Decisions in Care proceedings, at first instance and on appeal, are to be made consistently with the objects, provisions and principles provided for in the Care Act, and where appropriate, the United Nations’ Convention on the Rights of the Child 1989.⁴

The Care Act contains an inextricable mixture and combination of both judicial and administrative powers, duties and responsibilities. It is often difficult to precisely discern where the Department’s powers and responsibilities begin and end as opposed to those of the court. In summary, however, the Act establishes a regime under which the primary, and ultimate, decision-making as to children rests with the court.⁵

I will be concentrating, in this paper, on the judicial aspects of the legislation.

The objects of the Care Act located in s 8, are to provide:

The Care Act sets out a series of principles governing its administration. These principles are largely contained in s 9, but also appear in other parts of the Act.

First and foremost is what is sometimes referred to as the paramountcy principle: s 9(1). This principle requires that, in any action or decision concerning a child or young person, the safety, welfare and well-being of the child or young person are paramount.

This principle, therefore, is the underpinning philosophy by which all relevant decisions are to be made.

This paramountcy principle operates, expressly, to the exclusion of the parents, the safety, welfare and well-being of a child or young person removed from the parents being paramount over the rights of those parents.

It is now well-settled law that the proper test to be applied is that of “unacceptable risk to the child”: M v M (1988) 166 CLR 69 at [25]. That case dealt with past sexual abuse of a child but the principles there set out apply to other forms of harm, such as physical and emotional harm.⁶ A positive finding of an allegation of harm having been caused to a child should only be made where the court is satisfied according to the relevant standard of proof, with due regard to the matters set out in Briginshaw.⁷ Nevertheless, an unexcluded possibility of past harm to a child is capable of supporting a conclusion that the child will be exposed to unacceptable risk in the future from the person concerned.⁸

The Secretary, will not fail to satisfy the burden of proof on the balance of probabilities simply because hypotheses cannot be excluded which, although consistent with innocence, are highly improbable: Director General of Department of Community Services; Re “Sophie” [2008] NSWCA 250 at [67]–[68], per Sackville AJA.

His Honour said in that decision:

Whether there is an “unacceptable risk” of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] FamCA 1235. This is an exercise in foresight. The court must examine what the future might hold for the child, and if a risk exists, assess the seriousness of the risk and consider whether that risk might be satisfactorily managed or otherwise ameliorated, for example, the nature and extent of parental contact, including any need for supervision.⁹

Thus, one needs to examine the likelihood of the feared outcome occurring, and secondly, the severity of any possible consequences. The risk of detriment must be balanced against the possibility of benefit to the child.

Secondary to the paramount concern, the Care Act sets out other, particular principles to be applied in the administration of the Act. These are set out in ss 9(2), 10, 10A, 11, 12 and 13. There are also special principles of self-determination and participation to be applied in connection with the care and protection of Aboriginal and Torres Strait Islander children: ss 11, 12 and 13.

The Care Act is not the most precise or orderly piece of legislation one could hope for. There are, however, a number of key concepts that principally occupy the exercise of the Care jurisdiction, about which I will say something. They include:

If the Secretary forms the opinion that a child is in need of care and protection, he or she may take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child: s 34(1).

Removal of a child into state care may be sought by seeking orders from the court (s 34(2)(d)), by the obtaining of a warrant (s 233), or, where appropriate, by effecting an emergency removal: s 34(2)(c); see also ss 43 and 44.

Where a child is removed, or the care responsibility of a child is assumed, by the Secretary, he or she is then required to make a Care application to the Children’s Court within 3 working days and explain why the child was removed: s 45.

The court may then make interim Care orders: s 69. An “interim order” is an order of a temporary or provisional nature pending the final resolution of the proceedings in which an applicant “generally speaking, does not have to satisfy the court of the merits of its claim”: Re Jayden [2007] NSWCA 35 at [77]. It may be made if it is not in the best interests of the safety, welfare and well-being of the child that he or she remain with the parent or parents, or that it is appropriate for the safety (s 69(2)), welfare and well-being of the child (s 70), or that an interim order is necessary, and is preferable to an order dismissing the proceedings: s 70A.¹⁰

The usual interim order is for the allocation of parental responsibility to the Minister until further order.¹¹ Such an order enables appropriate investigation and planning to be undertaken by Departmental caseworkers while the child is in a protected environment.

The making of an interim order in effect puts the position of the parties in a holding pattern, without prejudice, and without any admissions.

The Care Act, as recently amended, makes it clear that parties may apply to vary an interim order without the need to follow the formal process that applies to the rescission or variation of final Care orders.

This overcomes a problem thought to be posed by the Supreme Court decision in Re Timothy [2010] NSWSC 524, to the effect that an application to vary an interim order needed to be brought under s 90 of the Care Act, such that a formal application was required seeking leave to apply, and evidence adduced to satisfy the court that there had been a significant change in circumstances.¹² The Children’s Court may now vary interim orders at any time if considered appropriate, including on oral application in matters currently before the court.¹³

After removal or assumption of a child into care, and the making of an interim order allocating parental responsibility to the Minister, the proceedings then focus on the past and current circumstances of the child. This first phase of care proceedings is generally referred to as the establishment phase. Thus, before the court moves to the second phase of the proceedings, in which the focus is on the child’s future, the proceedings are required to be “established”.¹⁴

The establishment precondition is satisfied if there has been a finding that there is an existing need of care and protection pursuant to s 71 of the Care Act: VV v District Court of NSW [2013] NSWCA 469 at [20]. It does not matter whether the conduct constituting a reason or part thereof for the purposes of s 71 occurred wholly or partly outside NSW: s 71A.

