Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: "V V" v District Court of New South Wales [2013] NSWCA 469
• Hearing dates: 20 November 2013
• Decision date: 23 December 2013
• Before: Barrett JA (at [1]); Ward JA (at [129]); Leeming JA (at [130])

Decision

1. That the summons filed on 17 May 2013 in proceedings 2013/153942 be dismissed.

2. That the plaintiff named in that summons pay the costs of the Director-General Department of Family and Community Services (second defendant) and the Child's independent legal representative (third defendant) of the proceedings in this Court.

[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 - Application for allocation of parental responsibility determined by Children's Court - Appeal to District Court - Appeal dismissed and order of Children's Court allocating parental responsibility to the Minister confirmed - Application by father for judicial review of decision of District Court on appeal - JUDICIAL REVIEW - Application for order in the nature of certiorari in respect of District Court decision on appeal - Whether jurisdictional error - Whether error of law on the face of the record - Whether court correctly construed and applied various provisions of the Children and Young Persons (Care and Protection) Act 1998.
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; Supreme Court Act 1970
• Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; In the matter of Campbell [2011] NSWSC 761; Jenkins v Director of Public Prosecutions [2013] NSWCA 406; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Citizenship v Buasdromo [2012] FCAFC 101; (2012) 129 ALD 1; Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 12; (1999) 197 CLR 611; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) [2004] HCA 32; (2004) 78 ALJR 992; Re Jayden [2007] NSWCA 35; Re Kerry (No 2) [2012] NSWCA 127; (2012) 47 Fam LR 212; Re Linda [2011] NSWSC 1596; Re M (No 5) - BM v Director-General, Department of Family and Community Services [2013] NSWCA 253; Re Sophie [2008] NSWCA 250; Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620; X v The Sydney Children's Hospitals Network [2013] NSWCA 320
• Category: Principal judgment
• Parties: Child's father ("V V") (Plaintiff); District Court of New South Wales (First Defendant); Director-General, Department of Family and Community Services (Second Defendant); Independent Legal Representative for the Child (Third Defendant); Child's Paternal Aunt (Fourth Defendant); Child's Mother (Fifth Defendant)
• Representation: Counsel: Child's Father ("V V") in person (Plaintiff); Mr M W Anderson (Second Defendant); Mr P J Braine (Third Defendant); Child's Paternal Aunt in person (Fourth Defendant); Solicitors: Child's Father ("V V") in person (Plaintiff); I V Knight, Crown Solicitor - submitting appearance (First Defendant); I V Knight, Crown Solicitor (Second Defendant); Kathryn Renshall Solicitors (Third Defendant); Child's Paternal Aunt in person (Fourth Defendant)
• File Number(s): 2013/153942

Decision under appeal

• Date of Decision: 2013-04-19 00:00:00
• Before: Flannery DCJ
• File Number(s): 2009/00334551

Judgment

1 BARRETT JA: These proceedings concern a six-year-old girl. I shall refer to her as "the Child". The plaintiff is the father of the Child. He has been given the pseudonym "V V" and I shall refer to him as "the Father". Five defendants are named in the Father's summons: the District Court of New South Wales, the Director-General Department of Family and Community Services, a named solicitor as the Child's independent legal representative, the Child's paternal aunt ("the Aunt") and the Child's mother ("the Mother").

2 The Father, who is self-represented, seeks relief in respect of orders made by the District Court on 19 April 2013 by which an appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (the "Care Act") against orders of the Children's Court was dismissed and the District Court confirmed an order of the Children's Court placing the Child under the parental responsibility of the Minister until the age of 18 years, at the same time making provisions for supervised contact with each of the Father, the Mother and the Aunt.

3 The Father lodged substantial written submissions and addressed the Court at some length. His application is supported by the Aunt who made brief oral submissions. Both the Director-General and the Child's independent legal representative were represented by counsel and opposed the grant of the relief sought by the Father. The Mother took no part in the proceedings. The District Court filed a submitting appearance.

4 The orders the Father seeks are set out in his amended summons filed on 11 June 2013, as follows:

"The Supreme Court sets aside the Order made by the District Court on the 19th April 2013 in matter No. 2009/00334551".

"The Supreme Court makes an order of restoration that allows the subject child to be restored to the plaintiff".

5 The District Court orders of 19 April 2013 were made by Judge Flannery, following a hearing that had commenced on 25 February 2013.

6 The orders of the Children's Court that became the subject of the appeal were made on 27 March 2009. The appeal to the District Court was instituted very soon afterwards, in April 2009. The appeal was dismissed by Judge Balla on 7 September 2010, following which an application by the Father to this Court for the quashing of Judge Balla's orders was granted by consent on 18 August 2011, the Father's appeal to the District Court was on 5 March 2012 dismissed by Judge Colefax for want of prosecution and that order was, on 21 May 2012, quashed by this Court by consent.

7 It was in these circumstances that Judge Flannery came to hear the Father's appeal almost four years after the making of the relevant decision of the Children's Court.

8 The challenge to her Honour's decision is advanced on two bases. First, the Father seeks prerogative relief under s 69 of the Supreme Court Act 1970. Second, he seeks to invoke the parens patriae jurisdiction of the Supreme Court. The Father's claim for prerogative relief falls to be decided by the Court of Appeal because of s 48 of the Supreme Court Act.

9 It is appropriate to address first the claim for the exercise of this Court's supervisory jurisdiction by grant of prerogative relief in the nature of certiorari and to leave the question of the parens patriae jurisdiction until that claim has been dealt with.

The bases for the claim for prerogative relief

10 To attract the intervention of this Court pursuant to s 69 of the Supreme Court Act, it is insufficient to point to some error of fact or some miscarriage of discretion. The Father must establish jurisdictional error or error of law on the face of the record. The "record", in the present context, includes the reasons given by the District Court for its ultimate determination: s 69(4). Any error of law that does not constitute jurisdictional error must appear "on the face of the record" to attract relief by way of certiorari: s 69(3). The nature of the distinction between jurisdictional and non-jurisdictional errors was recently referred to by Gleeson JA in Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [31]:

"Notwithstanding the recognised difficulty of distinguishing between jurisdictional error and non-jurisdictional error, the High Court has pointed out some clear cases of each species of error. In Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 571 [66], the plurality approved the earlier statement of Hayne J in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 141 [163]:

... There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not."

11 In support of his application, the Father relies on the following alleged errors:

a Error of law in the interpretation of s 9(d) of the Care Act as in force at the relevant time (now, section 9(2)(c) of the Care Act).

b Error of law in the interpretation of s 71 of the Care Act.

c Error of law in the interpretation of s 72 of the Care Act.

d Error of law in the interpretation of s 83 of the Care Act.

e The final order is inconsistent with the Court's own findings.

f The judgment supports an abuse of process and condones unethical and adversarial conduct.

g The court relied on non-independent, illegal and untested expert evidence.

h The District Court orders are void because the court relied on a non-established ground in s 72 of the Care Act.

