ZA v Director-General, Community Services Directorate (No 4)
[2022] ACTCA 6
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | ZA v Director-General, Community Services Directorate (No 4) |
Citation: | [2022] ACTCA 6 |
Hearing Date: | 16 February 2022 |
DecisionDate: | 4 March 2022 |
Before: | Elkaim ACJ, Mossop and Anderson JJ |
Decision: | See [89] |
Catchwords: | APPEAL – CIVIL LAW – CARE AND PROTECTION PROCEEDINGS – application to rely on fresh evidence – application for interim orders – whether this Court is the appropriate forum to deal with the interim orders – applications dismissed – whether the primary judge erred in dismissing an appeal against orders made by the Chief Magistrate – operation of s 467 of the Children and Young People Act 2008 (ACT) – interpretation of s 467(3) – matter remitted to the Childrens Court to be decided in accordance with this decision |
Legislation Cited: | Children and Young People Act 2008 (ACT) s 467 |
Cases Cited: | House v King (1936) 65 CLR 499 Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; 279 FCR 114 ZA v Director-General, Community Services Directorate [2021] ACTSC 243 |
Parties: | ZA (Appellant) Director-General, Community Services Directorate (First Respondent) Children’s Representative (Second Respondents) |
Representation: | Counsel Self-represented (Appellant) K Musgrove (First Respondent) J Banwell (Second Respondents) |
| Solicitors Self-represented (Appellant) ACT Government Solicitor (First Respondent) Legal Aid ACT (Second Respondents) | |
File Number: | ACTCA 39 of 2021 |
Decision under appeal: | Court/Tribunal: ACT 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 |
Elkaim ACJ and Anderson J:
On 11 August 2021 the appellant filed a notice of appeal from orders made by Loukas- Karlsson J two days earlier, on 9 August 2021, in ZA v Director-General, Community Services Directorate [2021] ACTSC 243.
The orders arose from proceedings in the Childrens Court and were as follows:
(i)The application for leave to appeal out of time in relation to the orders made on 30 October 2017 by Chief Magistrate Walker is refused.
(ii)The appeal in relation to the orders made on 11 November 2020 is dismissed.
(iii)The application to add additional appellants is refused.
The dispute between the parties stems from the appellant’s wish to have her two children returned to her care. The two children will be referred to by their pseudonyms, AA (born in 2007) and RA (born in 2008).
The first respondent is the Director-General, Community Services Directorate. The second respondents are the two children who appeared through the offices of the Independent Childrens Representative.
The orders made on 30 October 2017, in respect of AA and RA, were as follows:
1. A final Care and Protection Order be made until the child attains the age of 18 years with the following provisions:
(a)The Director-General be authorised to decide with whom the child may have contact and to decide any condition for the contact, until the child attains the age of 18 years;
(b)The Director-General be authorised to decide where or with whom the child may live, until the age of 18 years;
(c)That the child be placed under the supervision of the Director-General, until the child attains the age of 18 years;
(d)That the daily care responsibility for the child be transferred to the Director-General, until the child attains the age of 18 years; and
(e)That long-term care responsibility for the child be transferred to the Director-General, until the child attains the age of 18 years.
2. I dismiss the mother’s applications of 10 March 2017 and October 2017.
The order made on 11 November 2020, also by Chief Magistrate Walker, was:
The application for revocation of final orders made on 30 October 2017 concerning the children (AA) and (RA) is dismissed.
The application for revocation referred to in the previous paragraph was an application that had been made by the appellant pursuant to s 467 of the Children and Young People Act 2008 (ACT) (the CYP Act).
Another decision, although not specifically the subject of the appeal, but which forms an important part of the history of the matter, is the result of a revocation application that came before Magistrate Cook and led to a decision on 1 October 2020.
While it might be said that the decision of the Chief Magistrate on 30 October 2017 is somewhat short on findings and reasoning, the basis for the decision is sound. By way of example, there are the affidavit of Mr Jack Powsey, a child protection worker, affirmed on 10 March 2017 (Appeal Folder B, tab 11) and the report of a forensic psychiatrist, Dr Kasinathan, dated 10 May 2017 (Appeal Folder B, tab 22).
It is worth observing here that the report of Dr Kasinathan played a significant part in the Childrens Court proceedings. The doctor observed:
From the information made available to the writer, it is the writers opinion with reasonable medical certainty that Ms (ZA) has psychiatric diagnoses as per DSM-5 (American Psychiatric Association 2013) consistent with delusional disorder. Her delusional disorder was moderately severe when she looked after the children in WA and at least for the proceeding nine months in ACT, with cumulative detrimental impact upon Ms (ZA)’s parenting capacity. Further, Ms (ZA)’s delusions impaired her capacity to accept support and supervision from child protection services. Her delusions additionally directly and harmfully influenced the children’s beliefs, their behaviour and the children’s resultant oppositional attitude towards child protection and support services.
