(1) 

In any proceedings with respect to a child or young person—

(a) 

the child or young person and each person having parental responsibility for the child or young person, and

(b) 

the Secretary, and

(c) 

the Minister,

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

(1) 

To ensure that a child or young person is able to participate in decisions made under or pursuant to this Act that have a significant impact on his or her life, the Secretary is responsible for providing the child or young person with the following—

(a) 

adequate information, in a manner and language that he or she can understand, concerning the decisions to be made, the reasons for the Department’s intervention, the ways in which the child or young person can participate in decision making and any relevant complaint mechanisms,

(b) 

the opportunity to express his or her views freely, according to his or her abilities,

(c) 

any assistance that is necessary for the child or young person to express those views,

(d) 

information as to how his or her views will be recorded and taken into account,

(e) 

information about the outcome of any decision concerning the child or young person and a full explanation of the reasons for the decision,

(f) 

an opportunity to respond to a decision made under this Act concerning the child or young person.

(2) 

In the application of this principle, due regard must be had to the age and developmental capacity of the child or young person.

(3) 

Decisions that are likely to have a significant impact on the life of a child or young person include, but are not limited to, the following—

(a) 

plans for emergency or ongoing care, including placement,

(b) 

the development of care plans concerning the child or young person,

(c) 

Children’s Court applications concerning the child or young person,

(d) 

reviews of care plans concerning the child or young person,

(e) 

provision of counselling or treatment services,

(f) 

contact with family or others connected with the child or young person.

1. 

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.

2. 

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

3. 

It is now well settled law that the proper test to be applied in care proceedings in respect of final orders is that of “unacceptable risk to the child”: M v M at [25]: Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221 at [45].

4. 

The decision in M v M dealt with past sexual abuse of a child but the principles there set out apply equally to other forms of harm, such as physical and emotional harm.

5. 

A positive finding of an allegation of harm having been caused to a child should only be made where the Court is so satisfied according to the relevant standard of proof (ie balance of probabilities), with due regard to the matters set out in Briginshaw. 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: M v M at [26].

6. 

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] Fam CA 1235. This is an exercise in foresight.

7. 

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: from a paper by Justice Stewart Austin delivered at the 2015 Hunter Valley Family Law Conference.

8. 

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.

Although the Tribunal may inform itself in any way “it thinks fit” and is not bound by the rules of evidence, it must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined. Thus, material which, as a matter of reason, has some probative value in that sense may be taken into account: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491–493; The King v The War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 249–250, 256.

Any right of appeal comes at the end of the process, once final orders have been made. The proceedings remained inquisitorial until the final orders, they being orders seeking an outcome in the best interests of the child.

(1) 

The court will wish to balance the underlying considerations of public policy, (a) that there is a public interest in an end to litigation — the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is a good reason to do so; (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but (c) that the welfare of any child is unlikely to be served by relying upon determinations of the fact which turn out to have been erroneous; and (d) the court’s discretion, like the rules of the issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stifung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 947, “must be applied so as to work Justice and not injustice”.

(2) 

The court may well wish to consider the importance of the previous findings in the context of the current proceedings. If they are so important that they are bound to affect the outcome one way or another, the court may be more willing to consider a rehearing than if they are of lesser or peripheral significance.

(3) 

Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reached different conclusion upon the same evidence. No doubt we would all be reluctant to allow a matter to be re-litigated on that basis alone. The court will want to know (a) whether the previous findings were the result of a full hearing in which the person concerned took part in the evidence was tested in the usual way; (b) if so, whether there is any ground upon which the accuracy of the previous finding could have been attacked at the time, and why therefore there was no appeal at the time; and (c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings.

(2)

However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A)

If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court is to appoint a guardian ad litem for the person under s 101.

(a) 

appoint a guardian ad litem for either or both of the parents of a child or young person if it is of the opinion that the parent is, or the parents are, incapable of giving proper instructions to his or her, or their, legal representative.

30A Form of subpoena

(1) 

A subpoena must not be addressed to more than one person.

(2) 

Unless the court orders otherwise, a subpoena must identify the addressee by name or by description of office or position.

(3) 

A subpoena for production must—

(a) 

identify the document or thing to be produced, and

(b) 

specify the date, time and place for production.

(4) 

A subpoena to attend to give evidence must specify the date, time and place for attendance.

(5) 

The date specified in a subpoena must be the date of the hearing to which it relates or any other date as permitted by the court.

(6) 

The place specified for production may be the court or the address of any person authorised to take evidence in the proceeding as permitted by the court.

(7) 

A subpoena must specify the last date for service of the subpoena, being a date not earlier than—

(a) 

5 days, or

(b) 

any shorter or longer period as ordered by the court and specified in the subpoena,

before the date specified in the subpoena for compliance with it.

(8) 

The party on whose application a subpoena for production is issued must cause copies of the subpoena to be served not only on the person addressed in the subpoena but also on all of the other parties to the proceedings.

Parties must issue subpoenas as soon as is practicable after the proceedings are commenced so that documents can be produced and inspected in a timely manner and are available for the proper preparation of the case, including submission to experts.

(a) 

Subject to the child’s best interests, a fundamental objective is to be the reunion of the child with his/her family or Aboriginal and Torres Strait Islander community

(b) 

Continuing contact must be ensured between the child and his/her Aboriginal and Torres Strait Islander family, community and culture.