The rationale for the requirement that protective proceedings be established has been described as a safeguard against arbitrary intervention by the State into the lives of children and their families.¹⁵

The establishment issue is a threshold issue. It is a statutory precondition to the making of final Care orders in the second, welfare phase of protective proceedings. Establishment, or a finding, is not concerned with the issue of restoration, nor is it concerned with considerations of unacceptable risk of harm, nor with the amelioration of risk. These are matters for the second, welfare stage of protection proceedings.¹⁶

For care proceedings to be “established” a finding is required that the child is in need of care and protection for any reason or was in need of care and protection at the time the Application was made.

Section 71(1) of the Care Act relevantly provides:

Thus, the need for “care and protection” is not conclusively defined, and the concept is at large; a finding may be made for “any reason”. The Care Act does, however, specify a range of circumstances that, without limitation, are included in the definition, or to which the definition extends: s 71.

The court is not bound by the rules of evidence unless it so determines: s 93(3). Nevertheless the court must draw its conclusions from material that is satisfactory in a probative sense so as to avoid decision-making that might appear capricious, arbitrary or without foundational material.¹⁸

The significance of a finding that a child is in need of care and protection is that it forms the basis for the making of final Care orders under the Care Act.¹⁹

Once proceedings are established, they enter the so-called second phase, sometimes referred to as the “welfare phase” during which planning for the child is undertaken, and following which final Care orders may be made. Establishment is a statutory precondition to the making of final Care orders in the welfare phase.²⁰

My preference is to describe this second phase as the “placement” phase given the important threshold construct that the Secretary must first address after establishment as to whether there is a realistic possibility of restoration. Only if there is no realistic possibility of restoration will alternative placements be required to be considered as part of the permanency planning, in the welfare or placement of proceedings, in a Care Plan that the Secretary is required to prepare pursuant to s 78 of the Care Act.

Once a child has been found to be in need of care and protection the Secretary is required to undertake planning for the child’s future. In most cases the Secretary will prepare a formal Care Plan that addresses the needs of the child.²¹

The Secretary is required to consider what permanent placement is required to provide a safe, nurturing, stable and secure environment for the child.²² Permanent placement is to be made in accordance with the permanent placement principles prescribed.²³ The “hierarchy” established might be summarised as follows:

Thus the Secretary must first assess whether there is a realistic possibility of restoration of the child to the parent(s) within a reasonable period, having regard firstly to the circumstances of the child; and secondly, to the evidence, if any, that the parents are likely to be able to satisfactorily address the issues that have led to the removal of the child.²⁴

The court must then decide whether to accept the assessment of the Secretary: s 83(5). If the court does not accept the assessment of the Secretary, it may direct the Secretary to prepare a different permanency plan: s 83(6).

The phrase “realistic possibility of restoration”, therefore, involves an important threshold construct, which informs the planning that is to be undertaken in respect of any child that has been removed from parents or assumed into care and found to be in need of care and protection.

There is no definition of the phrase “realistic possibility of restoration” in the Care Act.

However, the principles concerning the interpretation and application of the phrase were comprehensively considered in the Supreme Court by Slattery J in 2011: In the matter of Campbell [2011] NSWSC 761. This decision was cited with approval by the Court of Appeal: Re Henry [2015] NSWCA 89 at [44].

Importantly, Slattery J held that it is at the time of the determination that the court must make the assessment. It must be a realistic possibility at that time, not merely a future possibility. This restriction has been removed by recent amendments to the Care Act.

The amendments inserted the additional words “within a reasonable time” into the relevant subsections of s 83. It is necessary, therefore, to look more closely at the significance of the addition of those words.

In my view, the effect of those words has been to remove the restriction formulated by Slattery J in In the matter of Campbell, when he said:

Instead, now, the court may take into account the formulation originally articulated by Senior Magistrate Mitchell in a submission to the Report of the Special Commission of Inquiry into Child Protection Services in NSW:²⁶

The principles relating to the phrase “a realistic possibility of restoration” may now be summarised therefore, by reference to In the matter of Campbell and Re Tanya,²⁸ a decision by Rein J in the Supreme Court, and The Department of Community Services v “Rachel Grant”, “Tracy Reid”, “Sharon Reid and “Frank Reid” [2010] CLN 1 at [61].

Where the Secretary assesses that there is a realistic possibility of restoration to a parent, and the court accepts that assessment, the Secretary is to prepare a permanency plan²⁹ that includes a description of the minimum outcomes that need to be achieved before the child is returned to the parent, services to be provided to facilitate restoration, and a statement of the length of time during which restoration should be actively pursued.³⁰

If the Secretary assesses that there is no realistic possibility of restoration to a parent, the Secretary is to prepare a permanency plan for another suitable long-term placement in accordance with the permanent placement principles discussed above, as set out in s 10A of the Care Act.

