Children's Court New South Wales Medium Neutral Citation: Department of Family and Community Services (DFaCS) and the Prince Children [2019] NSWChC 2 Hearing dates: 20 March 2019 Date of orders: 02 May 2019 Decision date: 02 May 2019 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: 1. The ILR has standing to bring an application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 for each of the children 2. The Children's Court has jurisdiction to hear and determine the application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 Catchwords: CHILDREN – Care and Protection – whether the child is in need of care and protection: s 90 Children and Young Persons (Care and Protection) Act 1998 Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Day and Dent Constructions Pty Ltd (in liq) v North Australian Properties Pty Lt (1982) 150 CLR 85 Department of Family & Community Services & the Slade Children [2017] NSWChC 4 Favetti Bricklaying Pty Limited v Benedek & Anor [2017] NSWSC 417 IW v City of Perth [1997] HCA 30 TF v Department of Family and Community Services [2015] NSWSC 694 Texts Cited: Statutory Interpretation In Australia (8th edition Pearce and Geddes) Category: Procedural and other rulings Parties: The Secretary The Mother The Father The Children Representation: Mr Braine, of counsel, for the Secretary Mr Spiers, solicitor, for the father Mr Whelan, solicitor, for Elliot and Thalia Prince as their Direct Legal Representative (DLR) Ms Wells, solicitor, for Amy Prince as Independent Legal Representative (ILR) Ms Peters, solicitor, for Brendan Prince as his Direct Legal Representative (DLR) The mother was self-represented Ms Miller, solicitor, for Liam Porter as Direct Legal Representative (DLR) File Number(s): 2017/277817 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties Judgment Background 1. On 15 March 2017 the Children's Court made final orders in relation to Liam Porter, born 2001, Brendan Prince, born 2002 and Thalia Prince born 2003 placing the children in the parental responsibility of the Minister for six months, and thereafter into the sole parental responsibility of their mother, Simone Porter, until the children turn 18. The Children's Court also made an order accepting undertakings from Ms Porter and Mr Jason Prince until the children each turn 18 years. Mr Prince is the father of Brendan and Thalia and their siblings, Elliot and Amy. 2. On 13 December 2017 the Children's Court made final orders in relation to Elliot Prince born 2005 and Amy Prince born 2008 placing both children under the joint parental responsibility of the Minister and their mother, Simone Porter for a period of twelve months, and thereafter into the sole parental responsibility of the mother, to the exclusion of their father, Mr Prince. The Children's Court also made an order accepting undertakings from Ms Porter, some of which were confined to 12 months and the remainder given until the children reach 18. 3. On both 15 March 2017 and 13 December 2017 the Children's Court also ordered reports to be filed pursuant to s 82 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act'). 4. Ms Porter lived in Queensland during the time the initial care proceedings were heard in the Children's Court. The children moved to Queensland at or around the conclusion of those proceedings and have remained resident in Queensland, living with their mother. The father of all the children except Liam, Mr Prince, resides in NSW. Liam's father has played no part in these proceedings. 5. On 18 September 2018 the Secretary filed a report pursuant to s 82 of the Act in relation to Amy and Elliot. In the Executive Summary of the s 82 report it states that: "The Secretary considers that the current orders are meeting the safety, welfare and wellbeing needs of Amy and Elliot ('the Children") and that there is no need to change the placement. The Children continue to settle in well in their mother's care alongside three of their siblings Brendan, Thalia and Liam." 1. Under the heading of 'Any other relevant issues' the Secretary writes that Community Services received a risk of significant harm (ROSH) report for Amy and Elliot that: "Ms Porter and Mr Vent's address (Mr Vent is Ms Porter's partner and he was living with Ms Porter and the children) was raided by Police at the start of July and there was a warrant for their arrest due to missing a court date on the 10 July 2018 for drug trafficking charges. Thalia was admitted to hospital for attempted suicide by cutting her own wrists and throat. Mr Vent openly states that he uses cannabis three times a day…he stores the cannabis on the top shelf of his wardrobe out of the reach of the children. Mr Vent and Ms Porter state that Queensland Police did conduct a search of the property but they state they did not find anything illegal at the house…." 1. Follow-up on the report by Community Services was that Mr Vent openly admitted to using cannabis three times a day. He and Ms Porter agreed to a Safety Plan that stated that they will both cease use of cannabis and will attend all urinalysis appointments and both will seek an appointment for drug and alcohol counselling. 2. The Registrar of the Children's Court wrote to the parties on 16 October 2018 enclosing a copy of the s 82 Report and notifying the parties that the Court had considered the Report and "is not satisfied that proper arrangements have been made for the care and protection" of Elliot and Amy. The Registrar's letter also invited the parties to make an application pursuant to s 90 to vary or rescind the orders. 