New South Wales Supreme Court CITATION : Minister for Community Services & 1 Or v Children's Court of NSW & 3 Ors [2004] NSWSC 1018 HEARING DATE(S) : 29/10/04 JUDGMENT DATE : 3 November 2004 JUDGMENT OF : Bell J at 1 DECISION : Declare that the first defendant erred in law by allocating parental responsibility for the child, Nadya, to the first plaintiff until 8 July 2004, by order made at Toronto on 17 June 2004 (the order) in the absence of a care application by the second plaintiff; Quash the order of the first defendant made on 17 June 2004 allocating on an interim basis parental responsibility for the child Nadya to the Minister. Children and Young Persons (Care and Protection) Act 1998 LEGISLATION CITED : Children's Court Act 1987 Federal Court of Australia Act 1976 (Cth) George v Children's Court of New South Wales [2003] NSWCA 389; 59 NSWLR 232 CASES CITED : Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Re Oscar [2002] NSWSC 453 Minister for Community Services (1st Plaintiff) Director-General of the Department of Community Services (2nd Plaintiff) PARTIES : Children's Court of NSW (1st Defendant) Nadya (2nd Defendant) JD (3rd Defendant) SN (4th Defendant) FILE NUMBER(S) : SC 12080/04 COUNSEL : G Moore (Plaintiff) R Cavanagh (1st Defendant) SOLICITORS : I V Knight (1st and 2nd Plaintiffs) Nicholas Moir & Associates (2nd Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BELL J Wednesday 3 November 2004 12080/04 Minister for Community Services & 1 Or v Children's Court of NSW & 3 Ors; Re Nadya JUDGMENT 1 BELL J: The first plaintiff, the Minister for Community Services (the Minister), and the second plaintiff, the Director-General of the Department of Community Services (the Director-General) claim orders including that an interim order made on 17 June 2004 by Magistrate Truscott (the Magistrate) in the Children's Court at Toronto allocating parental responsibility to the Minister until 8 July 2004 (the order) be quashed. 2 The plaintiffs' summons was filed on 6 July 2004. 3 On 23 July 2004 the Court ordered that the child, the subject of the proceedings in the Children's Court, be known for the purposes of these proceedings as "Nadya". 4 Louise Goodchild of the National Children and Youth Law Centre consented to act as Nadya's tutor. Mr Cavanagh appeared on her behalf. 5 The first defendant filed a submitting appearance on 15 July 2004. Neither Nadya's mother nor her father, who are the third and fourth defendants respectively, appeared. 6 On 14 June 2004 Nadya was charged with two criminal offences, common assault and malicious damage. She was aged fourteen years. 7 On 15 June 2004 she appeared before the Wyong Local Court, Juvenile Justice Jurisdiction. The proceedings were adjourned to the following day at the Children's Court at Toronto. On 16 June 2004 she was released on bail subject to the condition that she notify the Court of any address at which she was residing. 8 The transcript of the proceedings before the Magistrate on 16 June 2004 records that Mr Ticehurst appeared on behalf of the Department of Community Services (the Department) as a courtesy to the Court. The Magistrate noted Mr Ticehurst had informed the Court that the Department could not find a placement for Nadya. In these circumstances her Honour observed that the imposition of a residential condition on the grant of bail would be tantamount to a refusal of bail. Taking this into account she determined to grant bail without a condition as to residence. Her Honour observed that the effect of this determination was that Nadya would be released forthwith and would be a homeless person for the purposes of s 120 – 122 of the Children and Young Persons (Care and Protection) Act 1998 (the Act). 9 It is against this background that Nadya came before the Court later that day pursuing an application under the Act for approval of an alternative parenting plan. Her application was submitted on a pro forma that is used to apply for care orders under s 61 of the Act. The proceedings were conducted on the basis that Nadya's application was brought pursuant to the provisions of Pt 1 of Ch 7 of the Act, which deals with support for children and young persons in crisis. 10 The orders that Nadya sought were (i) an alternative parenting plan under s 116 of the Act and (ii) that parental responsibility be allocated to the Minister pursuant to s 79(1)(b) of the Act. Her grounds were stated as follows: "Homelessness in accordance with section 120 – 122 of the Children and Young Persons (Care and Protection) Act 1998." 11 In an affidavit affirmed on 16 June 2004 that was filed with her application Nadya stated: "1. I am fourteen years of age and I do not reside with my mother, JD, or father, SN. 2. I was before Toronto Children's Court today and released on bail. 3. I am homeless. 4. My mother has told me that she doesn't want me to live with her and put me at Maitland Youth Crisis Centre. 5. I rang my mother up on Tuesday 15 June 2004 at about 2:00 am and told her that I was in Baxter. My mum said, 'I guess I won't see you real soon'. 6. I cannot live with my dad because he told me he has to work and can't look after me. 7. I would like DOCS to look after me and find me somewhere to live." 12 An alternative parenting plan appears to have been submitted with the application, although I note that it is dated 17 June 2004. It is common ground that it is not a plan that complies with the Act and the Regulations thereto. It was in these terms: "That Nadya be in the parental responsibility of the Minister. That Nadya be housed by the Minister. That Nadya be comforted by the Minister." 