Children's Court New South Wales Medium Neutral Citation: Department of Family and Community Services (DFaCS) and Amber [2019] NSWChC 10 Hearing dates: 29 July 2019 Date of orders: 03 September 2019 Decision date: 03 September 2019 Jurisdiction: Care and protection Before: Children's Magistrate Stubbs Decision: The authority of the Court to act or to take any further steps in the matter expires at the end of the 30 day period which follows receipt of a s 82 Report filed within time Catchwords: CHILDREN – Care and protection – Reports under s 82 of the Care Act – effect of late filing of s 82 Reports – finality of litigation – when the jurisdiction of the Children's Court ends Legislation Cited: Children's Court Act (1987) Children and Young Persons (Care and Protection) Act 1987 Interpretation Act (1987) Children's Court Rule 2000 Cases Cited: Bailey v Marinoff (1971) 125 CLR 529 Bropho v Western Australia (1991) 171 CLR 1 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 185 Cooper Brooks (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 146 CLR 297 at 321, DLJ v The Central Authority (2000) 201 CLR 226 Esso Research & Engineering Company v Commissioner for Patents (1959) Jackson v Stirling Industries (1987) 162 CLR 612 ([1987] HCA 23) Kingston v Keprose Pty Limited (1987) 11 NSWLR 401 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Secretary, Department of Family and Community Services [2014] NSWSC 185 Category: Procedural and other rulings Parties: The Secretary The Mother The Father The Child Representation: Ms L Robertson, solicitor, for the Secretary Ms L Moran, solicitor, for the mother Mr Grant, solicitor, for the father Mr Chapman, solicitor, Independent Legal Representative for the child File Number(s): 2017/198766 Publication restriction: Pseudonyms have been used to anonymise the child and parties Judgment Introduction 1. The substantive proceedings concerning a child, Amber presently aged 5 years old hereafter "the child", commenced by way of a s 61 Application Initiating Care Proceedings filed 29 February 2016. 2. The child's mother is Rhonda and her father is Mark. 3. On 7 August 2017, the Children's Court made Final Orders in respect of the child. The Final Orders 1. On 7 August 2017 the Children's Court made findings that there was no realistic possibility of the restoration of the child to the care of either her mother or her father, and that permanency planning for the child had been appropriately and adequately addressed. 2. The Court Ordered: "1. Pursuant to s 79(1)(b) Children and Young Persons (Care and Protection) Act 1998 (hereafter "the Care Act") the child is hereby placed under the parental responsibility of the Minister, Department of Family and Community Services, until she attains the age of 18 years. 2. Pursuant to s 82 of the Children and Young Persons (Care and Protection) Act 1998 the Secretary shall prepare and file a report in five (5) months and eleven (11) months from the date of Final Orders detailing inter alia the following matters:- (i) The progress and implementation of the Care Plan (ii) The general suitability of the care arrangements for the child (iii) The frequency and form and quality of contact between the child and her father (iv) The frequency and form and quality of contact between the children (sic) and her mother (v) Any other issues". History 1. On 23 August 2018 a letter was forwarded by Mr Brett Gellwiler, Manager Casework, Community Services Centre, to the presiding Children's Magistrate. 2. Paragraph 3 of that letter provided: "A s 82 Report was due 7 December 2017, followed by a second report due on 7 July 2018. Regrettably, this report, being the report due to be filed within 5 months, is being filed late. We respectfully ask for an extension of time so that our second report may be filed in three months' time". 1. The Court notes that the first s 82 Report was to be filed within 5 months of the date of the Final Orders. That means that the first s 82 Report was due on 7 January 2018, not 7 December 2017, as asserted. The second s 82 Report was due to be filed 11 months from the date of the Final Orders, that being on 7 July 2018. 2. That letter proffered an apology to the Children's Court. Mr Gellwiler informed the Court that the s 82 Report which had been ordered to be filed on 7 January 2018, was late. That report was filed approximately 7 months and 3 weeks after the time provided for its filing in the Final Orders. That report was filed 23 August 2018 and was released by the presiding Children's Court Magistrate on 24 August 2018. 3. Mr Gellwilers letter further requested an extension of time for the filing of the 2nd s 82 Report, which the Final Orders directed be filed within 11 months of the date of the Final Orders (by 7 September 2018). The extension of time sought was for 3 months, by 23 November 2019. 4. The Court notes that the Final Orders were complete at the date of 11 months after the date of the Final Orders - that is by 7 August 2018. 5. The learned Presiding Children's Court Magistrate made Orders in Chambers: 1. Extension granted for second report to be filed on 23 November 2018; 2. Please notify parties of extension; and 3. Please diarise to ensure report filed on time. 1. The late filing of supervision reports and s 82 Reports by the Department had been an issue of considerable concern to the presiding Children's Court Magistrate. It is fair to say that it was an issue that had been directly raised with the parties for a substantial period of time prior to the very lengthy delay in this matter coming before the Children's Court. CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 - SECT 82 Report on suitability of arrangements concerning parental responsibility CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 - SECT 82 Report on suitability of arrangements concerning parental responsibility 82 REPORT ON SUITABILITY OF ARRANGEMENTS CONCERNING PARENTAL RESPONSIBILITY (1) The Children's Court may, when making an order other than a guardianship order in any care proceedings (the "relevant proceedings" ) allocating parental responsibility of a child or young person to a person (including the Minister) other than a parent, order a party to the relevant proceedings to prepare a written report concerning the suitability of the arrangements for the care and protection of the child or young person. (2) The report must: (a) be provided to the Children's Court within 12 months or such earlier period as the Court may specify, and (b) include an assessment of progress in implementing the care plan, including progress towards the achievement of a permanent placement, and (c) unless the Court orders otherwise, be given to each of the other parties to the relevant proceedings. (3) If, after considering the report, the Children's Court is not satisfied that proper arrangements have been made for the care and protection of the child or young person concerned, the Court may, on its own motion, conduct a review of progress in implementing the care plan (a "progress review") and re-list the matter for that purpose. (3A) Before conducting a progress review, and within 30 days of receiving the report, the Children's Court: (a) is to give notice of the progress review to each party to the relevant proceedings, and (b) may invite the party to give evidence and make submissions at the progress review, in relation to the progress in implementing the care plan, including progress towards the achievement of a permanent placement. Note : Section 98 provides that in proceedings with respect to a child or young person, the child or young person (among others) may appear in person or be legally represented. (4) The Children's Court cannot, however, rescind or vary the order, or make a new order allocating parental responsibility, on its own motion. 