Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Re Kerry (No 2) [2012] NSWCA 127
• Hearing dates: 17 April 2012
• Decision date: 09 May 2012
• Before: Barrett JA (at [1]); Tobias AJA (at [86]); Schmidt J (at [87])

Decision

1. Order that the claims in prayers 1 and 2 of the further amended summons be dismissed.

2. Direct that any party seeking an order that another party pay the whole or any part of the first party's costs of the proceedings to date do, within fourteen days, serve on that other party the terms of the order sought and brief submissions in support of the making of that order.

3. Direct that a party served in accordance with order 2 do, within fourteen days after service, serve brief written submissions in response.

4. Direct that a copy of each document so served be filed by delivery to the Registrar of the Court of Appeal promptly after it is served.

5. Reserve for future consideration by this Court on the papers the question of the making of any order as to costs of the proceedings to date.

6. Remit the balance of the further amended summons to the Equity Division for determination.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - proceedings relating to care and protection - competing applications for allocation of parental responsibility determined by Children's Court - orders varied on appeal to District Court - JUDICIAL REVIEW application for order in the nature of certiorari in respect of District Court decision - whether jurisdictional error - whether error on the face of the record - whether relevance of principles in United Nations Convention on the Rights of the Child wrongly rejected - whether failure to comply with s 9(2)(c) of Children and Young Persons (Care and Protection)Act 1998 - whether s 79(3) implemented - whether failure to comply with s 13 and 78A provisions with respect to Aboriginality
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, Part 1, Chapter 2, ss 3, 9(1), 9(2)(c), 13(1), 13(6), 60, 71(1)(c), 71(1)(d), 78(1). 78(2)(a), 78(2)(b), 78A(3), 78A(4), 79(1), 79(3), 80, 81(1)(b), 86(2), 91, 157; Interpretation Act 1987, s 15(2); Supreme Court Act 1970, ss 51(1)(b), 69; United Nations Conventions on the Rights of the Child (1989), arts 7(1), 8(1), 9(1), 18(1), 29(1)(c), 30
• Cases Cited: Bushell v Environment Secretary [1981] AC 75; Craig v South Australia [1995] HCA 58; 184 CLR 163; David White v Director-General of the Department of Human Services [2011] NSWDC 106; (2011) 13 DCLR (NSW) 192; Director-General Department of Human Services and Community Services v LX [2010] NSWDC 291; (2010) 11 DCLR (NSW) 308; Hearne v Street [2008] HCA 36; (2008) 235 CLR 135; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; PR v Department of Community Services [2009] NSWADT 277; Re Kerry [2010] NSWCA 232; Re Sophie [2008] NSWCA 250; Re Tracey [2011] NSWCA 43
• Category: Principal judgment
• Parties: Grandmother - first plaintiff; Mother - second plaintiff; Director-General of the Department of Family and Community Services - second defendant; District Court of New South Wales - Third defendant; Aunt - fourth defendant; Father - fifth defendant; Child - sixth defendant
• Representation: Mr P R Glissan - first plaintiff; In person - second plaintiff; Ms M T England - second defendant; In person - first plaintiff; In person - second plaintiff; I V Knight, Crown Solicitor - second defendant
• File Number(s): 2012/117463

Judgment

1 BARRETT JA: These proceedings were commenced in the Equity Division of the Supreme Court and, by order under s 51(1)(b) of the Supreme Court Act 1970 made by White J on 13 April 2012, removed into the Court of Appeal.

Claims and parties

2 The plaintiffs, by their further amended summons, seek under s 69 of the Supreme Court Act orders in the nature of certiorari in respect of a decision of the District Court of New South Wales (Balla DCJ) of 8 July 2011 upon an appeal from the Children's Court of New South Wales.

3 There is also a claim for relief under the parens patriae jurisdiction of the Supreme Court but, by consent of the parties, only the s 69 claim was argued when the matter came before the Court of Appeal on 17 April 2012. These reasons are confined to that claim.

4 The proceedings concern a four-year-old boy who was given the pseudonym "Kerry" for the purposes of the Children's Court proceedings. I shall refer to him as "the Child". The parties named in the further amended summons are:

First plaintiff: the Child's maternal grandmother ("the Grandmother")

Second plaintiff: the Child's mother ("the Mother")

Second defendant: Director-General of the Department of Family and Community Services ("the Director-General")

Third defendant: District Court of New South Wales

Fourth defendant: the sister of the Mother ("the Aunt")

Fifth defendant: the Child's father ("the Father")

Sixth defendant: the Child

5 The person originally named as first defendant is no longer a party.

6 The District Court and the Aunt have filed submitting appearances. The Father was served but filed no notice of appearance and did not seek to participate. The active parties are therefore the Grandmother, the Mother and the Director-General.

7 The Grandmother and the Director-General were each represented by counsel when the s 69 claim was argued. Mr P R Glissan appeared for the Grandmother. Ms M T England appeared for the Director-General. Mr S J Marks, solicitor, represented the Child as Independent Children's Lawyer but made no submissions on the claim for prerogative relief. The Mother addressed the court briefly and handed up a letter which the judges read during a short adjournment.

Background

8 It is pertinent to summarise certain factual matters that are uncontroversial and appear from the record of the District Court now before this Court.

9 The Child was born in August 2007. For about a month before the Child's birth, the Mother received assistance from Burnside, an agency of the Uniting Church, in developing skills needed to look after a child. The Child had certain congenital abnormalities, including malformed genitalia. Three days after the birth, the Department of Family and Community Services ("the Department") received a report raising concerns about the parents' capacity to provide appropriate care for a child with a significant medical condition and special needs. Further reports were received thereafter. In December 2007, the Burnside support came to an end. Burnside raised a number of concerns about the Child's welfare.

10 On 14 January 2008, a caseworker employed by the Department conducted a risk of harm assessment. Several issues were identified. The assessment was that there existed a high likelihood of harm to the Child. On 15 January 2008, caseworkers and police removed the Child from the Mother's home. The Mother and the Grandmother sought to prevent the removal.