13 Mr Ticehurst accepted service of Nadya's application on behalf of the Department on the basis that she was seeking an order allocating parental responsibility to the Minister and accordingly that "the Department wishes to be involved". 14 Her Honour observed that it would be necessary for an alternative parenting plan to be prepared in accordance with the Act and the Regulations. She went on to consider whether she had power on Nadya's application under Ch 7 of the Act to make an interim order allocating parental responsibility to the Minister. The Department submitted that neither the Act nor the Children's Court Act 1987 authorised the making of an interim order. The Magistrate reserved her decision and stood the application over to the following day, recommending that the Department fund accommodation for Nadya during the period of the adjournment. She also recommended that Nadya (or the Department) serve JD, the third defendant, with the application. 15 On 17 June 2004 the Magistrate made the order and delivered written reasons. 16 The Magistrate noted that Nadya had appeared for the first time in the Juvenile Justice Jurisdiction of the Children's Court in early 2004. On that occasion she had been detained in custody because she was unable to live at home due to conflict with her mother and she did not have an alternative place of residence. The Magistrate observed that at that time the Department had been notified of her situation, but had not made an application for a care order. 17 The earlier proceedings had been finalised by an order releasing Nadya on a good behaviour bond. She had been accommodated with "Allambie Youth Services". The placement with that institution had broken down as the result of Nadya's conduct on 14 June 2004. 18 After setting out this history the Magistrate observed that: "The child's intent is clear, she asks the State, through its agent the Department of Community Services to provide her with the special protection and assistance to which she is entitled in accordance with sections 8, 9 and 110 of the Act. Specifically, the child asks this Court to make an order allocating parental responsibility for her to the Minister. The Department's intent is also clear: despite receiving notification of the child's situation, it does not intend to file a care application. I suspect that may not be due to any finding by the Department that the child is not in need of care and protection but the fact that they are unable to secure accommodation for her. This latter issue is the only matter raised by the Department in relation to its involvement, or lack thereof, with the child in this application." 19 The Magistrate concluded that she had the power to make an interim order allocating parental responsibility to the Minister by reference to s 15 of the Children's Court Act 1987 and by virtue of s 70 of the Act, which confers a power on the court to make other interim care orders as it considers to be appropriate for the safety, welfare and wellbeing of a child pending the conclusion of the proceedings. 20 Section 70 provides: " 70 Other interim orders The Children's Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings." Section 70 is found in Pt 2 of Ch 5 of the Act, which deals with care applications. A "care application" is defined to mean an application for a care order: s 60. A "care order" is defined in s 60 to mean: " care order means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86." 21 An application for a care order may be made only on the application of the Director-General, except as provided by Ch 2: s 61. It would appear that the only provision made in Ch 2 for an application for a care order to be made by a person other than the Director-General is that found in s 90, which deals with the revision and variation of care orders. 22 The application brought by Nadya was not a care application under Ch 5 of the Act. 23 Chapter 7 of the Act deals with support for children and young persons in crisis. Provision is made under s 113 for a parent, child or young person, or any other person to ask the Director-General for assistance in cases that include serious or persistent conflict between the parents and the child or young person. Chapter 7 makes provision for alternative parenting plans. An alternative parenting plan sets out the way in which the needs of the child or young person are to be met and may include the allocation of parental responsibility or specific aspects of parental responsibility: s 115 (1). 24 In seeking to resolve a conflict (being one of a kind to which Ch 7 applies) the Director-General is required to formulate an alternative parenting plan in a case in which he or she is a party to the proceedings: s 115(2)(a). In cases in which the Director-General is not a party to the proceedings any party may formulate an alternative parenting plan: s 115(2)(b). 