Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Re M (No 5) - BM v Director-General, Department of Family and Community Services & Ors [2013] NSWCA 253
• Hearing dates: 21 June 2013
• Decision date: 09 August 2013
• Before: Macfarlan JA [1]; Ward JA [2]; Sackville AJA [3].

Decision

1. Amend the name of the First Respondent to the summons filed on 17 June 2013 (Summons) to "Director-General, Department of Family and Community Services".

2. Dismiss the Summons.

[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: CHILDREN - children taken into care - mother seeks judicial review of decision of the District Court in substance affirming decision of the Children's Court - whether District Court decision disclosed error of law - whether Director-General made the relevant Care Plans as far as possible with the agreement of the mother as required by s 78(3) of the Children and Young Persons (Care and Protection) Act 1998
• Legislation Cited: Family Law Act 1975 (Cth), ss 4, 69ZK; Family Law Regulations 1984 (Cth), reg 12B(2), Sch 5, Item 2; Children and Young Persons (Care and Protection) Act 1998, ss 3, 7, 8, 9, 43, 45, 49, 52, 53, 54, 55, 56, 58, 59, 60, 61, 62, 64, 69, 71, 72, 73, 78, 78A, 79, 80, 83, 84, 86, 90, 90A, 91, 93, 98, 247; Children and Young Persons (Care and Protection) Regulation 2000, reg 12; Children and Young Persons (Care and Protection) Regulation 2012, reg 22; Court Suppression and Non-publication Orders Act 2010, ss 7, 8; Supreme Court Act 1970, s 69
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; Druett v Director-General of Community Services [2001] NSWCA 126; M v Department of Family and Community Services (Unreported, 19 April 2013); M v Director General, Department of Family and Community Services [2013] NSWCA 118; Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97
• Category: Principal judgment
• Parties: BM (Applicant); Director-General, Department of Family and Community Services (First Respondent); District Court (Second Respondent); Mr C (Third Respondent); Mr B (Fourth Respondent); Mr S (Fifth Respondent); DM (Sixth Respondent); JM (Seventh Respondent); RM (Eighth Respondent); HM (Ninth Respondent); ZM (Tenth Respondent)
• Representation: Counsel: Mr A Allen (First Respondent); Mr PJ Braine (Fourth Respondent); Ms EA Lawson (Fifth Respondent); Mr M Hogg (Sixth and Seventh Respondents); Mr C Wilson (Eighth, Ninth and Tenth Respondents); Solicitors: Unrepresented, litigant in person via telephone link (Applicant); IV Knight, Crown Solicitor (First Respondent); ParksCoady Family Lawyers (Third Respondent); Rowley & Associates (Fourth Respondent); Legal Aid Commission (Fifth Respondent); Debbie Flynn & Associates (Sixth and Seventh Respondents); Pogson Cronin (Eighth, Ninth and Tenth Respondents)
• File Number(s): 2013/129799

Decision under appeal

• Jurisdiction: 9101
• Citation: M v Department of Family and Community Services (Unreported, 19 April 2013)
• Date of Decision: 2013-04-19 00:00:00
• Before: Olsson DCJ
• File Number(s): 2012/395414

Judgment

1 MACFARLAN JA: I agree with Sackville AJA.

2 WARD JA: I agree with Sackville AJA.

3 SACKVILLE AJA: The application before this Court arises out of a series of attempts by a mother of five children to regain care of the children or, alternatively, to regain some degree of parental responsibility for them. The mother, who is the applicant, is unrepresented and, not surprisingly, the nature of the relief she seeks is not clearly stated. However, in substance she seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 ("SC Act") of a decision of the District Court (Olsson DCJ): M v Department of Family and Community Services (Unreported, 19 April 2013). That decision was given after a nine day hearing.

4 The five children have three different fathers. The effect of the orders made by the District Court is that all aspects of parental responsibility for each child are allocated solely to that child's father, to the exclusion of the mother, until the child attains the age of 18 years. In the case of one child, the youngest, the orders provide for the mother to have supervised contact with the child for a minimum of six times a year, while the Court noted that the father of two of the other children intended to arrange supervised contact between the mother and the two children. The orders were made pursuant to ss 79(1)(a)(i) and 86 of the Children and Young Persons (Care and Protection) Act 1998 ("Care Act").

5 This Court made an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 that there be no publication or disclosure of information tending to reveal the identity of children who are respondents to the proceedings. An order has also been made that the proceedings be entitled Re M (No 5) - BM v Director-General, Department of Family and Community Services & Ors, on the grounds set out in s 8(e) of that Act.

The Children

6 Four of the five children involved in these proceedings are boys and one is a girl. Their dates of birth are as follows:

DM	-	26 September 1997
JM	-	15 December 1998
RM	-	17 July 2007
HM	-	27 February 2009 (the only girl)
ZM	-	4 March 2011

7 Mr C is the father of DM and JM. Mr B is the father of RM and HM. Mr S is the father of the youngest child ZM.

8 All five children were removed from their mother's care on 30 November 2011. At that time, the mother was living in Wagga Wagga. The removal took place at the instigation of a Child Protection Caseworker on the ground that the children were at immediate risk of serious harm (Care Act, s 43(1)(a)).

9 Since that time there have been many proceedings concerning the children, some of which are summarised later in this judgment. The two most important for present purposes were proceedings in the Children's Court at Wagga Wagga, which culminated in orders allocating parental responsibility for the children to their fathers, and the mother's unsuccessful appeal under s 91 of the Care Act from those orders to the District Court. The District Court did not simply dismiss the mother's appeal, but set aside the orders of the Children's Court and made fresh orders in their stead.

10 At the time of the District Court hearing (8-19 April 2013), DM and JM lived with their father (Mr C) in Perth, Western Australia. RM and HM lived with carers in New South Wales. ZM lived with his father (Mr S) in Junee, New South Wales.

11 Mr B has three children in addition to RM and HM, two of whom lived with him at the time of the District Court hearing. Mr S has seven children in addition to ZM, two of whom lived with him at that time.

Course of the Proceedings in this Court

12 The mother filed a summons on 17 June 2013 seeking "Review of errors in due process by the [Department and] Judicial Review of Judge Olssen's Decision" ("Summons"). She was apparently advised (correctly) to file a summons seeking judicial review because there is no right of appeal to this Court from the decision of the District Court on appeal from the Children's Court: Druett v Director-General of Community Services [2001] NSWCA 126; Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282, at [8], per Campbell JA (with whom Macfarlan JA agreed).

