Department of Family & Community Services & the Slade Children [2017] NSWChC 4

Children's Court New South Wales

Medium Neutral Citation: Department of Family & Community Services & the Slade Children [2017] NSWChC 4 Hearing dates: 21 July 2017 Date of orders: 26 July 2017 Decision date: 26 July 2017 Jurisdiction: Care and protection Before: Children's Magistrate G Blewitt AM at Campbelltown Decision: Secretary's section 90 application is dismissed Catchwords: Care and protection – jurisdiction – transfer of proceedings Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (the Care Act) Cases Cited: TF v Department of Family and Community Services [2015] NSWSC 694 In the matter of Jackson [2003] CLN 3 Grassby v The Queen 91989) 168 CLR 1 Category: Principal judgment Parties: The Secretary, Department of Family and Community Services (FaCS) Direct Legal Representatives Independent Legal Representative Representation: Mr McGorey, instructed by the Crown Solicitor, for the Secretary Ms Corbin, Direct Legal Representative (DLR) for Charles Ms Stanford, Direct Legal Representative (DLR) for Monica Ms Turgut, Independent Legal Representative (ILR) for David File Number(s): 2017/00198949 Publication restriction: None. Pseudonyms have been used in order to anonymise the children and parties.

Judgment

Reasons for decision 1. These are unusual proceedings involving three children Charles (aged 15), Monica (aged 13) and David (aged 10). 2. Final orders were made by this court on 9 December 2009, allocating parental responsibility for the three children to the paternal grandmother (referred to as "the grandmother"), until the children attained the age of 18 years. 3. Subsequent to those final orders, and shortly thereafter, the grandmother and the three children moved to the State of Victoria and have remained there since. It appears that the NSW Department of Family and Community Services ("FaCS") has been providing financial support to the grandmother in Victoria since final orders were made almost eight years ago. 4. The grandmother has reported to the Victorian Community Services Department (Department of Health and Human Services – referred to as the "Victorian department") that she is struggling to control the behaviour of the two elder children, Charles and Monica, and in this regard at least 12 risk of harm reports have been made to that department, seemly by mandatory reporters. It is apparent that the children are absconding and running away from home, are exposed to drug abuse, at times are transient and homeless, and are at risk of physical harm. The children are listed in Apprehended Violence Orders as persons in need of protection. 5. Regrettably there is nothing particularly unusual about the above circumstances. 6. What is unusual is that it appears the Victorian department has adopted the position, which is supported by FaCS, that before the Victorian department can engage further with the family in Victoria by providing or taking over casework responsibilities, it is necessary for the NSW department to formally transfer the case management to Victoria. 7. In light of these circumstances and the risk of harm reports relating to the children, I find it extraordinary that the Victorian department is taking this position. I am not familiar with the Victorian legislation and none of the parties have relied on or referred this court to that legislation. I believe it was conceded by the parties, that if a similar situation occurred in NSW, FaCS would have the jurisdiction to intervene and if necessary bring proceedings before the NSW Children's Court utilising the provisions of the Care Act. 8. In any event, to achieve the formal transfer of case management, both State departments have agreed that this court must make appropriate orders which can then be transferred to the authorities in Victoria. The orders being sought are that the care orders made by this court on 9 December 2009 be rescinded, and that parental responsibility be allocated to the Minister. That order would then be transferred to the Victorian authorities. The grandmother appears to consent to this procedure. The Victorian department also supports the proposed procedure. 9. The vehicle by which the Secretary of FaCS seeks to achieve this outcome, is an application made to this court pursuant to s 90 of the Care Act, and such an application was filed in this court on 16 May 2017. 10. The issue I am required to determine, is whether this court has the jurisdiction to entertain the s 90 application having regard to the circumstances set out above. 11. I will return to this issue later in this decision, but it seems to me at the outset that there is a fundamental flaw in the proposed process. What this court is being asked to do, in effect, in the event that the s 90 leave application is successful, is to make a determination, in NSW, to revoke the previous orders based purely on events and circumstances said to exist in Victoria, and to make a fresh order allocating parental responsibility to the NSW Minister until the children attain the age of 18 years, so that the Minister could then transfer that responsibility to the equivalent authority in Victoria. The legal representatives of the two elder children have instructions to oppose the application so it would seem that a contested hearing will result if this court finds that it has the necessary jurisdiction and thereafter grants leave under s 90. It seems to me, however, that in these circumstances the s 90 application is ill-conceived and has not been lodged because there has been a significant change in a relevant circumstance but rather to overcome an administrative dilemma. 12. Having made this observation, there is the more central issue. Does this court have jurisdiction, in the circumstances, to entertain the application? 13. Mr McGorey, instructed by the Crown Solicitor, on behalf of FaCS submits that the Court does have jurisdiction. 14. Each of the three legal representatives for the children submit otherwise. Together with FaCS, they are the only parties involved in this application. 