25 Section 116(1) allows an application to be brought in the Children's Court by a child or young person, a parent or the parents, or the Director-General for an order approving an alternative parenting plan. The application is to be accompanied by an alternative parenting plan: s 116(2). The Children's Court must not make an order approving the plan unless, inter alia, it is satisfied that the parents and the child or young person have been advised of the desirability of seeking legal advice concerning any proposed changes to the allocation of parental responsibility: s 116(3). 26 The Children's Court has the power to adjourn an application for an order approving an alternative parenting plan in order that further assessment, counselling or mediation is carried out: s 117. 27 The power to make orders giving effect to an alternative parenting plan is contained in s 118. That section provides: " 118 Court orders (1) The Children's Court may make such orders as it considers appropriate to give effect to a proposed alternative parenting plan or specified parts of the plan. (2) In considering whether to make an order with respect to a child or young person, the Children's Court is to have regard to the following: (a) The views of the child or young person, (b) the age of the child or young person, (c) the maturity of the child or young person, (d) the capacity of the child or young person for independent living, (e) the practical and emotional supports available to the child or young person. Note. In accordance with its power to monitor its orders, the Children's Court may monitor an order giving effect to an alternative parenting plan." 28 At the commencement of proceedings on 17 June 2004 the Court was informed by the child's representative and Mr Ticehurst, on behalf of the Department, that efforts to serve Nadya's mother with her application had been unsuccessful. Mr Ticehurst said that it appeared that the father had been told of the application and that his response had been to say to put the documents in the mail to him. 29 In written submissions the plaintiffs noted the provisions of s 116(3) and contended that the Court was precluded from making an order absent satisfaction that the parents had been advised in accordance with the terms of the subsection. Mr Cavanagh's principal submission was that consideration of s 116(3) was not necessary since final orders had not been made. In the alternative he contended that the material before the Magistrate demonstrated that the parents were and remain disinterested and that in these circumstances the requirements of s 116(3) did not demand more. The matter was not further developed in the course of oral argument. The Magistrate's order purported to effect a change to the allocation of parental responsibility for Nadya. However, it was not an order approving or giving effect to an alternative parenting plan (or to specified parts of the plan). It was an interim order pending the determination of an application made by Nadya under s 116. I am not persuaded that the provisions of subsection (3) were engaged. 30 The challenge that the plaintiffs' make is to the Magistrate's power to make an interim order under s 70 of the Act allocating parental responsibility in circumstances in which the Director-General had not brought a care application under Ch 5. 31 In her reasons for judgment the Magistrate said: "I note that section 70 enables interim orders where the Court considers it appropriate for the safety, welfare and well-being of the child pending the conclusion of the proceedings. Again I point out that section 111 states that the provisions of Ch 3, 4, 5 apply to Part 1 of Ch 7." 32 Section 111 (2), which is in Ch 7 of the Act, provides: "The provisions of this Part apply in addition to the provisions of chapters 3, 4 and 5." (Emphasis added). 33 In the plaintiff's submission the Magistrate, wrongly, considered the source of her power to be found in s 70 because of a view that the provisions of Ch 5 applied by virtue of s 111(2) to applications brought under Ch 7. It is not clear that the Magistrate did err in this respect. At an earlier point in her published reasons for judgment she correctly stated the terms of s 111(2) of the Act. As I understand the basis of her reasoning it was that there was some degree of "interplay" between the provisions of Ch 5 and Ch 7. In this respect her Honour observed that the note to s 118 (which I have set out at [27] above) contemplates that the Court may monitor an order giving effect to an alternative parenting plan. The power to monitor orders concerning parental responsibility is found in s 82, which is in Ch 5 of the Act. 34 Whatever recourse may be had to the note to s 118 as an aid to interpretation of the Act, I consider that the express terms of s 70 do not admit of an interim order allocating parental responsibility to the Minister on an application brought under Ch 7. Such an application is not a care application and an order approving or giving effect (or partial effect) to an alternative parenting plan is not a care order as that expression is defined for the purposes of Ch 5 of the Act. 35 As I have noted, the Magistrate determined that the power to make the order may be derived from s 15 of the Children's Court Act 1987. That section provides: " 15 Order of the Court The Court may, in relation to all matters in respect to which it has jurisdiction, make such orders, including interlocutory orders, as it thinks appropriate." 