C D and Anor v Chief Executive, Department of Education and Community Services and Ors [2000] ACTSC 81 (6 October 2000)

Last Updated: 17 October 2000

C D and ANOR v CHIEF EXECUTIVE, DEPARTMENT OF EDUCATION AND COMMUNITY SERVICES and ORS [2000] ACTSC 81 (6 October 2000)

CATCHWORDS

CHILDREN - short care and protection orders - whether effective if no period stated in order - difference from interim orders - whether need for care and protection as defined in s 156 proven - discretionary factors - principles to be taken into account.

CHILDREN - whether conference with mother and grandparents a "family group conference" for the purposes of the Children and Young People Act 1999 - whether evidence of conversations at such conference inadmissible in proceedings for care and protection orders.

EVIDENCE - whether conference with mother and grandparents a "family group conference" for the purposes of the Children and Young People Act 1999 - whether evidence of conversations at such conference inadmissible in proceedings for care and protection orders.

Children and Young People Act 1999, ss 12, 151, 156, 168 180, 186, 187, 203, 207, 211, 217, 222, 224, 225, 279, 291, 297,380

Children's Services Act 1986, s 78

Magistrates Court Act 1930, Pt 11, s 214

Supreme Court Act 1933,s 20

Kelly v Apps [2000] FCA 687

L v Director of Family Services (1997) 22 Fam LR 275

Campbell v Fortey (1987) 85 FLR 462

Brown v Dunn (1893) 6R 67

Director of Family Services v Campione (1998) 83 FCR 63

APPEAL FROM THE CHILDREN'S COURT

No. SCA 43 of 2000

Judge: Crispin J

Supreme Court of the ACT

Date: 6 October 2000

IN THE SUPREME COURT OF THE )

) No. SCA 43 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: C D and ANOR

Appellants

AND: CHIEF EXECUTIVE, DEPARTMENT OF EDUCATION AND COMMUNITY SERVICES and ORS

Respondents

ORDER AND REASONS FOR JUDGMENT

Judge: Crispin J

Date: 6 October 000

Place: Canberra

THE COURT ORDERS THAT:

1. The appellant's application for costs be dismissed.

1. This was an appeal against a decision of the Children's Court purporting to continue earlier orders, described as "short term care and protection" orders relating to three children: a four year old boy, a three year old girl and baby boy now nine months old, who for present purposes may be referred to as AH, LH and AC. The appeal was instituted by CD who is the mother of all three children but leave was subsequently granted for SC, who is the father of AC, to be joined as a co-appellant.

2. At the hearing of the appeal it became apparent that the relevant orders had not been validly or effectively made and that the grounds upon which they had been sought had not been adequately established. It also became apparent that the proceedings had been attended by considerable confusion as to the effect of important provisions of the Children and Young People Act 1999. I upheld the appeal and indicated that I would publish my reasons for that decision in due course. I now do so.

3. AH, who was born on 29 October 1995 and LH, who was born on 14 April 1997 are the children of CD and another man who for present purposes may be referred to as Mr H. The relationship between their parents was apparently not sustained and consent orders were made in the Family Court of Australia on 30 June 1998 providing that the mother and Mr H should have joint parental and residential responsibility for those children.

4. The mother commenced a relationship with SC in March 1999. It is not entirely clear where the children were living at that time, but there is evidence that in September 1999 LH suffered severe bruising whilst in the care of her father and step-mother and that the step-mother subsequently pleaded guilty to inflicting those injuries.

5. On 12 October 1999 the Director of Family Services made an application for a declaration that LH was in need of care pursuant to s 78 of the Children's Services Act 1986. This application followed a report concerning an assault upon LH, presumably by the step-mother, that had caused significant bruising to her body. An affidavit was filed by the applicant in those proceedings expressing concern that the mother, CD had a history of neglecting her children, was an alleged drug abuser and was apparently residing in a violent and abusive relationship. The mother filed an affidavit in which she denied those allegations and on 10 November 1999 the Director consented to orders providing for the adjournment of the proceedings and for LH to return to reside with her mother. AH had apparently been in the care of his mother since September 1999.

6. On 7 December 1999 the Children's Court made a declaration that LH was a child in need of care and protection and by consent ordered that she be subject to the supervision of the Director of Family Services for a period of six months. That order was to be implemented in accordance with a case plan under which Family Services would provide assistance to secure long term accommodation for the family, part-time child care for both children and other support. It was noted that LH would continue to reside with her mother.

7. AC was born on 2 January 2000. Immediately after the mother's discharge from hospital she, SC and three children stayed with her parents for about two to three weeks and then stayed with SC's cousins for a similar period. They were unable to obtain government housing because of an outstanding debt to the ACT Department of Housing which they were apparently unable to pay and were also unable to find affordable private accommodation for the whole family.

8. On 28 March 2000 CD entered into a voluntary care agreement with the Chief Executive of the Department of Education and Community Services ("the Chief Executive") in relation to LH and AH because she was then unable to secure stable accommodation for them. The initial agreement was for a period of only three weeks but there was a second agreement from 18 April to 18 May and a third agreement then covering the period 18 May to 18 September 2000. The agreement provided that it could not be varied without the written consent of both parties and contained a clause in which CD acknowledged that she understood that she must provide notice in writing if she wished to have her children returned to her before the expiry date and, conversely, provided that if the Chief Executive wished to return the children to her before that date he or she would give written notice of their return.

9. The mother and SC together with the baby, AC moved into the home of SC's mother, Mrs D, apparently about the beginning of May 2000.

10. The mother ultimately secured government housing in Red Hill and on 26 June 2000 wrote to the Chief Executive stating that she was ready to have AH and LH return home. She added that she had everything in the house that they would need and that there was no reason why the Chief Executive should not let them return home.

11. Later that day what was described as a "case conference" was conducted by Ms Sciberras, the supervisor, Northern Regional Offices, Family Services with the mother and SC's parents, Mr and Mrs D.