Permanency planning means the making of a plan that aims to provide a child with a stable, preferably permanent, placement that offers long-term security and meets their needs.³¹ The court must not make a final Care order unless it expressly finds that permanency planning has been appropriately and adequately addressed.³²

The permanency plan must have regard to the principle of the need for timely arrangements, the younger the child, the greater the need for early decisions, and must avoid the instability and uncertainty that can occur through a succession of different placements or temporary care arrangements. The planning must also make provision for the allocation of parental responsibility, the kind of placement proposed, the arrangements for contact, and the services that need to be provided.³³

A permanency plan does not need to provide details as to the exact placement in the long term, but must be sufficiently clear and particularised so as to provide the court with a reasonably clear picture as to the way in which the child’s needs, welfare and well-being will be met in the foreseeable future.³⁴

If the child is an Aboriginal or Torres Straits Islander there are particular additional requirements to be addressed. The permanency planning must address how the plan has complied with the principles of participation and self-determination set out in s 13 of the Care Act.³⁵ It should also address the principle set out in s 9(2)(d) which requires that the child’s identity, language and cultural ties be, as far as possible, preserved. Proper implementation requires an acknowledgement that the cultural identity of an Aboriginal child or young person is “intrinsic” to any assessment of what is in the child’s best interests.³⁶ It follows that the need to consider Aboriginality and ensure the participation of families and communities must be applied across all aspects of child protection decision-making.

Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.³⁷ The primary care-giver is the person primarily responsible for the care and control of a child, including day-to-day care and responsibility.

If the Children’s Court finds that a child is in need of care and protection, it may make a variety of orders allocating parental responsibility, or specific aspects of parental responsibility.³⁸

The specific aspects of parental responsibility that might be separately or jointly allocated are unlimited, but include residence, contact, education, religious upbringing and medical treatment.³⁹

When allocating parental responsibility, the court is required to give particular consideration to the principle of the least intrusive intervention, and be satisfied that any other order would be insufficient to meet the needs of the child.⁴⁰

Where a person is allocated all aspects of parental responsibility, the court may make a guardianship order: see ss 79A–79C.

The maximum period for which an order may be made allocating all aspects of parental responsibility to the Minister, following approval of a permanency plan involving restoration, guardianship or adoption, is 24 months,⁴¹ unless there are special circumstances that warrant a longer period.⁴²

This restriction marks an upper limit for the reasonable period within which there might be a realistic possibility of restoration.

It also places the onus on the Secretary to bring an application for rescission under s 90 of the Care Act if a staged restoration breaks down within that two year period.

Where the Secretary assesses that there is no realistic possibility of restoration, a permanency plan for another suitable long-term placement is submitted to the court: s 83(3). The Secretary may consider whether adoption is the preferred option: s 83(4).

A long-term placement following the removal of a child which provides a safe, nurturing and secure environment may be achieved by placement with a member or members of the same kinship group as the child or young person, or placement with an authorised carer: s 3.

Out-of-home care means residential care and control provided by a person other than a parent, at a place other than the usual home: s 135.

Decisions concerning out-of-home placement of children in need of care and protection are not decisions that the court undertakes lightly or easily. But at the end of the day, a risk assessment is required, in accordance with the principle that the safety, welfare, and well-being of the children are paramount.

The permanency plan need not provide details as to the exact placement, but must provide sufficient detail to enable the court to have a reasonably clear understanding of the plan: s 83(7A).

The permanency plan will generally consist of a care plan: s 80, together with details of other matters about which the court is required to be satisfied. The care plan must make provision for certain specified matters: s 78. These are:

Importantly, where there is not to be a restoration, the permanency planning must also include provision for appropriate and adequate arrangements for contact.⁴³

In addition, the court may, on application, make orders in relation to contact, including orders for contact between children and their parents, relatives or other persons of significance but only for a maximum period of up to 12 months. The court may make a range of contact orders, both as to frequency and duration, and whether or not the contact should be supervised.⁴⁴

The introduction of s 86 into the Care Act in 2000 permitted the Children’s Court, for the first time, to make contact orders beyond the life of the particular proceedings. The section does not, however, create any right or other entitlement to contact in Care cases. Nor, in my view, does it create any presumption that contact should exist. Contact, although recognised in s 9(2)(f), remains subject always to the safety, welfare and well-being of the child. An order under s 86 mandating contact arrangements should, therefore, only be used sparingly, in cases of demonstrated need, such as intransigence, inflexibility, or a failure to have proper regard to the needs and best interests of the child.

The issue of appropriate contact for children who have been permanently removed from the care of their parents, particularly young children, remains vexed, and there continues to be a wide range of opinion as to the value of contact.

Perceived benefits to be derived by children from contact include developing and continuing meaningful relationships. On the other hand, contact can have an unsettling effect on a child, act as a distraction, impede attachment to new carers and disrupt the placement.

It is generally accepted that a child benefits from some contact with the family of origin (except in extreme cases). Much depends on the level of trust and co-operation that exists between the carers and the birth family. In some cases the birth family can play a positive and supportive role. In other cases, members of the birth family can put the stability of the placement at risk. There is a strong body of opinion that contact should not interfere with a child’s growing attachment to the new family. The younger the child, and the less time the child has been with the birth parents, the less the need for other than minimal contact, for identification purposes.

There are some relevant judicial pronouncements that guide the resolution of contact issues, including the decisions in Re Liam [2005] NSWSC 75, George v Children’s Court of NSW (2003) 59 NSWLR 232 and Re Felicity (No 3) [2014] NSWCA 226 at [42].

In 2011 the Children’s Court issued Contact Guidelines designed to provide assistance to Judicial Officers, practitioners and parties, which were based upon available research and the court’s “accumulated expertise and experience as a specialist court” in Care proceedings.

The issue of contact in Care cases requires the consideration of a range of factors, having regard to the exigencies and circumstances of the particular case, both advantageous and disadvantageous, and balancing the benefits against the risks, the primary focus being on the needs and best interests of the child, and any risk of unacceptable harm: Re Helen [2004] NSWLC 7.

The decision should be based on relevant, reliable and current information.