36 The scope of s 15 of the Children's Court Act 1987 was considered in George v Children's Court of New South Wales [2003] NSWCA 389; 59 NSWLR 232. In that case the Court affirmed the decision of Grove J quashing a contact order that required the Department to pay the rail/bus fares and reasonable accommodation expenses of the parents of a child as being beyond power. Ipp JA (in a judgment with which Sheller JA and McColl JA concurred) examined the provisions of the Act and concluded at [138] – [139]: "In my opinion, the Children and Young Persons (Care and Protection) Act 1998 provides exclusively and exhaustively for the relief the Children's Court may order arising out of obligations imposed on the Director-General (and the Minister) by that Act, and that Act imposes limitations on the power of the Children's Court to grant such relief. Accordingly, neither s 15 of the Children's Court Act 1987 nor any power implied from any of the legislation to which we were referred extends the powers of the Children's Court to grant relief arising out of obligations imposed on the Director-General (and the Minister) by the Children and Young Persons (Care and Protection) Act 1998 beyond the powers of the Children's Court that are contained in the Children and Young Persons (Care and Protection) Act 1998." 37 The Court in George examined the provisions of the Act that imposed obligations both on the Director-General and the Minister and which imposed limitations on the power of the Children's Court. After referring to the judgment of Brennan J in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 and to more recent decisions of the High Court touching on the scope of s 23 of the Federal Court of Australia Act 1976 (Cth), which is in similar terms to s 15 of the Children's Court Act 1987, Ipp JA said at 242: "[48] The question in the present case, therefore, is whether the Children and Young Persons (Care and Protection) Act 1998 provides exclusively and exhaustively for the relief the Children's Court is empowered to order arising out of the statutory duties and obligations imposed thereby, or otherwise imposes limitations on the power of the Children's Court to grant such relief. If the Children and Young Persons (Care and Protection) Act 1998 so provides, or imposes such limitations, s 15 of the Children's Court Act 1987 does not relevantly extend the powers of the Children's Court. [49] This question also resolves the issue whether the Children's Court had the implied power to make the challenged order. As Dawson J pointed out in Grassby v The Queen ((1989) 168 CLR 1 at 17) implied powers will be confined to 'so mush as can be further 'derived by implication from statutory provisions conferring particular jurisdiction''. Thus, if the Children and Young Persons (Care and Protection) Act 1998 provides exclusively and exhaustively as to the relief available, or imposes limitations which preclude the grant of relief in terms of the challenged order, there could be no implication of a power entitling the Children's Court to make the challenged order." 38 In the course of reviewing the provisions of the Act that confer power on the Children's Court to make orders otherwise than by consent and against the opposition of the Director-General Ipp JA said at 250: "[89] Section 118(1) provides that: 'the Children's Court may make such orders as it considers appropriate to give effect to a proposed alternative parenting plan or specified parts of the plan'. [90] The Children's Court is not given express power to make variations to an alternative parenting plan. Thus, in those instances where the Director-General is proposed to be a party to an alternative parenting plan, the Director-General's agreement to such a plan appears to be required before the Children's Court can make orders relating to matters that would be covered by such a plan (including contact between the parents and the child)". 39 Mr Cavanagh sought to defend the order by recourse to the principles that are to be applied in the administration of the Act and by reference to the duties that the Act imposes on the Director-General. Section 9 sets out the principles in these terms: "(a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents. (b) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances. (c) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person. (d) In deciding what action is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development. (e) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved. (f) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (g) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community." 40 Mr Cavanagh also called in aid the provisions of Pt 1 of Ch 3 of the Act, which deals with requests for assistance by a child or young person or others. Section 22 provides that if a person seeks assistance from the Director-General under Ch 3 the Director-General must provide whatever advice or material assistance (or make such referral) as the Director-General considers necessary to safeguard or promote the safety, welfare and well-being of the child or young person. 