11 An application to the Children's Court under the Children and Young Persons (Care and Protection) Act 1998 (the "Care Act") was filed by the Director-General on 6 January 2008. The application sought an order allocating parental responsibility to the Director-General. The grounds stated in the application were that the child had been and was likely to be physically or sexually abused or ill-treated (Care Act, s 71(1)(c)), that the child's basic physical, psychological or educational needs were not being met, or were likely not to be met, by his parents (s 71(1)(d)) and that the child was suffering or was likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he was living (s 71(1)(e)).

12 The Grandmother filed an application to the Children's Court on 26 February 2008 seeking an order allocating parental responsibility to her. The stated ground was that the Grandmother was available to provide for the welfare, safety and development of the Child.

13 By orders made on 3 November 2008, the Children's Court allocated parental responsibility to the Minister administering the Care Act ("the Minister") until 3 June 2009 and to the Mother (to the exclusion of the Father) from 4 June 2009 until 3 May 2010. It was also ordered that the Child be under the supervision of the Director-General for a period of twelve months from 4 June 2009. Various undertakings were accepted from the Mother, the Father and the Grandmother. Provision was made for the filing of certain reports with the court by the Director-General.

14 In December 2008, the Grandmother appealed to the District Court. The Director-General filed a cross-appeal in February 2009. On 14 December 2009, the District Court made orders allocating all aspects of parental responsibility to the Minister until the Child reached the age of eighteen. This was in accordance with the Director-General's cross-appeal.

15 In September 2010, this Court made consent orders quashing the District Court's decision and remitting the proceedings to the District Court for determination according to law. Young JA had made, on 2 August 2010, certain interim access orders: Re Kerry [2010] NSWCA 232.

16 The remitted proceedings were heard by the District Court in January and June 2011. The adjournment of several months was ordered to allow an assessment of the Aunt to be undertaken.

17 In the course of the hearing that commenced in January 2011, there was some modification of the claim advanced by the Grandmother. Her application was, in the words of the judge, "effectively amended" in the course of the hearing to seek an order allocating parental responsibility to the Mother or alternatively to the Aunt. The Mother sought relief corresponding with that sought by the Grandmother. The Father supported the allocation of parental responsibility to the Aunt, but not to the Mother. The Director-General's position remained throughout that parental responsibility ought to be allocated to the Minister until age eighteen.

18 The District Court made orders on 8 July 2011. The Children's Court's orders of 3 November 2008 were set aside and it was ordered pursuant to s 79(1)(b) of the Care Act that parental responsibility for the Child be allocated to the Minister until the age of eighteen. It was also ordered pursuant to s 81(1)(b) of the Care Act that all aspects of parental responsibility for the Child be the sole responsibility of the Minister. Further orders dealt with ancillary matters such as periodic contact with the Mother, the Father and the Grandmother.

19 The Child was placed with a carer from 15 January 2008 to 21 August 2008 and with a different carer from 21 August 2008 to 9 July 2010. The Child was placed with a third carer on 9 July 2010. That placement continued until 18 February 2011 when the Child was placed with new carers.

20 It is accepted by all parties that the Child is an "Aboriginal child" within the meaning of the Care Act. The primary judge found that both the Mother and the Father acknowledged Aboriginality.

The challenges to the District Court decision

21 The application of the Mother and the Grandmother for prerogative relief under s 69 of the Supreme Court Act is made on four distinct grounds. These were stated in detail in a further amended summons which, by leave, was filed by the Grandmother and the Mother after the conclusion of the hearing on 17 April 2012. The grounds may be summarised as follows:

Ground 1: The statement by the primary judge in her reasons that she was not aware of any basis on which it could be said that the United Nations Conventions on the Rights of the Child (1989) ("UNCROC") qualified or modified the provisions of the Care Act and her failure to take into account or apply provisions in arts 7(1), 8(1), 9(1), 18(1), 29(1)(c) and 30 of UNCROC amount to jurisdictional error in that the primary judge misapprehended or disregarded the nature or limits of her functions and powers under the Care Act and decided the appeal and made orders based on a misconception or disregard of the nature or limits of her jurisdiction.

Ground 2: The primary judge's reasons for deciding not to place the Child with the Aunt reveal several errors, being failure to apply the principle in s 9(2)(c) of the Care Act, failure to comply with the principles in s 13(1)(a), error in the identification of relevant issues and failure to consider or order placement of the Child with the Aunt in the event of allocation of parental responsibility to the Minister.

Ground 3: That the District Court fell into error because of its finding that s 9(2)(c) of the Care Act could not be given any weight in the circumstances of the case, thereby failing to take into account a matter that the Act positively required to be taken into account.

Ground 4: That the District Court fell into error by ordering permanency placement until age eighteen in non-Aboriginal care, contrary to s 78A(3) and 78A(4) of the Care Act.

22 The decision of the District Court is amenable to review by order in the nature of certiorari on the ground of error on the face of the record, as well as jurisdictional error, pursuant to s 69 of the Supreme Court Act. This Court has before it the application and cross-application made to the Children's Court (which were central to the District Court's function of undertaking the appeal to it), the Children's Court's orders of 3 November 2008, the applications filed by the Grandmother and the Director-General in the District Court and the District Court's orders and reasons for judgment. The parties accepted these as together constituting the record of the District Court: Craig v South Australia [1995] HCA 58; 184 CLR 163 and Supreme Court Act, s 69(4). The questions for this Court, stated broadly, are whether some pre-condition to the authority of the District Court to make the orders it made was unsatisfied or the authority was otherwise lacking or exceeded and whether the record of the District Court shows that the decision was based on an error of law so as to be affected by the error.

23 The grounds of appeal make it necessary to consider several provisions of the Care Act.

The Care Act

24 The appeal before the primary judge was governed by s 91 of the Care Act. It therefore proceeded by way of a new hearing in which fresh, new or substituted evidence could be received (s 91(2)). All the relevant functions and discretions of the Children's Court were vested in the District Court (s 91(4)). The task of the District Court was therefore to determine the several applications made originally to the Children's Court - that is, the Director-General's application filed on 6 January 2008 and the Grandmother's application filed on 26 February 2008 - by reference to evidence before the District Court itself, by exercise of the statutory powers and discretions at the disposal of the Children's Court and, importantly, for present purposes, in conformity with the statutory directives and constraints binding on the Children's Court.