Later in the report, Dr Kasinathan said:
Ms (ZA) had absolutely no insight into her mental illness and dysfunctional or paranoid beliefs. She was unaware of the detrimental impact of her mental state upon her parenting capacity and her interpersonal functioning. Despite repeated concerns raised by child protection agencies in WA, CYPS and health agencies, the mother either dismissed child protection concerns raised or manufactured an alternative narrative that seemed frequently based infection. She tended to blame services involved rather than appreciate her own deficits in parenting capacity and the emotional difficulties evidenced by the children.
The appellant does not seem to have undergone any further psychiatric assessment. There is a suggestion that she has avoided any such assessment (see for example the decision of Magistrate Cook at Appeal Folder B, page 1160 at line 37). A second report of Dr Kasinathan, dated 12 July 2019, prepared in the absence of the appellant because she would not attend the appointment, is not before the Court. Magistrate Cook, who did have the second report before him, noted that:
Having read further material and the applicant’s Court filed material, Doctor Kasinathan’s psychiatric assessment of the applicant remains. (Appeal Folder B, page 1183 at line 3)
Magistrate Cook was satisfied that the delusional disorder remained in existence when he considered the revocation application. Despite the enormity of the evidence before this Court, there is still no up-to-date psychiatric assessment to suggest the disorder does not continue to the present time.
The appellant was self-represented and made extensive submissions both in writing and orally. The burden of her submissions was to emphasise in the strongest terms that:
(a)It was not in the best interests of her children to be under the care and control of the first respondent.
(b)She has never harmed her children, and they have never been at risk of harm from her.
(c)She is not mentally ill and there is no reason associated with her to justify the orders currently in place.
(d)Her children were currently living in dangerous circumstances where they were exposed to drug use and other harmful behaviour.
(e)Consequently, this Court should immediately set aside or revoke any orders that prevent her children re-joining her and her family.
The written submissions provided by the appellant are susceptible to the same description given by Magistrate Cook:
The applicant’s written material is duplicitous, subjective, lacking in logic or flow that might otherwise have assisted this court with a clear understanding of her supporting evidence.
In fairness to the appellant, although somewhat (but perhaps understandably) histrionic and repetitive, her oral submissions were approached on an issue-by-issue basis and, unlike before Magistrate Cook, she did not interrupt the other parties and she maintained an appropriate respect for the Court.
This is a convenient point to interpose the observation that in the course of her oral submissions before this Court the appellant made a number of personal attacks on the legal representatives of the respondents (Ms Musgrove and Mr Banwell respectively). The attacks were entirely unfounded and without merit.
Before considering the appeal from the decision of Loukas-Karlsson J, it is necessary to deal with two other matters. The first is an application by the appellant to rely on fresh evidence. The second is an application, also by the appellant, for interim orders.
The respondents opposed the reliance on fresh evidence. They said the material was not fresh, not relevant, not accurate and would not make a difference to the outcome of the appeal. The Court was referred to the principles for fresh evidence set out in TS v DT [2020] ACTCA 43 at [57] and [58], where Collier J said:
57.Principles referable to admission of further evidence on appeal were set out by the Court of Appeal in Jovanovic v R [2015] ACTCA 29, where their Honours observed:
21.Section 37N(3) of the [Supreme Court Act 1933 (ACT)] provides that the Court of Appeal “may receive further evidence” by oral examination, affidavit or other means. There is no statutory restriction on the receipt of further evidence, but the nature of appeals to the Court of Appeal provides some guidance as to the manner in which the Court’s discretion should be exercised.
22.Ordinarily, further evidence will not be admitted on an appeal if it was available, or could reasonably have been obtained at the time of the hearing: Hillier v The Queen [2008] ACTCA 3; (2008) 1 ACTLR 235 at [160]. Different considerations may apply where there is a question about whether an irregularity in the proceedings has prevented a party from putting his or her case effectively: Hillier at [161]. A decision to withhold evidence at trial will weigh heavily against its reception on appeal: Hillier at [164].