13 The respondents named in the Summons are:

• the Department of Community Services
• Mr C
• Mr B
• Mr S
• the five children

14 No application has been made to correct the identity of the first respondent (named as the Department of Community Services). However, the Director-General of the Department of Family and Community Services ("Director-General") has filed written submissions and appeared in the proceedings on the basis that the Director-General is the party intended to be joined. The Director-General is clearly a necessary party to the Summons as the orders the mother challenges were made on the application of the Director-General: see also Care Act ss 45(1), 61(1), 90(3A), 91(8), 98(1)(b). Accordingly, an order should be made amending the name of the first Respondent to the Director-General, Department of Family and Community Services.

15 The Summons does not identify the source of this Court's jurisdiction to hear and determine the mother's application. However, the respondents accept that the Summons invokes the supervisory jurisdiction of this Court conferred by s 69 of the SC Act. That jurisdiction is preserved by s 247 of the Care Act.

16 As I have noted, the relief sought and the grounds relied on in the Summons are not easy to follow. Some of the applicant's complaints appear to relate to the conduct of the Department of Community Services, some to the conduct of the proceedings in the Children's Court (including alleged collusion by lawyers) and some to the orders made in the District Court.

17 The mother relied on two affidavits in support of her claim for relief. It is fair to say that both affidavits seek to canvass the merits of decisions successively made by the Department, the Children's Court and the District Court. They do not appear to contain material that identifies errors of a kind that might warrant the intervention of the Court on an application for judicial review pursuant to s 69 of the SC Act.

18 The mother also filed lengthy written submissions in support of her Summons. These, too, appear to canvass the merits of the various decisions affecting the care and placement of the children and limiting the mother's access to the children. Written submissions in response to the mother's written submissions were received on behalf of :

• the Director-General
• Mr B
• Mr S

19 At the hearing of the Summons, the mother appeared in person by telephone link. The Director-General, Mr B and Mr S were separately represented. DM and JM were represented by Mr Hogg, apparently on the direct instructions of the children. Mr Wilson appeared for RM, HM and ZM, on instructions from an independent children's solicitor.

20 At the outset of the hearing, the mother informed the Court that she was no longer seeking to challenge the orders that had been made in relation to the care of DM and JM. On that basis, Mr Hogg, who appeared for DM and JM, was given leave to withdraw from the hearing. Mr C, the father of DM and JM did not appear at the hearing, presumably because he was aware of the mother's intentions with respect to his children.

21 The Director-General's written submissions did not reach the applicant before the hearing. Accordingly, Mr Allen, who appeared for the Director-General, was invited to make brief oral submissions. He was content to adopt the submissions made by Ms Lawson on behalf of Mr S. Ms Lawson's written submissions, in particular, helpfully analysed and sought to identify the grounds relied on by the mother. Mr Braine, who appeared for Mr B, also adopted Ms Lawson's submissions.

22 The mother, in her oral submissions, repeated a number of complaints about the conduct of the Department, none of which could bear on whether the District Court decision was affected by an error of the kind justifying the grant of relief pursuant to s 69 of the SC Act. The mother also asserted that some witnesses who gave evidence to the District Court had not been truthful. As the Court explained to her, questions of credibility were matters for the District Court to determine and challenges to the merits of the findings could not establish a ground for judicial review.

23 The applicant in her oral submissions suggested that she had been denied the opportunity to seek court-ordered assessment and that, accordingly, she had been denied procedural fairness. For reasons explained later in this judgment, this submission cannot succeed. In the course of these submissions, however, the applicant seemed to advance an additional complaint that had not been identified in the Summons or in her written submissions.

24 In substance, the additional complaint was that the Director-General had prepared Care Plans and amended Care Plans for the Children's Court and the District Court without seeking her agreement. If that complaint was well-founded, an issue might arise as to whether the Director-General had complied with s 78(3) of the Care Act, which provides that a care plan presented to the Children's Court (or to the District Court on appeal) "is to be made as far as possible with the agreement of the parents of the child ... concerned". That might raise a further question as to whether the District Court decision was affected by an error of law, in that a statutory precondition of the making of an order for the removal of a child was not complied with.

25 As this was a new issue not identified in the Summons or in the applicant's written submissions, Mr Allen was not in a position to deal with it. Bearing in mind that the applicant was unrepresented and that her application concerned her claim to have the care of her children restored to her, the Court took the view that she should be permitted to raise the new issue, provided that the respondents were given an opportunity to address the contention.

26 The Court set a timetable for the Director-General and the other defendants to file any further affidavits and submissions on the question of whether the Care Orders and Amended Care Orders complied with the Care Act, and, if not, what consequences would follow. Provision was made for the mother to respond to any material filed on behalf of the respondents. The Court noted that it would deal with these issues on the basis of the written material without a further oral hearing.

27 In conformity with the directions, the Director-General filed an affidavit by Ms Watson, a Child Protection Caseworker employed by the Department of Family and Community Services, Wagga Wagga. The affidavit annexed a large number of documents, including the Care Plans and Amended Care Plans relied on by the Director-General before the Children's Court and the District Court. The Director-General also filed written submissions in which he contended that every effort had been made to secure the applicant's consent to each of the Care Plans and Amended Care Plans and that s 78(3) of the Care Act had been complied with.

28 Supplementary written submissions were filed on behalf of Mr S and Mr B supporting the position taken by the Director-General.

29 The mother filed lengthy written submissions in reply. She also filed an affidavit which largely seeks to re-agitate factual matters decided against her, but incorporates further submissions on the adequacy of the Care Plans and Amended Care Plans.

30 The mother also purported to file an amended summons. However, the amended summons is in the same form as the Summons. Accordingly, the amended summons adds nothing and leave to file it should be refused. The mother also belatedly sought to have the Court take into account material on a USB drive forwarded to the Court. However, this material was not permitted by the Court's directions and has not been considered.

31 Having regard to the directions of the Court, it is appropriate to regard the affidavit of Ms Watson and the mother as having been read in connection with the relief sought in the Summons. No objection has been taken to any parts of the affidavits, although much of the mother's affidavit is in the nature of submissions rather than evidence. Ms Watson's affidavit sets out in chronological order records of meetings between Departmental Officers and the mother and an account of steps taken in the court proceedings. The affidavit and the annexures to it do not appear to raise any controversial issues of fact.