25 The applications filed in January and February 2008 were both applications for orders allocating "parental responsibility", that is, in terms of the s 3 definition of that term, "all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children". The Children's Court is empowered by s 79(1) to make such an order if it finds that a child is in need of care and protection. An order allocating parental responsibility is a "care order". This is the effect of s 79, read in the light of the definition of "care order" in s 60.

26 Section 80 says that the Children's Court must not make a final order for the allocation of parental responsibility unless it has considered a "care plan" presented to it by the Director-General. If the Director-General applies to the Children's Court for an order for the removal of a child from the care of the child's parents, the Director-General must present a care plan to the Children's Court before final orders are made. This is required by s 78(1). Among the matters to be provided for in the care plan are the allocation of parental responsibility between the Minister and the parents for the duration of the child's removal from the care of the parents (s 78(2)(a) and the kind of placement proposed to be sought for the child (s 78(2)(b)). In the ordinary course, therefore, an application by the Director-General for an order allocating parental responsibility wholly to the Minister will be made in the context of an articulated proposal by the Director-General, in the form of a care plan, for the placement of the child.

27 In this instance, the relevant type of plan was a "permanency plan" of the kind dealt with in s 78A. A requirement regarding the content of a permanency plan in a case such as the present involving an Aboriginal child is stated in s 78A(3). Section 78A(4) then deals with the situation where a plan concerning an Aboriginal child indicates an intention to provide permanent placement of a certain kind. In such a situation, an order for sole parental responsibility "should only be made" if conditions stated in s 78A(4) are met.

28 Section 13(1) is concerned with cases in which there is a need for "statutory out-of-home care" - that is, having regard to s 135 and s 135A, residential care and control provided by someone other than a parent at a place other than the child's usual home, being care and control that is provided for more than fourteen days pursuant to a care order of the court (or, irrelevantly for present purposes, by virtue of the child's being a "protected person"). All references in the Act to a child being "placed" or to a child's "placement" are references to the creation of a system of care for the child. The Act draws a distinction between "care responsibility" and "parental responsibility". According to the s 3 definitions, "care responsibility" means the authority to exercise the functions specified in s 157 while "parental responsibility", as noted above, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

29 Several provisions of the Care Act should now be set out:

Section 9(1):

"This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount."

Section 9(2)(c):

"Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:

. . .

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development."

Section 13(1):

"Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out-of-home care is to be placed with:

(a) a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed-a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed-a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence, or

(d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed-a suitable person approved by the Director-General after consultation with:

(i) members of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and

(ii) such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person."

Section 13(6):

"The following principles are to determine the choice of a carer if an Aboriginal or Torres Strait Islander child or young person is placed with a carer who is not an Aboriginal or Torres Strait Islander:

(a) Subject to the best interests of the child or young person, a fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community.

(b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture.

These principles are subject to subsection (2)."

Section 78A(3) and (4):

"(3) A permanency plan for an Aboriginal or Torres Strait Islander child or young person must address how the plan has complied with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13.

(4) If a permanency plan indicates an intention to provide permanent placement through an order for sole parental responsibility or adoption of an Aboriginal or Torres Strait Islander child or young person with a non-Aboriginal or non-Torres Strait Islander person or persons, such an order should be made only:

(a) if no suitable permanent placement can be found with an Aboriginal or Torres Strait Islander person or persons in accordance with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13, and

(b) in consultation with the child or young person, where appropriate, and

(c) in consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation and the local Aboriginal or Torres Strait Islander community, and

(d) if the child or young person is able to be placed with a culturally appropriate family, and

(e) with the approval of the Minister for Community Services and the Minister for Aboriginal Affairs."

Section 79(1)

"If the Children's Court finds that a child or young person is in need of care and protection, it may:

(a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility:

(i) to one parent to the exclusion of the other parent, or

(ii) to one or both parents and to the Minister or another person or persons jointly, or

(iii) to another suitable person or persons, or

(b) make an order placing the child or young person under the parental responsibility of the Minister."

Section 79(3)

"The Children's Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9(2)(c) and is satisfied that any other order would be insufficient to meet the needs of the child or young person."

Issues

30 The case advanced by reference to s 69 of the Supreme Court Act raises issues under several aspects of the exercise of the statutory jurisdiction created by the Care Act. All but one turn on questions of whether the primary judge gave effect to and acted in accordance with provisions of the Care Act that it was necessary for the District Court to observe when, upon the appeal to it, that court exercised the functions and discretions reposed in the Children's Court by the Care Act. The exception relates to Ground 1. The issue there is one of alleged failure to take into account a consideration relevant to the exercise of the discretionary jurisdiction.

31 The issues may be summarised in the form of a series of questions:

1. Did the primary judge, in her treatment of UNCROC, fail in an impermissible way, amounting to error of law, to have regard to and afford weight to a relevant consideration going to the extent of the court's jurisdiction?

2. In making the decision she made, did the primary judge fail to comply with s 9(2)(c) and thereby proceed otherwise than according to law?

3. In making the decision she made (and, in particular, in not ordering placement with the Aunt), did the primary judge fail to comply with s 13(1) and thereby proceed otherwise than according to law?

4. Given the content of the care plan before the primary judge:

(a) was the primary judge constrained by s 78A(4) to make an order allocating parental responsibility to the Minister only if the conditions in s 78A(4)(a) to (e) were met; and

(b) if so, was the order allocating parental responsibility to the Minister that the primary judge proceeded to make an order that exceeded that restraint and exceeded jurisdiction because one or more of those conditions were not met?

5. Since the care plan did not envisage care by the Aunt but by non-Aboriginal carers unrelated to the Child, did the judge proceed to make a care order in the absence of a care plan complying with s 78A and thereby exceed the statutory jurisdiction to make such an order?

UNCROC

32 The Mother and the Grandmother challenge the following part of the primary judge's judgment which appears under a heading "United Nations Convention on the Rights of the Child":

"Each of the parties was given the opportunity to make submissions as to the applicability of the United Nations Convention on the Rights of the Child (1989). There was no submission made. I am not aware of any basis on which it could be said that the Convention, in this case, qualifies or modifies the provisions of the Children & [sic] Young Persons (Care and Protection) Act 1998."