23.As noted in Hillier at [160], s 27(1) of the Federal Court of Australia Act 1976 (Cth) similarly provides that when hearing an appeal, the Court may “in its discretion receive further evidence”. In August v Commissioner of Taxation [2013] FCAFC 85 at [116] the Court observed:
The authorities make it clear that in exercising the discretion [to receive further evidence] the Court is not constrained by the factors relevant at common law as enunciated in Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435. That is not to say that the common law factors are not relevant, only that they are not the only relevant factors. In many cases it would be most material to consider whether the evidence could have been called at trial and, if it could have been, the reasons it was not, and the extent to which the further evidence had the ability to affect the result.
At [119] the Court further explained:
...it should be noted that it is well-established by the authorities that the power in s 27 of the Federal Court of Australia Act 1976 (Cth) and equivalent sections in other Acts is a remedial power and that an important consideration in terms of the exercise of the power is whether the further evidence would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result.
(Citations omitted)
58.It follows that the key questions in determining whether to permit a party to adduce further evidence on appeal are:
(a) Whether the evidence was reasonably available to be led at the time of the primary hearing;
(b) Whether the failure to put the material into evidence was due to mistake or oversight (Nouri v Australian Capital Territory [2020] ACTCA 1 at [86]);
(c) Whether there was any irregularity attendant on the primary proceedings which may have prevented a party from putting his or her case effectively; and
(d) Whether the further evidence would have made a difference in terms of the primary decision (Head v Evans [2020] ACTCA 26 at [34]).
The “fresh” evidence that the appellant wishes to rely upon falls into a number of categories. There are two affidavits sworn on 18 October 2021 and 7 February 2022 respectively. The later affidavit does contain some recent information, but it is not relevant to the issues in the appeal. Both affidavits are otherwise replete with submissions and repeated assertions. They add nothing to the appeal.
Next, there are two reports from a Dr Wright. They are already in the material before the Court.
The third category are subpoenaed documents totalling in excess of 2,000 pages. This request is so broad as to be simply unworkable.
There is then a document entitled “Evidence and Exhibits” which appears at page 1 of Appeal Folder B. It is a collection of transcripts, reasons for decision and submissions derived from material that is already before the Court. To the extent that the document is made up of submissions, we will treat them as such.
There is then a Chronology which also appears in the same folder at page 19. It is difficult to see any relevance in its contents. Almost all of the facts asserted are already before the Court and, once again, there are numerous submissions. Finally, there is an index of the Appeal Books, which is in the same folder at page 35. This index was rejected by the Court Registry. It is easy to see why. It is difficult to ascertain its relevance.
The result of the above is that the application to rely on fresh evidence will be dismissed.
The application for interim orders is contained in an application in proceeding that was dated 18 October 2021 and seeks orders pending the disposal of the appeal. These orders require the immediate return of the children to the appellant.
As will be seen below, the appeal will be allowed and the matter remitted to the Childrens Court. That Court is the appropriate forum for consideration of any interim orders.
The state of the evidence before this Court does not permit it to engage in an exercise of assessing the current welfare of the children. It would therefore be inappropriate to make interim orders. This application will also be dismissed.
Turning now to the substantive appeal, it is clear that the appellant was under a misapprehension as to two matters:
(a)The appeal was an opportunity to re-agitate the whole of the care proceedings including all evidence that had been gathered since 2017. She did not appreciate that the appeal was limited to finding error in the decision of Loukas-Karlsson J.
(b)If she was successful, the Court would immediately restore the children to her care. Such an action might occur in exceptional circumstances, which do not exist here. If this Court was of the opinion that the appeal should be allowed, it would be obliged to return the matter to the Childrens Court in order to assess the current state of the best interests of the children. This would include up-to-date reports on their welfare as well as on the capacity of the appellant, notably including her mental health.
The second misapprehension referred to in the preceding paragraph was highlighted by the appellant commencing her submissions by reference to two incidents that had recently occurred in which AA had consumed some drugs (Xanax) and had been taken to hospital as a precaution. The appellant, both during the hearing and after the hearing, sent the Court screenshots of text messages between herself and her daughter to highlight the need for urgent action. The text messages did not in fact substantiate the appellant’s assertion that AA was desperate to be reunited with her mother. For example, an exchange reads:
Appellant: How about mom take you to hospital and stay with you until you are totally recovered? so that you don’t need to worry about anything. I don’t and will not blame you. I only worry about you and want to support you and give you more love and care.
AA:no
AA:i’m good
The respondents submitted that the decision of Loukas-Karlsson J was an interlocutory decision so that leave to appeal was necessary. The basis for the submission is that because the appellant has the right to seek revocation of previous orders under s 467 of the CYP Act, the orders already made cannot be seen as final and therefore the orders of Loukas-Karlsson J are themselves not final.
