Children's Court New South Wales Medium Neutral Citation: Department of Family and Community Services and the Jacobs children [2019] NSWChC 11 Hearing dates: 13 & 14 August 2019 Date of orders: 26 August 2019 Decision date: 26 August 2019 Jurisdiction: Care and protection Before: Children's Magistrate Stubbs Decision: The s 76(4) report was filed out of time and the Court has no power to extend time for the filing of the report Catchwords: CHILDREN - Care and Protection - supervision order made pursuant to s 76 of Children and Young Persons (Care and Protection) Act 1998 - late filing of the supervision report ordered pursuant to s 76(4) - effect of lateness - finality of litigation and the extinguishment of jurisdiction beyond the date of the supervision order - extension of time for filing of the supervision report not permissible Legislation Cited: Children's Court Rule 2000 Children and Young Persons (Care and Protection) Act 1998 Children's Court Act 1987 Interpretation Act 1987 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 DJL v The Central Authority (2000) 201 CLR 226 Esso Research & Engineering Company v Commissioner for Patents (1959) 102 CLR 347 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 Saraswati v The Queen (1990-91) 172 CLR 1. Category: Procedural and other rulings Parties: The Secretary The mother The father The children Representation: Mr M Whelan, solicitor, for the Secretary Ms Smith, solicitor for the mother Ms Ito, solicitor for the father Ms Moran, solicitor for Emma Ms Adams, solicitor as Direct Legal Representative for Holly Ms Alexander, solicitor as Direct Legal Representative for Lizbeth File Number(s): 2017/200481 Publication restriction: Pseudonyms have been used to anonymise the children and parties Judgment Introduction 1. The substantive proceedings in the Children's Court of New South Wales involving the children the subject of the present application have had a long history. 2. The subject children are Emma Jacobs, presently aged 20 years, Lizbeth Jacobs presently aged 13 years, and Holly Jacobs, aged 11 months. 3. For convenience, the Children and Young Persons (Care and Protection) Act 1998 will hereafter be referred to as the Care Act, and the aforesaid children, by either their first names or collectively as "the children". 4. Final Orders earlier issued in respect of the children on 23 September 2010. A s 90 Care Act Application was filed on 20 December 2016 5. The children's mother is Krystal Jacobs. Their father is Norman Keets and their carer at the date the s 90 Application was filed was Barbara Keets. The matter most recently proceeded to Final Orders which issued in respect of the children on 14 August 2017. The 14 August 2017 Final Orders 1. Final Orders issued in respect of the children on 14 August 2017. These Orders shall hereafter be referred to as "the Final Orders". 2. The Children's Court there made findings that there was no realistic possibility of restoration of the children to the care of their father and that there was a realistic possibility of the restoration of the children to the care of their mother. 3. The Children's Court found that permanency planning for each of the children had been appropriately and adequately addressed pursuant to s 83(7) of the Care Act and the Children's Court approved the Care Plan filed 10 April 2017. 4. The Children's Court made the following Orders: 1. Pursuant to s 90(7) all previous care orders for each of the children are rescinded. 2. Pursuant to s 79(1)(a) parental responsibility for each of the children is allocated solely to the mother Krystal Jacobs to the exclusion of the father, until each child attains the age of 18 years. The court notes that Order 3 is replicated for some reason in Order 4. 1. Pursuant to s 76, each of Lizbeth and Halle is placed under the Supervision of the Secretary for a period of 12 months, the purpose of supervision is to support the restoration of the children and to monitor compliance by the mother with her undertakings. 2. Pursuant to s 76, each of Lizbeth and Halle is placed under the Supervision of the Secretary for a period of 12 months, the purpose of supervision is to support the restoration of the children and to monitor compliance by the mother with her undertakings. 3. Pursuant to s 76, Emma is placed under the Supervision of the Secretary until she attains the age of 18 years, the purpose of supervision is to support the restoration of the children and to monitor compliance by the mother with her undertakings. 4. Pursuant to s 73(1)(a), the Court accepts the following undertakings from the mother Kirsty Jacobs until each child attains the age of 18: 1. I will not denigrate or disparage the father to the children or in the presence of the children nor allow any other person to do so; 2. I will support the children's decision around re-engaging with the father when they express a wish to do so. 1. Pursuant to s 76(4) the Secretary shall file and serve a report within ten (10) months from the date of the Final Orders outlining the outcome of supervision and whether there is a need for further supervision or whether there is a need for further orders. 1. There were Notations attached to the Final Orders which have no bearing on the current issues before the Court. 2. Emma attained majority in 2017. 3. The Final Orders provided that a Report under s 76(4) of the Care Act was to be filed within 10 months of the date of the said Orders, by 14 June 2018. 4. The undertakings provided by the mother were intended to ensure that the children maintained a relationship with their father during the 12 month period following the Final Orders. The purposes of the supervision period were identified in the Final Orders as supporting the restoration of the children and ensuring the mothers compliance with her undertakings. 