15. In particular the Secretary relies on the provisions of s 4 of the Care Act which provides: 4 Children and young persons to whom this Act applies The functions conferred or imposed by this Act and the regulations may be exercised in respect of children and young persons: (a) who ordinarily live in New South Wales, or (b) who do not ordinarily live in New South Wales, but who are present in New South Wales, or (c) who are subject to an event or circumstances occurring in New South Wales that gives or give rise to a report. 1. The Secretary submits that the relevant time for the application of the s 4 requirements is at the time the proceedings commenced at first instance, namely when the care proceedings were first commenced and which led to the final orders being made on 9 December 2009. The Secretary further submits that "whilst proceedings are on foot", s 4 does not limit the ongoing jurisdiction of this court. 2. This position begs the question, having made the final orders on 9 December 2009, are those proceedings still "on foot" for the purposes of s 4. 3. The Secretary provides no case authority for the proposition that under the current circumstances, where the Court made final orders allocating parental responsibility to the grandmother in 2009, notwithstanding that the Secretary or Minister still has some case work responsibilities, that the proceedings are still "on foot" insofar as the Court's involvement or jurisdiction is concerned. 4. In support of the Secretary's contention that the proceedings are still "on foot" it has been submitted that this court does have jurisdiction after final orders are made due to the express legislative provisions contained in s 90 of the Care Act, which gives the Court the express power to either vary or rescind existing care orders, if leave to do so is granted. 5. Reformulating the question posed in paragraph 17 above, does this court have the jurisdiction to entertain an application made under s 90 in circumstances where the children are not now ordinarily living in NSW or who are subject to an event or circumstance occurring in NSW that gives or give rise to a report? 6. Prior to the matter being listed for a submissions hearing on 21 July 2017, the Secretary had adopted the position that this court had jurisdiction by reason of s 4(c) of the Care Act, namely that the children were "subject to an event or circumstances occurring in New South Wales that gives or give rise to a report", the "report" being the final order made by this court on 9 December 2009. That argument appears to have been abandoned, however, Ms Corbin, the DLR for Charles, prepared written submissions based on this argument, and submitted that those final orders do not constitute a report for the purposes of s 4(c). 7. In this regard Ms Corbin relied on the definition of "report" in s 3 of the Care Act as comprising a report under s 24, s 25 or s 27 of the Act. Clearly, relying on the definition in s 3, the final order made by this court in December 2009 would not constitute a "report" for the purposes of s 4. 8. The question arises whether there has been any other "report" that would fall within the definition of s 3 that the children in these proceedings were the "subject to an event or circumstances occurring in New South Wales that gives or give rise to a report". 9. The relevant provisions of the three sections mentioned in s 3 are set out below: 24 Report concerning child or young person at risk of significant harm A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Secretary. 25 Pre-natal reports (given the ages of the three children in these proceedings, s25 does not have any application). 27 Mandatory reporting (1) This section applies to: (a) a person who, in the course of his or her professional work or other paid employment delivers health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children, and (b) a person who holds a management position in an organisation the duties of which include direct responsibility for, or direct supervision of, the provision of health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children. (2) If: (a) a person to whom this section applies has reasonable grounds to suspect that a child is at risk of significant harm, and (b) those grounds arise during the course of or from the person's work, it is the duty of the person to report, as soon as practicable, to the Secretary the name, or a description, of the child and the grounds for suspecting that the child is at risk of significant harm. (3) A person to whom this section applies satisfies his or her obligations under subsection (2) in relation to two or more children that constitute a particular class of children if the person reports that class of children to the Secretary together with: (a) a description that is sufficient to identify all the children who constitute the class, and (b) the grounds for suspecting that the children of that class are at risk of significant harm. 1. In the evidence filed in these proceedings, namely the three affidavits of the FaCS caseworker Amanda Wimalasiri, sworn on 3 July, 5 June and 16 May 2017, there is reference (e.g. paragraph 16 of the affidavit sworn 16 May and in paragraph 9 of the affidavit sworn on 5 June 2017) to risk of harm reports received by FaCS that could potentially be regarded as a report that would fall within the ambit of s 4. Copies of these risk of harm reports have not been filed in the proceedings before me. It is not clear, but it appears that these reports have not been made to the Secretary of FaCS, but rather to the Victorian department, which in turn has forwarded them to FaCS, or has informed FaCS about their contents. In other words, it is difficult for this court to determine whether they would constitute reports under s 24 or s 27 that have been made to the Secretary of FaCS. 2. Given the nature of the current application, if the Secretary wished to rely on s 4(c) to ground the jurisdiction of this court to make the orders sought, I would have expected at the very least there would have been an attempt to file such report(s) and to specifically refer to them as the basis of the Court's jurisdiction. This has not been done. 3. Accordingly, I cannot be satisfied that the Secretary has laid a basis, which forms the alternative thrust of the Secretary's submissions, for this court to find that this court can exercise the functions conferred or imposed by the Care Act in respect of children who are subject to an event or circumstance occurring in New South Wales that gives or give rise to a report pursuant to s 4(c). 