1. It is evident that the 1st s 82 Report, which was by Order required to be provided to the Children's Court within 5 months of the date of the Final Orders, that is, by 7 January 2018, was not only egregiously late, but was in fact filed outside the time period mandated in s 82(2)(a) of the Care Act - providing (2), namely the report must be provided to the Children's Court within 12 months or such earlier period as the Court may specify. 2. No earlier period was specified. 3. It was argued on the present Application that the extension of time was made ex parte, was outside the jurisdiction of the Children's Court as it was made outside the 12 month period mandated in s 82(2)(a) and further that the extension of time was either a care order or "an order in the nature of a care order" and accordingly required an application pursuant to s 90 of the Care Act. 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. (1AA) An application may be made by: (a) the Secretary, or (b1) the child or young person, or (c) a person having parental responsibility for the child or young person, or (d) a person from whom parental responsibility for the child or young person has been removed, or (e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person. (1A) Subject to any order the Children's Court may make, a person who makes an application under this section must give notice of the application to the persons who were parties to the proceedings in which the care order was made. Note : Section 256A sets out the circumstances in which the Children's Court may dispense with the requirement to give notice. (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 make an application to vary or rescind the care order, the Children's Court must consider the matters set out in subsections (2B) and (2C). (2B) The primary considerations are as follows: (a) the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views, (b) the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements, (c) if the Children's Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person. (2C) Additional considerations are as follows: (a) the age of the child or young person, (b) the nature of the application, (c) the plans for the child or young person, (d) whether the applicant has an arguable case, (e) matters concerning the care and protection of the child or young person that are identified in: (i) a report under section 82, or (ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150. (2D) The Children's Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process. (2E) Without limiting subsection (2D), the Children's Court may dismiss an application for leave under this section if it is satisfied that: (a) the application has no reasonable prospect of success, and (b) the applicant has previously made a series of applications for leave under this section that the Court has dismissed. (3A) If: (a) an application is made to the Children's Court by a person or persons (other than the Secretary) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and (b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and (c) the Secretary is not a party to the proceedings, the applicant must notify the Secretary of the application, and the Secretary is entitled to be a party to the application. (4) The Children's Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (1AA) (e) unless it considers the person to have a sufficient interest in the welfare of the child or young person. (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 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) the age of the child or young person, (b) the views of the child or young person and the weight to be given to those views, (c) the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements, (d) the strength of the child's or young person's attachments to the birth parents and the present caregivers, (e) the capacity of the birth parents to provide an adequate standard of care for the child or young person, (f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded. (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. (8) On the making of an order under subsection (7), the Children's Court must cause notice of the order to be served on the Secretary. (9) This section does not apply to an application to vary an interim care order. Note: Section 90AA provides for applications to vary interim care orders. 1. The s 82 Reports are by their nature, and self-evidently, a critical part of the supervisory jurisdiction the Care Act contemplates is to be exercised by the Children's Court. It empowers the Children's Court in any care proceedings where parental responsibility has been allocated to a person other than the subject child or young persons parent, to order a party to the proceedings to prepare a report concerning the suitability of the arrangements for the care and protection of the child or young person. That report may well address critical issues, assessing the progress that has occurred to the date of the report in implementing the Care Plan, a document central to the placement and safety, welfare and well-being of the subject child. It includes (as appropriate for the child(ren) or Young Person(s) the subject of the Final Orders (inter alia) identification of any specific needs identified in the Care Plan and its proposals for addressing those needs, commonly, by way of illustration, relating to specific medical treatment and medication, contact with parent(s) and/or siblings, or other family members, culturally appropriate engagements for the child(ren) or young person(s), their educational needs, counselling, psychological or psychiatric services, supports to assist the carers, and such other myriad matters, as the content of the Care Plan identifies and addresses. Section 82(2)(c) provides that (subject to the discretion of the Children's Court) copies of the report are to be given to each of the parties other than the party who prepared the report. 2. If the Court is not satisfied that proper arrangements have been made for the care and protection of the child(ren) or young person(s) the subject of the Final Orders, the Court may of its own motion, and within 30 days of receiving the s 82 report, give notice to all parties of the Court's intention to conduct a review of progress of implementing the Care Plan, and in the Court's discretion, may invite the party to give evidence and make submissions at the progress review, including progress toward the implementation of a permanent placement of the child(ren) or young person(s). 3. It is contemplated that the Children's Court may extend the jurisdiction of the Children's Court beyond the period of 12 months from the Final Orders. Section 82 requires the provision of the Report within 12 months of the Final Orders, or such earlier period as the Court may specify. 4. As a matter of statutory construction, s 82 is open to a clear interpretation that so long as the Court receives the report within 12 months from the date of the Final Orders, and if the Children's Court is not satisfied that proper arrangements have been made for the care and protection of the child(ren) or young person(s), the Children's Court has a period of 30 days in which it may (of its own motion) conduct a review of progression implementing the Care Plan, and may relist the matter for that purpose. 5. On 7 August 2017, the Children's Court made Final Orders in respect of the child. Jurisdiction Generally and the Scope of the Protective Jurisdiction of the Children's Court The Children's Court Act 1987 1. The Children's Court of NSW is a statutory Court constituted by and under the Children's Court Act 1987, hereafter the Children's Court Act. 2. Part 3 deals with the jurisdiction of the Children's Court. 