It is perhaps arguable that the decision of Loukas-Karlsson J in respect of the application for leave to appeal out of time (Order 1) is dealing with a procedural matter and is therefore an interlocutory decision. Having regard to the result of the appeal point, it is not necessary to deal with the submission. Suffice to say that if leave were necessary, it would be granted by this Court.
As referred to above when setting out the misapprehensions under which the appellant laboured, it is fundamental to the appeal to recognise the scope of these proceedings. They are not an application for revocation of previous orders. They are not a re-assessment of whether or not the original, or any subsequent, care orders were made in the interests of the children. They are an inquiry into the correctness or otherwise of the decision of Loukas-Karlsson J. The misapprehension of the appellant as to the nature of the appeal is not unusual. As was said in TS, at [3] and [4]:
3.There is one other point that I would like to make. This is an appeal from an appeal. The appellant had a right to appeal from the decision of Crowe AJ, the primary Judge (s 37E of the Supreme Court Act 1933 (ACT)). He also had a right to appeal from the decision of the Chief Magistrate to the Supreme Court (s 93 of the Family Violence Act 2016 (ACT)). In my view his rights of appeal should have been restricted to the latter appeal, namely from the Magistrates Court to the Supreme Court. Any further appeal should have been subjected, at the least, to a requirement that there be a grant of leave to appeal.
4.The Court of Appeal is consistently being called upon to deal with appeals of this nature, which in my view are often a waste of time and resources. This is not to say that this, or any other, ‘second’ appeal is necessarily without merit. Rather there should be an initial testing of that merit by an application for leave to appeal.
It might be said of the judgment of Loukas-Karlsson J that it is long on detail. Her Honour understandably felt it necessary to take this approach to the mass of material and submissions that were before her. She also provided a useful factual background. Neither the analysis of the submissions nor the background were the subject of specific criticism.
Her Honour was faced with two primary tasks:
(a)Whether to grant leave to the appellant to appeal out of time against the orders of Chief Magistrate Walker made on 30 October 2017.
(b)Whether to allow an appeal from the orders made by Chief Magistrate Walker on 11 November 2020.
Her Honour refused the grant of leave and dismissed the appeal. Commencing at [545], her Honour set out the principles to be applied in deciding an application for leave to appeal out of time. These were derived from R v Meyboom [2012] ACTCA 2; 256 FLR 450. She noted that the orders had been made on 30 October 2017, but the application was not filed until 12 November 2020.
Perhaps strangely, the decision of Magistrate Cook was given on 1 October 2020 but is not the subject of any appeal. While the appellant was under no obligation to appeal from this decision, it is important to appreciate that any defects in the reasoning of the Chief Magistrate in her decision in October 2017 are subsumed within the decision of Magistrate Cook. The latter decision is comprehensive, deals with the matters that were before the Chief Magistrate and ends with sound reasoning. Perhaps it is not surprising that there has been no appeal from this decision.
Returning to the decision of Loukas-Karlsson J, her Honour set out the evidence relating to the considerations listed in Meyboom. Her Honour then considered the grounds of appeal which the appellant wish to pursue, should leave be granted. They were summarised, at [560], as follows:
The four main areas of contention that may be considered appeal grounds are; fraud and misbehaviour by the Court, want of procedural fairness, that the evidence of Dr Kasinathan was wrongly admitted due to not having met the appellant, and want of evidence to substantiate the orders.
Her Honour then concluded, at [563]:
There is no evidence to support the contentions. The allegations of fraudulent conduct are not accepted.
Her Honour examined each of the proposed grounds of appeal, and after describing the material relating to each of them, Her Honour concluded, at [578]:
The appeal grounds are not meritorious. To describe them as weak is to exaggerate their strength.
Thus, having identified the correct principles, examined the evidence relating to the relevant principles and finally assessed the proposed grounds of appeal as lacking any merit, her Honour refused leave to appeal. Her Honour followed the appropriate steps to her conclusion and it is based on a considered assessment of the material before her. No error is apparent.
Her Honour then turned to the appeal from the orders of the Chief Magistrate made on 11 November 2020. No leave was required for this appeal. The decision of the Chief Magistrate arose from an application for revocation that had been made on 4 November 2020.
At [502], her Honour considered the possibility that the Chief Magistrate’s decision had been discretionary so that an attack on it attracted the principles set out in House v King (1936) 65 CLR 499. This possibility was derived from what her Honour described as an alternative submission by the appellant.