4. This leaves the s 4(a) argument, that having regard to the circumstance that the three children ordinarily lived in New South Wales when the care proceedings were initially commenced and when the final orders were made on 9 December 2009, that the Court still has jurisdiction to entertain an application pursuant to s 90 of the Care Act. 5. This is not an easy question to answer. 6. Ms Corbin, DLR for the child Charles (in written submissions) and Ms Stanford, DLR for the child Monica, rely in their submissions on the Supreme Court decision in TF v FaCS [2015] NSWSC 694. Mr McGorey (for the Secretary) submits that the decision can be distinguished. I do not find that this decision assists this court to resolve the question set out in paragraph 28 above. Further I do not find that the other decision referred to in those submissions, In the matter of Jackson [2003] CLN 3, offers any guidance to answering the question in relation to s 90 applications. 7. The relevant provisions of s 90 are set out below: 90 Rescission and variation of care orders (1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court. (1A) ………………. (2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. (2A) Before granting leave to vary or rescind the care order, the Children's Court must take the following matters into consideration: (a)……….. (5) If: (a) an application for variation of a care order is made or opposed by the Secretary, and (b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children's Court,the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order. (6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration: (a) …….. (7) If the Children's Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so: (a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and (b) if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person. 1. Relying on the High Court decision in Grassby v The Queen (1989) 168 CLR 1, Mr McGorey submits that in addition to expressly defined powers, the Children's Court has powers as are necessary for the effective exercise of its jurisdiction and can amend, vary or rescind previous orders made by it that are necessary for the effective exercise of its jurisdiction. Mr McGorey also relies on the objectives and principles of the Care Act that are set out in s 8 and s 9 referring to the safety, welfare and wellbeing of children being the paramount consideration in the administration of the Care Act. 2. Even though the parties have not raised s 90(5) I believe it has some relevance to the circumstances of this case. It is necessary, in my view, to examine the application filed pursuant to s 90 in these proceedings to determine the grounds upon which the Secretary relies to establish that there has been a significant change in a relevant circumstance since the care order was made or last varied. 3. The first ground for leave in the application filed on 16 May 2017 is that the grandmother, who holds parental responsibility, and the children currently reside in Victoria and that the grandmother receives a carer payment from FaCS. Taking into account that these circumstances have existed for the last 7 and a half years, this ground would not in my view, constitute a significant change in a relevant circumstance. 4. The second ground for leave relates to FaCS and the Victorian department receiving multiple risk of harm reports in relation to the children. All of these risk of harm reports relate to relatively recent events in Victoria, not New South Wales. It may be argued that this constitutes a significant change in a relevant circumstance. It is clear, however, that it is a ground that has not previously been considered by the Children's Court. 5. The third ground for leave relates to the difficulties that FaCS has had in providing ongoing case management for this family in Victoria. Taking into account that this circumstance has existed for the last 7 and a half years, it would not in my view, constitute a significant change in a relevant circumstance. 6. The fourth and final ground for leave is that FaCS has not been successful in engaging the Victorian department in assessing and managing the risks posed to the children. It is this ground that has prompted FaCS to lodge the s 90 application in the first place, to achieve a formal transfer of parental responsibility from one department to the other. On one view, this would not amount a significant change in a relevant circumstance, but rather represents an administrative hurdle. As such it is a ground that has not previously been considered by the Children's Court. 7. If I interpret s 90(5) correctly, the second and fourth grounds for the s 90 application have not previously been considered by the Children's Court, which therefore requires that the ground must be proved as if it were a ground of a fresh application for a care order. 8. In my view one consequence of this situation is, if it is to be treated as a fresh application for a care order, the provisions of s 4 of the Care Act would then come into play, with the added consequence that this court does not have jurisdiction because the children do not ordinarily live in New South Wales, further the children are not present in NSW, and further they are not the subject to an event or circumstance occurring in NSW that gives rise to a report. 9. For the reasons set out above, I conclude that the Children's Court of NSW does not have jurisdiction to hear the s 90 application filed in these proceedings having regard to the provisions of s 4 and s 90(5) of the Care Act. 10. Accordingly, the s 90 application is dismissed for want of jurisdiction.