3. Section 12 provides: 12 JURISDICTION GENERALLY (1) The Court shall have such jurisdiction as may be conferred or imposed on it by or under this or any other Act. (2) The Court may exercise its jurisdiction throughout the whole of New South Wales. 1. Section 15 provides: 15 ORDERS OF THE COURT (15) The Court may, in relation to all matters in respect of which it has jurisdiction, make such orders, including interlocutory orders, as it thinks appropriate. 1. The Children's Court is a statutory court and it must identify the powers it exercises within its own statutory provisions or those of the legislation conferring jurisdiction upon it. In DJL v The Central Authority (2000) 201 CLR 226 at [24], the Court held that a court exercising jurisdiction or power conferred by statute has those "powers expressly or by implication conferred by the legislation which governs it" and, notably, that the extent and scope of those powers "is a matter of statutory construction" and further that a statutory court has those powers which are incidental and necessary to the exercise of the jurisdiction or powers so conferred." 2. The Children's Court does not have the inherent power of the parens patriae jurisdiction of the Supreme Court: and as a statutory court, the exercise of any judicial function must be grounded in the enabling legislation, or any other Act purporting to confer jurisdiction upon the Court. 3. The question of the nature and scope of the powers conferred, and accordingly whether the Children's Court has acted consistently with those powers, is an enquiry which requires the application of the principles of statutory construction as guided by s 33 Interpretation Act 1987 (NSW) and the approach mandated by the High Court in (inter alia) Bropho v Western Australia (1991) 171 CLR 1, and Saraswati v The Queen (1990-91) 172 CLR 1. 4. There is a distinction between questions of jurisdiction and power, although the questions frequently overlap. As Toohey J made clear in Jackson v Stirling Industries (1987) 162 CLR 612 ([1987] HCA 23), at para 3 of his Honours judgment, his Honour cited Halsbury's Laws of England, approving the proposition that: "By jurisdiction is meant: " ... the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision." (Halsbury's Laws of England, 4th ed., vol.10, par.715.)" 1. That may be distinguished from jurisdictional questions which are raised where a court, vested with authority to act (ie where it has subject matter jurisdiction), exercises powers in a way which is asserted to exceed its authority - as arose in Jackson v Sterling Industries (supra), which addressed the question of whether the Federal Court had power to issue a Mareva injunction to restrain removal of assets from the jurisdiction to negate enforcement of judgment. The Federal Court had subject matter jurisdiction conferred under the Trade Practices Act 1974 (Clth), and the question was whether it had the power to issue a Mareva Injunction to prevent a party removing assets outside the reach of the Courts and enforcement. 2. The Children's Court clearly has the power to entertain a Report filed pursuant to s 82: the question is whether it has the authority to do so considering the statutory time period within which the said report was mandated to be filed has expired. Order (2) of the Final Orders was self-evidently an Order within the power of the Court to issue when the Final Orders were made on 7 August 2017. 3. In short, the question is clearly not whether the Court has the power to receive a s 82 Report but whether the power is able to be exercised in the instant matter because the time provided in s 82 for the reception of the Report has elapsed and the Court accordingly no longer has authority to take cognisance of matters presented to it. This may be identified as a question of jurisdiction in the sense identified in Halsburys Laws of England and cited by his Honour Toohey J in Jackson v Stirling Industries (supra). 4. Once the Children's Court is vested with jurisdiction, s 15 permits it to make such Orders (including interlocutory orders) as it considers appropriate. 5. Jurisdiction, as contemplated in s 12 of the Children's Court Act, may be conferred by the Children's Court Act or any other Act, and the primary source of such conferral is the Children and Young Persons Care and Protection Act 1998. 6. As noted, power and jurisdiction are juridical constructs which can have a considerable conceptual overlay. 7. It is well established law that once a matter has been decided, and an Order drawn up as a record of the Court, the matter has been decided and will not be able to be re-opened without good reason. This rule is a reflection of the strong public policy principles underlying the finality of litigation, but as the High Court made clear in Bailey v Marinoff (1971) 125 CLR 529, at 530: "Once an order disposing of a proceeding has been perfected by being drawn up as a record of the Court, that proceeding, apart from any specific and relevant statutory provisions, is at an end in that Court and is in its substance, … beyond recall by the Court." (Courts emphasis) 1. The qualification there contained is significant. The finality principle which generally attaches to orders being entered into the Court record is qualified by an exception which may arise from any specific and relevant statutory provisions. It becomes a question of statutory construction as to whether the failure to comply with express provisions contained in s 82 of the Care Act reflected in the Orders made in relation to the time at which the s 82 report or reports are to be filed will operate to preclude the Court from receiving any such report filed outside the time period provided in the Final Orders or ultimately outside the period of time mandated in s 82(2) of the Care Act itself. 2. Although the issue in CAC v Secretary, Department of Family and Community Services [2014] NSWSC 185 raised considerations of a different nature to that before this Court, CAC (supra) considered the Children's Court Magistrates specific exercise of the power to make an interim order against the backdrop of the objects and purposes of the legislation and the protective jurisdiction upon which the legislation is clearly predicated. 3. That is a different question to that which is raised in the present matter. The present matter raises the question of when the Courts authority to act - jurisdiction in what may be described as the "narrow" sense - ends. That is a different question to that raised when a challenge is made in respect of a courts "subject matter" jurisdiction (or powers sought to be exercised in respect of subject matter jurisdiction). Nevertheless, Lindsay J had some very helpful observations to make in relation to the approach to be taken to the statutory construction of the Care Act. 4. In CAC (supra) at [69], his Honour Lindsay J held that the statutory jurisdiction of the Children's Court is "governed by the purposive character of the protective jurisdiction exercised by each court and in aid of the welfare of minors, and by the principles which inform the protective jurisdiction, the chief of which are the paramountcy of the welfare of the particular children the subject of the proceedings." 5. At paragraph [74], his Honour held "the purposive, protective character of the jurisdiction exercised by the Children's Court in care proceedings and, incidentally, the complimentary roles of the first defendant and the minister, can be found explicitly provided for in Chapter 2 of the Care Act, entitled "Objects, Principles and Responsibilities". Part 1 (ss. 7-10) of that chapter identifies "objects and principles" that inform the operation of the Act generally. Part 2 (ss. 11-14), not applicable in the current proceedings, contains specific provisions relating to the care and protection of Aboriginal and Torres Strait Islander children. Part 3 (ss 15-19) identifies, at a very high level of abstraction, the general roles of the first defendant and the Minister in administering the Care Act and its ancillary business." 