41 In written submissions Mr Cavanagh put it this way: "Nadya sought assistance from the Minister and thus effectively the Director-General. The Director-General, even if after delayed consideration, acted in a way consistent with the principles as outlined in section 9 and as required by s22 where 'accommodation for the homeless' young person is one of the services available to be provided. It would be bizarre to suggest that the Director-General could exercise discretion in a way that did not 'safeguard or promote the safety, welfare and well-being' of a younger person. In Nadya's case, to leave her homeless would be to ignore: the intention of Parliament; the proper interpretation of the Act; the principles stated in the Act; the requirement that the Director-General exercise discretion appropriately; the paramount interests of the young person; and even United Nations Convention on the Rights of the Child." 42 The statement of the principles to be applied in the administration of the Act set out in s 9 does not operate as a source of power for the making of the order: see Re Oscar [2002] NSWSC 453 at [12] – [14]. The provisions of Pt 1 of Ch 3 of the Act deal with requests for assistance made to the Director-General. The Director-General has a discretion with respect to the manner of the discharge of the duty that the Act imposes. These provisions do not assist in determining the power of the Children's Court to make an interim order allocating parental responsibility to the Minister on an application brought by a child or young person under s 116. 43 Parental responsibility, is defined under the Act to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. Section 164 imposes on the Minister responsibility for the provision of accommodation for any child or young person for whom the Minister has parental responsibility. 44 In light of the reasoning in George I am not persuaded that the power conferred by s 15 of the Children's Court Act 1987 authorises the Children's Court to make an interim order allocating parental responsibility to the Minister on an application such as this. The Act provides exclusively and exhaustively for the orders that the Children's Court may make with respect to the allocation of parental responsibility to the Minister including the making of interim orders. 45 Mr Cavanagh's principal contention was that in the event the Court was satisfied that jurisdictional error had been demonstrated it should decline in the exercise of discretion to grant the plaintiffs the relief that is sought. In his submission the subject matter of these proceedings is academic. The order allocated parental responsibility for Nadya to the Minister until 8 July 2004. The Magistrate framed an interim order in circumstances of considerable exigency with a view to achieving a practical outcome that promoted Nadya's welfare. Whatever stance may have been taken by the Department and or the Director-General in the past the position that currently obtains is that the Department is now actively involved in Nadya's care. 46 I do not accept that the issue raised by these proceedings or the declaration that is sought is hypothetical. It remains the situation that the Minister has parental responsibility for Nadya by reason of an order made on Nadya's application to which the Minister did not consent and which is said to have been made without power. 47 I was informed, without objection, that Nadya had been residing until recently in a refuge known as "Youth Off the Streets" but that as the result of a break-down in these arrangements she is currently the sole occupant of a residence in which she is supervised by carers on a 24 hour basis. Mr Moore, who appeared for the plaintiffs, stated that whatever the outcome of these proceedings his clients propose to continue to provide accommodation and services for Nadya. 48 In Mr Moore's submission the proceedings raise an important question of principle touching on the jurisdiction of the Children's Court in proceedings brought by persons other than the Director-General under Ch 7 of the Act. The plaintiffs were said to have moved promptly to obtain advice and commence these proceedings. Necessarily there were delays in the matter coming on for hearing including by reason of the need for a person to be found who was willing to consent to act as Nadya's tutor. 49 The proceedings are next before the Children's Court on Thursday 4 November 2004. 50 I am persuaded that the order made by the Magistrate was beyond power. I consider that it is appropriate to grant the plaintiffs certain of the relief that is claimed in their summons. I propose to make the declaration that is sought and to quash the order that is the subject of challenge and which I understand to have been continued in the Children's Court. In prayers three and four of their summons, the plaintiffs claim orders prohibiting the first defendant from making certain orders. I do not consider it appropriate to frame orders in the terms sought. There is no reason to consider that a magistrate exercising jurisdiction in the Children's Court under the Act would make orders that are inconsistent with these reasons. 51 The plaintiffs did not submit that an order for costs should be made in the event that they were successful. Orders 1. Declare that the first defendant erred in law by allocating parental responsibility for the child, Nadya, to the first plaintiff until 8 July 2004, by order made at Toronto on 17 June 2004 (the order) in the absence of a care application by the second plaintiff. 2. Quash the order of the first defendant made on 17 June 2004 allocating on an interim basis parental responsibility for the child Nadya to the Minister. ********** Last Modified: 11/03/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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