12. During the course of that conference it was revealed that Mrs D had contacted another departmental officer on 24 June 2000 and told him that the baby had been witnessing domestic violence between his parents which included SC hitting the mother and her throwing things at him. Mrs D also said that she had been buying all of the nappies, formula and clothing for the baby and complained about the cleanliness of the house. She said that her son had taken the baby to her home after he and the mother had had an argument and that she was concerned for the baby's safety given the volatility of the couple's relationship. There were file notes which indicated that Mrs D had again contacted the officer on the following day, 25 June 2000, and told him that she had asked the mother when she would like to have the baby returned to her. Mrs D claimed that the mother had said that she did not want the baby. The officer had suggested that Mrs D keep the baby until Monday. Mrs D later contacted the officer again and said that her son had returned to the mother. Mrs D said her son had become angry when she had told him that she was keeping the baby until Monday as suggested by the departmental officer.

13. The file notes also recorded the fact that the officer had made a home visit at about 3.00 pm that day (26 June 2000) and had a conversation with SC. SC confirmed that he had had an argument with the mother on the previous night and that she had subsequently told him that she was kicking him out of her flat and that he should take the baby and give him to his mother (Mrs D). SC admitted to the departmental officer that he had been charged by police last year with hitting the mother and alleged that about two weeks previously the mother "went schizo" and had thrown a cup at him which missed and smashed a window. SC told the departmental officer that he had not told the department about the fighting because he thought it might have been more difficult to get the other children back.

14. There was also a file note from a person identified only as "Sue" who claimed to be AC's great paternal aunt (presumably a sister of Mr or Mrs D) who said she had contact with the mother and SC regularly. She claimed that the mother and SC had had continuous arguments which extended to hitting each other and to the use of foul language. It was reported in the file note that Sue had said she had tried to talk to them about these incidents but that they had not seemed to understand the seriousness of their fighting or the need to address this issue.

15. At one point after the mother had become distressed and left the room, Mrs D alleged that AC was a "meal ticket" for both the mother and SC and that they did not really want the children.

16. As a consequence of these and other aspects of the conversation Ms Sciberras formed the view that AC was in need of care and protection due to "ongoing exposure to domestic violence, the mother's minimisation of the violence and the father's statement to [Mrs D] that he want[ed] [AC] back". Her supervisor agreed with that assessment. Ms Sciberras then informed the mother that she was taking AC into her custody. She subsequently placed him in the custody of Mr and Mrs D.

17. These steps were presumably taken in reliance upon s 222 of the Children and Young People Act 1999 which provides that the Chief Executive or a police officer may take emergency action in relation to a child or young person, and s 224 which provides, inter alia, that if the Chief Executive takes such action he or she has parental responsibility for the child or young person in question.

18. There were plainly grounds for Ms Sciberras's concern and it was not suggested that she had not been lawfully entitled to act as she did.

19. Section 225 provides that the Chief Executive may normally retain parental responsibility without a court order only for a period not exceeding two days and on 28 June 2000 the Chief Executive applied for a short care and protection order in relation to AC.

20. The matter came before the Children's Court on the following day, 29 June, 2000, and the Magistrate made an order in the following terms:

Pursuant to section 211 of the Children and Young People Act 1999.

Short term care and protection order:

1. Child to reside with paternal grandmother [Mrs D].

2. Parental responsibility is delegated to the Chief Executive.

3. Orders otherwise in terms of care plan dated 29 June 2000.

4. Reasonable contact with the parents.

5. Adjourned to 6 July 2000 at 10.00 am for mention.

21. Whatever the grounds for some form of judicial intervention, it seems clear that this order was legally ineffective.

22. Subsection 213(1) of the Children and Young People Act 1999 provides that "A short care and protection order, other than an assessment order or a therapeutic protection order, has effect for the period of not longer than 18 weeks that is stated in the order". In the order made by the Magistrates Court on 26 June no period for the order was stated. It was therefore effective for no period. The Magistrate may have intended that it should be effective either until 6 July 2000 or until any further order of the Children's Court, but s 213 is in unequivocal terms. The section contains no alternative provision which would make such an order effective for whatever period may have been intended by the Magistrate or until the next date to which the proceedings had been adjourned.

23. It should be noted that short care and protection orders under Div 2 of Pt 3 of the Act which includes s 211 are not interim orders but simply orders for defined periods of no longer than eighteen weeks. Whilst such orders are intended to operate for a short term and may in some circumstances be extended, they are final rather than interlocutory in character. An order may be made only if the grounds for intervention required by the Act have been established, the Magistrate has decided that it is appropriate for such an order to be made, and importantly, he or she has also determined the period for which it is appropriate that the order have effect. The Act does not authorise the making of short care and protection orders for unspecified periods.

24. Dr Jarvis, who appeared for the Chief Executive, submitted that the order made on 20 July 2000 was essentially an interim care and protection order made not pursuant to s 211 but pursuant to s 203. Such an order may be made if the court is "satisfied that the Chief Executive reasonably believes that the child or young person is in need of care and protection or would be in need of care and protection if the order was not made". Interim orders made under s 203 are not subject to the time limits specified in s 213.

25. There are several difficulties in the face of this submission. The order does not refer to s 203 and is not stated to be an interim order. On the contrary, it refers to s 211 and purports to be a "short term care and protection order". It also appears to have been unaccompanied by any finding that the Chief Executive held the requisite reasonable belief required by s 203. Despite the arguments ably put forward by Dr Jarvis I am unable to accept that the Magistrate had intended to make an order under a different section of the Act or of a different kind than that stated. Nor can I accept that it would be appropriate to treat a clearly expressed order not directly challenged on appeal as if it were a quite different order merely because of a perception, whether well founded or not, that that was what the Magistrate had intended.

26. Mr Walker, who appeared for the Community Advocate, submitted that the order was a short-term care and protection order made pursuant to s 211 but argued that in the absence of any period being stated within the order it must be taken to have been made effective for the maximum period of eighteen weeks. I am also unable to accept this submission. In my view the terms of subs 213(1) are clear. The provision that the order has effect "for the period of not longer than eighteen weeks that is stated in the order" means simply that the order is effective only for the period stated and that such period may not exceed eighteen weeks. If no period is stated then the order has effect for no period and is therefore wholly ineffective.

27. Ms Tonkin, who appeared for the mother, also argued that the necessary grounds for such an order had not been established.

28. Section 207 of the Act provides that the Court may make an order about the person with whom a child or young person is to live "if satisfied that there are reasonable grounds for believing that the child or young person would be in need of care and protection if the proposed order were not made": subs 207(2).

29. Subsection 156(1) provides that for the purposes of chapter 7 of the Act -

a child or young person is in need of care and protection if -

(a) he or she has been, is being or is likely to be, abused or neglected; and

(b) no-one with parental responsibility for the child or young person is willing and able to protect him or her from suffering the abuse or neglect.