6. Relevantly, his Honour observed at para 76: "The protective purpose of the Children's Court jurisdiction is found embedded in several of the machinery provisions of the Care Act. Sometimes that is done by express reference, as found in the reference to s. 9(2)(c) in s. 79(3). At other times it is done, implicitly, by the use of language sympathetic to, or informed by, the Supreme Courts protective jurisdiction, as in s. 71(1). S. 71(1) provides that the Court may make a care order in relation to a child or young person who is "in need of care and protection for any reason" including particular reasons enumerated. The inherent, protective jurisdiction of the Supreme Court relating to children (expressly preserved by s. 247 of the Care Act) exists for the protection of these (including but not limited to minors) who are unable to protect themselves. It accords paramountcy to the welfare the person in need of care and protection. Its ambit cannot be exhaustively defined: see Secretary, Department of Health and Community Services v JWB and SMB ("Marion's Case) [1992 {HCA} 15; (1992) 175 CLR 201 at 258-259 citing inter alia Re Eve [1986] 2 SCR 388 407-417; (1986) 31 DLR 4th 1 at 14-21; Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; [1804] EngR 233; 38 ER 236 at 243 and Wellesley v Community Services; Re Thomas [2009] NSWSC 217 at [22] et seq." 1. The Court notes the following statutory provisions in relation to the nature and scope of the protective jurisdiction exercised by the Children's Court. CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 1. Section 7 of the Care Act provides: 7 WHAT IS THE ROLE OF THE OBJECTS AND PRINCIPLES OF THIS ACT? The provisions of this Chapter are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law". 1. Section 8 of the Care Act provides: 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. 1. Section 9 of the Care Act provides: 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. Section 10 of the Care Act provides: 10 THE PRINCIPLE OF PARTICIPATION (1) To ensure that a child or young person is able to participate in decisions made under or pursuant to this Act that have a significant impact on his or her life, the Secretary is responsible for providing the child or young person with the following: (a) adequate information, in a manner and language that he or she can understand, concerning the decisions to be made, the reasons for the Department's intervention, the ways in which the child or young person can participate in decision-making and any relevant complaint mechanisms, (b) the opportunity to express his or her views freely, according to his or her abilities, (c) any assistance that is necessary for the child or young person to express those views, (d) information as to how his or her views will be recorded and taken into account, (e) information about the outcome of any decision concerning the child or young person and a full explanation of the reasons for the decision, (f) an opportunity to respond to a decision made under this Act concerning the child or young person. (2) In the application of this principle, due regard must be had to the age and developmental capacity of the child or young person. (3) Decisions that are likely to have a significant impact on the life of a child or young person include, but are not limited to, the following: (a) plans for emergency or ongoing care, including placement, (b) the development of care plans concerning the child or young person, (c) Children's Court applications concerning the child or young person, (d) reviews of care plans concerning the child or young person, (e) provision of counselling or treatment services, (f) contact with family or others connected with the child or young person. 1. Section 10 of the Care Act provides: 10A PERMANENT PLACEMENT PRINCIPLES (1) In this Act: "permanent placement" means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person. (2) Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles. (3) The "permanent placement principles" are as follows: (a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship, (b) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person, (c) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted, (d) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law, (e) if it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b) or (d), the last preference is for the child or young person to be adopted. 1. Clause 7 of the Children's Court Rule 2000 provides: (1) The Court may, on any terms or conditions that the Court considers appropriate, extend or shorten any time fixed by this rule, or any judgment, decision or Order of the Court, for doing, or refraining from doing, any act or thing in relation to proceedings. (2) Time may be extended under this clause before or after time expires, whether an application for the extension is made before or after the time expires." 1. The Care Act provides express power on the Children's Court to make a Care Order. 2. A Care Order is defined under s 60 Care Act as an Order under Chapter 5 for or with respect to the care and protection of a child or young person, and includes an Order made on any of the grounds identify in s. 71(1). 3. Section 72 of the Care Act provides: 72 DETERMINATION AS TO CARE AND PROTECTION (1) A care order in relation to a child or young person may be made only if the Children's Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection: (a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and (b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders). (2) If the Children's Court is not so satisfied, it may make an order dismissing the application. 1. Section 71 of the Care Act provides: 71 GROUNDS FOR CARE ORDERS (1) The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following: (a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason, (b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection, (c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated, (d) subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers, (e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living, (f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children's Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service, (g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with, (h) section 171(1) applies in respect of the child or young person. (1A) If the Children's Court makes a care order in relation to a reason not listed in subsection (1), the Court may only do so if the Secretary pleads the reason in the care application. (2) The Children's Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of: (a) a parent's or primary care-giver's disability, or (b) poverty. (3) This section does not apply to or in respect of a contact order made under section 86 (1A) (b). Note : The Children's Court cannot make a care order in circumstances to which section 75 (2) applies. 1. The Children's Court also has power issue an interim care Order. 2. Section 69 of the Care Act provides: 69 INTERIM CARE ORDERS (1) The Children's Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined. (1A) The Children's Court may make an interim care order prior to determining whether the child or young person is in need of care and protection, if the Court is satisfied that it is appropriate to do so. (2) The Secretary, in seeking an interim care order, has the onus of satisfying the Children's Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility. Note: Section 49 makes provision for the care of children and young persons pending care proceedings. 