The alternative to a discretionary decision has been described as a ‘correctness’ decision.
When her Honour came to consider the appeal, however, she proceeded, at [589], entirely on the basis of a House v King inquiry.
The distinction between a correctness decision and a discretionary decision was described by Gageler J in The Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541, at [49]:
The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.
The effect of the distinction is to dictate the nature of the review by the appellate court. If the decision was discretionary then the review will be dictated by the principles in House v King, namely whether there had been an error of fact or law by the primary judge. If, however, the decision was one of correctness or not, then the appellate court would “substitute its own conclusion where it disagrees with that of the primary judge” (see Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; 279 FCR 114).
Before proceeding further, it is necessary to set out a short chronology and refer to the relevant section of the CYP ACT.
On 20 December 2018, the appellant filed an application for the revocation of the orders that had been made by the Chief Magistrate on 30 October 2017. The application was ultimately heard by Magistrate Cook in March and May 2020 and decided on 1 October 2020.
On 4 November 2020, the appellant filed a fresh application for revocation of the Chief Magistrate’s 2017 orders. This application came on for hearing before the Chief Magistrate on 11 November 2020 and was dismissed on the same day. The Chief Magistrate was aware of the decision that had been given on 1 October 2020 by Magistrate Cook.
Section 467 of the CYP ACT states:
(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.
Under subsection (1) a person may apply for revocation of a care and protection order with the leave of the Childrens Court. The subsection sets out certain preconditions to the granting of leave. But, under subsection (2) leave must be granted “to someone who was a party to the proceeding in which the care and protection order was made”. The appellant fell into this category so that the Chief Magistrate was obliged to grant leave to her, subject only to subsection (3).
Under subsection (3), a care and protection order may only be made once in a 12 month period unless leave is given to do otherwise. Leave may only be granted if the Court is “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”. There is thus a distinction between ‘subsection (2) leave’ and ‘subsection (3) leave’.
The Chief Magistrate took the view that subsection (3) leave was necessary and required her to only grant leave for the application based on whether or not there had been “a significant change in any relevant circumstances”. The Chief Magistrate said there had not been any such change and accordingly refused leave, and in turn the application for revocation.
This approach was consequent upon Chief Magistrate considering that leave was required because the relevant 12 month period had commenced on 1 October 2020, when the matter was decided by Magistrate Cook.
This is notwithstanding that a plain reading of s 467(3) only requires leave to be granted for a fresh application for revocation if the application has been made within the previous 12 months. In other words an otherwise qualifying applicant may make a fresh application for revocation provided the last application was made more than 12 months previously. If 12 months has not passed then subsection (3) leave is necessary and can only be considered if there has been “a significant change in any relevant circumstances”.
When deciding the leave question the Court is then called upon to look for the required change of circumstances within the period dating back to the date “the care and protection order was made or last extended or amended”.
The care and protection order was made on 30 October 2017. It had not been extended or amended.
For current purposes the more relevant matter is that the Chief Magistrate thought subsection (3) leave was required because the earlier application for revocation (made on 20 December 2018) was only determined on 1 October 2020.
The Chief Magistrate’s reasoning was as follows:
The issue that arises here is whether subsection (iii) has application in circumstances where the earlier application for revocation was filed on 20 December 2018, more than 12 months ago, but determined only on 1 October 2020 as I have indicated, a matter of a few weeks ago. Whilst an application is made outside of 12 months since the first application, where that application has not yet been determined, it must be deemed to be a continuing application and on foot.
It would be nonsensical otherwise to allow applications to be made repeatedly while there is already an existing application before the court and would not give effect to the purpose of the legislation.
Loukas-Karlsson J said this, at [590], about this issue:
In my view, the Childrens Court was correct in considering that the application for revocation filed on 20 December 2018 was on foot until it was determined on 1 October 2020. Therefore, the consideration regarding the 12-month period was enlivened regarding the new application filed on 4 November 2020.
Unfortunately, her Honour discloses no reasons for reaching this view. This may have arisen because she simply agreed with the reasoning of the Chief Magistrate or perhaps because it was not a point that had been taken by the appellant. Her Honour recorded the wide range of submissions made by the appellant. There is no suggestion that they included the interpretation of s 467(3).
The equally widespread grounds of appeal, and questions of law, put before this Court also do not specifically raise the point.
Perhaps the closest are appeal grounds (6) and Question 13 posed by the appellant:
(6)The established evidence, finding and reasons of “significant change” or any conditions which would constitute the “significant change” were absence from the judgment. Orders dated 11 Nov 2020 were made absence of established evidence, and against legal ground s 467 of the CPY Act, especially against “the orders cannot be administered effective and not in the children’s best interests” which proved by the appellants’ substantial evidence.