27. The term "abuse" is defined by s 151 to mean -

(a) physical abuse; or

(b) sexual abuse; or

(c) emotional abuse (including psychological abuse) if the child or young person -

(i) has suffered, is suffering, or is likely to suffer in a way that has caused, is causing or is likely to cause significant harm to his or her well-being or development; or

(ii) has been, is being, or is likely to be exposed to conduct, that is a domestic violence within the meaning of the Domestic Violence Act 1986 and that has caused, is causing or is likely to cause significant harm to his or her wellbeing or development.

28. In the present case the grounds relied upon in the application made by the Chief Executive in respect of AC, were in the following terms:

He has been or is being physically injured (otherwise than by accident) by one of his parents or by a member of the household in which he lives or there is a likelihood that he will so suffer such physical injury and no-one with parental responsibility is willing and able to protect from suffering from the abuse.

(emphasis in application).

29. Particulars were provided alleging that AC had been "exposed to domestic violence incidents between his parents which have placed him at risk of harm" and that the parents had "shown a serious lack of regard for [his] safety and emotional wellbeing during incidents of domestic violence between themselves".

30. The Chief Executive relied upon an affidavit sworn by Ms Sciberras concerning the allegations to which I have referred. As I have mentioned, those allegations obviously provided grounds for concern about AC's welfare. Whilst it later became apparent that some of the allegations which Mrs D had made were not supported by her evidence, there is no reason to suppose that the Chief Executive had any reason to then doubt what Mrs D had told Ms Sciberras. Nonetheless, it may be doubted whether there were adequate grounds for an order keeping a baby still under six months of age from his mother without making some attempt to determine whether the more serious allegations, such as the claim that she did not want him, were true and exploring other alternatives.

31. Despite the words employed in the application there was no suggestion that AC had been or was being physically injured and Ms Tonkin argued that the evidence had been insufficient to establish any of the remaining contentions. In fact, whilst the Magistrate said that he was satisfied that the matter warranted a short-term care and protection order "in the best interests of the child . . ." he did not make findings to the effect that the grounds relied upon by the Chief Executive had been established.

32. The order in relation to AC was purportedly made by consent but the transcript reveals that the mother had indicated through her counsel only that she consented to an adjournment for seven days and did not oppose the child being in the care of his paternal grandparents during that period. Such a statement could not be construed as consent to a short term care and protection order involving, inter alia, the delegation of parental responsibility for her baby to the Chief Executive. Counsel for the Chief Executive had sought only an interim order at that stage and the mother had certainly not given her consent to any "open ended" orders that might have extended beyond seven days. Furthermore, the baby's father had been served with the application and the Court had been informed that he was in custody but that he had been spoken to by officers of the department and might wish to be represented in the proceedings. In these circumstances his absence could not have given rise to any implied consent.

33. Hence, even if the order had been effective it would have been amenable to challenge on the basis that it was unsupported either by findings that the grounds required by s 156 had been established or by effective consent to the order being made.

34. On 5 July 2000 there was an application for a final care and protection order and a family assessment order in relation to AC. The Chief Executive relied upon the same grounds as those set out in the previous application and the matter was adjourned to 6 July 2000 which was the date to which the earlier proceedings had been adjourned. On that day the Magistrate made "a short term care and protection order", again purportedly by consent, in terms identical to the previous order save that the matter was to be re-listed on 13 July 2000 for mention and that an assessment was ordered pursuant to s 217 of the Act. For reasons that remain unclear a note was made of the Community Advocate's concern for the welfare of AH and LH "in terms of domestic violence" if returned to the family home. Again, the order failed to state any period in which it was to be effective and was therefore ineffective.

35. It is true that subs 214(3) provides that when an application for an extension, variation or revocation of a short term care and protection order cannot be determined prior to the expiration of the order then the Court may adjourn it for no longer than seven days and in that event the order continues to have effect until the application is decided. However, this subsection could not have authorised the orders made on 6 July 2000. It is axiomatic that subs(3) has no effect unless a valid and subsisting short care and protection order is in existence when the application is filed. As previously mentioned, no such order existed. Even if the previous order had been valid and effective there had apparently been no application to extend, vary or revoke it. There is certainly no record of any such application being adjourned as contemplated in the section. Furthermore, the order made purported to be a further short term care and protection order under s 211 rather than an adjournment of an application under s 214.

36. No emergency action had apparently been taken in relation to AH and LH and until 10 July 2000 there had been no application for orders in relation to those children. The Chief Executive had simply failed to return them to the mother. The continued withholding of them from her from 26 June until this date was plainly unlawful.

37. Section 186 of the Act provides that:

A party to a voluntary care agreement may, before the agreement ends, end the agreement by giving written notice to the other parties.

.

38. The mother had given written notice to the Chief Executive on 26 June 2000 and by the giving of that notice had ended the agreement.

39. Section 187 is in the following terms:

(1) If a voluntary care agreement in relation to a child or young person expires or is ended, the Chief Executive -

(a) must return the child or young person to a former caregiver or other person as agreed between the parties to the voluntary care agreement; and

(b) has no parental responsibility for the child or young person once he or she is returned.

(2) However, the Chief Executive is not required to return a child or young person if -

(a) emergency action is being taken in relation to the child or young person; or

(b) the Chief Executive has made an application to the court seeking parental responsibility for the child or young person.

(3) Nothing in this section allows the Chief Executive to keep parental responsibility for the child or young person if the court refuses the application for parental responsibility.

40. It may be noted that paragraph (1) (a) imposes an obligation upon the Chief Executive to return the children to the former caregiver or another person as agreed between the parties and that such obligation is subject only to the provisions of subs (2). In the present case the mother had been the former caregiver, there had been no agreement for AH or LH to be returned to any other person and the provisions of subs (2) had no application since there had been neither emergency action nor an application for parental responsibility for them at the time the mother gave notice that she wished to have her children returned to her. The failure to return the children was no doubt motivated by the belief that it was in their best interests to remain with their foster carer at least until the proceedings relating to their baby brother had been resolved. However, it involved a clear breach of the statutory obligation imposed upon the Chief Executive by s 187.