1. Section 67 of the Care Act provides a clear statutory expression of the scope of the Courts powers to act in the best interests of the children, providing that the Orders which a court may make are untrammelled by the terms of a Care Application. 67 CHILDREN'S COURT ORDER NOT LIMITED BY TERMS OF CARE APPLICATION The making of a care application for a particular care order of the Children's Court does not prevent the Children's Court from making a care order different from, in addition to, or in substitution for, the order for which the application was made, provided all prerequisites to the making of the order are satisfied. 1. This is a further example of the latitude conferred on the Children's Court in relation to the import of "pleadings" on (by way of comparison) the general courts in the State and the flexibility conferred on the Children's Court under the Care Act to be able to act flexibly and not relevantly constrained by the terms of the Application in making Orders which are protective of and in the best interests of children who are before the Children's Court Care Jurisdiction. 2. Section 67A of the Care Act provides: 67A CONSECUTIVE CARE ORDERS (1) A care order has effect for the period specified in the order commencing on the date on which the Children's Court makes the order (or a later date specified in the order). (2) The period may be specified by reference to the occurrence of a future event described in the order. (3) Without limiting subsection (2), the Children's Court may specify that a care order is to take effect at the end of the period for which another care order has effect. 1. Part 2 of the Care Act makes provision for the types of Care Orders the Court may make. For example: S. 69 Interim Care Orders S. 70 Other interim orders S. 73 Order accepting undertakings S. 74 Order for the provision of support services S. 76 Order to attend therapeutic treatment S. 76 Order for supervision, which includes the power to order a report or report on the supervision of the child or young person Section 79A Guardianship order 1. The Court has the power to make ancillary orders, of which a s 82 Order is illustrative. 2. Section 93 of the Care Act provides: 93 GENERAL NATURE OF PROCEEDINGS (1) Proceedings before the Children's Court are not to be conducted in an adversarial manner. (2) Proceedings before the Children's Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit. (3) The Children's Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children's Court determines that the rules of evidence, or such of those rules as are specified by the Children's Court, are to apply to those proceedings or parts. (4) In any proceedings before the Children's Court, the standard of proof is proof on the balance of probabilities. (5) Without limiting subsection (4), any requirement under this Act that the Children's Court be satisfied as to a particular matter is a requirement that the Children's Court be satisfied on the balance of probabilities. 1. Section 94 provides: 94 EXPEDITION AND ADJOURNMENTS (1) All matters before the Children's Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person. (2) For this purpose, the Children's Court is to set a timetable for each matter taking into account the age and developmental needs of the child or young person. (3) The Children's Court may give such directions as it considers appropriate to ensure that the timetable is kept. (4) The Children's Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that: (a) it is in the best interests of the child or young person to do so, or (b) there is some other cogent or substantial reason to do so. The Unique Jurisdiction of the Care Act 1. It is evident that the Care Act exercises a unique protective jurisdiction. That is evident from the nature and purpose of the legislation, its express and overriding objective being to ensure that vulnerable people - children and young persons - receive the full protection of the Care Act, and its operation both judicially and administratively are governed by the overarching 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. The full import of the principles supporting efficient, timely, responses by the Court to the needs of the children who come before it, to ensure their care, protection and wellbeing are optimally supported during (and after) the Court proceedings, requires little amplification. The law is well settled and the express provisions of the legislation identified in this judgment allow only the conclusion that proceeds are to be conducted without undue regard for technicalities and legal form, and support a clear approach that the operation of express statutory provisions need to be interpreted against what is fair to describe as the strongly protective purpose and intent of the legislature. 2. If a Final Order issues and there is no order requiring the furnishing of a s 82 or s 74 Report, the jurisdiction of the Court ends and there is no authority vested in the Court to take cognisance of any other matters relating to the child or young person absent a further application brought pursuant to s. 61 (Application Initiating Care Proceedings) or s 90 (Application to Rescind Vary a Care Order) or such other specific application contained in the legislation. 3. As noted, Halsburys Laws of England defines jurisdiction as "the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision." (Halsbury's Laws of England, 4th ed., vol.10, par. 715.) 4. The protective jurisdiction of the Court clearly contemplates, and makes, express provision for judicial oversight when so ordered by the Court in respect of the implementation of the Care Plan and the progress of a child who is subject to Final Orders. In such circumstances it could not be persuasively argued that the Court's jurisdiction comes to an end when the oversight expressly provided in the s 82 order is made requiring the production of a report or reports to the Court. The Court clearly has the authority to take cognisance of the reports ordered pursuant to s 82 and to take the steps provided in s 82 upon receipt of that report. 5. Subsection (2) of s 82 is expressed in mandatory terms, providing that a Report issued under s 82 Care Act MUST be provided to the Court within 12 months or such earlier period as the Court may specify. Subsection 3A of s 82 of the Care Act provides a window of time of 30 days after receipt of any ordered s 82 report filed within the 12 month period mandated in ss (2) of s 82 for the Court to give notice to the parties of its intention to conduct a progress review in accordance with ss (3) and to relist the matter in accordance with ss 3A, and the progress review operates subject to ss (4), which provides that the Children's Court cannot rescind or vary the Final Orders, or make a new order allocating parental responsibility, on its own motion. 6. It is evident that the authority of the Court to act or to take any further steps in the matter expires either at the end of the 30 day period which follows receipt of a s 82 Report filed within time, and the last date any such order could be received is the 12 month period mandated in s 82(2). 7. The s 82 regime, akin to the powers conferred in relation to s 76 of the Care Act orders requiring Family and Community Services supervision, is a mechanism which clearly contemplates a procedure by which matters relating to the care and protection of the child may be brought before the Court and any issues of concern about the progress of the child's placement are to be placed before the Children's Court, and thereafter, at the Courts discretion, be provided to the legal representatives of the subject child. If the s 82 period has not expired, the Court may, of its own motion, initiate a progress review. 