3. On 19 October 2018 Ms Wells, solicitor, as the Independent Legal Representative of Amy in the initial care proceedings, lodged an Application for rescission of the orders in relation to all 5 children, and seeking that there be further orders allocating parental responsibility of the children to the Minister and that there be contact orders. 4. On 30 October 2018 the matter was first listed before the President of the Children's Court and he made an order of interim parental responsibility to the Minister in relation to all the children. Although on that day the Secretary raised the issue of Ms Well's standing to bring the Application and the jurisdiction of the Court to make orders given the children were now in Queensland those issues were not comprehensively addressed. Liam 1. Liam was born in 2001. He is in his final year of school and will be eighteen in approximately 8 weeks. It was submitted on his behalf that he was vehemently and absolutely opposed to a legal order being in place in relation to him and that the order in place was causing him stress and worry and interfering with his year 12 studies. In light of his age and his wishes, the Applicant did not press her application for leave regarding Liam and no parties opposed the dismissal of the application as regards Liam. 2. If the matter does proceed beyond the leave stage it is unlikely to be finalised before Liam is eighteen. Given Liam's age and his very strong opposition to the proceedings and order relating to him, there is little to no utility in proceedings relating to Liam. In all the circumstances the application for leave to bring a s 90 application for Liam was dismissed on 20 March 2019. Jurisdiction 1. Ms Wells, solicitor, has made an Application pursuant to s 90 of the Act for leave to bring an application to vary or rescind the care orders in relation to Amy, Elliot, Thalia and Brendan ("the children"). 2. The jurisdiction of the Court to entertain the Leave Application has been challenged in two aspects. 3. A determination as to the jurisdiction of the Court to hear this matter is a question of law. 4. The first challenge to the jurisdiction of the Court relates to Ms Well's standing to bring an Application pursuant to s 90 in relation to Elliot, Thalia and Brendan. 5. Ms Wells filed an Application pursuant to s 90 in her role as the Independent Legal Representative of Amy for the Application for a Care order filed pursuant to s 61 of the Act ('the initiating application"). It was this Initiating Application which resulted in the Final orders, the subject of this s 90 Application. In her affidavit sworn 19 October 2018 Ms Wells deposed that she received a letter from the Registrar of the Children's Court dated 16 October 2018 enclosing the s 82 Report dated 14 September 2018. The s 82 report and 16 October 2018 letter concerned Elliot and Amy. 6. In the Registrar's letter he wrote: "The Court has considered the report and is not satisfied that proper arrangements have been made for the care and protection of the children named in the report. The Court has requested that a copy of the report be sent to you and under s 82(3) of the Act, invites you to make an application under s 90 to vary or rescind the orders of the Court within 30 days of this letter." 1. This letter is a standard letter sent to the parties when the Court is not satisfied, on the basis of the content of the s 82 report, that proper arrangements have been made for the care and protection of a child. 2. Under the heading of 'Any other relevant issues' the Secretary writes that that Community Services received a risk of significant harm report for Amy and Elliot that: "Ms Porter and Mr Vent's address (Mr Vent is Ms Porter's partner and he was living with Ms Porter and the children) was raided by Police at the start of July and there was a warrant for their arrest due to missing a court date on the 10 July 2018 for drug trafficking charges. Thalia was admitted to hospital for attempted suicide by cutting her own wrists and throat. Mr Vent openly states that he uses cannabis three times a day…he stores the cannabis on the top shelf of his wardrobe out of the reach of the children. Mr Vent and Ms Porter state that Queensland Police did conduct a search of the property but they state they did not find anything illegal at the house…." 1. The s 82 report was sent by the Registrar to Ms Wells at the direction of the Court, as Ms Wells was Amy's Independent Legal Representative ('ILR') in the proceedings that resulted in the final orders being made. The challenge to Ms Wells' standing 1. The Secretary accepted the standing of Ms Wells to bring an application for Amy as she was her ILR. The Secretary argues however that Ms Wells has no standing in relation to Elliot, Brendan and Thalia as she did not represent those children in the initial proceedings. The Secretary submitted that the only person who could bring an application for Brendan, Elliot and Thalia (in addition to the Secretary, and any person who has or had parental responsibility for the children) was that child's own Direct Legal Representative ('DLR'). 2. The other parties submitted Ms Wells did have standing to file an application for Amy's siblings on behalf of Amy as she had a sufficient interest in the welfare of those siblings. Consideration of Standing 1. Section 90(3)(e) of the Act provides that an application for the rescission or variation of a Care order may be made with the leave of the Children's Court "by any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person." 