12 This description of the alleged errors refers to them according to the sequence in which the Father raised them in his submissions.

13 Several of the matters on which the Father relies involve the concept of subjective jurisdictional fact. The term "jurisdictional fact" covers, in addition to an objective pre-condition, a decision-maker's subjective state of mind upon which jurisdiction is conditioned: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 12; (1999) 197 CLR 611 at [130] per Gummow J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) [2004] HCA 32; (2004) 78 ALJR 992 at [37] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611. Thus, for example, where the decision-maker only has power to make a certain order if "satisfied" of certain facts or if of a particular "opinion", the fact that the specified state of satisfaction or opinion has not been achieved before jurisdiction is exercised means that the necessary precondition to the exercise of that power (or jurisdictional fact) does not exist and the purported exercise of the power is unauthorised.

Applicable legislation

14 I note, before proceeding further, that, as is common ground, the version of the Care Act to which regard must be had is that which was in force at the time of the Children's Court's determination. Unless otherwise indicated, references below to provisions of the Care Act are references to the provisions as then operative and those provisions are referred to in the present tense as if still operative.

15 For ease of reference, the several relevant sections of the Care Act as in force at the material time are set out at in the Schedule that follows the judgments of the members of the Court.

Statutory framework

16 Something should be said, at this point, about the statutory basis for the primary judge's decision and the steps she took in coming to that decision.

17 Section 79 of the Care Act confers a discretionary power on the Children's Court to make an order allocating parental responsibility for a child or young person to persons specified in that section, including the Minister. The Children's Court made such an order under s 79(1)(b) in respect of the Child on 27 March 2009. That order was a "care order" as defined by s 60 and a "final" order as referred to in s 62. The primary judge confirmed (or re-made) that order on appeal.

18 Before it is open to the Children's Court to make a care order, several statutory requirements must be satisfied. Particularly relevant, for present purposes, are requirements sourced in s 71 and s 72. As was recognised in Re Linda [2011] NSWSC 1596 at [42]-[43], those sections provide alternative bases for the making of a final care order and therefore alternative controls upon the power to make such an order.

19 Section 71 empowers the Children's Court to make a care order in relation to a child if it is "satisfied that the child . . . is in need of care and protection" for any of several reasons stated in the section (I am referring here to the version of s 71 that was operative at the relevant time). Section 72(1), by contrast, says that a care order may be made (or, more precisely, "may only be made") if the court is "satisfied" either that the child "is in need of care and protection" (which is the s 71 criterion) or, in the alternative, that the child is "not then in need of care and protection" but was in need of care and protection when the circumstances that gave rise to the care application occurred or existed and would be in need of care and protection but for the existence of arrangements for the care and protection of the child made under s 49, s 69 or s 70 of the Care Act. The alternative case is introduced by the words "or that even though" and it will be convenient to refer accordingly to the "even though" part of s 72(1).

20 Read together, the two provisions indicate what I have characterised as alternative bases for the making of a care order. The first basis is established if the court is satisfied that there is an existing need for care and protection, being a need arising for one of the reasons stated in s 71(1). The alternative basis created by the "even though" part of s 72(1) is relevant and applicable only when the first is not established because the court is not satisfied that there is such existing need. That alternative basis is established if the court is satisfied that, despite the absence of existing need for care and protection, both the circumstances identified in paragraphs (a) and (b) of s 72(1) exist.

21 Once satisfied that conditions dictated by s 71(1) or s 72(1) are satisfied so as to enable the making of a final care order, the court must consider a care plan (the contents of which are prescribed by s 78) presented to it by the Director-General: s 80. The Director-General is also required to submit a "permanency plan": s 83. Whether that permanency plan involves restoration to the child or young person's parents or not depends on the Director-General assessing, pursuant to s 83(1), whether there is a "realistic possibility" of restoration to the parents, having regard to the matters in s 83(1)(a) and (b). The court must decide whether or not to accept that assessment of the Director-General regarding restoration: s 83(5). In doing so, the court considers the matters in s 83(1)(a) and (b) for itself: see In the matter of Campbell [2011] NSWSC 761 at [2], [16] and [23] per Slattery J. If the court does not accept the Director-General's assessment then it may direct the Director-General to prepare a different permanency plan: s 83(6). Finally, the court must consider the potential inhibition created by s 83(7) of the Care Act. That section precludes the making of a final care order unless the court makes express findings on the permanency plan provided to it by the Director-General in accordance with the legislation. The express findings that must be made are:

""(a) that permanency planning for the child or young person 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 or young person, and

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

22 Where, as in this case, the final care order concerned is a final order under s 79 allocating parental responsibility, an additional control on the discretionary power arises from s 79(3) which prohibits the making of such an order under 79(1), unless the court has "given particular consideration to the principle in s 9(d)" of the Care Act and is satisfied that any other order would be insufficient to meet the needs of the child or young person.

23 Section 91 of the Care Act makes it clear that an appeal of the kind now under consideration from the Children's Court to the District Court is by way of a new hearing and that the District Court has all the functions and discretions at the disposal of the Children's Court under Chapters 5 and 6 of the Act.

24 In this case, the District Court made findings on each of the statutory pre-conditions to jurisdiction before confirming the Children's Court order allocating parental responsibility to the Director-General and, in effect, re-making that order in exercise of the s 91 jurisdiction. The errors of law alleged by the Father go to the validity of those findings and the final care order itself.

25 It is to those alleged errors of law that I now turn. I shall deal with them generally in the order suggested by the short outline of the statutory scheme set out above.

Alleged errors concerning s 72

26 The primary judge determined that, as at the time the matter was before her - some four years after the making of the challenged final care order by the Children's Court and an even longer period after the making of antecedent interim care orders to be mentioned presently - the Child was not "in need of care and protection". This was because the Child had been placed with foster carers who were providing adequate and suitable care and protection. The judge referred to the terms of s 72(1) at paragraph [47] of her judgment and continued:

"[48] I am not satisfied that the child is in need of care and protection at the present time as she has been in a stable placement since 1 September 2008. However, it is the Director General's position that I would find that the child was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and that the child would be in need of care and protection but for the existence of arrangements for the care and protection of the child.

[49] The parties do not agree upon the date upon which the circumstances that gave rise to the care application occurred or existed ...

...

[52] I accept that the date at which I must determine whether the child was in need of care and protection, is the date upon which the application was filed, that is 4 February 2008, although as it was said in Re D (A Minor) [1987] AC 317, I must look at the situation both as it was at the time, as it had been in the past and as it would have been likely to continue if the process of protection had not been put in motion."