5. The purpose of the report or reports ordered were identified as to appraise the Children's Court, in timely fashion and prior to the end of the supervision period, how the restoration was progressing and whether the mother was complying with her undertakings not to denigrate the father in the presence of the children nor to allow anyone else to do so. 6. Both issues the subject of the supervision ordered are clearly matters of very significant import in relation to the safety, welfare and well-being of the children and constitute a very important part of the Children's Court's independent and what may be described as "supervisory" jurisdiction - that is, the production of a report or reports was intended to appraise the Court as to whether the objectives of supervision have been achieved. It is also an Order which, through the operative provisions of s 76, provides a mechanism whereby the Children's Court may make that information available to the Children's Legal Representative, facilitating quickly the said representatives ability to respond with any appropriate application as the best interests of the children may require. Section 76(4) of the Care Act: 76 ORDER FOR SUPERVISION (1) The Children's Court may, after inquiry, make an order placing a child or young person in relation to whom a care application (other than an application for a guardianship order) has been made under the supervision of the Secretary if it is satisfied that the child or young person is in need of care and protection. (2) In making an order under this section, the Children's Court must specify: (a) the reason for the order, and (b) the purpose of the order, and (c) the length of the order. (3) The maximum period of supervision under an order under this section is 12 months. (3A) Despite subsection (3), the Children's Court may specify a maximum period of supervision that is longer than 12 months (but that does not exceed 24 months) if the Children's Court is satisfied that there are special circumstances that warrant the making of an order of that length and that it is appropriate to do so. (4) The Children's Court may require the presentation of: (a) a report before the end of the period of supervision that states: (i) the outcomes of the supervision, and (ii) whether the purposes of the supervision have been achieved, and (iii) whether there is a need for further supervision in order to protect the child or young person, and (iv) whether any other orders should be made to protect the child or young person, or (b) one or more reports during the period of supervision that describe the progress of the supervision, or reports under both paragraph (a) and paragraph (b). (5) A copy of a report, or part of a report, presented to the Children's Court under subsection (4) and a copy of any medical or assessment report presented to the Children's Court may be given by the Children's Court to the legal representative of the child or young person to whom the report relates. (6) Despite subsection (3), the Children's Court may, of its own motion or on the application of the Secretary, and after giving the parties an opportunity to be heard, extend the period of a supervision order for such further period, that together with the period specified under subsection (3) or (3A) does not exceed 24 months in total, as it considers appropriate in all the circumstances. (7) The Children's Court may, of its own motion or on application by the Secretary, and after giving the parties an opportunity to be heard, revoke an order before the end of the period of supervision specified under subsection (3A) at any time after the expiration of the first 12 months of that period if it considers that there is no longer need for supervision in order to protect the child or young person. 1. Section 74 is not ambiguous. It permits a supervision order to issue once the court has jurisdiction arising from the Care Act, that is, once it has found the child or children are in need of care and protection. 2. Whether a Supervision Order will issue is discretionary. If that discretion is to be exercised the Court must comply with ss (2), specifying the reason, purpose and length of the Order. Whilst the time for a Supervision Order is (pursuant to ss (3)) expressed to be limited to 12 months, that time period (as qualified by ss (3A)), allows the Children's Court to extend the period of supervision to a maximum of 24 months if the Children's Court is satisfied that there are special circumstances that warrant the making of an order of that length and that it is appropriate to do so. A report or reports may be ordered in accordance with ss 4(a) or (b) and ss (6) entitles the Children's Court to extend a supervision order, either of its own motion or on the motion of the Secretary (after giving the parties an opportunity to be heard), for a further period subject to the total period of supervision not exceeding 24 months. The number of reports that may be requested by the Court is discretionary and will be informed by the extent to which the Children's Court is of the view that the Orders require supervision and the specific concerns the Court may have in relation to the matter: and that is a discretion which must be exercised in accordance with, as will be addressed, the objects and principles of the Care Act, and in accordance (inter alia) with the paramountcy principle. The discretions vested in s 76 are clearly wide, and are intended to allow the Children's Court to fashion an accountability regime which is appropriate to the myriad circumstances of the children who come before the Children's Court. 3. The purpose of the supervision order and reports required to be furnished are clearly identified in s 76: to inform the Court as to the outcomes of supervision, whether the purposes have been achieved and to consider whether further supervision is required. History of Present Application 1. It was not in issue that the supervision period expired on 14 August 2019. 2. Subsection 76(3) of the Care Act provides that the maximum period of a supervision Order is 12 months. Subsection 3A of s 76 further provides that despite ss (3), the Children's Court may extend the period of a Supervision Order, either of its own motion or on that of the Secretary, after giving the Parties an opportunity to be heard, to a period that does not exceed 24 months (so long as the period of extended supervision so ordered including the 12 month period specified in ss (3) does not exceed 24 months in total) as the Court considers appropriate in all the circumstances. 3. No extensions of time as contemplated under s 76(3A) were issued. 4. The Court was not provided with the s 76 Report by the 14 August 2019. Communications in Relation to the s 76 Supervision Order 1. An email was forwarded to the Registrar of the Children's Court on 28 August 2018. The Casework Manager sought an extension of time for the filing of the s 76 Supervision Report to 3 September 2018. An extension of time was granted by the Registrar simpliciter upon direction by the Children's Court Magistrate, that decision being made in Chambers. There was no order which issued from Chambers or otherwise purporting to continue or extend the period of supervision provided for in the Final Orders. What issued was an extension of time to file the supervision report required under the Final Orders. 2. The Direct Legal Representative (DLR) took issue with the granting of the extension of time, and argued that the extension granted was an Order which fell outside the 12 month period which applied by force of s 76(3) and the Final Orders then in place. It was further asserted that the extension of time was a variation of a Care Order and that an application to vary the Order was the appropriate course to extend time. 3. The s 76 Report was filed on 5 September 2018. 