41. On 10 July 2000 the Community Advocate applied for declarations and for "short care and protection orders" for the care and protection of AH and LH. Each application was made upon the ground that the child had been or was likely to be abused and that no-one with parental responsibility was willing and able to protect him or her from suffering the abuse. In each case the particulars alleged that the child was likely to have been exposed to incidents of domestic violence between his or her mother and her partner SC.

42. On the same day ex parte orders were made in relation to each child in the following terms:

Pursuant to section 279 of the Childrens and Young Peoples (sic) Act 1999.

Upon ex parte application by the Office of the Community Advocate make a Care and Protection Order in the terms of the application of the Office of the Community Advocate dated 10 July 2000, being

(1) Section 207 - a residence order authorising the Chief Executive to determine where the child lives.

(2) Section 246 - a specific issues order conferring parental responsibility for the day-to-day care, welfare and development of the child upon the Chief Executive.

(3) Section 209 - an order that the Chief Executive supervise the care and protection of the child in relation to the matters mentioned in the order.

(4) Section 206 - an order authorising contact with people significant to the child.

Note: The application is made pursuant to section 196 of the Children and Young People Act and the order is made in terms of section 151 and 156 of the Act.

(5) Matter to be re-listed on the 13th July 2000 at 10.00 am.

43. The orders did not indicate the period for which they were intended to operate. It seems unlikely that the Magistrate could have intended to make permanent orders in the absence of any opportunity for the mother and step-father of the children to be heard. Indeed, upon the making of the orders the proceedings were adjourned for three days, obviously with the intention of giving them the opportunity to be heard on that occasion.

44. Whilst s 279 provides that an applicant may seek leave to have an application heard ex parte, it does not relieve him or her of the need to establish adequate grounds for the order sought. No further evidence was apparently filed in support of these applications and the Community Advocate could only have relied upon the affidavit of Ms Sciberras to which I have previously referred. That affidavit could not, in my view, have provided adequate evidence to support the findings necessary to establish the grounds relied upon. Furthermore, there was no evidence before me to suggest that any such findings were actually made. Accordingly, had I been called upon to do so I would have set aside this order.

45. However the order seems to have been superseded by subsequent orders made on 13 July 1999 concerning AH and LH and in any event is not the subject of this appeal.

46. On 13 July 2000 the Court made a further order in relation to AC in similar terms to the previous orders made on 29 June and 6 July, save that the matter was to be relisted on 20 July 2000 and the assessment to be conducted under s 217 was extended to include an assessment of the father and step-mother of AH and LH and two other family members. Again, the order was not expressed to continue for any period and was therefore ineffective as a short term care and protection order under Ch 7 Div 2. Although the order purported to be an extension of the order made on 29 June, this extension was also ineffective for the reasons discussed above.

47. On the same day the Court made further short term care and protection orders purportedly pursuant to s 211 of the Act in relation to AH and LH. These orders also failed to state any period within which they would operate and were accordingly ineffective.

48. All matters were then adjourned to 20 July 2000 when the following orders were made in respect of AH:

1. All previous existing orders are continued, save the contact is varied to this extent:

(A) [the mother] is to collect [AH] for contact unsupervised between 12 noon and 3.00 pm every Wednesday and Friday, and;

(B) [another person] will return [AH] upon the conclusion of the contact to his carers.

2. Relist on 18 August, 2000 at 10.00 am.

An order in identical terms was made in respect of LH.

49. In respect of AC an order was made in the following terms:

1. All previous orders are to continue, save that with respect of contact with [AC] the following orders are made:

(A) [another person] will pick up and return [AC] for unsupervised contact with [the mother] every Monday and Thursday between 12 noon and 3.00 pm.

(B) [the father] is to have supervised contact at weekends at his parents' or Aunt's premises, such supervision to be by [Mr D].

2. Relisted on 18 August 2000 at 10.00 am.

50. It is from the first of these orders that the mother and SC appeal.

51. Strictly speaking no appeal is necessary because the orders were again ineffective. For the reasons already given, in respect of each child no previous orders were "existing" in the sense of being in effect when the later order were made. It was not open to the Magistrate to "continue" earlier orders that had been ineffective. Furthermore, even if they had been effective and subsisting, it would not have been open to him to have extended their operation for an unspecified period. Sub-section 214(3) could have not have applied because the application which the mother had made to vary the earlier orders had been determined.

52. Since there were no effective care and protection orders in existence there was no legal basis for any of the children to be kept from their mother and SC. Hence, no matter what view was taken of the other grounds of appeal, I would have been obliged to order return of the children to their mother.

53. Before turning to the more substantive grounds of appeal it is necessary to make some observations as to the extent of any appeal from care and control orders.

54. Subsection 380 (2) of the Children and Young People Act 1999 provides that a party may appeal to the Supreme Court from the making of an order under Pt 7 of the Act only on a question of law or on the ground that a substantial miscarriage of justice has occurred. However, subs (5) of that section provides that nothing in Chapter 11 (Appeals and Reviews), of the Act limits the operation of Pt 11 of the Magistrates Court Act 1930 or "another Act that makes provision with respect to the appellate jurisdiction of the Supreme Court". In Kelly v Apps [2000] FCA 687 a Full Court of the Federal Court of Australia held that a comparable provision contained in subs 207(2) of the Magistrates Court Act 1930 prevented any limitation by the earlier subsection on the appellate jurisdiction conferred upon the Supreme Court by s 20 of the Supreme Court Act 1933. Paragraph (1)(a) of that section grants the Supreme Court "all original and appellate jurisdiction that is necessary to administer justice in the territory". The paragraph was said by Wilcox J at [18] to reflect a legislative intention to "ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory". The decision of the Full Court is binding and there is no apparent basis upon which it could be distinguished. Accordingly, I am obliged to find that subs 380(5) prevents any limitation upon the wide appellate jurisdiction conferred by s 20 of the Supreme Court Act.

55. I turn then to the other grounds of appeal.

56. First, it was submitted that none of the orders purportedly made on 20 July 2000 nor any of the previous orders were supported by any findings that the grounds upon which they had been sought had been established. That submission must be accepted.

57. There were no findings that any of the children had been injured or were likely to be injured, that any had been exposed to domestic violence incidents which had placed him or her at risk of harm or that the mother or SC were not willing and able to protect from suffering such abuse. Nor were there any other findings that might have satisfied the requirements of s 156.