Factors include the level of attachment to the relevant member of the birth family, the degree of animosity displayed by the birth family against the carers, the level of demonstrated co-operation and engagement with the carers, and the commitment to supporting the placement, the degree of any abusive experience while in the care of the birth family and any ongoing emotional sequelae, the competing demands of the children’s educational, cultural, social and sporting activities, the proposed location of the contact, the travel and other disruption involved, the quality of the contact, the safety of the children during contact, and any other risk factors associated with contact, including the potential for denigration of the carers or other undermining of the placement, and the potential for other negative persons or influences to be present at the visit.

Preferably, contact should be left to the discretion of the person having parental responsibility, taking into account the advice of any professionals retained to assist with the children and the views of all those affected, including the children themselves (having regard to their age, their level of emotional and psychosocial development, and other factors).

The regime for contact should be flexible, recognising that circumstances change as children grow older and their emotional, social and other needs develop.

Some relevant statements in the Children’s Court Contact Guidelines are:⁴⁵

Care proceedings, including appeals, are to be conducted in closed court (s 104B), and the name of any child or young person involved, or reasonably likely to be involved, whether as a party or as a witness, must not be published: s 105(1).

This prohibition extends to the periods before, during and after the proceedings. The prohibition includes any information, picture or other material that is likely to lead to identification: s 105(4).

There are exceptions, such as where a young person (ie a person aged 16 or 17) consents, where the Children’s Court consents, or where the Minister with parental responsibility consents: s 105(3).

The media is entitled to be in court for the purpose of reporting on proceedings, subject to not disclosing the child’s identity. But, the court has a discretion to exclude the media.

In my view, the discretion would only be exercised in exceptional circumstances, because the provisions of s 105 of the Care Act are usually sufficient protection: R v LMW [1999] NSWSC 1111.

Under the common law principles of open justice, the balance would lie in favour of the newspaper: John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476 at G. In AM v DoCS; Ex p Nationwide News [2008] NSWDC 16, I held that the common law principle of open justice is secondary to the principles in s 9 of the Care Act, in particular the paramountcy principle. In that case, I held that the newspaper, which had previously published material tending to identify the children, had not satisfied me that this sort of publication was not likely to re-occur.

I excluded the reporter from remaining in court. I went on to say at [15]:

Interestingly, the newspaper concerned did not take up that invitation.

Care and protection proceedings, including appeals, are not to be conducted in an adversarial manner: s 93(1).

The proceedings are to be conducted with as little formality and legal technicality and form as the circumstances permit: s 93(2).

In Re Emily v Children’s Court of NSW [2006] NSWSC 1009 at [48] the Supreme Court set out the manner in which Care proceedings are to be dealt with by the court.

The court is not bound by the rules of evidence, unless it so determines: s 93(3). Nevertheless, the court must draw its conclusions from material that is satisfactory, in the probative sense, so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary, DFaCS [2015] NSWCA 88 at [148].

In Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 Meagher JA said at [79] in relation to a similar provision governing a tribunal:

It is difficult to imagine circumstances in which a court might make such a determination that the rules of evidence should apply. The only situation that has so far occurred to me, apart from the rule as to relevance, relates to the provisions of the Evidence Act 1995 concerning self-incrimination: s 128.

The standard of proof in Care proceedings is on the balance of probabilities: s 93(4) of the Care Act. The High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director General of Department of Community Services; Re “Sophie” [2008] NSWCA 250.

The provisions of the United Nations’ Convention on the Rights of the Child 1989⁴⁶ (UNCROC) are capable of being relevant to the exercise of discretions under the Care Act: Re Tracey (2011) 80 NSWLR 261.

The circumstances in Re Tracey were unusual and unique. Nevertheless, it may be important to draw the parties out on the question of whether any aspect of UNCROC is specifically relied upon. If so, it will need to be addressed, to the extent that it raises some questions for additional consideration. Otherwise, it is prudent to advert to UNCROC, in any reasons, as not having any additional relevance. I usually add a paragraph along the following lines:

The Court of Appeal approved a similar statement in Re Kerry (No 2) [2012] NSWCA 127.

More recently, in Re Henry [2015] NSWCA 89 at [208]–[220], McColl J discussed the application of the Convention, confirming that its provisions are capable of being relevant in Care proceedings but the circumstances in which that might occur were limited. Not all failures to refer to UNCROC in the context of the Care Act will attract relief on appeal: at [217].

Time is of the essence for the disposal of Care cases. The Care Act provides that all Care matters are to proceed as expeditiously as possible: s 94(1). The court is required to avoid adjournments, which should only be granted where it is in the best interests of the child or there is some other cogent or substantial reason: s 94(4). The Children’s Court aims to complete 90% of Care cases within 9 months of commencement and 100% of cases within 12 months.

The timetable for each matter is to take account of the age and developmental needs of the child: s 94(2). Directions should be made with a view to ensuring that the timetable is kept: s 94(3). Practice Note 5 deals with case management in Care proceedings.⁴⁷ It deals with each of the stages of a Care application and provides for a series of standard directions at [16.6] with prescribed times for the completion of various interlocutory processes, leading to the earliest resolution or allocation of a hearing date in contested matters.

The Care Act provides for the participation of a child or young person in the proceedings through their representation by either an independent legal representative (ILR) or a direct legal representative (DLR): s 99A. An ILR will be appointed to act as the representative for a child under 12: s 99B. An ILR must consult with the child, but their duty is to act in accordance with the paramountcy principle. Whereas, a DLR may be appointed for any child at the age of 12 or over who is capable of giving proper instructions: s 99C. The DLR must then advocate as instructed by the child.