13Whether the learned magistrate and her justice erred in law, deprived the Appellants and their witness’s legal rights to be heard from 10 March 2017 to 30 October 2017, then to 11 November 2020, and in the appeal proceedings?
The appellant’s written submissions did not canvass the point with precision; rather, they concentrated on showing that there had been a change of circumstances.
The first respondent’s original written submissions did, however, state, in terms, at [59], that:
The starting point is the decision of Magistrate Cook of 1 October 2020 in which he dismissed the revocation application.
The written submissions of the second respondents were more direct: this was said at [22]:
Her Honour Chief Magistrate Walker decided that given the Appellant’s previous Revocation Applications had only been decided a few weeks earlier, the 12-month time limit applied and the Appellant needed to demonstrate there had been a “significant change in any relevant circumstances” before the Application could proceed. The Childrens Representative submits this was the correct interpretation of the provision, noting that allowing the Revocation Applications to proceed may have resulted in an application essentially the same as the one which had just been decided.
Normally, this Court would not consider a point that had not been taken in the Court below. However, the point is one of statutory interpretation and the appellant is self-represented. Most importantly, the Court must be guided by the interests of the children, a factor that dictates that all matters relevant to their welfare are considered
We also formed an initial view of s 467(3) which, if correct, would fundamentally affect the rights of the parties.
The Court took the view that, in the interests of fairness, the parties should be asked for further submissions on the interpretation of this subsection.
To that end, the parties were requested to provide submissions addressing the following questions:
1.Does the reference in s 467(3) of the Children and Young People Act 2008 (ACT) to “since the care and protection order was made or last extended or amended” mean that in the circumstances of this case any significant change in relevant circumstances needed to have occurred since 30 October 2017?
2.Was the Chief Magistrate correct to treat the period in which there was required to be a change in circumstances the period since the dismissal of the previous application for revocation by Magistrate Cook rather than the whole of the period since 30 October 2017 or some other date?
3.On what dates was the care and protection order:
a. made;
b. extended;
c. amended;
For the purpose of s 467(3)?
4.In the event that the Chief Magistrate erred in her interpretation of s 467, is there any reason why the decision of the primary judge on that issue should not be set aside?
All of the parties responded. The appellant’s submissions meandered between relevant and irrelevant considerations. Nevertheless, she was clear on the following:
(a)The Chief Magistrate should have looked back to 30 October 2017 to identify whether there had been any significant change.
(b)The orders had not been extended or amended since 30 October 2017.
(c)The Chief Magistrate was wrong in her interpretation of s 467.
(d)The current orders should be immediately set aside or revoked and the children returned to the appellant’s care.
The approach taken by the first respondent was to suggest that the Chief Magistrate had considered all of the material dating back to 30 October 2017. This argument is certainly not reflected in the decision. Her Honour may have had the material before her in the relevant files but there can be no doubt that she proceeded on the basis that the last application had occurred within the previous 12 months and therefore that leave was required for the application to continue.
The passages quoted above (at [60]) from the Chief Magistrate’s decision say otherwise. Her Honour was, as was Loukas-Karlsson J, clearly of the view that the relevant 12 month period extended only back to 1 October 2020.
The first respondent said that if the appeal were to succeed, the matter should be remitted to the Childrens Court.
The second respondents confirmed that the orders of 30 October 2017 had “never been amended, extended or revoked”. In addition, the second respondents submitted:
(a)The period to be examined for a significant change dated back to 30 October 2017. This is a change in the approach originally taken, as set out at [67] above.
(b)The word “relevant” in s 467(3) referred to a matter that was relevant “to the making of the original order”.
(c)Notwithstanding that the Chief Magistrate should have looked back to 30 October 2017, the Court should not interfere with her decision unless satisfied that the discretion not to grant leave had miscarried.
(d)Perhaps a little inconsistently with the previous submission, if this Court decided that there had been an error in the interpretation of s 467(3) the application should be remitted to the Childrens Court for “determination according to law”.
Turning now to the interpretation of s 467. A plain reading of subsection (3) is that leave is only required if a previous application had not been made within the last 12 months. This is not to say that a significant change in circumstances would not be considered in deciding whether there should be revocation of an earlier order; the question is whether or not leave should be granted to make the application.
The Chief Magistrate thought leave was required because she calculated the 12 month period to have commenced on 1 October 2020. Once her Honour found there had not been the relevant change of circumstances, she refused leave. As subsection (3) leave was not required there was plain error on her Honour’s part.