2. Section 90(4) provides that the Children's Court is not required to hear or determine an application pursuant to s 90(3)(e) unless it considers the person to have a sufficient interest in the welfare of the child or young person. 3. Ms Wells was the legal representative appointed by the Court pursuant to s 99 (1) of the Act for Amy. Sections 99A(2) and 99B combine to result in Ms Wells' appointment being one as an Independent Legal Representative. 4. Ms Wells role as Independent Legal Representative is set out in s 99D(b) of the Act and includes: "…. (i) if a guardian ad litem has been appointed for the child or young person--acting on the instructions of the guardian ad litem, (ii) interviewing the child or young person after becoming the independent legal representative, (iii) explaining to the child or young person the role of an independent legal representative, (iv) presenting direct evidence to the Children's Court about the child or young person and matters relevant to his or her safety, welfare and well-being, (v) presenting evidence of the child's or young person's wishes (and in doing so the independent legal representative is not bound by the child's or young person's instructions), (vi) ensuring that all relevant evidence is adduced and, where necessary, tested, (vii) cross-examining the parties and their witnesses, (viii) making applications and submissions to the Children's Court for orders (whether final or interim) considered appropriate in the interests of the child or young person, (ix) lodging an appeal against an order of the Children's Court if considered appropriate." 1. Ms Wells standing to bring an Application for Amy is not challenged by any of the parties as she was Amy's Independent Legal Representative following the s 61 Application. There can be no doubt that Ms Wells as Amy's representative has standing to bring this application. If she did not it would result in a situation where children under 12, despite their party status in the s 61 Application, could not be 'the applicant' in a s 90 Application, though all other parties, including their siblings who are over 12, could. 2. I do not accept the Secretary's argument that only the representative of the child or young person (be that the DLR or the ILR) can bring an application in relation to the child they represent. If Ms Wells can satisfy the Court of the requisite interest in the other children then s 90 allows her to bring an application. Whether Ms Wells has the requisite interest is, of course, a question of fact. 3. The evidence establishes that: * Amy lives with her siblings. There is no evidence to suggest that there is anything other than the normal sibling relationship and care and concern siblings naturally have for one another. * Amy and her siblings live together with their mother and her partner. There has been a recent search of their home by police and Mr Vent admits to regular use of cannabis and storing the cannabis in the family home. This raises concerns about the welfare of Amy and the welfare of her siblings. 1. In addition, the evidence filed raises significant and ongoing concerns regarding the school attendance and health and welfare of Thalia, Elliot and Brendan. 2. The Court can accept that Amy would have a strong interest in the safety and welfare of her siblings with whom she currently lives. Ms Wells who is in effect the voice of Amy and the person representing her interests must thereby have a sufficient interest in the welfare of Amy's siblings to bring the application. 3. In these circumstances I consider that Ms Wells, as Independent Legal Representative of Amy has a sufficient interest in the welfare of each of the siblings as contemplated by s 90(3)(e) and has standing to bring this application. The application of section 4 of the Act 1. The second challenge made by the Secretary to the Children's Court's jurisdiction to hear and determine the s 90 application in this case is based on the argument that: 1. In order for the Children's Court to exercise jurisdiction in relation to a s 90 application, s 4 of the Act must be satisfied; and 2. Section 4 of the Act is not satisfied in relation to Brendan and Thalia who are in the parental responsibility of their mother and who permanently resides outside of NSW. 1. Section 4 of the Act sets out the children and young persons to whom the Act applies. It provides that 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. A "report" referred to in s 4(c) is defined in the Act to be a "report made under section 24, 25 or 27." These are reports concerning a child or young person at risk of significant harm (s 24), a pre-natal report that the child may be at risk of significant harm after birth (s 25) and a risk of significant harm report from a mandatory reporter (s 27). (Collectively referred to as a 'ROSH report'). Submissions 1. The Court did not have the benefit of detailed submissions on the question of jurisdiction. The Secretary's Submissions 1. The Secretary's initial submission to the Court was that there was no jurisdiction to bring a s 90 Application for any of the children. During the course of the hearing however the Secretary changed his position and submitted that there was jurisdiction in relation to Amy and Elliot as the Minister had parental responsibility as at the date of the s 90 application. The Secretary maintained his submission of no jurisdiction in relation to Brendan and Thalia who were in the parental responsibility of their mother, pursuant to a Children's Court order, at the date the s 90 Application was filed. 