In addition to these provisions, the Law Society of NSW has prepared Representation Principles for Children’s Lawyers.⁴⁸ These guidelines set out a number of important duties and obligations for practitioners representing children.

I will not discuss the document in full, however I will canvass some of the principles these guidelines detail. The guidelines set out the following: a definition of who is the client; the role of the practitioner; determining whether a child has the capacity to give instructions; taking instructions and appropriate communication; duties of representation; confidentiality; conflicts of interest; access to documents and reports; interaction with third parties and ending the relationship with the child.

Importantly, Principle D6 (dealing with communication) emphasises the importance of tailored communication to practitioners. The commentary to the principles state:

Under s 102, a participant in proceedings before the Children’s Court may, with leave of the Children’s Court, be accompanied by a support person. Leave must be granted unless the support person is a witness or the court, having regard to the wishes of the child or young person, is of the view that leave should not be granted or if there is some other reason to deny the application.

However, the Children’s Court can withdraw leave at any time if a support person does not comply with any directions given by the court. A support person, however, cannot act on behalf of a party.

The Care Act provides that a Children’s Magistrate may examine and cross-examine a witness in any proceedings to the extent that the Children’s Magistrate considers appropriate in order to elicit information relevant to the exercise of the Children’s Court’s powers.⁵⁰

The Care Act also provides guidance as to the nature of examination and cross-examination of witnesses.⁵¹

This guidance accords with the inquisitorial nature of Care proceedings insofar as proceedings are required to be conducted in a non-adversarial manner, with as little formality and legal technicality and form as the circumstances permit.

The Act prohibits the use of offensive or scandalous questions by excusing a witness from answering a question that the court regards to be offensive, scandalous, insulting, abusive or humiliating unless the court is satisfied that it is essential to the interests of justice that the question be asked or answered.⁵²

Further, oppressive or repetitive examination of a witness is prohibited unless the court is satisfied that it is essential in the interests of justice for the examination to continue or for the question to be answered.⁵³

In proceedings under the Care Act, the parties will generally comprise the Secretary of the Department, the child or children, the parent(s), the step-parent(s), and the legal representative, being the Independent Legal Representative for children under 12, or the Direct Legal Representative for children 12 and over, up to the age of 18.

Other persons having a genuine concern for the safety, welfare and well-being of a child may be given leave to appear in the proceedings, or be legally represented, and examine and cross-examine witnesses.⁵⁴

Others who might be significantly impacted by a decision of the Children’s Court, not being parties to the proceedings, are to be given “an opportunity to be heard on the matter of significant impact”.⁵⁵ Historically, such persons were generally not made parties, but could present an affidavit. They could not, however, cross-examine or call witnesses of their own.

There has been something of a change in approach in relation to the joinder of parties to Care proceedings in recent times, partly driven by the transfer of casework to the NGO sector, but also as a result of some recent pronouncements by superior courts. The court is now increasingly receptive to joinder applications and more likely to make orders than in the past. In Re June (No 2) [2013] NSWSC 1111, McDougall J clarified the distinction between ss 87 and 98(3) of the Care Act:

The more recent decision in Bell-Collins Children v Secretary, DFaCS [2015] NSWSC 701, provides further clarification. During case management, the Children’s Magistrate had refused the application of the grandparents to be joined as parties. At the hearing, which came before me at the Children’s Court at Woy Woy,⁵⁷ I gave the grandparents an extensive opportunity to be heard, under s 87(1).

In the de novo appeal to the Supreme Court, the grandparents renewed their application for joinder and the matter was considered by Slattery J. The significant aspect of Slattery J’s decision was his distillation of the distinction between the opportunity to be heard under s 87(1) and the granting of leave to appear under s 98(3):

Accordingly, Slattery J granted the grandparents leave on terms under s 98(3). The grandparents were only granted leave to cross-examine and adduce evidence about their own suitability as alternative carers for the children.

Finally, on the issue of joinder, I draw attention to a decision by Sackar J in which he further discusses the principles surrounding the joinder of persons having a genuine concern for the safety, welfare and well-being of a child, in the context of an application of a corporate FSP (NGO):

Peculiar to the Care jurisdiction is the power to rescind or vary final Care orders, at a later date.⁶¹ This statutory power enables a review of orders without the need for an appeal, where there has been a “significant change in any relevant circumstances” since the original order.

Applications for rescission or variation of Care orders require the Applicant to obtain leave.

A refusal of leave is an “order” for the purposes of s 91(1) of the Care Act: S v Department of Community Services [2002] NSWCA 151 at [53]. Refusal to grant leave may, therefore, be the subject of an appeal de novo from the Children’s Court.

The former President of the Children’s Court expressed the view that if, on appeal, leave is granted, the hearing of the substantive application should then be remitted to the Children’s Court for hearing.⁶²

The Care Act s 90(2C) sets out a number of additional matters that the court must take into account before granting leave:

Once leave is granted, the Care Act goes on to prescribe another set of requirements that must be taken into account when the rescission or variation sought relates to an order that placed the child under the parental responsibility of the Minister, or that allocated specific aspects of parental responsibility from the Minister to another person: s 90(6).

The matters specified in s 90(6) are:

In the decision by Slattery J In the matter of Campbell [2011] NSWSC 761, his Honour discussed the concepts of “a relevant circumstance” and “significant” change in a relevant circumstance in the context of an application for leave.