27 The judge recognised that finding that the Child was not in need of protection at the time of her decision brought the matter within the second (or "even though") part of s 72(1), so that the power to make a care order was not enlivened unless the court was satisfied as to both the matter in s 72(1)(a) and the matter in s 72(1)(b). The judge therefore undertook the s 72(1)(a) inquiry (whether the Child was in need of care and protection at the time of the circumstances that gave rise to the care application, that is, the application that came before the Children's Court in 2008) and, having reached the contemplated state of satisfaction on that issue, moved on to consider the s 72(1)(b) issue. Her Honour also reached the contemplated state of satisfaction on that issue:

"[129] I do not find s 72 of the Care Act a straightforward provision. However, as it refers to sections of the Care Act which deals specifically with interim arrangements - arrangements that can only be made before final orders - I am satisfied that what I must now determine is whether the child would be in need of care but for the existence of the interim arrangements for the care and protection of the child which were in place between 7 February 2080 and 27 February 2009.

[130] I am satisfied that if those arrangements had not been in place, the child would be in need of care and protection, as the mother continued to experience symptoms of her mental illness which became so acute that she was hospitalised on Christmas day 2008, as the father and mother were still together until at least 15 February 2009 and based on the history of their relationship, it was not possible to be confident that they would not renew it, despite assertions they made to the contrary.

[131] Although it is not clear pursuant to which section the interim order was made, I accept it must have been made pursuant to s 49, and/or s 69 and/or s 70 of the Care Act for the reasons Mr Anderson gave.

28 In the course of considering s 83(7), the judge also said (at [145]):

"[145] I agree with Ms Renshall that the child's circumstances are the primary issue here, as I accept that the issues which led to the removal of the child from the father's care have been addressed by the passage of time."

29 The Father says that the judge erroneously "established the jurisdiction of the Court to make a care order" by stating that the Child was in need of care and protection "four years ago"; and:

"It was legally wrong and it was an unreasonable for her to exercise the Court's power to put my child into the foster care of the Minister, because she was satisfied that my child was still in need of care and protection by relying on the circumstances of over four years ago. It was wrong in law and unreasonable when her Honour could have and it was open for her to rely on the present circumstances where she herself states at paragraph 145; 'I accept that the issues that which led to the removal of the child from the father's care have been addressed by the passage of time'."

30 The errors alleged are thus:

(a) an error of subjective jurisdictional fact (because the requisite satisfaction contemplated by s 72(1) as the necessary condition to the exercise of jurisdiction was not satisfied);

(b) a constructive failure to exercise jurisdiction (by reason of misinterpreting the meaning of the jurisdictional precondition); and

(c) unreasonableness.

31 The Director-General submits that the Father's submission "ignores the clear words of the section and the effect of the section as her Honour ultimately interpreted it". Reference is made to [129] of the judgment set out at [27] above. The Director-General also says:

"it is respectfully submitted that her Honour carefully considered the provisions of section 72 of the Care Act and made the appropriate determination: judgment [112]-[130]".

32 The Father is correct when he says that the primary judge was of the view that past issues had been resolved in such a way that, when her Honour came to consider the matter, the Child was no longer in need of care and protection in the way that had prevailed when those issues were operative and unresolved. That, however, did no more than bring to the fore the matters to which the second (or "even though") part of s 72(1) directs attention and the question whether the court is satisfied that, despite the current lack of need for care and protection, the Child was in need of care and protection at a specified past time and would currently be in need of care and protection but for the existence of certain measures.

33 At [108]-[110] of the judgment, the judge expressed herself satisfied as to the first of those matters, that is, that the Child "was in need of care and protection when the circumstances that gave rise to the care application occurred or existed" (being some four years before the time at which the judge was considering the matter). At [130]-[131], she expressed herself satisfied as to the second of the matters, that is, that the Child would be in need of care and protection but for the existence of arrangements for her care and protection made under s 49, s 69 or s 70 (the existence of measures under s 49, s 69 or s 70 is something with which the Father separately takes issue; the matter will be dealt with presently: see "Interim orders" at [115] and following below.

34 Further, the fact that the matter fell within the "even though" part of s 72(1) meant that there was no error of constructive failure to exercise jurisdiction because of the absence of a finding of presently existing need for care and protection.

35 The Father next says that the primary judge misconstrued and misapplied the "even though" part of s 72(1). He submitted:

"The error arose from her improper interpretation of the part of section 72(1); 'or that even though the child or young person is not then in need of care and protection' as meaning that the child is not at risk of harm because of the present care arrangements".

36 The Father points to paragraph [114] of the judge's reasons:

"Mr Anderson, whose submission on this issue Mr Renshall adopted, submitted that I would find the child is a child in need of care and protection and would be but for the arrangements made pursuant to the orders of the Children's court. In his submission, s 72 simply reinforces the position that the Court may only make a care order if the child is in need of care and protection and it makes clear that the court's jurisdiction continues even though arrangements are made which may mean the child is not longer in need of care and protection". (citations omitted)

37 This, the Father contends, shows that the judge accepted the Director-General's "wrong submission" and "did not turn her mind to consider the interpretation to mean that the child is now 'not then in need of care and protection', because the parent can or has resolved the issues which created the original interim care Order".

38 The Father thus challenges the primary judge's interpretation of s 72(1) (amounting to a constructive failure to exercise jurisdiction) and says that:

"this latter part of section 72(1) 'or that even though the child or young person is not then in need of care and protection' does not mean the child is 'not then in need of care and protection' because of the interim care arrangements. My submission, is that the latter terms of section 72(1) in particular; 'or that even though the child or young person is not then in need of care and protection' applies to the common circumstances of when the Children's Court is poised to make a final determination and yet the Court believes that restoration is realistic, because the parent can or has addressed the original issues that led to the removal of the child, before the Court makes a final determination". (emphasis added)

39 He says that "it would be absurd" for "or even though the child ..." in s 72(1) to be taken to mean that "the child is safe because of the interim care arrangements, because it is stating the obvious".

40 The Father sets out in his submissions "four scenarios" in which, on his view, s 72(1) applies. One circumstance in which the "even though" part is said to apply is "where restoration is realistic" - in other words, it seems, where the circumstances at the time the s 72(1) assessment is being made differ from those that prevailed at the earlier time referred to in s 72(1)(a) and the difference represents, in effect, such an improvement as would have made the order unnecessary or inappropriate in the first place. The Father says in his submissions:

"If her Honour properly understood what the latter phrasing of section 72(1) meant that restoration is realistic, then she would have realised that she could not use the accompanying sections of (a) and (b) to make a care Order that restoration is not realistic, by allocating PR to the Minister as She did. This is quite clear in my second scenario of restoration that I have explained above ...

Sections 72(1)(a) and (b) was only relevant to restoration, and didn't apply to the Order that she made which was to allocate PR to the Minister. Her Honour did not properly refer to and should have referred to the first part of section 72(1) that states 'The Children's court is satisfied the child or young person is in need of care and protection' which was the proper part of section 72 of the Act to make the Order or PR to the Minister that she made".