33 The Mother and the Grandmother say that, in this passage, the primary judge "rejected the relevance of" UNCROC and that that was an error of the kind identified by Spigelman CJ (with whom Beazley JA agreed) in Re Tracey [2011] NSWCA 43. The error found in that case is probably best understood by setting out a passage in the judgment of Giles JA (who, it may be noted, did not find that the particular error had been made, even though Spigelman CJ and Beazley JA did so find). Giles JA said at [98]:

" A ground of relief was that the judge erred in law in failing to take into account 'relevant provisions' of the United Nations Convention on the Rights of the Child (1989) ("the CROC"). Counsel for the applicant submitted to the judge that regard should be paid to the provisions of the CROC, and in particular articles 8 and 9, in exercising the Court's discretion. The judge said that she declined to do so."

34 It is thus clear that, in Re Tracey, the primary judge expressly declined to have regard to UNCROC despite a submission that she should do so. That gave rise to the following statement by Spigelman CJ (in which Beazley JA concurred) at [32]:

"However, the issue that arises in the present case is not whether Balla DCJ was obliged to take into account provisions of the CROC as relevant considerations. The issue in the present case is whether her Honour failed to take into account a relevant consideration by rejecting any reliance on the CROC, as she did explicitly. The relevant jurisdictional error is her Honour's positive statement, in effect, that none of the provisions of the CROC were capable of constituting a relevant consideration."

35 Later in his judgment, Spigelman CJ referred to provisions of UNCROC that were "capable of being relevant to the exercise of the discretion" reposed in the court. These included provisions referring to the right of a child to be cared for by the child's parents and stating that a child must not be separated from parents against the child's will.

36 In the case now before the Court, the primary judge did not reject the relevance of UNCROC. Nor did she say that none of the provisions of UNCROC was capable of constituting a relevant consideration. On the contrary, the judge referred expressly to UNCROC and acknowledged its relevance. Significantly, the primary judge recorded that no submission had been made about any basis on which it could be said that, in the case before her, UNCROC qualified or modified the provisions of the Care Act.

37 There were five parties before the primary judge: the Child, the Mother, the Grandmother, the Father and the Director-General. All but the Grandmother had legal representation. The Mother and the Grandmother sought essentially the same orders. Other outcomes were advocated by both the Father and the Director-General. The Aunt was not a party or represented but gave evidence.

38 Each of the proposed outcomes was thus contended for by a party to the District Court appeal who was legally represented. The case the Grandmother sought to make corresponded with that advanced by the Mother, so that it may be presumed that the skills of the Mother's lawyers were deployed equally in support of the Grandmother's case. There was an ample opportunity for each legal representative to make submissions concerning UNCROC and the effect its provisions ought properly to have on the implementation of the principles in Part 1 of Chapter 2 of the Care Act. The fact that, as the judge recorded, no such submission was made is of particular significance.

39 The passage in the judge's reasons referring to UNCROC shows that each party was given an opportunity to make submissions regarding the relevance of UNCROC to the case before the court. It is not clear whether the judge gave that opportunity of her own motion without the matter having been raised by the legal representative of a party or whether one of the lawyers first raised the matter. For present purposes it does not matter how the issue arose. The important point is that the opportunity was available to all parties but none sought to make any substantive submission as to some aspect of UNCROC that the court should take into account.

40 The judge was, at that point, in a position akin to that described by Kirby J in Hearne v Street [2008] HCA 36; (2008) 235 CLR 135 at [30]-[31], that is, where a point of significance has been recognised in the course of the proceedings but no party makes any submission in relation to it. The course the judge then chose to take was to state a view without the benefit of submissions. That can sometimes raise natural justice concerns but, in the particular context, no such criticism is made.

41 Counsel for the Grandmother said in written submissions that the primary judge's statement about UNCROC was "surprising" in view of the judge's reference to Re Tracey. The expression of surprise misunderstands what the primary judge said. After noting that no submission had been made concerning a basis on which UNCROC might qualify or modify the provision of the Care Act, the primary judge merely added that no such basis had occurred to her independently of submissions. By this she did not mean that UNCROC could not have an effect on decision-making under the statutory provisions but that, on the facts before the court, there was no apparent basis on which adherence to UNCROC principles could produce some result different from that reached by application of the statutory provisions independently of UNCROC.

42 Far from rejecting the relevance of UNCROC, the primary judge expressly recognised that relevance and noted two things: first, that despite an opportunity to do so, no party had made any substantive submission that UNCROC was the source of any consideration relevant to the particular case; and, second, that her own attention to the question had resulted in a view of her own that UNCROC raised no consideration of relevance beyond those raised by the Care Act in any event.

The s 9(2)(c) principle

43 The primary judge dealt with the subject matter of s 9(2)(c) at three points in her judgment. At an early stage of her discussion of the law (which followed an extensive canvassing of factual matters and a statement of core findings of fact), the judge identified the allocation of parental responsibility as the first matter to be determined. Under the sub-heading "Principles to be applied", she then said that she bore in mind "the objects and principles of the legislation as set out in sections 8 and 9 of the Act, in particular that the safety welfare and well being of the child is the paramount consideration". Five additional matters that the judge bore in mind were enumerated, including:

"2. In deciding what action it is necessary to take to protect a child from harm, the course to be followed must be the least intrusive intervention in the life of the child and his family that is consistent with the paramount concern to protect the child from harm and promote the child's development."

44 The primary judge then dealt with matters under several headings, as follows:

United Nations Convention on the Rights of the Child

Realistic possibility of restoration to the mother

Aboriginality

The Aunt

Parental responsibility

Permanency planning

Contact

45 It was under the "Parental responsibility" heading that the judge returned to s 9(2)(c). After referring to findings in earlier parts of the judgment that the safety, welfare and well-being of the Child would not be served by allocating parental responsibility to the Mother or the Aunt, her Honour said that submissions had been made in relation to s 9(2)(c). She then set out the terms of the section and continued:

"I proceed on the basis that it does not apply because 'Its prescription is confined to when it is necessary to take action in order to protect a child or young person from harm, and when taking action is necessary the course to be followed must be one of least intrusive intervention as further described. There must be a prospect of harm if action is not taken, and the question is then the nature of the action. Where the question is whether an order should be made whereby existing care arrangements are displaced and the child or young person is returned to his or her family, the harm which would or might come about if an order is made whereby the child or young person is taken from an existing carer is not harm against which action is necessary in order to protect the child or young person; nor is the harm which would or might come about if an order is made whereby the child or young person is left with an existing carer. Section 9(2)(c) has no effect in preservation of existing care arrangements in the present circumstances.' (Re Tracey [2011] NSWCA 43 at paragraph 79)."