2. The Secretary argued, in relation to Brendan and Thalia, that neither s 4(a) or s 4(b) applied because final orders were made on 15 March 2017 placing them in the parental responsibility of the Minister until 15 September 2017 and then into the parental responsibility of Ms Porter with children living with their mother in Queensland since March 2017. The Secretary argues further that given the alleged self-harming behaviour of Thalia and the cannabis in the mother's household occurred outside of NSW, then neither is s 4(c) satisfied. The Children's Court not being satisfied that s 4 applies to Brendan and Thalia would therefore conclude that it has no jurisdiction to hear and determine the application of Ms Wells for leave to bring a s 90 application in relation to them. In making this submission the Secretary referred to the decision of Children's Magistrate Blewitt in the Department of Family & Community Services & the Slade Children [2017] NSWChC 4 ('the Slade Children') which determined, in a case with comparable facts to this case, that there was no jurisdiction because s 4 of the Act could not be satisfied. 3. The Secretary argues that if the current order of parental responsibility to the mother needs to be changed then the order can be registered in the Family Court and application made to that Court. Submissions on behalf of Elliot and Thalia 1. Mr Whelan, solicitor, as DLR for Elliot and Thalia submitted that there was jurisdiction to bring a s 90 Application regarding Elliot as he was the subject of an order of parental responsibility to the Minister at the time of the s 90 application. There was, he argued, no jurisdiction in relation to Thalia as s 4 was not satisfied in relation to her and specifically there was no evidence that there were any ROSH reports regarding Thalia. Submissions on behalf of Brendan 1. Ms Peters, solicitor, as DLR was not instructed in relation to the issue of jurisdiction. Submissions of Ms Porter 1. Ms Porter did not make submissions in relation to the issue of jurisdiction, though was clear throughout her submissions that the ongoing involvement of Community Services was neither necessary nor desirable. Submission on behalf of Mr Prince 1. Mr Spiers, solicitor, submitted that there was jurisdiction to hear and determine the s 90 Application in relation to each of the children. Submissions of Ms Wells 1. Ms Wells, solicitor, as ILR submitted that s 4 operates at the time of the Initial Care Proceedings and not at the date of the s 90 Application and therefore the Children's Court does have jurisdiction to hear and determine a s 90 Application for all four children. Reported Decisions 1. There are two reported decisions in relation to s 4 of the Act. TF v Department of Family and Community Services [2015] NSWSC 694 does not provide any guidance to the issue in this case as the facts are distinguishable in that the children, who lived interstate, were not subject to any orders from the Children's Court in NSW. 2. In the case of the Slade Children, three children were the subject of final orders of the Children's Court in 2009 placing the children in the parental responsibility of their grandmother. Shortly after the making of those final orders the grandmother and the children permanently relocated to Victoria. The grandmother continued to receive a carer payment from NSW Community Services. 3. Some eight years after the Final orders significant risk issues in relation to the care of the children arose and the children were no longer residing with their grandmother and the grandmother no longer wished to hold parental responsibility for the children. 4. Community Services filed proceedings seeking leave to bring an application pursuant to s 90 of the Act for an order of parental responsibility to the Minister with the intention of a transfer of that order to Victoria. 5. Children's Magistrate Blewitt found that, because at the time of the s 90 application, the children were not ordinarily resident in NSW, had not been in NSW since their move to Victoria and there had been no ROSH reports emanating from NSW since the final orders were made, s 4 of the Act was not satisfied and the Children's Court had no jurisdiction to entertain a s 90 Application. The result of the decision in the case of the Slade Children 1. The decision in the case of the Slade Children resulted in a situation where the person who was not looking after the children and who was not exercising parental responsibility for them and did not want parental responsibility was not able to relinquish that parental responsibility and the person who was in fact looking after the children and needed to have parental responsibility to be an effective parent, was not able to attain it. This outcome was contrary to the best interests of these children. 