41 The construction for which the Father contends is not the correct construction. If a child is judged, at the time of the court's decision, not to be "in need of care and protection" as referred to in the first part of s 72(1), the child is, in terms of the second (or "even though") part, "not then in need of care and protection". That being so, the court can make an order if satisfied as to both the s 72(1)(a) matter and the s 72(1)(b) matter but otherwise cannot make an order. The submission that "not then in need of care and protection" means "restoration is realistic" simply ignores the plain meaning of the words used in s 72(1).

42 The interpretation adopted by the primary judge is clearly correct. It was recently endorsed by this Court Re M (No 5) - BM v Director-General, Department of Family and Community Services [2013] NSWCA 253 per Sackville AJA (with whom Macfarlan and Ward JJA agreed) at [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 order: s 72(1). If not so satisfied, the Children's Court may dismiss the application: s 72(2)".

43 The Father's contention as to error in the interpretation of s 72(1) must be rejected. The judge achieved and expressed a state of satisfaction as to relevant matters that constituted the necessary subjective jurisdictional fact. The section was correctly construed and the decision was in no sense unreasonable.

44 The matters raised by the Father concerning s 72(1) and discussed above do not warrant any conclusion of error of law on the face of the record or jurisdictional error. Another matter relevant to s 72(1) is discussed at [115] and following below.

Alleged errors concerning s 71

45 The conclusions about s 72 mean that that section provided, as at the time of the primary judge's decision, a sufficient foundation for the primary judge's decision to confirm (or re-make) the final care order originally made by the Children's Court some four years earlier.

46 That being so, it was not relevant to the judge's decision that she be, in terms of s 71(1), satisfied that, as at the time of the Children's Court decision, the Child was in need of care and protection. That issue did, however, form part of the subject matter as to which the judge was required by the second ("even though") part of s 72(1) to be satisfied if she was to make a final care order under that section. It was made relevant by s 72(1)(a).

47 The judge expressed herself to be so satisfied. The Father contends that there was no valid basis on which the judge could be so satisfied.

48 The Director-General submits that the primary judge was satisfied as to the required matters, at least for a reason that would have been consistent with s 71(1)(c) had the s 71(1) need for particular reasons existed. Her Honour said at [108]:

"For that reason, I am reasonably satisfied that if the child had been in the care of the mother and father, she was likely to be physically abused or ill treated by the mother when the mother was mentally ill, as I find on balance she was in the period leading up to 4 February 2008".

49 The Director-General also says that this determination was based upon, "in part, an admission by the Father recorded at Judgment [102]"; and that jurisdictional error or error of law has not been established because, in addition to paragraph [108], the primary judge "specifically found that the Child is a child in need of care and protection at the relevant time" at paragraphs [61], [65] [109], [110], [130] and [132].

50 Those submissions must be accepted. The judgment as a whole shows very clearly that the primary judge turned her mind to the question whether the Child was in need of care and protection as at the time of the Children's Court determination and was satisfied that she was. The Father's objection on the basis that there was no such satisfaction is misplaced.

51 The Father contends that another s 71 precondition was not satisfied because the judge erroneously made the care order for a reason not listed in s 71(1) - the operative reason being to protect the child from the potential psychological harm caused by placement disruption. There is no need to consider that question since the judge's concern with the need for care and protection at the time of the Children's Court determination arose not because her Honour was proceeding under s 71 but because of her need to be satisfied as to the matter raised by 72(1)(a).

52 I nevertheless observe that although, as the Father submits, the judge may have had regard to the current version of s 71 rather than the 2008 version, her Honour made an express finding as to one of the reasons made relevant by the applicable (now superseded) version. The finding at [108] is set out at [48] above. Her Honour was thus plainly satisfied that, as at the time of the Children's Court decision, the Child was in need of care and protection for the reason stated in s 71(1)(c) of the Care Act.

53 No error of law or jurisdictional error affected the judge's treatment of s 71 issues.

Alleged errors concerning s 83

54 The next matter for consideration concerns s 83 of the Care Act which states, among other things, that the court must decide whether to accept the restoration assessment of the Director-General (s 83(5)) and must not make a final care order unless it makes certain express findings as to permanency planning for the child and the realistic possibility of restoration (s 83(7)).

55 The Father advances two main objections in respect of the judge's determination under s 83: first, that her Honour erred in her interpretation of "circumstances of the child" in s 83(1)(a) and therefore applied "the wrong legal test and was asking the wrong legal question to determine [whether] restoration was realistic"; and, second, that her Honour took into account irrelevant considerations when determining whether restoration was realistic.

56 This part of the Father's case refers to the aspect of the decision in which her Honour considered whether she should substitute for the outcome determined by the Children's Court a permanency plan for restoration to the Father. That depended on whether the judge was satisfied that there was, at the time of her decision, a "realistic possibility of restoration" to the Father, having regard to the matters in s 83(1)(a) and (b), namely, the circumstances of the child, and the evidence, if any, that the Father was likely to be able satisfactorily to address the issues that had led to the removal of the child from his care.

57 As has been noted, the judge accepted a submission that "the issues which led to the removal of the child from the father's care have been addressed by the passage of time". More precisely, the judge made findings at [56], [57], [99], [145], [180], [182], and [183] of the judgment generally to the effect that if, at 4 February 2008 (the relevant time for determining whether the Child was in need of care and protection), the Father had been the sole carer, it was "unlikely" that it would have been concluded that the Child was in need of protection and that the issues that led to the removal of the Child from the Father's care had been addressed by the passage of time. As at the earlier date mentioned, the Mother was the principal carer. The substance of the findings was that, because the Father and the Mother had separated, the negative aspects attributable to the Father at the time of the original decision were no longer operative at the time the appeal was heard.

58 The s 83(1)(b) matter was thus determined favourably to the Father, with the result that the primary focus came to be on the question of satisfaction as to the s 83(1)(a) matter. The judge proceeded accordingly (at [159]).

59 Her Honour accepted (at [173]) that "the circumstances of the child" referred to in s 83(1)(a) required consideration of the Child's placement history since birth and, relevantly, the potential for harm if she were to be removed from her present placement. In respect of the latter, the judge had regard to the report of a clinical psychologist, Ms Dee Neveling, in which Ms Neveling expressed an opinion (referred to by the judge at [175]) that removing the Child from her current foster home and placement would have a profoundly negative and traumatic impact on the Child. Ultimately, the judge found (at [181]) that the "circumstances of the child" (in terms of s 83) were such that there was not a realistic possibility of restoration to the Father.

60 The Father says that it was an error to read "circumstances of the child" in s 83(1)(a) as including the settled state of the Child in foster care over a substantial period and the possible psychological trauma of disrupting the existing placement. Those were, he said, irrelevant matters. On the Father's approach, "circumstances of the child" is, as he put it, "defined by the specified section 71 grounds at the time of the first interim care application". He also says:

"At the first interim care application, the 'circumstances of the child' was never defined as the possibility of psychological harm of placement disruption. Therefore, it was not an issue that had to be addressed by the parent to satisfy section 83(1)(b) [sic] when the Court was making its final determination".