46 The expressed reason why s 9(2)(c) did not apply thus consisted of a passage from the judgment of Giles JA in Re Tracey (above).

47 The judge then said:

"However even if it does apply (because I intend making an Order different to the Order made in the Children's Court which could be construed as the taking of 'action') I do not think this objective could be given any weight in the circumstances of this case. There is no option which could be properly described as the least intrusive intervention in the life of the child. He has not lived with his mother since January 2008. He has spent very little time with his aunt since his birth. He has only been with his current foster carers since February 2011."

48 In summary, therefore, the judge began by saying that she bore in mind the matter set out in s 9(2)(c) (but without referring to that or any other statutory provision), next stated (by reference to a passage in Re Tracey) that s 9(2)(c) did not apply and finally said that, if s 9(2)(c) did apply, its "objective" could, for stated reasons, not be given "any weight" in the particular circumstances of the case before her.

49 The judge thus decided that s 9(2)(c) did not apply and that she was not required to apply the s 9(2)(c) principle in reaching her decision. That, in my opinion, was a correct approach, but for a reason not stated by the primary judge.

50 The proceedings entailed competing applications under s 79(1) for orders allocating parental responsibility. The statutory requirement with respect to the principle in s 9(2)(c) was therefore the requirement imposed by s 79(3) that the court not make an order allocating parental responsibility without having given "particular consideration to the principle in section 9(2)(c)" and having satisfied itself that any order other than the order to be made would be insufficient to meet the needs of the child. The relevant "principle" is, clearly enough, in the words of s 9(2)(c), that:

"the course to be followed must be the least intrusive intervention in the life of the child . . . and his or her family that is consistent with the paramount concern to protect the child . . . from harm and promote the child's . . . development".

51 The fact that s 79(3) requires, in a s 79(1) case, "particular consideration" to that principle (and identifies the principle by reference to s 9(2)(c) itself) shows a legislative intention that s 9(2)(c) is to have no separate and independent operation in such a case. The specific requirement is that involving "particular consideration".

52 The question that this Court must address is therefore whether the judge proceeded in accordance with s 79(3) with respect to the "principle in section 9(2)(c)", that is, whether "particular consideration" was given to the principle - not whether, as contemplated by the opening words of s 9(2), the principle was "applied".

53 The principle to which s 79(3) requires the court to give "particular consideration" is a principle that, as Cogswell DCJ correctly recognised in Director-General Department of Human Services and Community Services v LX [2010] NSWDC 291; (2010) 11 DCLR (NSW) 308 at [59], is concerned with the interests of not only the child but also the child's family, as is appropriate in light of the fact that allocation of parental responsibility entails, as his Honour said, "a significant intervention in the life of a family". It is to be remembered, however, that, as the same judge later noted in David White v Director-General of the Department of Human Services [2011] NSWDC 106; (2011) 13 DCLR (NSW) 192 at [38], the s 79(3) requirement that "particular consideration" be given to the stated principle concerning intervention in the life of the child and his family co-exists with, but is subordinate to, the statement in s 9(1) that the welfare and well-being of the child are the paramount consideration in all decision-making under the Care Act.

54 The Care Act does not delineate the "family" with which the s 9(2)(c) principle and s 79(3) are concerned. The context suggests, however, that the unit in contemplation is ordinarily that consisting of parents (or a sole parent) and the child or children of the parents (or sole parent). When parental responsibility is in issue, the focus is necessarily upon the context in which the child is receiving nurturing, physical protection and sustenance, psychological support and emotional security. In the ordinary course of events, these are provided by natural parents with whom the child and any siblings co-exist in a home setting. The "life of the child . . . and his or her family" should therefore be understood as referring, at least principally, to whatever version of this form of co-existence prevails in the particular case. It follows, I think, that where grandparents, aunts, uncles, cousins and other relatives do not form a part of the home setting, they are not at the forefront of the concern underlying s 9(2)(c) and s 79(3).

55 Another aspect of the s 79(3) directive must now be mentioned. The directive requires that "particular consideration" be given to "the least intrusive intervention in the life of the child . . . and his or her family" consistent with the stated paramount concern. It is the "life" (in the singular) of the child and the other persons constituting his or her family that is in contemplation. A matter of importance, therefore, is the relationship in fact (that is, beyond the circumstance of blood tie) that exists between the child and those other persons. Where a child has lived since birth in what is sometimes called a "nuclear family", there exists one kind of "life" of the child and the child's family. Another kind of "life" of the child and his or her family exists where the parents do not live together and the child lives at times with each separately. Yet another kind of "life" of the child and the child's family exists where, as here, the child has lived with the parents or one of them for only the first few months of life and has otherwise lived with other persons. The "life" of such a child and his or her parents is, in a real sense, two parallel lives in which the child has, through the circumstance of having been cared for very largely by others, had no opportunity to form any substantial bond with either parent while each parent, for his or her part, has been unable to play the role that would have been played in another form of "life". What represents "the least intrusive intervention" will differ according to the nature of the "life" concerned.

56 Every question of allocation of parental responsibility envisages a specific outcome. Except in case of death, parental responsibility will necessarily rest with someone when the question comes before the court: most commonly, no doubt, the parents or a parent. The court will be asked to decide whether parental responsibility should be allocated elsewhere. But the question will not be an abstract question arising in a vacuum. It will be a specific question: whether parental responsibility should be taken from where it is and allocated to another person who is, of necessity, a particularly identified person willing to accept the responsibility.