32 The Director-General's Supplementary Court Book contains other documents. These comprise transcripts of court proceedings and copies of the relevant Care Plans and Amended Care Plans before the Children's Court and the District Court. They, too, should be admitted into evidence on the mother's application in this Court.

Legislation

The Care Act

Objects and Principles

33 Section 7 of the Care Act provides that the provisions of Chapter 2 (ss 7-19) are intended "to give guidance and direction in the administration of this Act". They do not create any entitlement in law.

34 The objects of the Care Act are stated in s 8. They include:

(a) that children ... receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them ...

35 Section 9 states principles for the administration of the Care Act. Section 9(1) provides that the Act is to be administered:

under the principle that, in any action or decision concerning a particular child ... the safety, welfare and well-being of the child ... are paramount.

A "child" is a person under the age of 16 years: s 3.

36 The other principles to be applied in the administration of the Care Act are set out in s 9(2). They include the following:

(a) Wherever a child ... is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child ... and the circumstances.

...

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order 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 or her family that is consistent with the paramount concern to protect the child ... from harm and promote the child's ... development.

Emergency Protection

37 Section 43(1) of the Care Act provides that the Director-General or a police officer, if satisfied on reasonable grounds of certain matters, may remove a child from a "place of risk". The matters are:

(a) that a child ... is at immediate risk of serious harm, and

(b) that the making of an apprehended violence order would not be sufficient to protect the child ... from that risk,

The Director-General has the care and responsibility for a child removed from the care of his or her parents under the Care Act: s 49(1).

38 If a child is removed from premises or a place under a power of removal conferred by the Care Act, s 45(1) requires the Director-General to make a care application within 72 hours to the Children's Court for one or more of the following orders in respect of the child:

(a) an emergency care and protection order,

(b) an assessment order ...

(c) any other care order.

An emergency care and protection order is provided for by s 46.

Assessment Orders

39 The Children's Court may make an order for a physical, psychiatric or other medical examination of a child or for the assessment of a child: s 53(1). Such an order is known as an "assessment order" (s 52(a)) and may be made on the application of the Director-General or a party to a care application: s 55(1).

40 The Children's Court may, for the purposes of an assessment order appoint a person to assess the capacity of a person with parental responsibility, or who is seeking parental responsibility, for a child to carry out that responsibility: s 54(1). Such an assessment can be carried out only with the consent of the person whose capacity is to be assessed: s 54(2).

41 In considering whether to make an assessment order, the Children's Court is to have regard to a number of matters, including whether the proposed assessment is likely to provide relevant information that is unlikely to be obtained elsewhere: s 56(1). If the Court makes an assessment order it is to appoint the Children's Court Clinic to prepare and submit the report, unless the Clinic informs the Court that it is unable to do so or that it considers that it is more appropriate for another person to do so: s 58(1). If the Clinic so informs the Court, the latter is to appoint another person whose appointment, so far as possible, is agreed to by the child, the parents and the Director-General: s 58(2). An assessment report submitted to the Court is taken to be a report of the Court, rather than evidence tendered by a party: s 59.

Care Applications

42 Part 2 of Chapter 5 of the Care Act makes provision for care applications. A care application is an application for a "care order": s 60. The latter expression is defined to mean an order under Chapter 5 for or with respect to the care and protection of a child: s 60.

43 A care order may be made only on the application of the Director-General of the Department of Family and Community Services ("DFCS"), except as provided by Chapter 5: s 61(1). A care order may be an interim or final order: s 62. The Director-General is required, among other things, to make reasonable efforts to notify the parents of a child in relation to whom a care application is made: s 64(1).

44 Section 69(1) empowers the Children's Court to make interim care orders in relation to a child after a care application is made and before the application is determined. Such an application may be made prior to the Court determining whether the child is in need of care and protection: s 69(1A).

45 Under s 71(1) of the Care Act, the Children's Court may make a care order in relation to a child if satisfied that the child is in need of care and protection for any reason, including the following:

(c) the child ... has been, or is likely to be, physically or sexually abused or ill-treated,

(d) subject to subsection (2), the child's ... basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,

(e) the child ... is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,

46 Section 71(2) provides that the Children's Court cannot conclude that the basic needs of a child are likely not to be met only by reason of a parent's disability or poverty.

47 A care order in relation to a child can be made only if the Children's Court is satisfied that the child is in need of care and protection, or would be in such need but for the existence of arrangements such as interim care orders: s 72(1). If not so satisfied, the Children's Court may dismiss the application: s 72(2).

Care Plans

48 If the Director-General applies to the Children's Court for an order, other than an emergency order, for the removal of a child from the care of his or her parents, the Director-General must prepare a care plan to the Children's Court before final orders are made: s 78(1). The expression "care plan" is defined in s 3 to mean:

a plan to meet the needs of a child or young person:

(a) that is developed through agreement with the parents of the child ... or

(b) that represents a set of proposals for consideration by the Children's Court.

49 Section 78 also provides as follows:

(2) The care plan must make provision for the following:

(a) the allocation of parental responsibility between the Minister and the parents of the child ... for the duration of any period for which the child ... is removed from the care of his or her parents,

(b) the kind of placement proposed to be sought for the child ... including:

(i) how it relates in general terms to permanency planning for the child ... and

(ii) ...

(c) the arrangements for contact between the child ... and his or her parents, relatives, friends and other persons connected with the child ...

...

(3) The care plan is to be made as far as possible with the agreement of the parents of the child ... concerned.

(4) The care plan is only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children's Court.

(5) Other requirements and the form of a care plan under this section may be prescribed by the regulations.

50 The current regulations prescribing the information to be included in a Care Plan are contained in the Children and Young Persons (Care and Protection) Regulation 2012 ("Care Regulation 2012"), reg 22, which came into force on 1 September 2012. Its predecessor was the Children and Young Persons (Care and Protection) Regulation 2000 ("Care Regulation 2000"), reg 12. Both reg 22 of the Care Regulation 2012 and reg 12 of the Care Regulation 2000 included sub-reg (5), as follows:

The care plan is to refer to the views of any person who has expressed disagreement with any of the provisions of the plan.