61 The Father also made detailed submissions on the lack of relevance of psychological harm to the application of s 83(1)(a). In support of the proposition thus advanced, the Father says that "potential harm" is only a consideration in respect of an application to rescind or vary a care order under s 90 of the Care Act.

62 The Father points to the specific reference in s 90(6)(f) to "the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded" and the absence of equivalent terms in s 83.

63 The Father submits that the broad reference to "the circumstances of the child or young person" in s 83, in contrast to the specific reference to psychological harm in s 90(6)(f), indicates a legislative intention that "potential harm" is not relevant to an assessment under s 83.

64 In Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ said (at 180) that reliance by an inferior court "upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining [a question within jurisdiction] will not ordinarily involve jurisdictional error". Consequently, in respect of courts, this type of error will only warrant relief in the form of certiorari if it appears on the face of the record.

65 The question is therefore whether the primary judge was "not entitled to rely" on "potential harm" when making an assessment under s 83. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, Mason J said in respect of the ground of taking into account irrelevant considerations (at 40):

"where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard" (citations omitted)

66 In response to the Father's submissions, the Director-General simply says:

"Her Honour relied upon the evidence before her to make a determination within the discretion conferred upon the Court. It is respectfully submitted that psychological harm to a child flowing from a change of placement is a relevant consideration and, as noted above, can be taken into account when assessing the 'circumstances of the child'".

67 Further, on the interpretation of "circumstances of the child" as including the length of placement and potential harm, the Director-General submits:

"[H]er Honour correctly determined that in considering the circumstances of the Child, she needed to consider the Child's placement history since birth and the potential for harm to be caused if one were to remove her from her current secure placement: judgment [173]. It is submitted that the term 'circumstances of the child' is deliberately broad in its scope and encompasses many aspects of the Child's life, particularly the current aspects of the Child's life.

It is respectfully submitted that the discussion of section 83 of the Care Act in the decision of In the Matter of Campbell [2011] NSWSC 761 (per Slattery J) is not inconsistent with the manner in which her Honour interpreted section 83.

The ordinary meaning of 'circumstances', it is submitted, is the current, social, financial, material, or spiritual conditions that somebody lives in or the 'condition or state as to material welfare, means' (Oxford English Dictionary, 2nd ed). The definition the Father contends (at page 20) is not the ordinary meaning of the text taking into account its context in the Care Act and the purpose or object underlying the Care Act: section 34 Interpretation Act 1987)". (citations omitted)

68 The Director General's submissions must be accepted. There is simply no valid basis for a construction that restricts the meaning of a child's "circumstances" and excludes from the concept of "circumstances" any aspects of the situation in which a child is placed, the setting in which he or she is living and the influences bearing upon his or her wellbeing. The term is a broad one that must, in the context, be construed broadly to encompass the whole of the child's situation.

69 It follows that the scope and purpose of the Care Act, as gathered from the whole of its terms, do not support the proposition that there is an implied limitation on "circumstances of the child" which prohibits consideration of "potential harm" to the child. It would be astonishing if that were so, given the Act's close focus upon the welfare and well-being of the child as the principal determinant in all respects and the obvious relevance of potential harm to that all-pervasive consideration.

70 This ground of objection is not made out. There is no error of law on the face of the record and no jurisdictional error.

71 The Father's second contention in relation to the interpretation of s 83(1) is that the judge, after erroneously interpreting "circumstances of the child" to include "potential emotional harm of placement disruption", committed further error "by putting the onus on [the Father] to deal with the problem of potential psychological harm of placement disruption". This apparently refers to [184] of the judgment where the primary judge, according to the Father, "decided that I don't have the right attitude or the prerequisite parenting ability to deal with the potential trauma of placement disruption". The Father says that this amounted to error because it imposed on him an "extra test that was not required by being part of the law".

72 In response, the Director-General says:

"There was no reversal of the onus to require the Father to address the 'psychological harm' issue. The Father simply failed to negate the effect of the expert's opinion. Her Honour appropriately considered matters which could have been raised by the Father: judgment [178], [179], [180]."

73 Again, the Director General's submissions must be accepted. First, I have found that the judge correctly interpreted "circumstances of the child" and secondly there is no issue of onus. It is simply a matter of the judge weighing up all the evidence. It is not shown that her Honour failed to do so correctly or that she cast some impermissible onus upon the Father. Again, no error is shown.

Alleged errors concerning s 9(d)

74 Section 79(3) of the Care Act, which gives the Children's Court the power to make an order allocating parental responsibility, prohibits the court form making an order of that kind unless it has, among other requirements, given "particular consideration to the principle in section 9(d)" of the Care Act.

75 Section 9(d) says that, in deciding what action it is necessary to take in order to protect a child, 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".

76 The Father submits that, if the primary judge "had been properly mindful of her positive findings about me whilst considering the principle in section 9(d)", her Honour should have concluded that the appropriate order in respect of the Child would be an order of restoration to him. The "positive findings" thus referred to are found at paragraphs [56], [57], [99], [145], [180], [182], and [183] of the judgment and have already been mentioned (see [57] above).

77 The Father's submission seems to rely on what may be characterised as two errors of law on the face of the decision, namely a failure to take into account a relevant consideration and unreasonableness.

78 As to failure to take into account a relevant consideration, the Father says that the primary judge did not state that she was "satisfied" that the order that she made was 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 from harm...".

79 Mason J discussed this type of error of law in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (above) at 39:

"The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision".

80 In Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248, the Full Federal Court said of a statutory obligation to "have regard" to certain matters (at [59]):

"[A] decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v FCT (2002) 123 FCR 499 at [62] (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case."

81 On this issue, the Director-General submitted that the primary judge did "give particular consideration to" the principle in s 9(d) of the Care Act. The Director-General refers to the judge's clear statement at paragraph [189] of the judgment:

"I propose to confirm the order of the Children's Court allocating parental responsibility to the Minister. In doing so I indicate that I have given particular consideration to the principle in s 9(2)(c) [sic] of the Care Act ... and I am satisfied that any other order would be insufficient to meet the needs of the child".

82 It is to be noted that nothing turns on the judge's reference to s 9(2)(c). The current s 9(2)(c) is in the same terms as s 9(d) as in force at the relevant time that predated a renumbering of provisions in the Care Act.

83 Where, as here, the primary judge specifically referred to her particular consideration of the relevant principle, the observation of Fox, McGregor and Morling JJ in Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 127 (recently quoted with approval in Minister for Immigration and Citizenship v Buasdromo [2012] FCAFC 101; (2012) 129 ALD 1 at [17]) is apposite:

"it is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention".

84 At the same time and as was pointed out in Re Kerry (No 2) [2012] NSWCA 127; (2012) 47 Fam LR 212 at [59], however, 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 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.