231L When Children’s Court may make order under this Part

(1) 

The Children’s Court may make an order under this Part transferring a child protection proceeding pending in the Children’s Court to the Children’s Court in a participating State if—

(a) 

an application for the making of the order is made by the Secretary, and

(b) 

the relevant interstate officer has consented in writing to the transfer.

(2) 

The proceeding is discontinued in the Children’s Court on the registration in the Children’s Court in the participating State, in accordance with the interstate law, of an order referred to in subsection (1).

231M Children’s Court to have regard to certain matters

In determining whether to make an order transferring a proceeding under this Part, the Children’s Court must have regard to—

(a) 

the principles in s 9, and

(b) 

whether any other proceedings relating to the child or young person are pending, or have previously been heard and determined, under the child welfare law in the participating State, and

(c) 

the place where any of the matters giving rise to the proceeding in the Children’s Court arose, and

(d) 

the place of residence, or likely place of residence, of the child or young person, his or her parents and any other people who are significant to the child or young person (as referred to in s 9(2)(f)), and

(e) 

whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child or young person, and

(f) 

the fact that it is preferable that a child or young person is subject to a child protection order made under the child welfare law of the State where the child or young person resides, and

(g) 

any information given to the Children’s Court by the Secretary or otherwise concerning any pending criminal proceedings or sentencing order that is currently in force (other than a fine) in respect of the child or young person.

The Inquiry is of the view that, on balance, the Children’s Court should retain its power to make contact orders with respect to those children and young persons about whom the court has accepted the assessment of the Director-General that there is a realistic possibility of restoration. For all other children and young persons, that is those where the court has accepted that there is no such possibility, the court should have no power with respect to making orders as to contact.

86 Contact orders

(1)

An order may be made by the Children’s Court doing any one or more of the following—

(a) 

stipulating minimum requirements concerning the frequency and duration of contact between a child or young person and his or her parents, relatives or other persons of significance to the child or young person,

(b) 

requiring contact with a specified person to be supervised,

(c) 

denying contact with a specified person if contact with that person is not in the best interests of the child or young person.

(1A)

A contact order may be made by the Children’s Court—

(a) 

on application made by any party to proceedings before the Children’s Court with respect to a child or young person, or

(b) 

with leave of the Children’s Court—

on application made by any of the following persons who were parties to care proceedings with respect to a child or young person—

(i) 

the Secretary,

(ii) 

the child or young person,

(iii) 

a person having parental responsibility for the child or young person,

(iv) 

a person from whom parental responsibility for the child or young person has been removed,

(v) 

any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person, or

(c) 

with leave of the Children’s Court — on application made by any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person.

(1B)

The Children’s Court may grant leave under subsection (1A)(b) or (c) if it appears to the court that there has been a significant change in any relevant circumstances since a final order was made in the proceedings.

(1C)

The Children’s Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (1A)(c) unless it considers the person to have a sufficient interest in the welfare of the child or young person.

(1D)

Before granting leave under subsection (1A)(b) or (c), the Children’s Court—

(a) 

must take into consideration whether the applicant for the contact order and persons to whom the contact order applies have attempted, or been ordered by the Children’s Court to try, to reach an agreement about contact arrangements by participating in alternative dispute resolution, and

(b) 

may order the applicant and those persons to attend a dispute resolution conference conducted by a Children’s Registrar under s 65 or alternative dispute resolution process under s 65A.

(1E)

Subject to any order the Children’s Court may make, an applicant for a contact order under subsection (1A)(b) who was a party to care proceedings must notify other persons who were parties to the proceedings of the making of the application.

Note:

Section 256A sets out the circumstances in which the Children’s Court may dispense with the requirement to give notice.

(1F)

A contact order made under subsection (1A)(b) on application of a person who was a party to proceedings in which an earlier contact order was made that has expired may be made in the same or different terms to the expired order.

(2)

The Children’s Court may make an order that contact be supervised by the Secretary or a person employed in that part of the Department comprising those members of staff who are principally involved in the administration of this Act only with the Secretary’s or person’s consent and must not be made in relation to contact with a child or young person who is the subject of a guardianship order.

(3)

An order of the kind referred to in subsection (1)(a) does not prevent more frequent contact with a child or young person with the consent of a person having parental responsibility for the child or young person.

(4)

An order of the kind referred to in subsection (1)(b) may be made only with the consent of the person specified in the order and the person who is required to supervise the contact.

(5)

A contact order made under this section has effect for the period specified in the order, unless the order is varied or rescinded under ss 86A or 90.

(6)

Despite subsection (5), if the Children’s Court decides (whether by acceptance of the Secretary’s assessment under s 83 or otherwise) that there is no realistic possibility of restoration of a child or young person to his or her parent, the maximum period that may be specified in a contact order made under subsection (1A) concerning the child or young person is 12 months.

(7)

Subsection (6) does not apply to a contact order made on the application of a former party to proceedings in which an earlier contact order was made that has expired.

(8)

Subsection (6) does not apply to a contact order concerning a child or young person who is the subject of a guardianship order if the Children’s Court is satisfied that a contact order of more than 12 months duration (for example, a contact order for the duration of the guardianship order) is in the best interests of the child or young person.