57 The decision-making function in which s 79(3) and s 9(1) play the parts I have outlined will therefore entail assessment of the particular person willing to act as parent and of the whole of the implications of the termination of existing parental responsibility and the allocation of such responsibility instead to the particularly identified person. In giving effect to the statutory directives, the court's paramount duty, imposed by s 9(1), is to assess whether allocation of parental responsibility to the particular person is consistent with the "safety, welfare and well-being of the child". If it is not, the allocation in question will not be made. If, however, that primary assessment is positive, the next step is to embark upon the "particular consideration" required by s 79(3) and to look at and weigh up against the s 9(2)(c) principle the nature and extent of the intervention in the life of the child and the child's family that will result from the particular allocation.

58 In the present case, of course, there were competing claims for orders allocating parental responsibility - the Director-General's claim in favour of the Minister; and the Grandmother's claim (supported by the Mother) in favour of the Mother (to the exclusion of the Father) or alternatively the Aunt, with the Father supporting only allocation to the Aunt. Three specific outcomes were in the offing, each involving a person willing to accept parental responsibility. A fourth outcome was also available: that there should be no order in response to either application, so that parental responsibility rested where it fell in the absence of statutory intervention, that is, with both parents. What was obviously not possible was that the court should allocate parental responsibility to someone who was not proposed by any of the parties before it and had not expressed a willingness to take that responsibility. The court was required to choose among four available solutions; and to do so according to law.

59 A judge dealing with a particular case may or may not explicitly state that he or she approaches the task in the way I have described. If there is no such statement and the judge does not explain in abstract terms the process by which the announced result is reached, it by no means follows that that result is the product of some unauthorized or defective process. The regularity of the process and its conformity with the statutory directives sourced in s 9(1) and 79(3) will appear from the decision viewed in the light of the expressed reasons for it. A judge directed by statute to consider a particular matter who says in a formulaic way that he or she has done so but whose decision and stated reasons make it obvious that that is simply not so does not discharge the statutory duty (an example of this is found in Re Sophie [2008] NSWCA 250, a case to which counsel referred). A judge who, by contrast, makes no formulaic statement of compliance but shows clearly by the decision and reasons that there has been compliance does discharge the statutory duty.

60 The question is therefore whether, having regard to the face of the record, the primary judge, when deciding whether to make an order allocating parental responsibility as sought in the competing applications that had originally been before the Children's Court (as later modified before the District Court), failed to observe the paramount principle in s 9(1) and to implement s 79(3) by giving "particular consideration" to the "principle" in s 9(2)(c) and thereby fell into error material to the case based on s 69 of the Supreme Court Act.

61 I am of the opinion that the judge did not so fail. She paid very close attention to the welfare and well-being of the child and to issues of intervention in the family. The judgment records a detailed analysis of the attributes and circumstances in life of the various family members, particularly the Mother, the Father, the Grandmother and the Aunt. It is unnecessary to record all the findings. It is sufficient to note the following:

1. The Father sustained brain damage at the age of two years and was assessed by a psychologist in 2004 as functioning in the borderline/mild range of intellectual disability with significant deficits in all areas of adaptive functioning. He is incapable of managing his own affairs. His estate is managed by the NSW Trustee and Guardian. The father exhibited significant violence towards the Mother when they lived together, particularly when he drank alcohol. He hurt both her and himself in episodes of violence. The Father and the Mother ceased living together some time before April 2009.

2. The Mother has ADHD, a mild intellectual disability and limited numeracy and literacy. In January 2011, her adaptive behavioural functioning was assessed as comparable with that of a fifteen year old. The judge was satisfied that there were significant issues concerning the Mother's parenting capacity, that she lacked insight into the reasons for the Child's removal, that she is unable to understand the needs of the Child and to respond appropriately to them, that she has difficulty acting appropriately with the Child and that she lacks empathy with the Child, something that will assume greater importance as he confronts psychological issues likely to arise from his health problems. There was a finding that, at a family gathering in December 2010 attended by sixteen family members, the Mother showed the Child's genitals to one such person and perhaps a greater number. The judge did not accept parts of the Mother's evidence as truthful, particularly evidence going to compliance with various court orders.

3. The judge found that there is a very close relationship between the Mother and the Grandmother. The Mother telephones the Grandmother many times a day - if she needs advice or is stressed or frustrated. The Grandmother relies on a wheelchair for mobility and has difficulty in standing for any length of time. She has worked closely with the Mother to have the Child restored to the Mother and, in so doing, has posted material on the Internet criticising caseworkers associated with the Child's care, including allegations that they have "lied, falsified police and other records and, yes, blackmailed us". She included on an Internet page a message to a caseworker inviting her to "book yourself into a mental unit or do everyone a favour and kill yourself". The judge also found that the Grandmother had posted on the Internet photographs of the Child's genitalia.

4. The judge found that the Aunt, in her evidence, deliberately minimised incidents of past violence in the family setting. She is separated from her husband (who lives in another country) and has a child who was six years old at the time of the judge's decision. The judge said:

"There are some matters which support the allocation of parental responsibility in some way to the aunt. She is a member of the family. This is always desirable and in this case it is especially desirable because it would mean placing the child with a member of the family who identifies as being Aboriginal. She is committed to the child and genuinely wants to care for him, has a good track record of parenting her own child, the placement is supported by both the child's mother and father, she has a suitable home, she has no drug or alcohol issues and no mental health issues.

However in my view these matters are clearly outweighed by many other issues;

1. At present the aunt does not have a relationship with the child. She has seen him for a minimum of once a year, but generally has seen him about three to four times a year since he was removed. She has not proactively sought to be the child's carer in the past three years.

2. The carer must be likely to be able to meet the child's needs. There is no persuasive evidence that the aunt could meet his needs although she has a Certificate III in Children's Services and a Certificate IV in Community Services.

The social worker who assessed her suitability as a carer, Ms Morrissey, said that for a child to form an attachment, they need a carer who is empathetic, who has insight into the child's emotions, who understands the child's behaviours and understands how an attachment forms. While she accepted that the aunt was prepared to accept training she had concerns about her capacity to implement such training.

Ms Morrissey recommended against the approval of the aunt to care for the child. She gave the following reasons:

(a) The aunt had been unable to demonstrate a capacity to care for a child with special needs or to manage the complex relationships that come with kinship care arrangements.

(b) The aunt minimised any instances of violence or conflict within the family or between herself and departmental staff. Ms Morrissey considered that there seemed to be a significant inurement to violence.

