissed the application in proceeding. This outcome was based on the undertaking given by the Director-General to adhere to the contact plan, which included offering audio-visual contact between the mother and each young person every second Sunday evening. The Court concluded that the appellant would substantially achieve what was sought in Order 2, albeit on a more limited basis, and that making further interim orders was not appropriate given the young people's expressed wishes and the potential psychological impact.

Orders