8. It is further evident that the safety, welfare and well-being of a child the subject of Final Orders is significantly enhanced by the procedures inhering in s 82 of the Care Act ordered report(s) allowing the information relevant to the progress that has occurred in implementing the Care Plan to be provided to the Court, and to provide a mechanism allowing the Court to institute a "progress review" if the Court considers that course appropriate. If a progress review is initiated by the Court, the Courts jurisdiction extends beyond the 12 month period mandated in s 82, to the end of the 30 day period of time conferred by s 82 (3A), followed by the period necessary for the progress review (if it is initiated) as further contemplated in ss 3A(b). 9. This is clearly an important component of the Courts supervisory jurisdiction and one which is central to the Court's overriding mandate to ensure the Objects of the Care Act, and further and in particular s 9(1), Principles for the Administration of the Act, being the paramountcy of the safety, welfare and well-being of the child or young person, are given optimal application. 10. It is clear on the face of the legislation that, when the Final Orders are made containing a s 82 Order for the provision of a report or reports, the Courts jurisdiction extends in accordance with the Final Orders, the report or reports must be provided to the Court within 12 months (an earlier date may be ordered) and the Court determines what action it may, in its statutory discretion, take in respect of the report, as provided for in ss (3) and (3A) as qualified by ss (4), of the Care Act. 11. It is also clear that the jurisdiction of the Care Act must be construed by reference to its express statutory principles and the protective jurisdiction it confers upon the Court. Is an Extension of Time a Variation of a Court Order 1. The Court, for the reasons which follow, rejects the proposition that an extension of time granted for complying with an order for supervision constitutes a variation of a Court Order. The Order itself remains materially and substantially unaltered. The period of time for which the Report is required remains unaltered. The nature of the criteria the report is to address remains unaltered and in the same form that the Court directed the report to address in the Final Orders. An extension of time simpliciter for the filing of a s 82 report which is granted by the Court does not operate to change the period to which the report on the progress of implementation of the Care Plan relates. 2. In Esso Research & Engineering Company v Commissioner for Patents (1959) 102 CLR 347 at 351, Fullagar J noted: "I think I would concede that a provision for 'extending' a prescribed period during which a thing may be done should prima facie be construed as operating only while the originally prescribed period is still current. It may even be said that, when the originally prescribed period has expired, there is nothing to 'extend'. But, while this view may be said to represent the most natural meaning of the word 'extend', that word is by no means incapable of a wider reference. It is by no means a misuse of language to speak of what is really the prescription of a new period as an 'extension' of the period originally prescribed. Cases are numerous in which the conferring on a tribunal of a power to 'extend' the time for doing a thing is accompanied by an express provision that an 'extension' may be granted although the originally prescribed period has expired.". 1. The conclusion that an extension of time operates as a variation of an order and requires an application to vary or rescind a court order pursuant to s 90 or any other form of Application would result in further proceedings involving the subject children, and would thereby be inconsistent with s 9(2)(c) of the Care Act (the least intrusive harm principle), s 93(2) Care Act, (the express statutory obligation to conduct proceedings in the jurisdiction with as little formality, legal technicality and form as the circumstances of the case permit), and s 94(1) of the Care Act, (that proceedings must proceed as expeditiously as possible to minimise the impact of the proceedings on the child). 2. However, that conclusion depends upon the Court being vested with an authority to act when the extension of time is granted, even if the time for compliance with the Order has passed. The Court finds that the time frame provided for in relation to a s 82 order (and the express provisions provided in relation to its extension) are mandatory and the Children's Court does not have the power to extend the 12 month period in respect of which the report must be provided and that this statutory mandatory period is qualified only by ss (3), (3A) and (4) of s 82. No such considerations arise in the matter currently before the Court. There was no determination that a progress review should issue because the reports had not been filed and that consideration could not have taken place within the 2 month period provided for in s 82(2) of the Care Act. 3. In accordance with the principles of statutory construction identified, extension of time for the filing of a s 82 report, which details and records the matters identified in the s 82 requirements contained in the Final Orders, does not in this Courts view constitute a variation of a court order, pro tanto where there is legislative provision for the extension of the date of compliance as in s 7 Children's Court Rule. That provision - conferring a very generous discretion in respect of the Courts power to vary dates for compliance with Orders, including after the period at which the Order was to have been complied with, does not treat an extension of time as an Order. Cl 7 of the Rules is contained in its ambit and availability to matters interlocutory in nature, that is, where the Children's Court is otherwise appraised of jurisdiction being the authority to hear and determine matters and take cognisance of matters presented in a formal way for its decision. The period for which the report relates is the period of the s 82 Report specified in the Final Orders as constrained by s 82 (3), (3A) and (4). If the extension of time that was granted purported to extend the period to which the Report was to encompass, taking it (inter alia) beyond the period mandated in s 82, different considerations would apply. 4. The time frames provided in s 82 provide express restrictions on the period to which the report in the implementation of the Care Plan relates. They are unqualified and mandatory. 5. Its proper construction, in this Courts view, is that a s 82 report is limited to the period identified in the Final Orders. That is, it is a report limited to the timeframes provided in ss 82(2) - in the present case, to the report as to be filed addressing progress in the implementation of the Care Report at the time specified to 5 months from the date of the Final Orders and in the second report ordered to the period of time from that date to 11 months from the date of the Final Orders. The court may grant an extension of time so long as that extension does not take the date for filing of the Report ordered in the Final Orders beyond the maximum 2 year period specified in s 82(2) of the Care Act. 6. That timetable, in short, is one which is defined by reference to the mandatory limits on the time for which a s 82 Report must be made with express and limited statutory provisions enabling jurisdiction to be extended if those additional criteria are met. ss (3) and (3A) operate to extend the jurisdiction of the Court to act beyond the 12 month period in s 82(2) of the Care Act only when those statutory preconditions are met. 7. A power to extend time is contained in the Children's Court Rule. However, the Rules are subsidiary to the Act and cannot operate to vary express time provisions in the enabling legislation in circumstances where those statutory time frames operate to extinguish the Courts authority to act further. 