(c) The aunt had not demonstrated any conflict resolution skills which she would need to maintain a positive relationship between the child and the mother.

(d) The aunt had not demonstrated a capacity to manage the interventions which the child would clearly require. She had no strategies for managing his behaviour. She had no concept of an attachment disorder, of the impact of having multiple placements, how she might facilitate the establishment of an attachment with the child or supporting her own daughter through the placement of a challenging child.

(e) The aunt had not demonstrated a capacity for abstract thought - for imagining what her daughter might feel for imagining how life might be with an active toddler with significant challenges and identified behaviour disorders. She was nevertheless extraordinarily confident in her ability to manage it.

(f) The aunt had not demonstrated a capacity for insight into why the child had been taken into care or the quality of care that had been provided by the mother or the grandmother.

Ms Morrissey had no confidence in the aunt's capacity to identify or to meet the child's needs or to seek appropriate assistance and support from the department.

3. The mother, the grandmother and the aunt are very close."

5. The judge expanded on this last matter (item 3). She noted that the Aunt and the Grandmother have a close relationship, see each other frequently and speak on the telephone at least twice a week and often a lot more frequently. The judge recorded a finding that the Mother and the Grandmother "treat Court Orders with contempt", said that she had no confidence that they would comply with any order limiting them to supervised contact with the child at stated intervals and considered it "extremely likely" that they would "place a lot of pressure on the aunt to give them unsupervised and lengthy contact with the child" - which would be "an extremely undesirable outcome". The judge said that, if the Child were to live with the Aunt, it would be necessary for the Mother, the Father and the Grandmother to be supervised to ensure compliance with court orders. The Aunt herself agreed that supervision would be preferable during contact with the Father. The Director-General would not agree to supervise contact so that the judge did not have before her the consent necessary under s 86(2) of the Care Act for the making of an order for supervision.

6. The judge also found, in relation to the Aunt, that a fear that she might lose her own child made it likely that she would be reluctant to contact the Department so that "her ability to act as a protective ally for the child is compromised".

62 In her discussion of the wider family, the judge also referred to the husband of the Grandmother (from whom the Grandmother had recently separated) and the fact that he had, in November 2010, pleaded guilty to a charge of possessing child pornography, with the consequence that he was fined and sentenced to twelve months imprisonment, which sentence was wholly suspended.

63 The judge's overall conclusions were that the Child was in need of care and protection and that his safety and well-being would not be served by allocating parental responsibility to either the Mother or the Aunt.

64 The examination of the attributes and circumstances of the several family members was, the primary judge said, made principally to inform a decision whether "there is a realistic possible [sic] of restoration of the child to the mother"; but, as the judge made perfectly clear, the examination extended also to a decision concerning placement with the Aunt. Her Honour's reasons as a whole show that she recognised the very significant desirability of placement within the family circle. The Mother and the Aunt were the only potential carers available within the wider family. They were the only persons offering themselves. The ramifications of allocation of parental responsibility to each were carefully and thoroughly examined.

65 As the judge's reasons make plain, the question at the forefront of her consideration was whether the Child should be placed with the Mother. The question that assumed prominence when it was decided that he should not be placed with the Mother was whether he should be placed with the Aunt. The judge's reasons are overwhelmingly concerned with these questions - which, as I have said, are the questions presented by the applications. The high value to be placed, in the abstract, on placement with the Mother or, failing that, the Aunt was clearly recognised. The judge also made the important point that the fact that the Child had been cared for outside the confines of the family since very soon after birth meant that the natural consequences of living within his family, in terms of attachment, had not occurred. That was a pertinent observation indicating the nature of the "life of the child . . . and his . . . family".

66 The judge's decision and her reasons, taken as a whole, show that she assessed the nature of the "life" of the Child and his family and considered whether she could, consistently with the principle made paramount by s 9(1), allocate parental responsibility to the Mother or the Aunt. For reasons that were explained, she concluded that such allocation would not be consistent with the Child's safety and well-being. Various elements of likely harm and inhibitions to development were expressly recognised by the judge. Each such allocation was, for reasons the judge expressed, held not to be in the interests of the Child. The course of allocating parental responsibility to the Minister (the only remaining outcome available to the court, apart from the wholly unrealistic possibility of allowing the parental role to revert to the Mother and the Father together) was therefore implicitly recognised by the judge as representing the least intrusive intervention in the "life" concerned that was consistent with protection of the Child from harm and the promotion of his development.

67 In short, the judge acted as s 79(3) required her to act.

Aboriginality

68 The matters raised by the Grandmother by reference to s 13 of the Care Act and the provisions with respect to care plans may be addressed together since both raise for consideration the Aboriginal and Torres Strait Islander Child and Young Person Principles in s 13. Those principles apply, by force of s 13(1), to every decision to place a child in statutory out-of-home care. In addition, s 78A(3) and s 78A(4) require the principles to be taken into account as there specified.

69 It is necessary to say something about the care plan. The plan itself does not form part of the record of the District Court that is before this Court for the purposes of the application under s 69 of the Supreme Court Act (this is not a case in which a care plan became "embodied in" a court order: see PR v Department of Community Services [2009] NSWADT 277). This Court is therefore limited, in its consideration of the care plan, to what is disclosed by the primary judge's reasons.

70 The reasons refer to a care plan having been before the Children's Court when it made the orders of 3 November 2008. That care plan was superseded by the plan that the primary judge had before her and to which she referred. The primary judge recognised that the court "must not make a final order for the allocation of parental responsibility in respect of the child unless it has considered a care plan presented to it by the Director-General". The judge then said:

"I have already referred to the care plan in evidence. The solicitor advocate for the mother submitted that the plan did not comply with s 78A."

71 The relevant part of s 78A was then set out and the terms of s 9(2)(e) were stated. The judge continued:

"In summary the care plan proposes that the child is placed in out-of home-care until the age of 18. The Director General considers that the current foster carers are able to meet the needs of the child and recommended that he remain in their care."

72 The submission that the care plan was deficient, in terms of s 78A(3), was then addressed. I shall return to that matter.