2. The decision in the case of the Slade Children, that s 4 had to be satisfied as at the date the s 90 Application was filed, could lead to the following adverse consequences for children subject to Children's Court orders but placed outside of NSW: * Orders that are no longer in the best interests of the child or indeed are contrary to the best interests of the child could not be varied or rescinded. The Children's Court regularly makes orders for children who are very young, orders that, unless varied or rescinded, are said to be in force, until the child attains the age of 18. Of course, over the course of childhood, the children's circumstances will change, their carers' circumstances will change and their birth family's circumstances will change. In this case there is an order accepting the mother's undertakings which includes for the mother undertaking until the children are 18 "to adhere to the recommendations of the Care Plans". Care Plans routinely refer to contact that is to be provided to the non-resident parent, siblings and extended family. Care Plans also routinely refer to counselling and other services with which the parent and child should engage. Leaving aside the wisdom of entering into such an undertaking, the fact is that it was given and was accepted and an order made accepting that undertaking. If the Children's Court does not have jurisdiction to release the mother from those undertakings or vary them, there being no other way of varying or rescinding them, the mother will be bound by them until the children are 18. What if the Care Plan had provided for the child to have unsupervised contact to a family member who has since been found be a person who poses a significant risk to the child? Similarly the Children's Court may have made a s 90A order preventing the child from having contact with a family member. If circumstances had changed so that it was now in the interests of the child to have contact and the child wished to have that contact and the requirements imposed by s 4 were not satisfied then the child could not have contact until 18. * Orders for the protection of children could be thwarted in their enforcement by a parent simply relocating to another State or Territory. * A positive change in circumstances will not be able to be reflected in a variation or rescission of the Children's Court order and this may result in the order being more intrusive than is necessary to safeguard the interests of the child. * If there was no transfer and the interstate authorities obtained orders in that State then this potentially could give rise to inconsistent orders. The result if the Secretary's submissions are accepted 1. It was submitted in these proceedings that the Children's Court had jurisdiction to hear and determine a s 90 Application in respect to Amy and Elliot because they were the subject of orders of parental responsibility to the Minister at the date of the Application for leave to bring an application to vary or rescind. However the two children for whom the Children's Court ordered parental responsibility to the mother, thus extinguishing the children's fathers' parental responsibility for the duration of the order, it was argued there was no jurisdiction. 2. There were no submissions made as to why one order of the Children's Court could be reviewed by way of a s 90 Application yet the other order could not. 3. The terms of s 4 focus on the circumstances of the child; the child's residence, whether the child was present in NSW or whether there was an event or circumstance in NSW in respect of the child that gave rise to a report of significant harm. 4. Section 4 does not refer to the parent or person holding parental responsibility. Section 4 does not refer to any connection to the person with parental responsibility being in NSW. 5. The only difference between the two sets of orders, in these circumstances, is that the person exercising parental responsibility for Amy and Elliot pursuant to an order of the NSW Children's Court (the Minister for Community Services) is in NSW and the person exercising parental responsibility for Brendan and Thalia pursuant to an order of the NSW Children's Court, is in Queensland. As s 4 is directed to the child's connection to NSW and not the parents' connection there is no basis on which to accept the Secretary's submission that there is jurisdiction for children in the parental responsibility of the Minister but not for the other children subject to final orders. 6. If this approach is correct and there is no difference in the application of s 4 between the types of final orders made by the Children's Court, then on the interpretation of s 4 urged by the Secretary the consequence for every child subject to a NSW Children's Court order who is not in NSW can never have that order varied or rescinded or enforced unless there is a ROSH report of an event or circumstance in NSW after the final order. (The exceptions will be if there is a parental responsibility order to the Minister which can be administratively or judicially transferred (and this requires the consent of the other State or Territory) or if the order can be registered in the Family Court.) If the order has become unnecessarily intrusive, or is no longer in the child's best interest or indeed if the order is contrary to the child's best interests, it will not be able to be varied or rescinded. If a parent has given an undertaking that is no longer appropriate or inconsistent with the child's best interest it will not be able to be varied or rescinded. 7. If this approach is not correct and as the Secretary submits there is jurisdiction for Amy and Elliot who are under the parental responsibility of the Minister but no jurisdiction for the children who are under the parental responsibility of the mother, then the Act will have constructed a system whereby children who are living in the same household, all of whom are subject to Children's Court orders, will not have the same opportunity to have their orders changed to achieve an outcome in their best interests, and this will be based solely on the type of Children's Court orders to which they are subject. 