51 The Children's Court must not make a formal order for the removal of a child from the care of his or her parents or for the allocation of parental responsibility in respect of a child, unless it has considered a care plan presented by the Director-General: s 80.

Permanency Plans and Allocation of Parental Responsibility

52 Section 78A(1) defines "permanency planning" to mean

the making of a plan that aims to provide a child ... with a stable placement that offers long-term security and that:

(a) has regard, in particular, to the principle set out in section 9 (2)(e), and

(b) meets the needs of the child ..., and

(c) avoids the instability and uncertainty arising through a succession of different placements.

53 Section 79 provides for an order allocating parental responsibility. It relevantly provides as follows:

(1) If the Children's Court finds that a child ... is in need of care and protection, it may:

(a) make an order allocating the parental responsibility for the child ... 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 ... under the parental responsibility of the Minister.

(2) The specific aspects of parental responsibility that may be allocated by an order of the Children's Court include, but are not limited to, the following:

(a) the residence of the child ...

(b) contact

...

(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.

54 If the Director-General applies to the Children's Court for a care order (not being an emergency order) for the removal of a child, the Director-General must assess whether there is a realistic possibility of the child being restored to his or her parents having regard, inter alia, to the evidence as to whether the parents are likely to be able to address the issues that led to the child's removal: s 83(1). If the Director-General assesses that there is a real possibility of restoration, the Director-General is to submit a permanency plan for restoration and submit it to the Children's Court for consideration: s 83(2). If the Director-General assesses that there is no realistic possibility of restoration, he or she is to prepare a permanency plan for another long-term placement for submission to the Children's Court: s 83(3).

55 The Children's Court is to decide whether to accept the assessment of the Director-General (s 83(5)) and may direct the preparation of a different permanency plan: s 83(6). Section 83(7) provides as follows:

The Children's Court must not make a final care order unless it expressly finds:

(a) that permanency planning for the child ... has been appropriately and adequately addressed, and

(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:

(i) the circumstances of the child ... and

(ii) the evidence, if any, that the child['s] ... parents are likely to be able to satisfactorily address the issues that have led to the removal of the child ... from their care.

The requirements for a permanency plan involving restoration of a child are specified in s 84(1). They include the minimum outcomes the Director-General believes must be achieved before it would be safe for the child to be returned: s 84(1)(a).

Contact Orders

56 Section 86(1)(a) of the Care Act provides that if a child is the subject of proceedings before the Children's Court, the Court may make an order stipulating minimum requirements concerning the frequency and duration of contact between the child and his or her parents or other person. The Court may require any contact to be supervised: s 86(1)(b).

Rescission and Variation of Care Orders

57 If there has been a significant change in any relevant circumstances since a care order was made or last varied, the Children's Court may grant leave to a specified person (including a parent) to apply for the variation or rescission of the order: s 90(1), (2), (3). Before making an order to rescind or vary a care order the Children's Court is to take a number of matters into account: s 90(6), (7).

Appeals to the District Court

58 Section 91 of the Care Act provides for an appeal to the District Court against orders made by the Children's Court. The section provides as follows:

(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2) An appeal is to be 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, may be given on the appeal.

(3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings.

(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has under this Chapter or Chapter 6.

(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children's Court.

(6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children's Court and has effect accordingly.

(7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.

(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.

Procedures in the Children's Court

59 Chapter 6 of the Care Act (ss 92-109X) sets out the procedural requirements for proceedings in the Children's Court. It is necessary only to refer to s 93, which states the "General nature of proceedings":

(1) Proceedings before the Children's Court are not to be conducted in an adversarial manner.

(2) Proceedings before the Children's Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.

(3) The Children's Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children's Court determines that the rules of evidence, or such of those rules as are specified by the Children's Court, are to apply to those proceedings or parts.

(4) In any proceedings before the Children's Court, the standard of proof is proof on the balance of probabilities.

(5) Without limiting subsection (4), any requirement under this Act that the Children's Court be satisfied as to a particular matter is a requirement that the Children's Court be satisfied on the balance of probabilities.

Supreme Court Act

60 Section 69 of the SC Act provides as follows:

(1) Where formerly:

(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or

(b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act:

(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d) shall not issue any such writ, and

(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

...

(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

Family Law Act

61 For the sake of completeness, it should be noted that the Family Law Act 1975 (Cth) ("Family Law Act") does not apply to the proceedings determined in the present case by the Children's Court and the District Court. Section 69ZK(2) of the Family Law Act provides that nothing in the Act and no decision under the Act affects the jurisdiction of a court under a "child welfare law" to make any order by which a child is placed under care. Nor does the Act or a decision under the Act affect the operation of a child welfare law in relation to a child: s 69ZK(2)(c). "Child welfare law" is defined to include the Care Act: Family Law Act, s 4; Family Law Regulations 1984 (Cth), reg 12B(2), Sch 5, Item 2.

A Chronology

62 As I have indicated, the children were removed from the mother's care on 30 November 2011. On 5 December 2011, the Director-General commenced a care application in the Children's Court at Wagga Wagga pursuant to s 61 of the Care Act seeking orders that:

• interim parental responsibility for the children be allocated to the Minister until further order (s 69); and

• parental responsibility for the children be placed with the Minister until they each attain the age of 18 years (s 79(1)(b)).

63 The application relied on the grounds specified in s 71(1)(c), (d) and (e) of the Care Act. The report accompanying the application alleged that nine "risk of harm" reports had been received in relation to the children. The issues of concern included neglect of the children's day to day needs, inadequate and disrupted schooling, suspected inadequate medical treatment and unstable living arrangements.

64 On 6 December 2011, the Children's Court made an interim order under s 69 of the Care Act allocating parental responsibility for each child to the Minister.

65 The Director-General's application was again before the Children's Court on 12 December 2011. On that occasion the mother was represented as were the Director-General, Mr S (the father of the youngest child, ZM) and JM (the second oldest child). The Magistrate (Duncombe LCM) made interim orders by consent and without admissions that each of the five children was in need of care and protection on the grounds specified in s 71(1)(c), (d) and (e) of the Care Act. The Magistrate also directed that the Director-General file and serve Care Plans for the five children. The matter was stood over until a date in January 2012.

66 On 21 December 2011, ZM was placed by the Director-General in the care of his father, Mr S, in Junee, New South Wales. As I have noted, ZM continued to reside with Mr S at the time of the District Court hearing in April 2013.