73 First, however, it is necessary to deal with a submission made in relation to the care pan and the operation of s 78A(4). That section is concerned with a case where a plan envisages "permanent placement through" an order for sole parental responsibility. "Permanent placement", as the s 3 definition of the term makes clear, is a state of existence within a safe, nurturing and secure environment that is "achieved" by one of several means stated in the definition. One of these (paragraph (d) of the definition) is "placement under an order for sole parental responsibility under section 149". It must follow that, when s 78A(4) refers to a permanency plan indicating "an intention to provide permanent placement through an order for sole parental responsibility . . . with" a person of a particular description (that is, relevantly, "a non-Aboriginal . . . person"), it has in contemplation the attributes of the person to whom it is proposed that parental responsibility will be assigned.

74 It was submitted that because the proposal in this case was that parental responsibility should be allocated to the Minister, s 78A(4) operated to require that the allocating order not be made unless the conditions in paragraphs (a) to (e) were satisfied. Implicit in that submission is the proposition that, as relevant to this case, the Minister is "a non-Aboriginal person"; and that different considerations apply to a proposal for allocation of parental responsibility for an Aboriginal child to the Minister according to whether the person who is for the time being the Minister is or is not himself or herself an Aboriginal.

75 That submission cannot be accepted. By virtue of s 15(2) of the Interpretation Act 1987, a reference in the Care Act to "the Minister" is a reference to the Minister administering the Care Act. The Governor, with the advice of the Executive Council, has designated the Minister for Family and Community Services as the Minister administering the Care Act. But the designation is of the office, not the natural person for the time being occupying it. Allocation of parental responsibility to the Minister is in truth allocation to the State. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 66, Brennan J quoted with approval the following statement by Lord Diplock in Bushell v Environment Secretary [1981] AC 75 at 95 concerning decision-making confided by statute to a minister:

"To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge,

technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own

knowledge, his own expertise."

76 In the present context, therefore, the concept of allocation of parental responsibility to the Minister is, as I have said, a concept of allocation to the State and not to a person who has racial and other characteristics possessed by human beings. The Minister is not within the concept of Aboriginal or non-Aboriginal person for the purposes of the Care Act. It follows that where a permanency plan of the kind dealt with in s 78A(4) envisages "permanent placement through an order for sole parental responsibility" and that responsibility is to be allocated to the Minister, the circumstance on which the operation of that section is predicated (that is, parental responsibility of a non-Aboriginal person) is not satisfied and s 78A(4) does not impose any restraint upon the making of the order.

77 I return to the care plan. The core recommendation in the plan was that parental responsibility should be allocated to the Minister. Placement with a couple with two children of their own and several other foster children (three with disabilities) also formed part of the plan. These were the carers with whom the Child was already living. In her discussion of the care plan, the primary judge set out s 13(1) and s 13(6) of the Care Act. She noted that s 13(1) starts with the words "Subject to the objects in section 8 and the principles in section 9". She then said, referring to s 13 as a whole:

"The issue has been addressed in the current Care Plan. The department does not consider either the aunt or the grandmother as suitable carers for the child. No other family member from either side of the family has come forward to care for the child."

78 The judge thus recognised three important things: first, that the Mother and the Aunt were both Aboriginal persons who, for that reason and having regard to s 13(1), merited a high degree of recognition as potential carers of the Aboriginal child; second, that the need for priority to be given to Aboriginal persons in the selection of carers had been addressed in the care plan before her (which, after all, was a plan that focussed closely on the Mother and the Aunt, both Aboriginal persons, as potential carers); and, third, that no Aboriginal person other than the Mother and the Aunt had expressed any willingness to care for the Child (as I have said already, the courses available to the judge regarding allocation of parental responsibility were in any event constrained by the fact that only persons identified in the competing applications were willing to act).

79 The primary finding was that the Child was in need of care and protection. On the judge's own assessment and according to the care plan before her, as she described its content, the Child's safety and well-being would not be served by allocating parental responsibility to either the Mother or the Aunt or by giving any care role to the Mother or the Aunt.

80 The primary judge complied with s 80 of the Care Act. She had before her and considered a care plan presented by the Director-General. The judge addressed the question whether the care plan conformed to requirements in s 78A(3) and decided that it did; and that was a decision that was clearly open, given that the care plan dealt with potential placement with the only Aboriginal persons available to assume any relevant role. The primary judge also complied with the requirements of s 13 but, in the final analysis and having regard to the established need for care and protection and the adverse findings concerning the Mother and the Aunt, that compliance did not result in any order under which a care role was assigned to an Aboriginal person.

81 The primary judge did not fail to comply with or give due effect to any applicable provision of s 13 or s 78A of the Care Act; nor is it shown that the care plan did not comply with s 78A.

Conclusion and disposition

82 I have referred to the letter that the Mother handed to the members of the court at the conclusion of her brief oral statement. In both the statement and the letter, the Mother expressed her love for her son and referred to her strong desire to have him with her and to care for him. Her expression of deep and positive feelings must be acknowledged but cannot affect the legal analysis that the Court is required to undertake in a case of this kind.

83 In the result, none of the five questions posed at [31] above is answered in the affirmative. It follows that none of the grounds on which the Grandmother and the Mother relied in pursuing their claim under s 69 of the Supreme Court Act has been established. Relevant error has not been shown.

84 The claim for an order in the nature of certiorari should therefore be dismissed. In addition, and noting that no orders for costs were made in the District Court and that no submissions on costs were made to this Court, the question of costs should be reserved for future decision and directions for submissions on costs should be made.

85 The orders and directions I propose are:

1. Order that the claims in prayers 1 and 2 of the further amended summons be dismissed.

2. Direct that any party seeking an order that another party pay the whole or any part of the first party's costs of the proceedings to date do, within fourteen days, serve on that other party the terms of the order sought and brief submissions in support of the making of that order.

3. Direct that a party served in accordance with order 2 do, within fourteen days after service, serve brief written submissions in response.

4. Direct that a copy of each document so served be filed by delivery to the Registrar of the Court of Appeal promptly after it is served.

5. Reserve for future consideration by this Court on the papers the question of the making of any order as to costs of the proceedings to date.

6. Remit the balance of the further amended summons to the Equity Division for determination.

86 TOBIAS AJA: I agree with Barrett JA.

87 SCHMIDT J: I agree with Barrett JA.

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Decision last updated: 09 May 2012