58. The absence of any such findings may have been attributable to the substantial confusion which seemed to have pervaded the hearing before the Children's Court. All parties seemed to have assumed that there were effective and subsisting orders in relation to all three children. That was incorrect. All seemed to have assumed that those orders would remain in force unless one or both of the appellants applied to have them discharged or varied. That was also incorrect. All seemed to have assumed that it was not incumbent upon either the Chief Executive or the Community Advocate to establish any grounds for the continuance of the orders and, conversely, that it was incumbent upon the appellants to demonstrate adequate grounds for them to be discharged or varied. That too was incorrect.

59. The confusion may have been attributable, at least in part, to the fact that the Children's and Young People Act 1999 is a relatively new statute without an established body of case law to clarify its terms. Whatever the reason, the real issues before the court remained unresolved and the case was decided by reference to such considerations as a perception that the court should not interfere with the stable relationship which the children were said to have had with the grandmother. Accordingly, even if the orders had been legally effective, no adequate grounds for making them had been found to have been established by the evidence.

60. Secondly, it was submitted that the evidence was not capable of establishing an adequate basis for orders of the kind sought. The grounds required by s 156 of the Act must be established if the court is to have jurisdiction to make any order for the care and control of children under Ch 7. If those grounds are not established than any application for orders of that kind must be dismissed. However, the establishment of such grounds merely enlivens the court's jurisdiction. It remains necessary for the court to make a discretionary judgment as to whether any such order should be made and if so whether it should extend to the delegation of parental responsibility and/or a requirement that the children live with someone other than their parents.

61. Part 2 of Ch 2 of the Act establishes a number of general principles which must guide the exercise of that discretion, including those stated in the following paragraphs of subs 12(1):

(a) the best interests of the child or young person should be the paramount consideration (the best interests principle);

(b) the primary responsibility for providing care and protection for the child or young person should lie with his or her parents and other family members;

(c) high priority should be given to supporting family members, in cooperation with them, to care for and protect the child or young person, including when the child or young person is subject to an order under this Act or a voluntary care agreement; . . .

(d) if intervention by government in the life of a child or young person (and his or her family) is appropriate - the intervention should be the least intrusive consistent with the best interests of the child or young person.

62. These principles reflect the fundamental public policy that save in compelling circumstances the care and protection of children should be entrusted to their parents and not usurped by the state. In L v Director of Family Services (1997) 22 Fam LR 275 at 277 Higgins J said that it could not be emphasised too strongly that the best interests of children require that the coercive powers of the state intervene between them and their families only if there would otherwise be unacceptable risks of real physical or psychological harm. I agree. As the tragic stories of members of the "stolen generation" demonstrate, the forced removal of children from their families may cause lasting anguish. The law insists that such a step not be taken merely because a government officer perceives it to be in the best interests of the children concerned. Hence, even if the grounds required by s 156 for finding that a child is in need of care and protection have been established, the court must have due regard for the principles laid down by subs 12(1) and give priority to supporting the family in caring for the child and, if any intervention is appropriate, adopt the least intrusive course consistent with the best interests of the child.

63. The onus of proving the need for any order sought obviously rests upon the person asserting such a need. In the present case it was alleged that the children were in need of care and protection because of exposure to domestic violence and a consequential risk of harm. It was incumbent upon any person seeking to justify the continuing separation of the children from their mother and SC to prove these grounds and persuade the Magistrate that it was appropriate to make such an order.

64. Even if there had been interim orders in existence they would not have had the effect of reversing the onus of proof or otherwise relieved the Chief Executive and/or Community Advocate from the need to establish such grounds for keeping children from their parents. Indeed, the Children's Court will need to be vigilant to ensure that the statutory requirements for care and protection orders are not unwittingly circumvented by permitting interim orders to be extended upon successive adjournments of applications for more substantive orders. In particular, it will need to ensure that children are not kept from their parents for extended periods without adequate grounds being proven or that their parents are made to feel that they need to justify their return.

65. In the present case, whilst the only real basis advanced for the orders had been the risk that the children might be exposed to incidents of domestic violence between the mother and SC, when the matter commenced on 20 July 2000 counsel for the Chief Executive expressly acknowledged that they were no longer living together. He maintained that the children should be kept away from their mother because he understood that she wanted to effect a reconciliation with SC and said that "we're not entirely clear as to what may or may not develop in that relationship . . ." He added that the older children had been residing pursuant to a voluntary care agreement until earlier orders and expressed the view that AC's interests would be best served by maintaining the "status quo" for a further month.

66. Of course, there was no evidence to suggest that AC's interests would have been advanced by keeping AH and LH from their mother for another month and this submission was even more perplexing given that it was made in the context of the Chief Executive's contention that AC should continue to live with his grandmother and not with his mother. Regrettably, no attempt was made to explain why it might have been thought to have been in the interests of a six month old baby for his three year old sister and four year old brother to be kept away from his mother.

67. Nor was any attempt made to explain with the apparent incongruity of seeking to maintain orders which had been sought on the ground that the children might be exposed to domestic violence between the mother and her partner when they were no longer living together. Mere advertence to the possibility of reconciliation and uncertainty as to how the relationship might develop offered at best a flimsy basis for keeping a baby and two very young children from their mother. Even if the earlier orders had been justified, the children should have been returned once the circumstances which had constituted the only ground for them no longer existed. The situation could then have been monitored and if necessary further applications made.

68. In fact, at the hearing of the appeal Dr Jarvis sought leave to adduce further evidence in order to establish that SC had subsequently been seen at the mother's home. I declined to grant such leave since the appeal was concerned with the situation that existed at the time of the hearing before the Children's Court and whilst the power to allow further evidence provided by s 214 of the Magistrates Court Act 1930 is expressly preserved by subs 380(5) of the Children and Young People Act 1999 that power does not extend to allowing evidence of events which occurred subsequent to the proceedings appealed from. See the decision of Miles J in Campbell v Fortey (1987) 85 FLR 462 at 466. Hence any disputes arising in relation to subsequent developments should be resolved in the Children's Court rather than by applications to adduce fresh evidence and raise new issues on appeal. In any event, having regard to the view that I had formed of the matter, the introduction of that evidence would not have affected the outcome of the appeal.