67 On or about 9 January 2012, the Director-General filed a Care Plan pursuant to s 78 of the Care Act for each of the five children. The Care Plans noted that all the children, other than ZM, had been placed with foster carers in short term placements. The Care Plans also recorded that attempts to contact Mr C had not been successful and that the mother had not provided information that would allow the Department to contact Mr B.

68 The Care Plan for ZM stated that there was a realistic possibility of the child being restored to his father, since ZM had been placed with Mr S since 21 December 2011. However, the Care Plan stated that there was no realistic possibility of the other children being restored to their parents.

69 The Care Plans for DM and JM stated that the mother's views regarding the Plans were not known, but that she had stated that she did not wish to care for either of the boys. The Care Plans for the remaining children also stated that the mother's views concerning the Plans were not known, but recorded that the mother wanted all three children restored to her immediately.

70 On 11 January 2012, the Children's Court set the proceedings down for a Dispute Resolution Conference ("DRC"). The mother attended the DRC on 9 February 2012 and was represented by her solicitor. No agreement was reached at the DRC.

71 On 14 March 2012, a further directions hearing was held in the Children's Court. The mother was represented by a different solicitor. The mother was directed to respond to the Care Plans by 31 March 2012.

72 On 11 April 2012, the Children's Court made orders that the Director-General file and serve any amended Care Plan in respect of each child by 23 May 2012. The "parents" were directed to serve any reply by 6 June 2012. It appears that the reason for the Court making these directions was that Mr C and Mr B had been located after the filing of the original Care Plans. The mother was represented at this hearing.

73 On 30 May 2012, the mother filed an application in the Children's Court pursuant to s 90 of the Care Act seeking an order that the orders made on 12 December 2011 be set aside and that the care of each of the children be restored to her. The mother filed affidavits setting out her proposals for the care of each of the children.

74 On 31 May 2012, the Director-General filed an amended Care Plan in respect of each child, incorporating a permanency plan. The Care Plans for DM and JM noted that they were still with foster carers, but that it was proposed to place them with their father, Mr C. The amended Care Plans recorded that the children had relatives in Perth and that Mr C was ready to welcome his sons home. It was proposed that the mother have supervised contact with DM and JM four times a year in Perth.

75 The amended Care Plans for HM and RM proposed that they be placed with their maternal grandmother. It was also proposed that the mother have supervised access four times a year. A similar arrangement was suggested for the children's father, Mr B.

76 The amended Care Plan for the youngest child, ZM, recorded that he had now been placed with his father, Mr S. It was proposed that parental responsibility be allocated to Mr S to the exclusion of the mother, but that arrangements be made, when appropriate, for her to have supervised contact four times a year.

77 The amended Care Plans for DM, JM and ZM said nothing about the mother's views. The amended Care Plans for the other two children contained the same notation about the mother's views as the previous Care Plans.

78 The mother was self-represented at the next Children's Court directions hearing held on 13 June 2012. She was given time to respond to the Director-General's amended Care Plans. A hearing was set down for 15-16 August 2012, presumably to deal with the mother's applications under s 90 of the Care Act to rescind the orders previously made by the Children's Court and to have the children restored to her.

79 On or about 15 June 2012, the mother filed a summons in the Supreme Court challenging the orders made by the Children's Court and seeking orders that the children immediately be restored to her care.

80 On 10 July 2012, the mother filed a motion seeking urgent injunctive relief to prevent final orders being made before the hearing in the Children's Court set down for 15-16 August 2012. It appears that White J dismissed the application on the basis of certain assurances from the Director-General.

81 On 15 August 2012, the Children's Court at Wagga Wagga dismissed the mother's application to set aside the orders that the children were in need of care and protection.

82 On 10 October 2012, the Children's Court at Wagga Wagga dismissed a number of applications filed by the mother seeking, among others, orders allowing her to have contact with the children.

83 A hearing took place in the Children's Court from 5-9 November 2012 before Sbrizzi M. At this hearing, the mother was represented by a solicitor. The children were also represented. DM and JM were each separately represented, while RM, HM and ZM were represented by the same solicitor. In addition, the Director-General, Mr B and Mr S were each separately represented.

84 The Magistrate delivered judgment on 9 November 2012. His Honour made the following findings:

• He was not satisfied that the mother would be likely to satisfactorily address the issues that led to the removal of the children.

• There was no realistic possibility of restoration of the five children to her care.

• In accordance with the Director-General's assessment, there was a realistic possibility of the restoration of DM and JM to Mr C and of ZM to Mr S.

• Contrary to the Director-General's assessment, there was a realistic possibility of the restoration of custody of HM and RM to Mr B.

85 In view of the last finding, the Magistrate directed the Director-General to prepare amended Care Plans in respect of the five children addressing:

• a program for the restoration of RM and HM to Mr B; and

• the issue of contact between the mother and the five children.

86 The Magistrate asked the Director-General to consider whether contact with the three youngest children (RM, HM and ZM) should remain with the Minister and to address the issue of supervision of contacts between the mother and the children. In the meantime, the interim orders were confirmed.

87 On 5 December 2012, White J made orders on an urgent application brought by the mother in the Supreme Court's parens patriae jurisdiction. His Honour ordered that if the Children's Court made an order the effect of which was that HM or RM live with Mr B, that order was to be stayed until the District Court determined any application for interim care or other relief in respect of those children.

88 On about 5 December 2012, the Director-General filed a further amended Care Plan in respect of each child.

89 The further amended Care Plans for DM and JM proposed that the placement with their father be continued until each attained the age of 18 and that parental responsibility be allocated to Mr C. The Plans stated that the mother wished to have DM and JM restored to her.

90 The further amended Care Plans for RM and HM proposed that they be placed with their father, Mr B, until the children reached 18. The Plans addressed the issue of how the proposed placement related to permanency planning for the children. The Plans also identified and discussed issues for permanency planning. On the basis of the findings made by the Magistrate the Plans concluded that there was no realistic possibility of restoration of the children to the mother. The Plans recorded that the mother wanted RM and HM restored to her care.

91 The further amended Care Plan for ZM followed a similar structure to the Plans for RM and HM, although the detailed discussion took account of Mr S's circumstances and the particular needs of ZM.