8. In Favetti Bricklaying Pty Limited v Benedek & Anor [2017] NSWSC 417 at [74] Bellew J summarised the principles to be applied to the task of statutory construction as follows: "(i) the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 381; [69] (per McHugh, Gummow, Kirby and Hayne JJ); (ii) the task of statutory construction begins and ends with a consideration of the (statutory) text: Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ; (iii) the text must not be read in isolation from the enactment of which it forms a part. To do so offends against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: K. & S. Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309; [1985] HCA 48 at 315 per Mason J (as his Honour then was). (iv) accordingly, the meaning of the provision must be determined by reference to the language of the instrument when viewed as a whole: Project Blue Sky at 381; [69]; (v) a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, such conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the result which will best give effect to their purpose and language, while maintaining the unity of the provisions as a whole: Project Blue Sky at 382; [70]; (vi) legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is their examination an end in itself: Consolidated Media Holdings at [39]; (vii) it is preferable to adopt a construction of legislation that will avoid a consequence which appears irrational or unjust: Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35 at 509; [48] per French CJ, Hayne, Crennan and Kiefel JJ; (viii) it is also preferable to adopt a construction that will avoid an absurd outcome or consequences: Minister for Immigration and Citizenship v Szizo & Ors (2009) 238 CLR 627; [2009] HCA 37 at 640; [35] per French CJ, Gummow, Hayne, Crennan and Bell JJ." 1. The objects and principles of the Act can be found in sections 8 and 9: "Section 8 What are the objects of this Act? The objects of this Act are to provide: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment Section 9 Principles for administration of Act (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. (2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows: (a) 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. (b) 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. (c) In deciding what action it 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. (d) 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. (e) 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's 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. (f) 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. (g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person." 1. The aim or purpose of the Act is to protect and advance the safety welfare and well-being of children. The objects of the Act include that children receive such care and protection as is necessary for their safety welfare and wellbeing. The principles of the Act include that the safety welfare and wellbeing of a child are paramount, that the least intrusive intervention is the course to be followed consistent with the paramount concern to protect the child from harm and promote the child's development and that children are entitled to a safe, nurturing stable and secure environment and unless contrary to the child's best interest to retain significant relationships. 2. The purpose, objects and principles of the Act apply to every child. 3. In the case of the Slade Children the interpretation of s 4 as argued by the Secretary resulted in a person who was neither willing nor able to exercise parental responsibility for the children being forced to retain it and the person who was willing and able to exercise parental responsibility was not able to, leaving the children without any person effectively able to make necessary legal decisions. This was most certainly contrary to their best interest and led to an irrational, absurd and unjust result. 4. On the construction of s 4 urged on the Court by the Secretary the Court would be in the position of not being able to vary or rescind its own orders for some children in relation to their care and protection. The Court would have no jurisdiction even if those orders were contrary to the child's best interest. Knowing that children's needs and circumstances change over time as do the circumstances of their parents and carers, it could not have been the intention of Parliament that those orders could never be varied or rescinded except in limited circumstances. Such a construction would be contrary to the objects and principles of the Act, would provide an irrational and sometimes unjust result and could result in leaving children at risk. If the Secretary's submissions were accepted then there would be issues of enforceability and differential treatment of children based on the types of orders to which they are subject. 5. Community Services argued that there are mechanisms to change orders of the Children's Court. In the limited number of cases, where there is a mechanism to change the orders then that mechanism is unwieldy and relies on other Courts or agencies. In this case there could be no judicial or administrative transfer of the orders of parental responsibility to the mother or in relation to the order accepting undertakings. 