Although not strictly relevant to whether or not leave was required, but to answer the second respondents’ submissions, s 467(3) says the Childrens Court “may give leave” suggesting the exercise of a discretion. However, whether discretionary or not, this decision only arises if the Court has found there to be “a significant change in any relevant circumstances”. In other words, the apparently discretionary decision only arises after the factual finding concerning the change in circumstances.
Clearly, the decision about whether or not there has been a change in circumstances is factual and not susceptible to any discretion. The Chief Magistrate found there had not been a change in circumstances and therefore did not reach a stage where a discretion was enlivened. This was a consequence of the Chief Magistrate taking the view that subsection (3) leave was required.
It follows that Loukas-Karlsson J’s approach was also in error. Her Honour should have first decided whether or not the Chief Magistrate was required to give subsection (3) leave at all.
This deals with the second respondents’ submission that even if the period for change had been incorrect, the Chief Magistrate had still correctly exercised the discretion. The difficulty with the submission of course is that the discretion to grant leave did not arise at all. It was only considered because the Chief Magistrate erroneously thought the application she was considering had been made within a 12 month period.
Returning to the Chief Magistrate’s reasoning, as set out at [60] above, and endorsed by Loukas-Karlsson J, her Honour is essentially suggesting it would be an absurdity to allow repeated applications for revocation when previous applications had not been decided.
There are two flaws in the reasoning:
(a)Whether or not a previous application had been decided, s 467(3) still only permits an application to be made once a year absent establishing a significant change of circumstances.
(b)The capacity for the Court to refuse an application, even if leave was not required, remained. No doubt the Court might include in its consideration that a previous application had only been decided very recently. But this is a separate question to whether or not the application being considered required subsection (3) leave. In this case it did not, and the matter should not have been approached on a basis of whether or not leave should be granted.
It is worth repeating that an examination of the wording of s 467(3) simply does not permit the interpretation given to it by the Chief Magistrate and endorsed by the primary judge. The section unequivocally contemplates a 12 month period starting from the last previously made application. In this case that was on 20 December 2018.
Accordingly, the appeal must be allowed in respect of the decision of Loukas-Karlsson J to uphold the decision of the Chief Magistrate made on 11 November 2020. The next step is to decide on the consequences of allowing the appeal.
The appeal is being allowed because the Childrens Court, on 11 November 2020, did not consider the revocation application because it refused leave for the application to be heard in circumstances in which leave was not required.
As suggested by all of the respondents, the appropriate course must be to remit the matter to the Childrens Court to consider the matter in accordance with these reasons, namely whether or not there had been the required change of circumstances since 30 October 2017. It may be, and this would be a matter for the appellant, that a better course would be for her to lodge a fresh application for revocation which would provide up-to-date evidence including, should she wish to do so, a psychiatric assessment of her current mental state.
The orders of the Court are as follows:
1.The application to rely on fresh evidence is dismissed.
2.The application for interim orders is dismissed.
3.The appeal from the orders made by the Chief Magistrate on 11 November 2020 is allowed.
4.The matter is remitted to the Childrens Court to be decided in accordance with these reasons.
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Elkaim and His Honour Justice Anderson. Associate: Date: |
Mossop J
I agree with the orders proposed by Elkaim and Anderson JJ. Subject to two matters, I also agree with their Honours’ reasons.
The first matter is that I would prefer not to express any view as to the appropriateness of permitting appeals to the Court of Appeal from the decisions of single judges on appeals from the Childrens Court.
The second matter is that I wish to articulate my reasons for the conclusion that Loukas‑Karlsson J erred in her acceptance of the Chief Magistrate’s interpretation of s 467 of the CYP Act.
Section 467 of the CYP Act provides:
(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.
(Notes omitted.)
Subsection (1) provides the preconditions for the making of an application for revocation. Those preconditions include, in sub-s (1)(b), a grant of leave from the Childrens Court. Within s 467, sub-s (1) is the source of the power to grant leave. This means that the requirements in sub-s (1)(a) apply to all applications, including applications addressed in sub-ss (2) and (3).
Subsection (2) makes the grant of leave mandatory where the person (who has satisfied the requirements in sub-s (1)(a)) was a party to the underlying Childrens Court proceedings.
Subsection (3) is a qualification on both sub-ss (1) and (2). This means that persons generally and parties to the previous proceedings are both subject to the limitation in sub-s (3).