92 On 12 December 2012, the Magistrate made final orders pursuant to s 79(1)(a)(i) of the Care Act that:

• all aspects of parental responsibility for DM and JM be allocated to their father, Mr C, to the exclusion of the mother;

• all aspects of parental responsibility for HM and RM, other than parental responsibility for contact with the mother, be allocated to their father, Mr B, to the exclusion of the mother; and

• all aspects of parental responsibility for ZM, other than parental responsibility for contact with the mother, be allocated to his father, Mr S, to the exclusion of the mother.

93 The Magistrate also made orders pursuant to s 79(1)(b) of the Care Act allocating to the Minister parental responsibility for contact between HM, RM and ZM for a period of twelve months. On the expiration of these orders, parental responsibility for contacts was to be allocated solely to the respective fathers (Mr B and Mr S).

94 On the same day as the Magistrate delivered judgment, the mother filed an appeal from his decision in the District Court at Wagga Wagga.

95 On 18 March 2013, White J dismissed a motion by the mother seeking various orders as to contact and restoration of the children to her. However, the stay order made by his Honour on 5 December 2012 remained in place.

96 On 19 February 2013, the mother filed an amended summons in the District Court appealing from the final orders made by Sbrizzi M on 12 December 2012. The appeal was heard in the District Court from 8-19 April 2013 before Olsson DCJ. The mother was unrepresented at the District Court hearing.

97 On 19 April 2013, the mother filed an urgent application in the Supreme Court seeking an injunction to prevent the removal of RM and HM to South Australia to be placed in the care of Mr B. That application was dismissed by Rein J on 26 April 2013. His Honour treated the application as having invoked the parens patriae jurisdiction of the Court, but concluded that there were no exceptional circumstances warranting the exercise of that jurisdiction to make the orders sought by the mother.

98 On 26 April 2013, the mother filed a summons and notice of motion seeking judicial review of the orders made by Olsson DCJ and, among other things, applying for a stay of the orders made in relation to HM and RM.

99 The mother's application was dismissed by Ward JA on 29 April 2013: Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97. Her Honour dealt with the history of the proceedings in some detail. She observed (at [22]) that the authorities made it clear that exceptional circumstances are required for the Supreme Court to exercise its parens patriae jurisdiction to interfere with orders made by judicial officers exercising a specialist jurisdiction in relation to the care of the children.

100 On 30 April 2013, the mother filed a notice of motion for what she described as "judicial review" of Ward JA's decision. The Court of Appeal dismissed the motion on 1 May 2013: M v Director General, Department of Family and Community Services [2013] NSWCA 118. The Court found (at [17]) that the mother had not demonstrated that there were real prospects of success in challenging the judgment and orders of the District Court and that insufficient material had been placed before Ward JA to demonstrate the effects of a change in the arrangements then in force for the care of the children. The Court also was not satisfied that it would be in the interests of justice to refer the mother to the Pro Bono Panel pursuant to Part 7, Div 9 of the UCPR.

101 On 24 May 2013, the mother filed a further summons and notice of motion seeking interim contact orders and other relief. This application was refused by Ward JA on 29 May 2013.

102 On 17 June 2013, the mother filed the Summons in this Court (see at [12] above).

Judgment of the District Court

103 Olsson DCJ noted that the mother was seeking to appeal from the

104 so-called "establishment", being the finding that at the time the children were removed from her care they were in need of care and protection. The mother was also seeking to challenge both the finding that there was no realistic possibility of restoration of any of the children to her care and the final orders made by the Children's Court in consequence of that finding.

105 Her Honour identified four matters requiring consideration:

(i) Whether the children were in need of care and protection in 2011 and whether that situation subsists. This involves the consideration of the matters contained in s 71 of the [Care] Act.

(ii) Whether there is a realistic possibility of restoration of any of the children to the mother.

(iii) The question of with whom the children should be placed or who has parental responsibility for the children.

(iv) What contact orders are appropriate.

106 Olsson DCJ then discussed the relevant principles applicable to the case. She pointed out that the mother had asked the Court to redetermine the threshold question of whether the children were in need of care and protection on the grounds stated in s 71(1) of the Care Act. If that question was answered in the affirmative, the Court had to progress to the second phase of the proceedings, known as the "placement" or "disposition" phase.

107 Her Honour observed that if it was proposed that a child be removed from the parent or that parental responsibility be reallocated, the Director-General was required to prepare a Care Plan for each child. In practice the Care Plan incorporated the permanency plan required by s 83(2) or (3). The Care Plan had to assess whether there was a realistic possibility of the child being restored to his or her parents.

108 Her Honour identified the Court's role as to determine whether it accepts the Director-General's assessment. If not, the Court can direct the Director-General to prepare a different Care Plan. Her Honour pointed out that the Court cannot make a final care order unless it expressly finds that permanency planning for a child has been adequately and appropriately addressed and, where restoration is proposed, that restoration is a realistic possibility. In determining these issues, the standard of proof is the balance of probabilities, although the principles stated in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, are to be taken into account.

109 Olsson DCJ found that the children were in need of care and protection as at 30 November 2011. Her Honour gave a number of reasons for making this finding, including the following:

• the mother had adopted a peripatetic lifestyle, without any apparent regard to the effect the dislocation would have on the children's emotional and psychological well-being and on their education;

• the mother had engaged in the systematic removal of the identity and influence of the fathers from the lives of the children;

• the children had been physically neglected over a period of years in consequence of a family situation of "chaos and disorganisation", to the detriment of their well-being and their school attendance and performance;

• the mother's poor relationship with the children, involving "denial [of reality], punishment and blame"; and

• the mother's hostile and obstructive attitude to the Department, including her flagrant disregard of court orders and her refusal to work cooperatively to alleviate the problems within the family.

110 Olsson DCJ found that the situation subsisted, in the sense that the children would continue to be at risk if they remained with or were restored to their mother. Her Honour also found that there was no realistic prospect of restoration to the mother. If this were to happen:

the likely result is that ... she would continue in her chaotic lifestyle, continue to prioritise her own needs over [those] of the children, and in all probability would flee with them to another State where they would remain undetected until inevitably somebody else made a Risk of Harm report.

111 Her Honour noted that all parties, other than the mother, had agreed on the orders that should be made. These included orders allocating parental responsibility to the respective fathers and placement of the children with the fathers. Her Honour agreed that these were appropriate orders since it was desirable that the children live with a biological parent, even taking into account that the three sets of siblings would be geographically separated from each other.