85 The Father does not point to any basis for a conclusion that the judge, having expressly stated that she had achieved the relevant state of satisfaction after particular consideration of the "least intrusive intervention" principle, should be held to have failed to do so. This is not a case of mere formulaic statement. The judge's decision, taken as a whole, makes it abundantly clear that her Honour did, as she said, give particular attention to the particular principle. Accordingly, no error of law is established and this ground of objection based on error of law fails.

86 I consider next the apparent objection to the judge's treatment of the s 9(d) principle based on unreasonableness. The Father submitted:

"For her Honour to have made the Order that she made which was to allocate PR [parental responsibility] to the Minister, whilst finding that my child never was and was not presently at risk of harm from me, was an absurd out come and a complete irrational abrogation of the application of the principle of section 9(d) of the Act". (emphasis added)

87 Towards the end of his submissions, the Father also said that the primary judge:

"made numerous substantial positive findings about the father in her judgment which is inconsistent with making a finding that restoration is not realistic and hence confirming and making a care order allocating PR to the minister."

88 I have already referred to the substance of the judge's "positive findings". The Father says that, in light of those findings, the judge's conclusion that restoration of the Child to him was not realistic is "an absurd result".

89 These submissions and the references to the outcome or result being "absurd" evoke the language of "unreasonableness" as summarised by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at (at 233-4):

"Once that question [of whether the authority has taken into account matters they ought, and not taken into account matters they ought not] is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case... I think the court can interfere."

90 Unreasonableness is not addressed in the submissions of the Director-General or the third respondent. The Director-General simply submits that there is no inconsistency notwithstanding the "numerous 'positive findings' her Honour makes about the Father".

91 It is, to my mind clear, however, that the Father has not satisfied the high threshold of Wednesbury unreasonableness (so unreasonable that no reasonable authority could ever have come to it). It was open to the primary judge on the evidence before her to make an order allocating parental responsibility to the Minister. This is particularly so when regard is had to the evidence and principles referred to at paragraphs [173] to [180] in relation to her Honour's conclusions at paragraphs [181] to [185].

92 The Father has failed to establish any error of law of the Wednesbury unreasonableness kind.

Other matters put forward by the Father

93 It remains to consider a number of other submissions made by the Father. It is convenient to do so by reference to a number of headings drawn from his submissions, being:

(a) "Abuse of process" and "illegal evidence";

(b) "Unethical and adversarial conduct";

(c) "Non-independent, illegal and untested expert evidence";

(d) "Temporary care"; and

(e) Interim care orders

(f) Lack of evidence

"Abuse of process" and "illegal evidence"

94 The Father's "abuse of process" submission challenges the conduct of the Director-General at the District Court hearing, rather than any aspect of the reasoning. He claims that the Care Act did not permit the court to receive and have regard to a report by Ms Neveling, the psychologist to whom reference has already been made. The report was tendered by the Director-General who, the Father says, "was able to get the report in through the back door by claiming that it was a section 82 report to the Court".

95 The judge made it clear that the report in question was not a report provided to the court under s 82 of the Care Act. The Father's submission that it was viewed as such proceeds on a false premise. The status of the report and the basis on which it was received by the court were explained by the judge [160]-[162]:

"[160] In relation to the father's submission that Re Oscar [[2002] NSWSC 453] makes it clear that Ms Neveling's assessment was illegal, Mr Anderson referred to Re Bailey and Blake [2011] NSWSC 1390, where Rein J concluded:

(a) that the Act did not prevent a party to the Care proceedings from obtaining their own independent report concerned matters that may be the subject of an assessment order, and

(b) an assessment of a child cannot be obtained without agreement of all persons who have parental responsibility for the child and in the absence of such agreement, without the leave of the court.

[161] Mr Anderson pointed out that the effect of this is that I can receive Ms Neveling's report, which deals with the child's attachments because the Director-General had parental responsibility for the child at the time the assessment was sought and obviously consented to Mr Neveling's assessment being done at the time he commissioned the report in September 2012.

[162] I accept that submission".

96 It was open to the judge to receive and have regard to the report in question. Her statement of the basis on which she did so shows no error of law on the face of the record or jurisdictional error.

"Unethical and adversarial conduct"

97 The attack made under this heading is another challenge to the conduct of the Director-General rather than the reasoning of the trial judge.

98 The Father claims that the Director-General engaged in "unethical and adversarial conduct in the extreme". The impugned conduct is the Director-General's refusal to increase the Father's visitation rights and subsequent commission of Ms Neveling's psychological report "stating that my child may be at risk of psychological harm by placement disruption if returned to me". The Father relies on s 93(1) of the Care Act, which states that "Proceedings before the Children's Court are not to be conducted in an adversarial manner".

99 The Director-General says that the Father's request for greater visitation rights was considered inappropriate because the Children's Court had already made final orders; also the refusal was not "adversarial" because the decision permitted the Child to form secure attachments with her long-term caregivers and her siblings while maintaining identity contact with her parents.

100 The Director-General also says that the Father identifies no evidence in support of his submission regarding the serious allegation of "unethical and adversarial conduct". Further, it notes that the primary judge (at [158]) rejected the submission that it was unethical and adversarial to have regard to the length of time spent by the Child in her placement.

101 The Director-General's submissions must be accepted. There is simply no basis for any finding of error of law on the face of the record or jurisdictional error.

"Non-independent, illegal and untested expert evidence"

102 The Father refers here again to Ms Neveling's report. He complains that

(a) the report was not "independent" because it was paid for by the Department of Family and Community Services;

(b) according to the Care Act, psychological assessment of a child can only be carried out by the Children's Court Clinic; and

(c) Ms Neveling was not cross-examined.

103 The Director-General notes that the Father declined to participate in an independent assessment prepared by the Children's Court Clinic, did not obtain his own report addressing the Child's restoration to him, declined to participate in Ms Neveling's assessment despite having been invited to do so and did not seek to cross-examine Ms Neveling although the opportunity was available to him.

104 The Director-General further says that the primary judge addressed these matters at [160]-[165] "in a balanced and fair manner having regard to [the Father's] submissions". The Director-General submits that the Father's "decision not to participate in an assessment or to provide an assessment of his own determined the weight of evidence".

105 The Director-General's submissions must be accepted. Again, it is sufficient to say that there is simply no basis for any finding of error of law on the face of the record or jurisdictional error.

Temporary care

106 Three temporary care arrangements were entered into in relation to the Child pursuant to s 151 of the Care Act before the commencement of the Children's Court proceedings in February 2008. Such temporary care arrangements can only be made with the consent of a parent of the child: s 151(2)(a). In this case, the Mother gave consent. The commencement of proceedings terminates any existing temporary care arrangements: s 151(5)(b).

107 The Father challenges the first temporary care arrangement made on 30 August 2007. He submits that it was "illegal" because a necessary statutory precondition was not satisfied.

108 In circumstances where a temporary care arrangement is made with the consent of a parent under s 151(2)(a), there must be in place a "permanency plan involving restoration" in relation to the child before the temporary care arrangement can be made: s 151(4). The Father says that a "permanency plan" answering that description was not in place when the 30 August 2007 temporary care arrangement was made, with the result that that arrangement was "illegal" (or ultra vires).