6. I have carefully considered the decision in the Slade Children upon which the Secretary relies in respect of Brendan and Thalia and find that the interpretation would likely have unintended adverse consequences for children and these are irreconcilable with the objects and principles of the Act. 7. Such an interpretation of s 4 cannot be supported if there is an alternative interpretation available which is consistent with the objectives and principles of the Act. 8. In Statutory Interpretation In Australia (8th edition Pearce and Geddes) the issue of beneficial legislation is addressed and it is noted that the Courts have adopted the broad approach that where an Act is curing some 'mischief' or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit. 9. In IW v City of Perth [1997] HCA 30 Brennan CJ and McHugh J "…beneficial and remedial legislation….is to be given a liberal construction. It is to be given 'a fair, large and liberal interpretation rather than one which is 'literal or technical'. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural." 1. Pearce and Geddes describe a sub-category of beneficial provisions, namely protective provisions and rely on Mason J in Day and Dent Constructions Pty Ltd (in liq) v North Australian Properties Pty Ltd (1982) 150 CLR 85 as authority for such provisions to be given "the widest possible scope." 2. In the case of the Slade Children the Secretary took a contrary position to the position they take in these proceedings and submitted that the Children's Court had jurisdiction. The basis of this submission was 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 then led to the final orders. Community Services argued that whilst there were current orders the "proceedings are still on foot" and s 4 does not limit the ongoing jurisdiction of the Court. 3. His Honour Magistrate Blewitt in the case of the Slade Children rejected that submission on the basis that there was no case authority for the proposition that when the Children's Court has made final orders allocating parental responsibility to the grandmother, notwithstanding Community Services still had some casework responsibilities, that the proceedings were still "on foot" insofar as the Court's involvement or jurisdiction is concerned. 4. "The proceedings" is the term commonly utilised for the case up to final orders. In that sense once the final orders are made the proceedings are no longer "on foot." However if there has been a final order, the order and its consequences for the child, will remain "on foot" whilst that order is in force. 5. The Children's Court must have proper regard to the nature of the jurisdiction under which the orders were granted and the nature of the original order itself. The orders were under the Act where the criteria for the making of the orders is the child's safety, welfare and well-being are the Court's paramount concern. It would be startling if an order made in relation to a child's welfare could not be the subject of review by the Court and be rescinded or varied if appropriate in cases where there has been a change of circumstances that affects the welfare of the child. The Court remains seised of the child's welfare during the course of proceedings and, accordingly, must have jurisdiction to, vary or rescind orders as required by the child's best interests as the Courts paramount consideration. Not to have such a power would be inconsistent with the overriding objective and principles of the Act. 6. An interpretation of s 4 that results in it being applied as at the date of a s 90 Application has the potential to produce irrational, absurd and unjust results because the Children's Court would not be able to vary or rescind its own orders for some children. The only interpretation of s 4 which would allow the Children's Court to vary or rescind orders it has made, on application pursuant to s 90, without excluding any children or category of orders, is that s 4 has to be satisfied at the time of the initiating application only, not at the date the s 90 Application is made. 7. Section 90 confers power to vary or rescind final orders if leave is granted and it is detailed in its provisions. Section 90 has express provisions about when an application can be brought and it does not exclude the interpretation that s 4 applies only to the initiating care proceedings. 8. Other provisions of the Act are consistent with the interpretation that s 4 applies at the time care proceedings are initiated not at the time of the Application pursuant to s 90. 9. Section 82 was amended earlier this year by the Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW). It was not in force at the time this s 90 Application was made, however, given s 4 has not been amended this is not relevant to the argument. 10. Section 82 provides the Court can order a report concerning the suitability of the arrangements for the care and protection of a child if it makes an allocation of parental responsibility to any person (including the Minister) other than a parent (s 82(1)). If the Court is not satisfied that proper arrangements have been made for the care and protection of the child the Court, may on its own motion conduct a progress review and re-list the matter (s 82(3)). The Court must give notice to the parties and can invite further evidence and submissions. (s 82(3A)). 11. Section 82(4) provides that: "The Children's Court cannot, however, rescind or vary the order, or make a new order allocating parental responsibility, on its own motion." 