112 At the conclusion of her judgment Olsson DCJ indicated that she proposed to dismiss the appeal from the decision of the Children's Court. However, in the light of the short minutes of order handed up by the parties (other than the mother), her Honour set aside the orders made by the Children's Court in respect of each of the five children and in lieu thereof made fresh orders.

113 In each case, her Honour allocated pursuant to s 79(1)(a)(i) of the Care Act all aspects of parental responsibility solely to the father, to the exclusion of the mother. The orders made provision, pursuant to s 86 of the Care Act, for the mother to have supervised contact with ZM for a minimum of six times a year. Mr S was prohibited, pursuant to s 90A of the Care Act, from permitting the mother from having unsupervised contact with ZM. Mr S also gave undertakings that he would do all things necessary to ensure that the mother had no unsupervised contact with ZM.

114 In addition, the District Court made a number of "notations". The matters noted included:

• the intention of each father to facilitate regular contact between the five children; and

• Mr B's intention to facilitate at least four supervised visits by the mother to RM and HM each year.

Reasoning

Observations on the Legislation

115 The mother's supplementary submissions referred to a number of provisions of the Care Act. However, she did not identify any specific respect in which the Director-General or the District Court failed to comply with these provisions, other than her contention that the Care Plans were not made "as far as possible" with her agreement and thus failed to comply with s 78(3) of the Care Act. Nonetheless, it is convenient to describe briefly the statutory requirements concerning Care Plans and permanency planning, insofar as they are relevant to the present case.

116 If the Director-General seeks a care order in the Children's Court in relation to a child (as he did in this case following the removal of the children on 30 November 2011), s 78(1) of the Care Act requires the Director-General to present a Care Plan for each child before final orders are made by the Court.

117 Each Care Plan must provide for the matters identified in s 78(2) of the Care Act, including the kind of placement proposed and how it relates "in general terms to permanency planning for the child". In addition, a Care Plan must satisfy the formal requirements of reg 22 of the Care Regulation 2012 (or its predecessor reg 12 of the Care Regulation 2000). Regulation 22(5) (corresponding to reg 12(5)) provides that a Care Plan is "to refer to the views of any person who has expressed disagreement with any of the provisions of the plan".

118 If the Director-General assesses that there is a realistic possibility of restoration of a child or parent, the Director-General must prepare a permanency plan involving restoration and submit it to the Children's Court for approval: s 83(2). If the Director-General assesses that there is no realistic prospect of restoration, he or she must prepare a permanency plan for another suitable long-term placement for the child: s 83(3). The nature of a permanency plan is specified in s 78A.

119 The Children's Court must not make a final care order unless it expressly finds the permanency planning for the child has been appropriately and adequately addressed. The Children's Court must also find, prior to approving a permanency plan involving restoration, that there is a realistic prospect of restoration having regard to specified criteria: s 83(7). Furthermore, the Children's Court must not make a final order for the removal of the child from the care and protection from his or her parents, or for the allocation of parental responsibility in respect of the child, unless it has considered a Care Plan presented by the Director-General: s 80.

120 The Children's Court is not bound to accept the assessment of the Director-General as to whether there is a realistic possibility of restoration of a child to his or her parents: s 83(5). If the Children's Court does not accept the Director-General's assessment, it may direct the Director-General to prepare a different permanency plan: s 83(6). In this case, the Children's Court did direct the preparation of a different permanency plan in respect of the children.

121 As the chronology indicates, the operative Care Plan in this case for each of the children was the further amended Care Plan filed in compliance with the direction of the Children's Court shortly before that Court made final orders on 12 December 2012. The further amended Care Plans were tendered in the District Court appeal and were considered by Olsson DCJ.

122 The amended Care Plans made provision for permanency planning in relation to each child (s 78(2)(b)(i)) and also made provision for contact between the children and the mother (s 78(2)(c)). The Care Plans referred, albeit briefly, to the mother's views, as required by reg 22(5) of the Care Regulation 2012. As I have noted, the mother did not identify in her submissions any deficiency in the formal content of the Care Plans such as to constitute non-compliance with the requirements of the Care Act.

The Mother's Summons

123 As I have noted, it is not easy to follow the complaints made by the mother in her Summons. To the extent that they relate to the decision of the District Court, most complaints appear to challenge the merits of the factual findings made by Olsson DCJ. For example, the Summons includes claims for the following relief:

3. Orders for mandamus that docs [sic] do everything in their power to restore [RM, HM and ZM] to their mother.

...

9. Orders for mandamus for the appropriate courts to expeditiously grant final orders for [ZM] to be restored to his mother [by] whatever legal remedy is available.

124 These claims for relief appear to be based on a challenge to the conclusion of the District Court that there was no realistic possibility of restoring any of the three children to the care of their mother. That conclusion was based on a detailed examination of the evidence and on findings as to the threats to the safety and well being of the children if they were restored to the care of their mother.

125 In the course of the lengthy hearing in the District Court, Olsson DCJ had the opportunity to observe the mother and the respective fathers of the children while giving their evidence and to evaluate the reliability of that evidence. Her Honour made findings, a number of which were highly critical of the mother, based in large measure on an assessment of her credibility and that of each of the fathers. Even if the mother could demonstrate flaws in the reasoning process of Olsson DCJ (which she has not been able to do), this would not establish her entitlement to relief pursuant to s 69 of the SC Act. An erroneous finding of fact does not amount to an error of law.

Assessment Orders

126 The mother's principal complaint in her Summons, other than challenges to the merits of the District Court's decision, appears to be that the District Court failed to order a clinical assessment of the three youngest children and of their parents, including the mother (Grounds 4, 5 and 6). The mother's submissions on this issue appeared to be based on an assumption that the Children's Court and the District Court were under a statutory obligation to order that clinical assessments be carried out before making any findings that the children were in need of care and protection or that they should be removed from their mother's care.

127 As Ms Lawson pointed out in her submissions on behalf of Mr S, the mother's submissions may have confused the statutory requirements for a Care Plan and the provisions in the legislation relating to assessment orders. The Court's powers to make assessment orders are dealt with in Chapter 5, Part 1, Div 6 (ss 52-59) of the Care Act (see [39]-[41] above). It was open to the mother to make an application under s 55(1)(b) of the Care Act to the Children's Court (and on appeal to the District Court) for one or more assessment orders. If such an application had been made, the Court had power to order an assessment of the children (s 53(1)) and, if appropriate, of the parents (s 54). The matters that the Court is required to take into account in considering whether to make an assessment order are set out in s 56 of the Care Act.