69. It was also argued that much of the evidence relied upon by the Chief Executive and/or the Community Advocate had been inadmissible. At the hearing before the Children's Court Ms Larosa, who then appeared for the mother, objected to any evidence of the conversation that occurred during the conference referred to in Ms Sciberras' affidavit. She submitted that the conference had been a family group conference and relied upon the provision contained in subs 180 (2) of the Children and Young People Act 1999 that evidence of anything said at a family group conference is not admissible in any proceeding. This objection was apparently left unresolved. However, the Magistrate did question whether this provision could apply to care proceedings since the Act given that s 291 provides that the rules of evidence do not apply in proceedings under Part 3 of Ch 7, (Care and Protection Orders and Emergency Action) and it appears that the evidence was ultimately taken into account. Ms Tonkin argued that the objection had been properly taken and should have been upheld.

70. Subsection 180 (2) provides that such evidence is not admissible `in any proceeding' and subs (3) is directed specifically to proceedings under Part 3, providing that in such proceedings a record may be admitted to prove that an agreement was reached or was not reached at the conference. In my view s 291 does not permit the admission of evidence of things said at a family group conference save to that extent.

71. Dr Jarvis maintained that the conference was not a family group conference. He submitted, in essence, that s 180 applied only to conferences which had been specifically designated as family group conferences by the officers who had convened them or which were conducted by facilitators assigned pursuant to s 168. I am not persuaded that the subsection can be so narrowly interpreted.

72. The concept of a family group conference is defined by the dictionary which forms part of the Act to mean a conference convened under Ch 7 Pt 2, Div 1. This definition is scarcely illuminating but it does suggest that some guidance may be found in the provisions of Division 1 as to the circumstances in which such conferences may be convened. Section 168 provides that:

(1) The Chief Executive may arrange for a conference about a child or young person to be held if he or she reasonably believes -

(a) that -

(i) the child or young person is in need of care and protection; and

(ii) arrangements should be made to secure the child's or young person's care and protection; and

(iii) a conference is a suitable way of deciding what those arrangements should be; or

(b) or young person agreed on at a conference is necessary or desirable.

(2) The purpose of a conference is to provide an opportunity for participants -

(a) to take part in making arrangements for securing the care and protection of the child or young person; or

(b) to review those arrangements and make further arrangements from time to time.

(3) If the Chief Executive arranges a conference, he or she must assign a facilitator to the conference.

73. The public policy objective underlying the provision for confidentiality in s 180 presumably lies in encouraging people to speak freely so that the prospects of reaching agreements in the best interests of the children may be enhanced. That objective would not be served by imputing to the legislature some unstated intention to limit the operation of the section in the manner suggested. In my view the issue of whether a conference is or was a family group conference as contemplated in s 168 is a question of fact which must be determined by reference to all of the relevant circumstances including the family relationship of the invited participants and the purposes for which the conference was convened.

74. In the present case Ms Sciberras described the conference as a "case conference" and said that it its purpose was to review the voluntary foster care placement of the children AH and LH; although in fact the discussion seemed to have related primarily to the care and protection of AC. It was attended by the mother and by SC's parents Mr and Mrs D. SC had also been invited but had failed to attend.

75. The relevant facts were not further explored on a voir dire but on the evidence before me I would have concluded that the conference was a family group conference and that the evidence of anything said was therefore inadmissible.

76. It also became apparent during Mrs D's cross-examination that her evidence was incapable of supporting many of the allegations recounted in Ms Sciberras' affidavit. She conceded that she had never witnessed SC hitting the mother. She did say that she had "always" been called by the mother to remove SC from her residence but when asked when she had received those calls spoke only of one incident on a weekend in June when the V8 car races had been conducted. Similarly, Mrs D conceded that she had never seen the mother throwing objects such as ash trays and cups at SC. She did say that the mother had told her that she had thrown various items and had also smashed a window in the house but when asked when this conversation occurred again referred to the same weekend. Mrs D said that they were having arguments every weekend and that "I was going down every weekend, picking the baby up because they'd have a blue". Yet, when questioned further Mrs D then said that this had occurred on two or three weekends prior to the weekend of the V8 car race. She added that while they were on their own the couple seemed to be fine and that the arguments had occurred when they had friends over to visit or had gone to someone else's home. Mrs D also confirmed that there had been no domestic violence or any problem that would have warranted the intervention of the Chief Executive whilst they had been living in her home. When it was put to her that the only time she had had concerns as domestic violence was on the particular weekend to which I have referred Mrs D said that she had also been concerned on the weekend prior to that when there had been a domestic argument at her brother-in-law's home.

77. The learned Magistrate observed that Mrs D seemed genuine in her view that the baby should ultimately be restored to her mother. Nonetheless, she seemed to have a disturbing tendency exaggerate and to extrapolate from the particular to the general. Her evidence did not establish that the baby had been witnessing a constant pattern of domestic violence as had been suggested in the statements she had made to Ms Sciberras nor even that there had been a pattern of domestic violence to witness. In fact, Mrs D's evidence ultimately suggested little more than the occurrence of arguments on perhaps two or three weekends. Her evidence also suggested that the officer who had prepared the file note may not have correctly recorded what she had told him.

78. As I have mentioned Ms Sciberras' affidavit also referred to file notes of complaints by "Sue" concerning the mother's conduct. "Sue" was not called to give evidence in support of these complaints. Since the Court was not bound by the rules of evidence and able to inform itself in any manner it considered appropriate it was open to the Magistrate to take this evidence into account. However, there was nothing to indicate the source of any information upon which "Sue" might have based her assertions and the complaints seemed to have been at best third hand hearsay. The Magistrate did not indicate that he had thought it appropriate to act on such evidence. Furthermore, even if the evidence had been accepted at face value it would not have established the only grounds which had been relied upon for the orders sought, namely the likelihood of the children being physically injured and the absence of parental protection.

79. The only reference to LH and AH in the affidavit of Ms Sciberras was an indication that the meeting on 26 June 2000 had been held to review their voluntary foster care placement. Whilst the Chief Executive no doubt relied upon the risk that they would be exposed to domestic violence of the kind referred to in the affidavit, there had been no evidence of any mistreatment of them by either the mother or SC.

80. By the time the matter came before the Court on 20 July 2000 there were also two reports from the Child at Risk Assessment Unit, the first concerning LH, AH and AC; the second concerning LH and AH.