109 The primary judge found that "no formal permanency plan involving restoration was in place in respect of the child" (at [11]). However, her Honour noted the evidence of the Child's caseworker, Ms Vanessa Faulder:

"...[T]he thing that's referred to as a permanency plan isn't necessarily a document or an item that ...that you could review or look at, it's the goal or the aim of the department at that stage of the matter. So, at the point when [the child] was-we received notifications and [the child] was born, the department's plan was to assess the situation. If the department knew at the point in time that there was no way they would support restoration, my understanding is we would not have been able to enter into a temporary care arrangement at that time, so restoration was being considered as a possibility at that time".

110 Her Honour also noted (at [14]) that between 30 August 2007 and 1 February 2008, the Director-General carried out assessments to determine the viability of the Child's restoration to the care of her parents. Once the Director-General determined that restoration was not viable, it commenced proceedings on 4 February 2008 for interim and final care orders allocating parental responsibility to the Minister.

111 The Father does not accept the above characterisation. He says that the words of the Act make it clear that the permanency plan "is a document blueprint of a commenced restoration plan being implemented and pursued, it is not a period of indecisive assessment which may or may not result in a plan of restoration".

112 The Director-General disagrees and submits that the Act's definition of "permanency plan" envisages continuing assessment, with the result that the Father's submission is devoid of substance and misconceived. The Director-General also notes that neither parent made an application to the Children's Court under s 152(6)(b) of the Care Act for a review of the temporary care arrangements at the time.

113 There is nothing in the Care Act requiring the expression "permanency plan" to be given the restricted meaning for which the Father contends. The s 3 definition of "permanency plan" refers merely to "a plan that makes provision with respect to permanency planning", with "permanency planning" having a meaning derived from s 78A which in turn refers to a plan "that aims to provide a child or young person with a stable placement that offers long-term security" but "need not provide details as to the exact placement in the long-term" and is to give "a reasonably clear picture as to the way in which the child's or young person's needs, welfare and well-being will be met in the foreseeable future". The unmistakable message is one of monitoring and evolution having a degree of flexibility compatible with the continuing assessment of a child's needs and circumstances. There is, in short, no support in the statutory language for a concept of "permanency plan" confined to a formal documentary "blueprint" of the kind the Father says is essential.

114 The Father's contention as to the absence of a permanency plan therefore cannot be accepted and no error of law or jurisdictional error in that respect is demonstrated.

Interim care orders

115 When the Director-General commenced proceedings on 4 February 2008, it sought in the originating application an interim order granting parental responsibility to the Minister on an interim basis (judgment [126]). The Children's Court made interim orders allocating parental responsibility to the Minister on an interim basis on 7 February 2008 (judgment [128]). There was no explicit identification in the originating application or in the orders themselves of the section of the Care Act under which the interim orders were made.

116 Provision for interim care orders is made by s 49, s 69 and s 70 of the Care Act. The Father claims, however, that the interim order made on 7 February 2008 was not made pursuant to any of these provisions but under s 79(1)(b). He further says that s 79(1)(b) only confers power to allocate parental responsibility on a final basis, not on any interim basis. For that reason, the interim order made on 7 February 2008 was, according to the Father, "incompetent" and "void".

117 On the Father's view of matters, the circumstance that the interim orders were not made under any of s 49, s 69 and s 70 means that the foundation referred to in s 72(1)(b) (which refers specifically to those sections) was absent.

118 The primary judge dealt with the issue at paragraphs [125] to [131]. Relevantly, her Honour found (at [131]):

"Although it is not clear pursuant to which section the interim order was made, I accept it must have been made pursuant to s 49, and/or s 69 and/or s 70 of the Care Act for the reasons Mr Anderson gave".

119 The reasons given by Mr Anderson (counsel for the Director-General in the District Court and also in this Court) included a reference to Re Jayden [2007] NSWCA 35 and the recognition there that interim orders for parental responsibility are made "as a matter of course under ss 49, 69 and 70 of the Care Act". In light of this, Mr Anderson submitted that there was "no doubt" that the interim order of 7 February 2008 was made pursuant to s 49, 69 and 70.

120 The Director-General reiterates those submissions in this Court and specifically relies upon paragraphs [85] to [88] of Re Jayden. The Director-General says that the Father's submission is misconceived and that the interim order made on 7 February 2008 was within jurisdiction and unaffected by error.

121 The submissions of the Director General must be accepted. Paragraph [85] of Re Jayden makes it clear that parental responsibility can be conferred upon the Minister "by an interim order" and there is nothing in the terms of s 79 to displace the operation of s 62 of the Act which provides that a "care order may be made as an interim order or a final order, except as provided by this Part". The nature of the interim order made by the Children's Court is also such as to bring it within s 69 or s 70 or both.

122 The interim orders in the present case were accordingly made within jurisdiction and as contemplated by s 72(1)(b) and the judge was right to proceed on that basis. No error of law or jurisdictional error is shown.

Lack of evidence

123 The Father says that the primary judge's conclusions (or factual findings) on the question of his ability to "perform the burden of dealing with the potential harm of placement disruption" were "unreasonable biased and lack evidence". The Father addressed this in conjunction with his reversal of onus submission (see [71] and following above).

124 The Father challenges the primary judge's findings at [184] where her Honour stated that she "found [the child advocate's] submissions, based on her cross-examination of the father, persuasive" and set out those submissions in dot points. The Father explains why he regards each submission as incorrect: for example, "I do see myself as a parent of my child" and "her Honour decided upon the mere opinion and suggestion advanced by my child's ILR that I could not be an emotionally engaging parent all the time". The Father also expanded on this in his "Elaboration" document.

125 Making findings fact for which there is no evidence whatsoever and drawing inferences from such findings entails error of law. But, as Glass JA observed in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156:

"To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it...".

126 Importantly, "so long as there is some basis for an inference - in other words, the particular inference is reasonably open" (original emphasis), there is no error of law on the "no evidence" ground: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ.

127 The Director-General submits that there is such an evidentiary basis for the fact-finding challenged by the Father:

"Her Honour's assessment of the evidence and the cross-examination of the Father provide a basis for findings of fact which the Father disputes. There is no error shown: judgment [184]".

128 That submission must be accepted. There was obviously evidence on the relevant matters. The case was not one of a finding devoid of evidentiary basis; and even if it were the case (and I do not say that it is) that the judge's decision or assessment on a particular issue was against the weight of the evidence, that was an error of fact, not an error of law of the kind relevant to proceedings of the present kind.

Conclusion on the claim for prerogative relief

129 The Father's case for the exercise of the supervisory jurisdiction of the Supreme Court by the grant of prerogative and declaratory relief fails.