128 The Care Act does not provide for the Court to make an assessment order on its own initiative. However, the Court has power of its own motion under s 58(3) of the Care Act to order the Children's Court Clinic or other persons preparing an assessment report to provide "such other information as may be within [its] expertise ... to provide". This power is intended to be exercised once an assessment report has been received.

129 The mother was represented before the Children's Court, but no application was made on her behalf for the Court to order the preparation of an assessment report. Nor did the mother make an application to the District Court for an order that an assessment report be prepared. While the mother was unrepresented in the District Court, the absence of any application for an assessment order cannot be attributed to ignorance on her part. The mother had arranged for the preparation of a report by a Clinical and Forensic Psychologist which described its purpose as the preparation of an:

independent forensic psychological report focussing on [the mother's] parenting capacity in preparation for her ... appeal to the District Court.

The report recommended that the mother request:

that a Children's Court Assessment Report is prepared in order to give the Court more insight into her relationship with the children, and the children's wishes in terms of returning to the care of their mother. Such [an] Assessment Report could also include an in depth psychological assessment of each of the five children to help identify their respective educational, emotional, social and psychological needs.

130 The mother did not attempt to tender this report to the District Court on the appeal. Nor did she follow the course of action recommended in the report. In the absence of any application by the mother pursuant to s 55(1)(b) of the Care Act, the District Court committed no legal error in not making an assessment order.

Care Plan

131 Section 78(3) of the Care Act provides that the Care Plan required by s 78(1) "is to be made as far as possible with the agreement of the parents of the child ... concerned". This language gives rise to some questions of construction that, not surprisingly, have not been debated in any depth on this appeal.

132 If s 78 of the Care Act is read literally and without regard to its context, it could be understood as requiring the consent of both parents to the Care Plan. That, however, cannot be the proper construction of s 78(3). The Care Plan is required precisely where the Director-General seeks an order for the removal of the child from the care of his or her parents. Such an application by the Director-General will often be strenuously opposed by one or both parents. Their agreement to the Director-General's proposals for the allocation of the parental responsibility and the placement of the child may not be forthcoming notwithstanding that the proposals may be necessary, for example, to avoid a serious risk of physical abuse or ill-treatment of the child.

133 Read in context, the expression "as far as possible" in s 78(3) must be understood as requiring the Director-General to make an assessment of what is "possible" by reference not merely to the wishes of the parents, but to the objects of the Care Act (stated in s 8) and to the circumstances which have generated the application for an order removing the child from the care of his or her parents. An exercise of judgment of this kind is likely to be difficult and, perhaps, finely balanced. This suggests that considerable leeway may have to be accorded to the Director-General in making the judgment required by the legislation.

134 A second question of construction arises if, on an application for judicial review, the Court finds that the relevant Care Plan was not made in conformity with s 78(3) of the Care Act. On the principles stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, the preparation of a Care Plan in contravention of s 78(3) does not necessarily mean that a decision of the Children's Court or the District Court made on the basis of the Care Plan will be affected by a legal error. Particularly is this so where the parents of a child subject to a Care Plan have the opportunity to contest in court the proposals advanced in the Care Plan. In this connection, the change in language between s 78(2) (the Care Plan "must make provision") and s 78(3) (the Care Plan "is to be made as far as possible") may be significant.

135 I do not think it is necessary to resolve these and other issues of construction of s 78(3) in the present case. In my view, the mother has not established that the further amended Care Plan that was before the District Court was prepared in contravention of s 78(3) of the Care Act.

136 Ms Watson's evidence shows that she met with the mother on three occasions prior to the preparation of the first Care Plan on 9 January 2012. The last of these three meetings (on 19 December 2011) took place over a period of two hours. Ms Watson describes the mother's approach in these meetings as "at times obstructionist", a characterisation borne out by the findings made by Olsson DCJ in the District Court.

137 Because of the mother's approach, Ms Watson decided to give the mother the opportunity to reply in writing to questions put to her in writing. This was done and the answers given by the mother, as Ms Watson states, were taken into account in the preparation of the first Care Plan.

138 Further meetings took place between Ms Watson and the mother on 1 and 8 March 2012. At these meetings, discussions took place concerning the circumstances in which the children had been taken into care and what needed to happen if restoration to the mother was to occur.

139 At around this time, the mother was having supervised contact with all five children. The Department raised certain concerns with the mother about her behaviour during these visits, but she did not respond to the concerns. This led to the suspension of her contacts with the children.

140 In consequence of orders made by the Children's Court on 11 April 2012, the Director-General filed amended Care Plans on 31 May 2012. The amended care plans took into account the wishes of Mr C and Mr B, since they had been located after the original Care Plans had been prepared.

141 The further amended Care Plans were prepared in conformity with the orders made by the Children's Court on 9 November 2012. In preparing these Care Plans, the Director-General was clearly obliged to have regard to the findings that had been made by the Children's Court following the hearing at which the mother had been represented. The Children's Court found that there was no realistic possibility of restoration of the children to the mother because she was not likely to address the issues that led to the removal of the children. The Court also found that there was a realistic possibility of restoration to the respective fathers of the children.

142 The mother's position, as recorded in the further amended Care Plans, was that the three youngest children should simply be restored to her care. In view of the findings made by the Children's Court, it was not realistically possible for the proposals in the Care Plans to reflect the mother's wishes.

143 For these reasons, the mother has not shown that the Director-General, in preparing the further amended Care Plans, could realistically have done more to ensure that the amended Care Plans were prepared with her agreement. Thus the mother has not established that the Director-General contravened s 78(3) of the Care Act.

Other Issues

144 The Summons can be read as endeavouring to invoke the parens patriae jurisdiction of the Court. However, just as in her previous applications invoking the parens patriae jurisdiction, the mother has not demonstrated any circumstances that would warrant the Court overriding the decisions of the District Court.

Orders

145 The following orders should be made:

1. Amend the name of the First Respondent to the summons filed on 17 June 2013 (Summons) to "Director-General, Department of Family and Community Services".

2. Dismiss the Summons.

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Decision last updated: 09 August 2013