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. 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. Section 15 provides: 15 ORDERS OF THE COURT 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." The Children's Court does not have the inherent power of the parens patria 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. 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 of the 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. 2. 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, 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. 2. The Children's Court clearly has the power to entertain a Report filed pursuant to s 76(4): 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. 3. The Supervision Order in this matter was properly made: the Order, in respect of which the challenge to the extension of time was made in the present proceedings, issued in respect of the children Holly and Emma who had been found in need of care and protection, issued for a period of 12 months, and an Order was made for the provision of a supervision report 10 months from the date of the Final Orders. 4. In short, the question is clearly not whether the Court has the power to receive a s 76 Report but whether the power is able to be exercised because the time provided in s 76 for the reception of the Report has elapsed and the court 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). 5. Once the Children's Court is vested with jurisdiction, s 15 permits it to make such Orders (including interlocutory Orders) as it considers appropriate. 6. Jurisdiction, as contemplated in s 12, may be conferred by the Children's Court Act or any other Act, and clearly the primary source of such conferral is the Children and Young Persons Care and Protection Act 1998. 7. As noted, power and jurisdiction are juridical constructs which can have a considerable conceptual overlay. 8. 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 76(4) of the Care Act reflected in the Orders made in relation to the time at which the supervision 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 supervision Order or indeed outside the supervision period 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. 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." 1. At para [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." 1. 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." 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". 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. 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. 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. Section 10A 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. Cl 7 Children's Court Rule 2000 Cl 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 of the 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). 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. Section 71(1) 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. 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 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. 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. Section 69 Interim Care Orders Section 70 Other interim orders Section 73 Order accepting undertakings Section 74 Order for the provision of support services Section 76 Order to attend therapeutic treatment Section 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, for example, requiring an order pursuant to s. 82 of the Care Act. Ch 6 – Children's Court Procedure 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. Section 94 of the Care Act 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, pro-action and well-being 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.) 1. 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 Orders of the Court and the progress of a child who is subject to Final Orders. In such circumstances it could not be persuasively argued that the Courts jurisdiction comes to an end when the oversight expressly provided in the s 76 supervision 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 76 and to take the steps provided in s 76 upon receipt of that report. 2. Subsection (4) of s 76 makes it clear that such report or reports are to be provided to the Court, and s 76 does not authorise the release of the report(s) to any of the parties to the proceedings except as specifically provided. That is, the Court may, in the exercise of its discretion, release the report to the child(ren's) legal representative. Section 76 provides a procedure for review of how the child is progressing under the Final Orders and Care Plan the Court has previously approved. That judicial oversight - the report being tendered to the Court - is intended to provide a mechanism to ensure the child(ren) the subject of the Orders are protected - ss (4) noting that the purpose of the report(s) ordered is to enable the Court to have the benefit of the Secretary's delegates view of whether further supervision is necessary to protect the child(ren), and the protective nature of s 76 was also specifically identified as the touchstone of whether the Court should exercise its powers to reduce a supervision order in the terms provided in ss (7). 3. It 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 supervision period has not expired, the Court or the Minister may make applications provided for in s 76 to extend the supervision order. 4. 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 76 report(s) allowing the information relevant to whether the purposes have been achieved and whether there is a need for any further supervision, coming to the attention of the Children's Court. That is why they are very common orders which issue as a component of Final Orders. 5. It is clear on the face of the legislation that, when the Final Orders are made containing a s 76 Order for the provision of a report or report, the Courts jurisdiction extends in accordance with the Final Orders, the report or reports are provided to the Court and the Court determines what action it may in its discretion take in respect of the report, as provided for in ss (5), and (7). 6. 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 requirement of the period of supervision, or the nature of the supervision required, or the criteria the supervision report was ordered to address, has not changed. An extension of time simpliciter for the filing of a supervision report which is granted by the Court does not operate to change the period in which supervision may be ordered under s 76, nor the period to which the report for which an extension was granted, relates. 