As to what constitutes a “relevant circumstance”, Slattery J said at [42]:

As to what constitutes a “significant” change in a relevant circumstance, he referred to S v Department of Community Services (DoCS) [2002] NSWCA 151 where the Court of Appeal held at [23] that the change must be “of sufficient significance to justify the consideration [by the court] of an application for rescission or variation of the order”.

Justice Slattery said there are dangers in paraphrasing the s 90(2) statutory formula for the exercise of the discretion beyond this statement of the Court of Appeal: [43]. He also made it clear that the court’s discretion to grant leave is not only limited by s 90(2), but also by the requirement to take into account the list of considerations in s 90(2A). Therefore, establishing a significant change in a relevant circumstance under s 90(2) is a necessary, but not a sufficient, condition for the granting of leave.

As to the requirement of an “arguable case”, Slattery J held that this does not relate to the application for leave, but relates to the case for the rescission or variation sought, taking into account the matters in  s 90(6). Therefore, the matters in  s 90(6) must be taken into account in determining whether the applicant for leave has an arguable case. Justice Slattery agreed with Marien DCJ that the interpretation of “arguable case”, as expressed in Dempster v National Companies and Securities Commission (1993) 9 WAR 215, should be adopted; namely, that an arguable case is a case that is “reasonably capable of being argued” and has “some prospect of success” or “some chance of success”: at [50].

These principles were considered and applied in Kestle v DFaCS [2012] NSWChC 2, in which a helpful summary of the principles to be applied in a s 90 application is set out at [22]:

The judgment went on to specifically consider whether leave could be granted on a specific basis.

The mother had submitted that it was not open to the court to grant leave on a discrete issue such as contact.

She submitted that once leave is granted, all issues (including restoration and contact) may be re-visited by the court at the substantive hearing.

The court did not accept this argument and held that the court has a wide discretion under s 90(1) to grant leave, referring to the decision of Mitchell CM in Re Tina [2002] CLN 6, and said at [53]:

In a careful judgment in Re Bethany [2012] NSWChC 4, Children’s Magistrate Blewitt AM applied these principles at [49]–[50].

Costs in Care proceedings are not at large. The Care Act limits the power to make an order for an award of costs. Section 88 provides:

Under the common law a successful party has a “reasonable expectation” of being awarded costs against the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72 at [134]. Fairness dictates that the unsuccessful party typically bears the liability for costs: Oshlack at [67]. This means that the successful party in litigation is generally awarded costs, unless it appears to the court that some other order is appropriate, either as to the whole or some part of the costs: Currabubula Holdings Pty Ltd v State Bank of NSW [2000] NSWSC 232.

The common law position is, however, displaced by the Care Act, which provides for a comprehensive statutory scheme for care proceedings in which the power of the court to award costs is circumscribed by s 88, so that costs may only be awarded where exceptional circumstances exist.

The policy basis behind the restriction on the power to award costs is self-evidently based in the notion that parties involved in Care proceedings should have as full an opportunity to be heard as is reasonably possible, and should not be deterred from participating in such proceedings by adverse pecuniary consequences, the safety, welfare and well-being of the child being the paramount concern.⁶³

The meaning of “exceptional circumstances” in the context of s 88 of the Care Act, and when they might exist, has been considered and discussed in various decisions, most notably in the judgments in SP v Department of Community Services [2006] NSWDC 168; Department of Community Services v SM and MM [2008] NSWDC 68; XX v Nationwide News Pty Ltd [2010] NSWDC 147 and Director-General of the Department of Family and Community Services v Amy Robinson-Peters [2012] NSWChC 3.

I will not review those decisions here, but it may be said that the situations in which “exceptional circumstances” might be found are not exhaustively defined or limited by them.

Some general propositions are nevertheless apt. The discretion to award costs must be exercised judicially and “according to rules of reason and justice, not according to private opinion … or even benevolence … or sympathy” (Williams v Lewer [1974] 2 NSWLR 91 at 95), and is not to be exercised arbitrarily or capriciously, or on no grounds at all: Oshlack, above, at [22].

The underlying idea is of fairness, having regard to what the court considers to be the responsibility of each party for the costs incurred: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121].

The court may have regard to the particular circumstances of the case, including the evidence adduced, the conduct of the parties and the ultimate result: Knight v Clifton [1971] Ch 700.

The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [34]; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at [22].

Where an order for costs is made, I suggest that the order specify whether the costs are awarded on an indemnity basis, or that the costs should be quantified on the ordinary basis, as defined in s 3 of the Civil Procedure Act 2005.

I am also of the view that the Children’s Court has the power to award a fixed sum of costs. The various provisions of the Care Act, including s 93(2), are sufficient to give the Children’s Court the power to do so.⁶⁴

Judicial Officers have traditionally been reluctant to order the payment of specified sums of costs. Nevertheless the cases suggest a number of circumstances in which it might be appropriate to make such an order, such as the avoidance of the expense, delay and aggravation involved in protracted litigation which might arise out of taxation (or assessment): Sherborne Estate (No 2); Re Vanvalen v Neaves (2005) 65 NSWLR 268 at [38]; Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at [121]; Keen v Telstra Corp (No 2) [2006] FCA 930 at [4].

In my view, it will generally be appropriate to make orders for specified sums of costs in Care proceedings.

But, the power is to be exercised judicially: Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [8]–[10]; and there must be proper factual foundation for the order: Roberts v Rodier [2006] NSWSC 1084 at [40]–[44]; Ventouris Enterprises Pty Ltd v DIB Group Pty Ltd (No 4) [2011] NSWSC 720.