1. Section 82(4) implies that the Court can rescind or vary any order on application by a party. There is no suggestion that s 82(4) ceases to operate if the child is placed in another State or Territory. The order applies equally to an order of parental responsibility to the Minister as it does to an order of parental responsibility to the grandmother as in the case of the Slade children. Indeed there is no suggestion that the obligation to provide a report or the power of the Court to conduct a progress review or relist the matter ceases if the children are placed in another State or Territory. 2. Similarly s 76 contains provisions for reports during the life of a supervision order (s 76(4)). The Children's Court may of its own motion or on the Application of the Secretary, after giving the parties an opportunity to be heard, extend or revoke a supervision order (s 76)(6) and s 76(7)). 3. An alternate argument that s 76 and s 82 are the statutory exceptions to s 4 cannot be preferred as such an interpretation would restrict the categories of children who could have the benefit of their order being rescinded or varied and would also restrict the timeframe in which their orders could be rescinded or varied to the time frame allowed for s 82 and s 76 reports. These restrictions would not be consistent with the objects and principles of the Act. Does the Children's Court have jurisdiction? 1. I conclude that s 4 of the Act must be satisfied when the Initiating Application is filed but has no application when a variation or rescission of an order is sought pursuant to s 90. 2. On the date the Initiating Application was filed for these four children they were both resident in NSW and subject to ROSH reports from events and circumstances that occurred in NSW. The Children's Court made final orders and each of the children remain subject to those final orders. The Children's Court therefore has jurisdiction to hear and determine an application pursuant to s 90 of the Act for variation or rescission of the orders for Brendan, Thalia, Elliot and Amy. An alternative approach 1. If the conclusion I have reached is not correct then I would find that s 4(c) of the Act is satisfied in this case and the Children's Court has jurisdiction to hear and determine the s 90 application in relation to each of the 4 children. 2. The interpretation of s 4(c) which was adopted in the case of the Slade Children and which is urged upon the Court by the Secretary in this case is that the risk of significant harm report must have been made since the making of the orders which are sought to be rescinded or varied. It is common ground that in this case no such reports have been made. 3. There is however evidence that there were multiple risk of significant harm reports made to NSW Community Services relating to the children when they were in NSW before final orders were made. 4. Section 4(c) confers jurisdiction when a child is "subject to an event or circumstances occurring in NSW that gives or give rise to a report." In order to satisfy s 4(c) a connection between the child and an event or circumstances in NSW that gives or give rise to a report is required. 5. The phrase "… are subject to an event or circumstances" are words of broad meaning. There is nothing in the wording of s 4(c) which would confine it to an event or circumstances or a report which is immediate or recent or to confine it to a period after the making of final orders. It is possible to remain "subject to" an event even if that event occurred in the past. The term "subject to" requires that the connection remains or is currently operating. An example of this is that an order of parental responsibility for a baby made a decade ago is an order which the child remains "subject to" whilst that order continues to be in force. 6. Whilst there is a current order of the Children's Court the child is still subject to the report(s) that preceded the Initial Care Application which resulted in the final orders. If however, the Children's Court order had lapsed, then the connection would have been severed as it could no longer be said that that the child was subject to that event or those circumstances. 7. This interpretation of the Act is consistent with the objects and principles of the Act as it would allow the Court, on applications pursuant to s 90, to vary or rescind orders to reflect a child's best interest and it would not discriminate between children who are in the parental responsibility of the Minister and the parental responsibility of another person. 8. I acknowledge however that such an interpretation would exclude jurisdiction for children whose care orders were not made following a report. This may mean that the following categories of children who were subject to orders of the Children's Court but moved to another State or Territory would be excluded from the benefit of the possibility of having orders rescinded or varied: * Children whose care orders were made pursuant to s 38(2) of the Act * Children who came into care without a report. As an example there have been cases where children have been left at the offices of Community Services by parents who had been providing good care to their child but who decide they can no longer cope with their care * There is an insufficient nexus between the making of a report and the initiation of care proceedings. Findings 1. The ILR, Ms Wells has standing to bring an application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 for each of the children. 2. The Children's Court has jurisdiction to hear and determine the application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998. Amendments 27 May 2019 - coversheet - corrected representation paragraphs [6] and [20] - corrected pseudonym of Mr Vent 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: 27 May 2019