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) of the 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. The Court finds that the time frame provided for in s 76 for a supervision 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 period of supervision statutorily constraining the Final Orders except as contained in ss 76 (6) and (7). No such considerations arise in the matter currently before the court. 3. Accordingly, and in accordance with the principles of statutory construction identified, extension of time for the filing of a supervision report, which details and records the matters identified in the supervision order pursuant to s 76(4), 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. The period for which the report relates is the period of supervision specified in the Final Orders as constrained by s 76. If the extension of time that was granted purported to extend the period of supervision, taking it (inter alia) beyond the period mandated in s 76, different considerations would apply. 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 time frames provided in s 76 provide express restrictions on the period of supervision. They are unqualified and mandatory. Section 76 also provides for the filing of a supervision report or reports prior to the expiration of the supervision period provided for in the final orders. Such report or reports were defined in accordance with the timeframe for supervision and as a matter of construction were evidently intended to ensure that the report was provided to the Court prior to the expiration of the period of supervision so the Court had open to it the steps in ss (6) and (7) of s 76. 2. Its proper construction, in this Courts view, is that a report provided is limited to the period identified in the Final Orders. That is, it is a report limited to the timeframes provided in ss (4) - in the present case, to the report as at 10 months after the final Orders issued. 3. That timetable, in short, is one which is defined by reference to the mandatory limits on the time for which a supervision order may be made by the Children's Court, and it is not a provision which should properly be construed as standing apart from that timeframe. 4. A power to extend time is contained in the Children's Court Rules. 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. 5. 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 supervision report was required under the s 76 Order. They related only to the date upon which the report was to be filed. 6. 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. It is clearly in the best interests of a child subject to a supervision Order that the contents of the supervision report are placed before the judicial officer. It would be an egregious outcome if the Court was not able to take cognisance of the content of a supervision report prepared for the time period contemplated in the Final Orders because that report had not been prepared within time. 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 timeframe for providing the report in s 76 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. If the interpretation pressed by the ILR 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 for filing the report or reports are machinery provisions relating to when the report is to be prepared and presented to the Court, and they define the time frame to which the supervision report is required to report. They are not "stand alone" provisions of an Order that have force and effect independently of their object and purpose within s 76 of the Care Act. The Construction of s 76(4) Care Act 1. As noted earlier, the scope and effect of s 76(4) 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 Galliano's, 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 of the 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 its judicial function. 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 trammelled 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 Rules 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 76 are intended to ensure that the Court obtains information it has considered necessary in the supervision order - and to permit a determination of whether there is any need for further supervision. It is open to construe the timetable provisions in s 4 as ones which are intended to ensure that the powers open to the Court in ss (6) and (7) may be exercised prior to the expiration of the supervision period and materially ss (5) enables the Children's Court to release all or part of such a report to the children's legal representatives. No time constraint is placed on when the Children's Court must take that step other than the logically compelling requirement that it was intended to occur in a manner timely enough to allow the statutory applications contemplated in s 76 to be made, but therein nothing in ss (4) which would preclude the Children's Court from providing it to the Children's legal representatives at any time, subject to the Court ceasing to have jurisdiction at the end of the supervision period such that it has no authorisation to act at all. 6. These considerations would have a significant and material bearing if the construction of the statutory provision related to powers which were to be exercised during the currency of proceedings. 7. However, the nature of the supervision order occurs at the end of the care proceedings and once the mandated time period in s 76 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. The Court is of the view, however, that the Court - noting the provision of the report is made expressly to the court and is not required to be provided to the parties - does have the power to extend the time for the provision of the report up until the expiration of the supervision period, as that may apply in the orders applicable to the specific matter before the Court, and that will not require any application to vary orders to be made by the Department. The Report is to be provided to the Court, not released to the Parties, 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. 8. The restriction on the Court that arises when jurisdiction ceases raises considerations that would not have applied if this issue had 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. 9. 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 supervision period has expired, and it may be a matter which the Department will need to give careful consideration in the event there are matters which identify risks to the child(ren) which are accordingly not put before the Court, and it may be that legislative amendment providing a discretion to extend where the report is delayed for some reason, preserving the rights otherwise provided for in s 76 to extend supervision, may be considered. 10. The Parties are to file any draft Orders 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: 27 April 2020