8. The extensions of time complained of in the present matter did not alter the terms of the report ordered or the period for which the s. 82 report was required. The extension related only to the date upon which the report was to be filed. Further, an extension of this does not fall within any statutory definition of the Care Act as an "Order" and it is to be construed in accordance with the principles of statutory cost traction earlier identified. 9. The conclusion that an extension of time does not constitute a variation of a court order is one which, in this courts view, is consistent with the overriding objectives of the Care Act and is consistent with its Objects and Purposes. It preserves the Courts supervisory role, whether in relation to a s 82 progress report in relation to the implementation of the Care Plan, or a Supervision Order under s 76. It is clearly in the best interests of a child who has Final Orders in place which require the Court to be updated in relation to the implementation of the Care Plan to have that update d information placed before the Children's Court. It would be an egregious outcome if the Court was not able to take cognisance of the content of a report addressing the implementation of the Care Plan prepared for the time period contemplated in the Final Orders because that report had not been prepared within time and if the Court was still appraised of its authority jurisdiction to act. There may well be matters of grave concern relating to the child that may be excluded or delayed from the contemplated judicial oversight if the report was not received and the steps contemplates - the report being able to be provided to the legal representative(s) of the child(ren) - if the time frame for providing the report in s 82 were construed as other than the machinery for bringing the matter back before the Court in accordance with the mandated timeframes extinguishing the Courts jurisdiction. In other words, if the Court still has jurisdiction to act - that is, the authority to hear and determine matters, and to take cognisance of matters brought before it - the fact that a report may have been directed in the Final Orders to have been provided by a specified date will not preclude the Court from extending that date so long as the date to which the provision of the Report has been extended does not go beyond the statutorily described time period mandated in ss (2), and if activated, ss (3) and (3A). If the interpretation pressed on the Court in argument that the Orders provide a date for the provision of a Report and that extending that date subject to the aforementioned constraint required an application to vary or rescind a court order under s 90 of the Care Act, was a correct one, it would inevitably involve delay, and would stand in stark and unfortunate relief against the statutory directive that all matters before the Children's Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person, noting in particular s 93: (1) Proceedings before the Children's Court are not to be conducted in an adversarial manner. (2) Proceedings before the Children's Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit. 1. It is open to the Court, and the Court so finds, the time provisions contained in s 82 define the time period in which s 82 Reports can be ordered to be provided to the Court. Subject to the Report being filed within the 12 month period, the Court may extend the date for the provision of the report beyond that which may have been identified in the Final Orders, so long as that extension does not purport to grant receipt of the Report to a date after the 12 month period from the date of the Final Orders. The Construction of s. 82 Care Act 1. As noted earlier, the scope and effect of s 82 of the Care Act is a question of statutory construction. 2. The contemporary and well established approach to interpreting the proper scope and operation of statutory provisions was clearly articulated by McHugh J in Kingston v Keprose Pty Limited (1987) 11 NSWLR 401 at 421. His Honour there held: "A rule of law enacted by statute consists of a proposition which gives rise to legal consequences when the act or omission of some person falls within the factual outline delineated by that provision. The difficulty is to determine whether Parliament intended a particular set of facts to fall within the factual outline of the proposition. That is the difficulty is to determine the ambit of the factual outline which parliament intended to enact." 1. In Saraswati v The Queen (1990-1991) 172 CLR 1 at 21, his Honour articulated this approach: "In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the 'ordinary meaning' to be applied. If, however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as the 'ordinary meaning' and cannot prevail. It must give way to the construction which will promote the underlying purpose or object of the Act …". 1. The approach of their Honours Mason and Wilson JJ in Cooper Brooks (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 146 CLR 297 at 321, the Court held: "The propriety of departing from the literal interpretation … extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions". 1. The Court also observed: "There are cases in which inconvenience of result or improbability of result assists the Court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute" and "departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency." 1. The High Court upheld the approach of McHugh J in Kingston v Keprose (supra) in Bropho v Western Australia (1991) 171 CLR 1. 2. The Court should interpret the statutory provision in a way which avoids an interpretation which could not have been intended by the Parliament, and that intent may be found in other express provisions of the Act, in this case, taking into account the broad protective jurisdiction, the paramountcy principle, the statutory directive for proceedings to be conducted without undue technicality or formality, and the statutory directive that matters proceed with expedition. 3. Further, this approach is now given express formulation in the Interpretation Act 1987. Section 33 provides: 33 REGARD TO BE HAD TO PURPOSES OR OBJECTS OF ACTS AND STATUTORY RULES In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 1. Hansard Debates emphasis the scope and purposes of the protective jurisdiction and operation of the Care Act, noting LA 5 March 2009 observations by the Minister for Community Services emphasising the need to make court processes more user friendly for children and their families, and concentrating the efforts of the specialist Children's Court on where it is imperative to have a judicial decision. 2. In interpreting the meaning of a specific statutory provision such as s 76 of the Care Act, the Act must be construed as whole. 3. The High Court held in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at para [68], "The primary object of statutory construction is to construe the relevant provision so it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision 'must be determined by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning the logic with which it is constructed.". Thus, the process of construction must always begin by examining the context of the provision which is being constructed.". 