The court arrives at an estimate of the proper costs by examining, on the basis of particulars provided, whether the quantification is logical, fair and reasonable: Lo Surdo v Public Trustee [2005] NSWSC 1290 at [7]; Roberts v Rodier, above, at [40]–[44].

The courts have, however, tended to apply a discount, having regard to the “broad-brush” approach involved: Idoport, above, at [13]; Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd (2008) 249 ALR 371 at [23].

The power to award costs in the Children’s Court, however, does not extend to awards of costs against non-parties, or legal practitioners.⁶⁵

There are, however, some exceptions to this principle, which arise under the general law.

The exceptions include persons who are not parties in the strict sense, but are closely connected with the proceedings, such as nominal parties: Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 at 217; or “relators”: Wentworth v Attorney-General (NSW) (1984) 154 CLR 518; or “next friends”: Palmer v Walesby (1868) LR 3 Ch App 732; and tutors: Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148.

Then there are persons who appear in the proceedings for some specific limited purpose, who are in effect a party, for that limited purpose, such as someone appearing to maintain a claim for privilege: ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169; or to obtain a costs order: Wentworth v Wentworth (2001) 52 NSWLR 602.

It might also be arguable that such orders may also be made against persons who are bound by an order or judgment of the court and fail to comply, or who breach an undertaking given to the court, or persons in contempt or who commit an abuse of process.

These are issues for determination in the future.

The Care Act is to be administered under the “paramountcy principle”, that is, that the safety, welfare and well-being of the child is paramount.⁶⁶ In addition to this paramountcy principle, the Care Act sets out other particular principles to be applied in the administration of the Care Act.⁶⁷

One of these principles is that account must be taken of concepts such as culture, language, identity and community.⁶⁸ Additionally, it is a principle to be applied in the administration of the Care Act that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children and young people with as much self-determination as is possible.⁶⁹

Further, Aboriginal and Torres Strait Islander families, kinship groups, representative organisations and communities are to be given the opportunity, by means approved by the Secretary, to participate in decisions made concerning the placement of their children and young persons and in other significant decisions made under the Care Act that concern their children and young persons.⁷⁰

Finally, a general order for placement of an Aboriginal or Torres Strait Islander child who needs to be placed in statutory out-of-home care is prescribed.⁷¹ In summary, the order for placement is, with:

Before it can make a final Care order, the Children’s Court must be expressly satisfied that the permanency planning for the child has been appropriately and adequately addressed.⁷²

Permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security.⁷³ The plan must:

Culture is a critical element in the assessment of what is in a child’s best interests and a critical consideration in assuring the safety, welfare and well-being of a child. It is vital that decision makers in child protection matters are provided with sufficient information to be able to appreciate the distinct role culture plays in the identity formation and socialisation of each child.

The legislative requirement to address the Aboriginal and Torres Strait Islander Placement Principles, and to adequately and appropriately address cultural planning, are reminders of the significance of Aboriginal cultural identity in the socialisation of a child.

There are various cases over recent years that address the Aboriginal and Torres Strait Islander Principles set out in the Care Act. These include: Re Kerry (No 2) [2012] NSWCA 127; DFaCS (NSW) re Ingrid [2012] NSWChC 19; RL and DJ v DoCS [2009] CLN 3; In the matter of Victoria & Marcus [2010] CLN 2 at [49]; Re Simon [2006] NSWSC 1410; Re Earl and Tahneisha [2008] CLN 7 and Shaw v Wolf (1998) 83 FCR 113.

I have made numerous comments in past cases in relation to the inadequacy of cultural planning, particularly with respect to Aboriginal children. As I stated in DFaCS v Gail and Grace [2013] NSWChC 4 at [94]:

I am happy to report that in the past year a template for a cultural action planning section in the Care Plan has been developed. The idea behind this template is to ensure that adequate casework is undertaken to appropriately identify a child’s cultural origins, and to put in place fully developed plans for the child to be educated, and to fully immerse the child in their culture; including family, wider kinship connections, totems, language and the like.

A party dissatisfied with a decision of the Children’s Court may appeal to the District Court: s 91(1). The decision of the District Court in respect of an appeal is taken to be a decision of the Children’s Court and has effect accordingly: s 91(6).

The appeal is by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made by the Children’s Court, may be given on the appeal: s 91(2). The District Court may decide to admit the transcript or any exhibit from the Children’s Court hearing: s 91(3).⁷⁷

Judges of the District Court hearing such appeals have, in addition to any functions and discretions that the District Court has, all the functions and discretions that the Children’s Court has under Ch 5 and 6 of the Care Act ie ss 43–109X: s 91(4).

The provisions of the Care Act (Ch 6) relating to procedure apply to the hearing of an appeal in the same way as they apply in the Children’s Court: s 91(8).

It is important, therefore, for District Court Judges hearing such appeals to understand the Care Act, its guiding principles, and its procedural idiosyncrasies.

The Children’s Court Clinic (which I will refer to in short form as the Clinic) is established under the Children’s Court Act 1987, and is given various functions designed to provide the Court with independent, expert, objective, and specialist advice and guidance.

The court may make an assessment order, which may include a physical, psychological, psychiatric, or other medical examination, or an assessment, of a child: s 53. The court may also make an order for the assessment of a person’s capacity to carry out parental responsibility (parenting capacity): s 54.⁷⁸

In addition, the court may make an order for the provision of other information involving specialist expertise as may be considered appropriate: s 58(3).