The operation of sub-s (3) depends upon what it means to “apply more than once in 12 month period” and what is meant by “a significant change in any relevant circumstances since the care and protection order was made or last extended or amended”.
As the decision of the Chief Magistrate illustrates, so far as the first issue is concerned the question is whether “apply” refers to the making of the application or whether it covers the whole of the period between the making of the application and the determination of that application. The text of the provision suggests that it identifies only the making of the application. The reasoning adopted by the Chief Magistrate involved the argument that such an interpretation should not be adopted because it would be “nonsensical to allow applications to be made repeatedly while there is already an existing application before the court and [that] would not give effect to the purpose of the legislation”. This approach was one which, on its face, was permitted by s 139 of the Legislation Act 2001 (ACT), which requires a court to prefer an interpretation “that would best achieve the purpose of the Act”. However, I do not accept that this interpretation is correct.
The starting point in assessing the purpose of an Act must be the text of the Act itself. Two features of that text are most relevant. First is the use of the words “apply more than once in a 12 month period” as opposed to language more consistent with the interpretation adopted by the Chief Magistrate, for example, “apply in the 12 month period since the determination of a previous application”. Second is the obligation in s 470 of the CYP Act to consider an extension, amendment or revocation application “not later than 5 working days after the day the application is filed”. The heading to this provision, which forms part of the Act: Legislation Act, s 126(2), includes “court to consider extension, amendment and revocation applications promptly”. So far as the text is concerned, it is not obvious that the legislature contemplated that extension, amendment or revocation applications would become proceedings which operated over the course of years rather than be dealt with promptly and, in any event, within a 12 month period.
So far as the purpose of the provision more generally can be ascertained, the apparent purpose of sub-s (3) is to provide a limitation upon the frequency with which applications for revocation can be made. However, that purpose alone does not determine the issue in question here because either proposed interpretation would provide such a limit.
In interpreting the provision, it must be remembered that one is interpreting its application generally and not only in relation to the circumstances of this case. The unfortunate reality that in this case the earlier revocation application was allowed to remain on foot over such a long period should not be allowed to distort what would otherwise be the proper interpretation of the section.
Having regard to the language used and the apparent legislative assumption that applications would be dealt with promptly, it is appropriate to give the word “apply” its ordinary meaning. There is nothing “nonsensical” about an interpretation which operates by reference to the date of the application rather than during the whole of the pendency of the proceedings when one takes into account the language used and the legislative assumption that such applications would be dealt with promptly. The fact that, as a result of this interpretation, leave would be required to be granted because of the operation of sub-s (2) does not mean that the substantive application would need to drag out over months or years as the previous application had. Rather, the fact that an earlier application had canvassed in detail the circumstances of the children and the mother would be relevant in determining how the new application should be dealt with by the Court.
This interpretation means that the “12 month period” in s 467(3) of the CYP Act operates from the date of the last application for revocation, if any. Given that the previous application for revocation was made on 20 December 2018 and the subsequent application made on 4 November 2020, s 467(3) had no application.
The other issue, namely the point in time after which a significant change in relevant circumstances must be shown to have occurred, is relatively straightforward. The language used is “since the care and protection order was made or last extended or amended”. This mirrors the language in s 466, which is a similar provision but relates to extension and amendment applications.
A care and protection order was made on 30 October 2017. Extension or amendment of care and protection orders are matters which are dealt with by specific legislative provisions that fall within part 14.5 of the CYP Act. The power to extend or amend a care and protection order is provided by s 471. Sections 466, 468, 469 and 470 also regulate the making of extension or amendment applications. The care and protection orders in the present case have never been extended or amended. Therefore, had sub-s 467(3) applied, the relevant period would have been the period since the making of the care and protection order in 2017.
In summary, when addressing the application made by the appellant in the present case, sub-s (3) had no application because the appellant had not applied for the revocation of the orders in the previous 12 months. As a consequence, sub‑s (2) applied to make mandatory the grant of leave if sub-s (1)(a) was satisfied. There appears to have been no contention that sub-s (1)(a) was not satisfied. Assuming that it was, the appellant was entitled to a grant of leave.
It is for these reasons that I consider that:
(a)The Chief Magistrate erred in her interpretation of s 467(3) of the CYP Act by treating the word “apply” as if it covered the whole of the period up until the point at which the application was determined. She therefore wrongly treated the application as being subject to sub-s (3).
(b)Loukas-Karlsson J was in error in concluding that “the consideration regarding the 12-month period was enlivened regarding the new application filed on 4 November 2020”: ZA v Director-General, Community Services Directorate [2021] ACTSC 243 at [590].
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: |
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