81. The first, dated 7 March 2000, referred to two earlier reports about LH which had related to the severe bruising she had received in September 1999 whilst in the care of her father and step-mother before being returned to the mother. The report stated that LH seemed to have an extremely short attention span and difficulty in focussing on any activity. However, it was noted that the children had been seen on an extremely hot afternoon and that they had been very excited. The report stated that the author's "chief" concerns related to AH and his violence and sleeping difficulties. It recounted the mother's concern that he was afraid of the dark and threw tantrums and the mother's explanation that his father had formerly locked him in his room and turned off the light. On medical examination AH had been found to be "entirely normal" apart from a soft systolic flow murmur. His behaviour was described as quite acceptable and age appropriate. So far as AC was concerned, the report suggested that there had not been the "exchange of glances and spontaneous stroking characteristic of a strong developing attachment" between the mother and the baby. However the baby was only five weeks old at the time the observations were made and there was no suggestion that he had any injury or bore signs of neglect.

82. The author expressed great concern about the reported behaviour and environment provided for the three children but apart from referring to various statements made by the mother offered no indication as to the source of the reports nor as to the behaviour and environment which might have given rise to such concern. She said that the mother and SC "presented as an earnest and concerned young couple, who acknowledged they were bewildered by the children and how to manage them". The author expressed the suspicion that LH and AH's life with their mother had been "bewildered chaos and haphazard harsh discipline" but the basis, if any, for the suspicion was again not stated.

83. The report concluded with the following assertion:

I believe this family situation needs urgent, in depth assessment and a plan made at this time for the future optimal care of these children. I do not believe that this would be with either father or mother or the maternal grandparents. Unless these three small children are quickly settled in a permanent, predictable living situation, providing consistent, age appropriate care, they will lurch from crisis to crisis becoming more and more behaviourally disturbed. The situation will rapidly become irreversible.

.

84. There was nothing in the history set out earlier in the report to justify such conclusions. On the contrary, as I have mentioned, the mother and SC had been described as an earnest and concerned young couple. The only substantial criticism of them seemed to have been that they were somewhat bewildered as to how to manage the children. Many young parents would no doubt be bewildered as to how to adequately cope with children with emotional and behavioural problems especially if they had been caused or aggravated by physical abuse whilst in the care of others. At face value, the considerations raised by the report called for the provision of support and counselling rather than the removal of the children.

85. A further report dated 6 July 2000 suggested that the behavioural change in AH and LH had been "arresting". They had gained weight, learned to sleep at a more reasonable time and generally played well together. The author expressed the hope that the children would remain in what she described as "an excellent substitute care placement" until there was "some assurance that their mother [had] achieved some stability in her life". She maintained that the mother had been "extremely compromised in her parenting capacity" because of recurrent disruptions and foster placement during her childhood due to her own parents' alcohol and violence problems and that she needed to have "time and encouragement to understand her children's needs from their perspective". Apart from this reference to her upbringing, the basis for her criticism of the mother's parenting ability was again not stated. Furthermore, there seems to have been no consideration of the possibility that the behavioural changes had occurred because the children had by then had time to settle down and adjust to their new environment after some initial emotional trauma due to leaving the mother and being placed in the care of strangers.

86. The author was a qualified paediatrician whose medical opinions as to the health of these children would no doubt have been accorded significant respect. However, her medical qualifications did not qualify her to express any expert opinion as to the parenting skills of the mother as distinct from the physical and psychological condition of the children. It was, of course, open to the Magistrate to receive her evidence even in relation to issues outside her particular expertise and even if the basis for any relevant opinions remained unstated. Nonetheless, it has long been recognised that even expert opinions should be accorded little if any weight if the facts upon which they are based are neither revealed nor proven in evidence.

87. Of course, all of these problems may have been overcome had the author of the report been called to give evidence and asked to explain the basis for her assertions. However she was not. Furthermore, even if the conclusions in the reports had been wholly accepted they would have provided no basis for a conclusion that any of the children was likely to suffer physical injury or that there was no-one with parental responsibility willing and able to protect him or her from such abuse. Accordingly, whilst they may have provided further grounds for concern about the emotional development and welfare of the two older children they were incapable of establishing the ground upon which the Chief Executive and the Community Advocate had relied for the orders.

88. Since the evidence relied upon by the respondents had been incapable of establishing the necessary grounds for the orders sought the applications should have been dismissed.

89. Thirdly, whilst the allegations relied upon in support of the applications had been substantially hearsay, there had been sworn evidence from the appellants denying the bulk of the allegations and the truth of that evidence had not been challenged.

90. The mother filed two quite extensive affidavits substantially denying the allegations which had been made concerning her. She deposed to the fact that the first and only time that SC had hit her was when they had been living in Griffith apparently between January and May 2000. AH had been present on that occasion and she had consoled him. She conceded that on the evening of 26 June 2000 she had thrown a pair of scissors and that they had hit SC. She said that she had intended to throw them at the wall and not at him and that in any event he had not been injured. The incident had occurred after the conference conducted by Ms Sciberras earlier that day during which she had obviously become extremely distressed when told that her baby and the other children would not be returned to her. The mother also referred to a court report suggesting that AH had claimed that SC had hit LH on the nose during a contact visit but said that LH had in fact jumped off a chair whilst her mother was attending to the baby and had fallen onto a concrete surface. No attempt was made to challenge the truth or accuracy of her evidence in cross-examination.

91. As a general rule, a party who intends to submit that evidence given by a witness should not be believed is obliged to put to the witness in cross-examination the facts and circumstances that are to be relied upon to support that contention. It is true that in proceedings of this kind the court is not bound by the rules of evidence or procedure but this rule, generally referred to as the rule in Browne v Dunn (Brown v Dunn (1893) 6R 67), is a fundamental rule of fairness intended to ensure that the witness has a fair opportunity of responding to the criticisms. The evidence deposed to in the affidavit was not inherently implausible and there was no obvious reason to disbelieve what the mother had sworn to be the truth. Furthermore, since the evidence in chief had been given by means of an affidavit rather than orally, in the absence of any cross-examination the Magistrate would have had no basis upon which to make any adverse assessment of her credibility. A failure to cross-examine a witness does not necessarily justify the conclusion that the evidence must be accepted, but in the circumstances of this case it would have been unreasonable to have rejected her evidence when it had not been challenged and there was no compelling reason to discount it.