The court is required to appoint the Clinic for the purpose of preparing assessment reports and information reports, unless it is more appropriate for some other person to be appointed. The reports are made to the court, and are not evidence tendered by a party.

It is absolutely critical, therefore, that the clinician be, and be seen to be, completely impartial and independent of the parties.

The Clinic has limited resources. Great care should be exercised in the making of assessment orders and, if made, the purpose should be clearly identified and spelled out for the clinician. It is important to remember that the court has a discretion as to whether it will make an assessment order. An assessment order should not be made as a matter of course. In particular, the court must ensure that a child is not subjected to unnecessary assessment: s 56(2).

In considering whether to make an assessment order, the court should have regard to whether the proposed assessment is likely to provide relevant information that is unlikely to be obtained elsewhere.

Having said that, the court can derive considerable assistance from an Assessment Report. In addition to providing independent expert opinion, the clinician can provide a hybrid factual form of evidence not otherwise available. Because they observe the protagonists over a period of time, interview parents, children and others in detail and on different occasions, in neutral or non-threatening environments, away from courts and lawyers, untrammelled by court formalities and processes, clinicians can provide the court with insights and nuances that might not otherwise come to its attention.

Thus, a clinician can provide impartial, independent, objective information not contained in other documents, give context and detail to issues that others may not have picked up on, and which the court, trammelled by the adversarial process and the “snapshot” nature of a court hearing, would not otherwise have the benefit of.

The Children’s Court expects clinicians to be aware of, apply and adhere to the provisions of the Expert Witness Code of Conduct set out at Sch 7 of the Uniform Civil Procedure Rules 2005 (UCPR).

Where intervention by Community Services is necessary, it is preferable that the intervention occurs early and at a time that allows for genuine engagement with the whole family, with a view to avoiding, wherever possible, escalation of problems into the court system. Once cases do need to come to court it remains important that the court also has processes available that will facilitate bringing the parties together with a view to them coming to a mutually acceptable resolution, that is in the best interest of the child, thereby avoiding lengthy, emotionally draining and often irrevocably divisive formal hearings.

Over the past few years, the Children’s Court has initiated and entrenched alternative dispute resolution processes, which has involved an expansion and development of the involvement of Children’s Registrars in Care matters. Prior to the introduction of these new initiatives the use of ADR in the Children’s Court was restricted not only by the resources available, but also by an adversarial culture within the jurisdiction that favoured traditional court processes.

The ADR processes in the Children’s Court are available in an appeal to the District Court.

The Dispute Resolution Conference (DRC) model has now become an integral aspect of Children’s Court proceedings.

The conferences involve the use of a conciliation model. This means Children’s Registrars have an advisory, as well as a facilitation role.

Conferences are now regularly conducted at the court by Children’s Registrars who have legal qualifications and are also trained mediators (see s 65 of the Care Act), and are based at Parramatta, Broadmeadow, Campbelltown and Port Kembla Children’s Courts, and Lismore and Albury Local Courts.

Importantly, however, Children’s Registrars will travel to any court throughout the State and conduct DRCs.

The DRC process has brought about a significant shift in culture that has impacted on cases in the Children’s Court more generally. The Australian Institute of Criminology (AIC) has evaluated the use of ADR in the area of care and protection, and found high levels of participation and satisfaction. Family members involved found the process to be useful, and felt they were listened to and were treated fairly. The AIC evaluation found that approximately 80% of mediations conducted have resulted in the child protection issues in dispute being narrowed or resolved.⁷⁹

The timing of a referral of disputed proceedings to a DRC can sometimes be important.

Like all referrals for mediation, it is a matter of judgment when to do so. Sometimes it is necessary for the issues to be sufficiently defined to make the mediation viable.

On other occasions, it is better to refer as soon as possible, even if all the relevant documentation and information is not necessarily available.

The importance of confidentiality in the DRC model was reaffirmed in Re Anna [2012] NSWChC 1.

In that case the father said something during the DRC that was described by the Secretary as an admission that may have been relevant to the father’s capacity to be responsible for the safety, welfare and well-being of his daughter. The Secretary sought leave to file an affidavit by a caseworker who was present at the DRC in which he refers to the alleged admission made by the father.

In rejecting the application to file the affidavit, the court said at [12]–[13]:

The court went on to say, however, that the protection is not absolute. He referred to a clause in the Children and Young Persons (Care and Protection) Regulation 2000 (now repealed). ADR is now provided by Ch 15A Care Act and the Children’s Court Practice Note No 3.

Section 244A defines “alternative dispute resolution”, which includes a DRC. It goes on to provide that evidence of anything said or of any admission made, during alternative dispute resolution is not admissible in any proceedings: s 244B.

Similarly, a document prepared for the purposes of, or in the course of, or as a result of, ADR is not admissible in evidence in any proceedings before any court, tribunal or body.

Section 244C(2) enables the disclosure of information obtained in connection with the alternative dispute resolution, but only in very limited circumstances, and only by the person conducting the ADR. The permissible circumstances include where the relevant persons consent, or in accordance with a requirement imposed by or under a law (other than a requirement imposed by a subpoena or other compulsory process).

In Re Anna, the court made various important observations at [17] and [18], including:

The exceptions enabling disclosure of information obtained in ADR appear in s 244C(2) which provides as follows:

I do not propose here to consider in detail today the circumstances under which a disclosure made at a DRC might be admissible. That is a discussion for another day. For the moment, be aware that the power exists, but it is limited to disclosure by the person conducting the ADR, that is the Children’s Registrar, and not the parties or others in attendance, or the caseworkers or legal practitioners involved.