District Court New South Wales Medium Neutral Citation: Secretary, Department of Communities and Justice v M & J (Pseudonyms) [2024] NSWDC 35 Hearing dates: 20 February 2024 Date of orders: 21 February 2024 Decision date: 21 February 2024 Jurisdiction: Civil Before: Acting Judge Levy SC Decision: See paragraph [16] for orders Catchwords: CARE APPEAL – construction of s 90A of the Children And Young Persons (Care and Protection) Act 1998 (NSW) – erroneously made prohibition order by Children's Court set aside – Children's Court had no statutory power to make that order after the proceedings had been finalised Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 76, s 90A, s 91, s 105 Children's Court Act 1987 (NSW), s 12(1) Cases Cited: Department of Community Services (DFaCS) and Amber [2019] NSWChC 10 Category: Principal judgment Parties: Secretary, Department of Communities and Justice (Plaintiff) M, a pseudonym (First Defendant) J, a pseudonym (Second Defendant) Judith Little, Independent Legal Representative (Third Defendant) Representation: Counsel: Mr MW Anderson (Plaintiff) Ms R Koulouris, Solicitor (First Defendant) No appearance (Second Defendant) Ms Connolly, Solicitor as agent (Third Defendant) Solicitors: Karen Smith, Crown Solicitor (Plaintiff) Koulouris & Associates (First Defendant) Judith Little, Independent Legal Representative (Third Defendant) File Number(s): 2023/00357724 Publication restriction: Non-publication order JUDGMENT Care Appeal 1. This summons was filed pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care Act") by the Secretary, Department of Communities and Justice, appealing a portion of the decision of the Children's Court sitting at East Maitland on 13 October 2023 concerning the care of an Aboriginal child aged almost 7 years. The Secretary is the delegate of the Minister responsible for the administration of the Care Act. The parties produced a two volume Court Book: Exhibit "A", Tabs 1 – 1, pp 1 – 571. Non-publication order and litigation pseudonyms 1. Pursuant to s 105 of the Care Act, the publication of the name of the child the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence that would tend to identify the child, is prohibited. 2. To give effect to that order, in these reasons, the mother of the child the subject of the appeal is referred to by the litigation pseudonym M. The father, who has not taken any active part in the proceedings, has been assigned the litigation pseudonym J. Orders made by the Children's Court 1. Uncontroversially, the Children's Court made protective orders concerning the child pursuant to s 76(1) and s 76(4) of the Care Act. At that point, the proceedings before the Children's Court were finalised. 2. Controversially, purportedly pursuant to s 90A of the Care Act, with good intent, the Children's Court then went on the make an order prohibiting the child's mother from using or threatening to use corporal punishment towards the child the subject of the appeal whilst the child was in her care: Exhibit "A', Tab 21, 570. Issue 1. The Secretary contends that the prohibition order was made erroneously on the basis of an assumed implied power that was beyond the statutory powers vested in the Children's Court. 2. The child's mother and the child's Independent Legal Representative support the Secretary's contention that the prohibition order should be set aside. 3. The appeal invokes a statutory protective jurisdiction in a de novo hearing which requires a review of the evidence in the context of the powers conferred by the Care Act and other enabling legislation. Consideration 1. The Children's Court is a statutory Court constituted by and under the Children's Court Act 1987 (NSW). The powers of that Court are necessarily limited to those conferred by or under the terms of s 12(1) of that Act. 2. Accordingly, and indisputably, as explained in Department of Community Services (DFaCS) and Amber [2019] NSWChC 10, at [27], the exercise of a judicial function in that Court must be based upon the confining limits of the enabling provisions which confer the power to exercise jurisdiction. 3. In this case, protective supervision orders were aptly made by the Children's Court pursuant to s 76(6) and s 76(7) of the Care Act. At that time, the proceedings were finalised. 4. Beforehand, the Secretary had not sought an order pursuant to s 90A of the Care Act in the substantive proceedings. 5. The Secretary contends, correctly, that at that point, on a proper construction of s 90A of the Care Act, there was no available express or implied legislative provision that enabled the making of a prohibition order because s 90A of that Act is an ancillary provision. 6. In the appeal the Secretary submits, in my view correctly, that on a proper construction of the legislation, the ancillary provision of s 90A does not enable the making of the impugned prohibition order after the proceedings had been finalised. 7. Accordingly, that order was an error of law which must therefore be set aside. Orders 1. I make the following orders: 1. Appeal allowed. 2. The prohibition order purportedly made pursuant to s 90A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) in the Children's Court at East Maitland on 13 October 2023 is set aside. 3. The other orders made by the Children's Court at East Maitland on 13 October 2023 pursuant to s 76(1) and s 76(4) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) are confirmed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2024