92. SC gave evidence orally. He conceded that there was one occasion when AH would have seen him hit the mother. He said that they had had financial problems and that whilst he was not making excuses for himself he did have a problem with anger which he was seeking to address by means of an anger management program and assistance from his probation officer. He had been put on probation following the assault on SC in Griffith last year. He had called the police apparently after being struck by the scissors which CD had thrown and it had been alleged that he had been in breach of his probation, though the reason for that contention was not clear. He also adverted to the existence of a domestic violence order and indicated that he did not intend to return to live with CD. Again, there was no attempt to challenge the accuracy of his evidence in cross-examination and there was again no compelling reason to discount it.

93. The remarks which immediately preceded his evidence were also unfortunate. In addressing the mother's counsel the Magistrate referred to the possibility of contact orders on a more frequent basis than had previously been made and added "but I'm not persuaded to change the orders at this stage . . . and I'm proposing to continue them". He then asked SC what he had to say. It was only then that SC was offered the opportunity of giving evidence and otherwise presenting a case in opposition to the course proposed. In a case with a number of parties it may be easy to overlook the possibility that one has not had the opportunity to present evidence or make submissions. However, it was most unfortunate that the baby's father should have been told that the Magistrate had, in effect, decided the matter before inviting him to give evidence or otherwise be heard in support of his case.

94. The fact that the unchallenged evidence of the appellants was ignored was a further factor justifying the conclusion that there had been a miscarriage of justice. Whilst as a matter of law the Children's Court is not bound by the rules of evidence and may act upon hearsay, the weight of such evidence may be significantly less than that direct evidence. It is one thing to make allegations by telephone and another to give evidence on oath and submit to cross-examination about them. It is open to a Magistrate hearing proceedings of this kind to accept hearsay evidence in preference to direct evidence but it will rarely if ever be appropriate to reject unchallenged evidence on oath merely because other people have made contrary assertions to departmental officers or experts have made sweeping statements without disclosing the basis for them.

95. Fourthly, the Magistrate had formed the impression that "the domestic violence" had escalated after the couple had ceased to live with SC's parents since, he thought, that was when they both had criminal charges laid against them. In fact, this impression was quite erroneous. The only actual violence established by the evidence had occurred on one occasion well before they began to live with his parents when SC slapped the mother and another occasion on 26 June 2000 when the mother threw a pair of scissors which struck SC. The fact that the mother had been slapped by a partner whom she had promptly had charged with assault could not of itself have provided any sensible reason for taking away or refusing to return her children. The latter incident had occurred later on the very day she had been told that the department intended to keep her children from her. The fact that a distraught young mother might have lost her temper and thrown something at her partner in those circumstances could not have established that there had been an escalation in domestic violence prior to the department's action or otherwise justified the order.

96. The misconception that there had been such an escalation in domestic violence and the further suggestion of a deterioration in their relationship following the departure from SC's parents' home seemed to be an important factor in the Magistrate's decision. This provided further grounds for concluding that there had been a miscarriage of justice.

97. In short, this was a case in which the orders made on 20 July 2000 had been ineffective, had reflected a substantially confused approach by all parties to the proceedings, had been unsupported by findings as to the requisite grounds or by evidence capable of establishing such grounds, indeed, and in the face of unchallenged evidence as to the absence of such grounds and had been based in part upon a misconception of relevant facts.

98. For these reasons I upheld the appeal and ordered the children be returned to their mother. After adjourning overnight to enable discussion amongst the parties I ordered, by consent, that all three children be subject to supervision by the Chief Executive for a period of three months. I also noted that the Chief Executive had offered to assist in securing long term accommodation for the family and referral of the children to the child health and development service and in obtaining access to a family support worker.

99. Ms Tonkin sought costs of the appeal and of the proceedings before the Children's Court and after hearing argument I reserved judgment on this issue.

100. Sub-section 297(3) provides that parties to a proceeding to which the section applies must bear their own costs unless a court otherwise orders. Sub-section (4) authorises a court to order the payment of costs if satisfied that an application had been frivolous, vexatious or not made in good faith or there are exceptional circumstances that justify such an order. Sub-section (2) makes it clear that these provisions apply not only to proceedings under Pt 3 of Ch 7 of the Act but to appeals from decisions under that Part. Subsection (9) provides that an applicant for an order for costs must cause "the application" to be served upon the party from whom the costs are sought. This provision is presumably intended to ensure that adequate notice of any such application is given.

101. These provisions are quite different from those governing costs of comparable proceedings prior to the enactment of the Children and Young people Act 1999 and little assistance can be obtained from authorities such as Director of Family Services v Campione (1998) 83 FCR 63. Consequently the court must be guided by the principles set out in the section itself.

102. In my view, none of the of the applications before the Children's Court on 20 July 2000 could have been described as frivolous, vexatious or as having not been made in good faith. There had been grounds for genuine concern as to the welfare of the children and it was not until 20 July that the weakness of the case for the orders should have become apparent from the cross-examination of Mrs D and the unchallenged evidence of the mother and SC. The proceedings may have been attended by exceptional confusion and the decision to keep two children from their mother without lawful authority was certainly an exceptional circumstance. Had the proceedings been instituted by the mother to obtain orders requiring their return it is unlikely that an application for costs could have been resisted by the Chief Executive. However, the proceedings before the Children's Court did not relate directly to that issue and I am unable to be satisfied that there are exceptional circumstances justifying the making of an order for costs as required by s 297.

103. The position on appeal was somewhat different. By then the respondents should have been in a position to know the weakness of their respective positions. However, the Children's Court had made the orders appealed from in the belief that they were in the best interests of the children concerned and given their statutory responsibilities it was understandable that the respondents should have taken the view that they should seek to uphold those orders on appeal. Furthermore, as mentioned earlier the Act was passed only last year and there was evident confusion as to some of its provisions. Whilst I have considered Ms Tonkin's submissions carefully I have finally concluded that there are no exceptional circumstances justifying an order for costs even on appeal.

104. The application for costs will be dismissed.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 6 October 2000

Counsel for the appellants: Ms Tonkin for CD

Mr O'Keefe for SC

Counsel for the children Mr Jones

Solicitor for the appellants: Pamela Coward & Associates for CD

Baxter & O'Keeffe for SC

Counsel for the respondents: Mr Jarvis for the Chief Executive

Mr Walker for Community Advocate

Solicitor for the respondents: ACT Government Solicitor for the Chief Executive

Date of hearing: 4, 7, 8 August 2000

Date of judgment: 6 October 2000