1. In short - an approach to the construction of a specific legislative provision cannot property occur without considering the sections which surround it, and the way in which the specific statutory provision in question is embedded in the overall structure of the Care Act itself. The Court should adopt a construction of the specific provision in question in a manner which is coherent, consistent and in accord with the purpose and objectives of the Act in which it is embedded, and which best promotes the express objects of the Act and the Court must also consider the consequences that a literal interpretation of the statutory provision would generate and consider whether that outcome is in accord with the legislative intention discredited from the other statutory provisions and any extrinsic material available in accordance with s 33 Interpretation Act. 2. The Court has noted the very strong protective jurisdiction conferred on the Children's Court pursuant to the Care Act. The Court has noted its overarching principle, the paramountcy principle, in guiding the Court in the exercise of both judicial and administrative functions. There are, as noted, express provisions of the Care Act which unequivocally direct the Children's Court in its conduct of proceedings before it: including (inter alia) the requirement for matters to proceed as expeditiously as possible, the requirement that the Court proceed without undue technicality or formality, that the Court proceed in a way which minimises the intrusion on the lives of any subject children, the Court is not trammeled by any due technicalities of pleading and procedure, noting the provisions of s 67 and the Children's Court Rule. 3. Whilst the Children's Court Rule are not able to operate to extend any power not expressly provided for in the Act, they are material which indicates the legislative intent that power be conferred on the Children's Court to avoid undue technicality and form as they generously confer a power upon the presiding judicial officer to extend any Order or date for compliance, even after the date has expired. 4. The language of the Care Act viewed as a whole clearly confers very significant powers and discretions on Children's Court Magistrates to take those steps necessary, to avoid undue technicality if necessary, to act expeditiously and to make decisions in relation to children and the conduct of proceedings which are predicated on the overarching touchstone of the paramountcy principle. 5. The provision of the reports provided for in s 82 are intended to ensure that the Court obtains information it has considered necessary in the progress and implementation of the Care Act. Its express statutory purpose is to bring the nature and success (or lack thereof) in the implementation of the Care Plan under judicial oversight, and to provide a mechanism allowing the Court to bring any concerns it has to the parties and the legal representatives of the child(ren) or young person(s) the subject of the Final Orders. It is open to construe the timetable provisions in s (3) and (3A) as ones which are intended to ensure that the powers open to the Court in those sections may be exercised prior to the expiration of the Court Orders, being 12 months from the date of the Final Orders, and are not ones which have any necessary standalone status apart from the function. That is, they are intended to 6. However by its nature, the s 82 order occurs at the end of the care proceedings and once the mandated time period in s 82 has expired there can be little conclusion open other than the Courts jurisdiction in the sense of its authority to act or take cognisance of matters which are sought to be put before it ceases at the time provided in ss (2) except as is qualified in ss (3) and (3A). To paraphrase Fullagher J in Esso Research & Engineering Company v Commissioner for Patents (1959) (supra) the time for doing a thing is here accompanied by an express provision that an 'extension' may be granted although the originally prescribed period has expired. The Court is of the view, however, that the Court does have the power to extend the time for the provision of the report up until the expiration of the 12 month period mandated in ss (2) that will not require any application to vary orders to be made by the Department for the reasons aforesaid. The Report is statutorily directed to be provided to the Court,, and such an approach is consistent with the principles conferring on the Court its powers to act expeditiously, without undue formality technicality, and to allow a report to be provided within time albeit after the date in the Final orders so the significant matters it contains can be out before the Court. 7. The restriction on the Court that arises when jurisdiction ceases raises considerations that would not have applied if this issue arisen in relation to a similar time provision applicable to interlocutory orders, for the reasons identified in the application of the principles of statutory construction. However, those principles of statutory construction cannot save the exercise of any power or preserve any right when the proceedings have come to an end and the Courts jurisdiction in the narrow sense - of its authority to determine matters or take cognisance of matters sought to be put before it - has expired. 8. It is a most unfortunate consequence as material that may be highly relevant to the safety, welfare and well-being of a child or children may be precluded from being acted upon by the Children's Court, even when the report is filed in a very short time period after the s 82 12 month period has expired, and it may be a matter which the Department will need to give careful consideration to the consequences which may flow in the event there are matters which identify risks to the child(ren) which are have not been put before the Court, in accordance with the Final Orders when the delay is a substantial one and it appears that the Reports have fallen into an administrative lacunae. There is, of course, no impediment to the Department )or the legal representatives of any party or child) bringing an application pursuant to s 90 as it would be prima facie hard to resist such an Application if the Orders had not been complied with (or proceedings for breach) as provision of that information would be likely to be considered necessary in relation to ensuring the paramount interests of the safety, welfare and well-being of the subject child(ren) or young person(s) are protected. However, such applications have been practically non-existent. despite very significant delays in the filing of reports, during the preceding 3 years, the Court has never received any application from any party in relation to the failure to comply with the report timetable and there have been some very extensive delays - sometimes in excess of 12 months - in filing s 82 Reports as well as s 76 Reports. This court has endeavoured to place steps in train to ensure accountability and responsively by the Department, including requesting that the Department notify the Court of any anticipated non-compliance with the Orders prior to the date of compliance, and further steps are necessary to ensure these important reports come before the Court within the time frame provided within the Orders. To fail to address this issue, which the Court appreciates is a function (inter alia) of Departmental resources, may well have the result that very important information relating to a child the subject of Care Proceedings may fall though the interstices of the system and may have serious consequences at it is inevitably also a failure not in keeping with the Principles for Administering the Act nor is it consistent with the Objects and Purposes of the Act. 9. The Parties are to file any draft Minute of Order they wish the Court to consider within 14 days and the matter will be relisted within 21 days by arrangement with the Registrar. ********** 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: 14 April 2020