Parens patriae

130 It remains to consider the Father's claim for relief in the exercise of the Supreme Court's parens patriae jurisdiction the nature and scope of which were recently considered by this Court in X v The Sydney Children's Hospitals Network [2013] NSWCA 320.

131 It is clear that, in general terms, that jurisdiction may be exercised in any case in which a child is in demonstrated need of care and protection and other mechanisms of the law do not cause that care and protection to be given.

132 That is not this case. Here, the Minister has parental responsibility and the Child has been found to be with appropriate foster carers. The decision of the Children's Court from which that situation proceeded was the subject of appeal to the District Court and the decision on appeal became the subject of an application for exercise of the Supreme Court's supervisory jurisdiction. I have concluded that the District Court's decision does not warrant intervention in the nature of certiorari.

133 In those circumstances, there has been a judicial assessment that the Child, viewed in her present situation, does not stand in need of care and protection beyond that currently afforded to her by law. There is accordingly no circumstance of risk or jeopardy relevant to the deployment of the parens patriae jurisdiction.

Disposition

134 I propose orders as follows:

1. That the summons filed on 17 May 2013 in proceedings 2013/153942 be dismissed.

2. That the plaintiff named in that summons pay the costs of the Director-General Department of Family and Community Services (second defendant) and the Child's independent legal representative (third defendant) of the proceedings in this Court.

135 WARD JA: "I have had the benefit of reading in advance the comprehensive reasons of Barrett JA. I agree with his Honour's reasons and the orders that his Honour proposes.

136 LEEMING JA: I agree with Barrett JA.

**********

SCHEDULE

(Provisions of the Children and Young Persons (Care and Protection) Act 1998 in force at the time relevant to the proceedings)

Section 9(d):

"The principles to be applied in the administration of this Act are as follows:

....

(d) 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 49:

"(1) If a child or young person is removed from the care of his or her parent or parents under this Part or a warrant issued under section 233:

(a) the child or young person is to be kept at a place approved by the Minister for the purposes of this section, and

(b) the Director-General has the care responsibility for the child or young person.

(2) The Children's Court may, by order, vest the care responsibility in a designated agency.

(3) The Director-General or designated agency having the care responsibility for the child or young person may delegate that responsibility to a relative of the child or young person, an authorised carer or a person approved by the Children's Guardian.

(4) Despite subsection (3), the Director-General may delegate the care responsibility for the child or young person on an interim basis to a person other than a person specified in subsection (3) but must use his or her best endeavours to delegate that responsibility to a person so specified as soon as is reasonably practicable.

(5) The exercise of the care responsibility by a person referred to in subsection (3) or (4) is subject to any direction given to the person by the Director-General or the designated agency that made the delegation."

Section 60:

"In this Act:

care application means an application for a care order.

care order means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86.

care proceedings means proceedings under this Chapter."

Section 62:

"A care order may be made as an interim order or a final order, except as provided by this Part."

Section 69:

"(1) The Children's Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined.

(1A) The Children's Court may make an interim care order prior to determining whether the child or young person is in need of care and protection, if the Court is satisfied that it is appropriate to do so.

(2) The Director-General, in seeking an interim care order, has the onus of satisfying the Children's Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility.

Note. Section 49 makes provision for the care of children and young persons pending care proceedings."

Section 70:

"The Children's Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings."

Section 71:

"(1) The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any of the following reasons:

(a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason,

(b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection,

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

(d) subject to subsection (2), the child's or young person'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 or young person 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,

(f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children's Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service,

(g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with,

(h) section 171 (1) applies in respect of the child or young person,

(i) in the case where the application for the order is made by filing a contract breach notice-any presumption arising from the operation of section 38E (4) that the child or young person is in need of care and protection has not been rebutted.

(2) The Children's Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of:

(a) a parent's or primary care-giver's disability, or

(b) poverty.

(3) (Repealed)

Note. The Children's Court cannot make a care order in circumstances to which section 75 (2) applies."

[Compare relevant parts of s 71 as currently in force:

"(1) The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any of the following reasons:

...

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

(d) subject to subsection (2), the child's or young person'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 or young person 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,

...

(1A) If the Children's Court makes a care order in relation to a reason not listed in subsection (1), the Court may only do so if the Director-General pleads the reason in the care application.

(2) The Children's Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of:

(a) a parent's or primary care-giver's disability, or

(b) poverty." ]

Section 72:

"(1) A care order in relation to a child or young person may be made only if the Children's Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection:

(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).

(2) If the Children's Court is not so satisfied, it may make an order dismissing the application."

Section 78:

"(1) If the Director-General applies to the Children's Court for an order, not being an emergency protection order, for the removal of a child or young person from the care of his or her parents, the Director-General must present a care plan to the Children's Court before final orders are made.

(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 or young person for the duration of any period for which the child or young person is removed from the care of his or her parents,

(b) the kind of placement proposed to be sought for the child or young person, including:

(i) how it relates to permanency planning for the child or young person, and

(ii) any interim arrangements that are proposed for the child or young person pending permanent placement and the timetable proposed for achieving a permanent placement,

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

(d) the agency designated to supervise the placement in out-of-home care,

(e) the services that need to be provided to the child or young person.

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

Section 78A:

"(1) For the purposes of this Act, permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security and that:

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

(b) meets the needs of the child or young person, and

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

(2) Permanency planning recognises that long-term security will be assisted by a permanent placement.

(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(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 (d) and is satisfied that any other order would be insufficient to meet the needs of the child or young person."

Section 80:

"The Children's Court must not make a final order:

(a) for the removal of a child from the care and protection of his or her parents, or

(b) 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."

Section 82:

"(1) The Children's Court may, in making an order allocating parental responsibility of a child or young person to a person (including the Minister) other than a parent, order that a written report be made to it within 6 months, or such other period as it may specify, concerning the suitability of the arrangements for the care and protection of the child or young person.

(1A) The report must include an assessment of progress in implementing the care plan, including progress towards the achievement of a permanent placement.

(2) If, after consideration of such a report, the Children's Court is not satisfied that proper arrangements have been made for the care and protection of the child or young person, it may order that the case be brought before it so that the existing orders may be reviewed."

Section 83:

"(1) If the Director-General applies to the Children's Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Director-General must assess whether there is a realistic possibility of the child or young person being restored to his or her parents, having regard to:

(a) the circumstances of the child or young person, and

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

(2) If the Director-General assesses that there is a realistic possibility of restoration, the Director-General is to prepare a permanency plan involving restoration and submit it to the Children's Court for its consideration.

(3) If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children's Court for its consideration.

(4) In preparing a plan under subsection (3), the Director-General may consider whether adoption is the preferred option for the child or young person.

(5) The Children's Court is to decide whether to accept the assessment of the Director-General.

(6) 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.

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

(a) that permanency planning for the child or young person 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 or young person, and

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

(8) A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children's Court.

(9) In this section, parent, in relation to the child or young person concerned, means:

(a) if the child or young person has been adopted-the child's or young person's adoptive parent, or

(b) if the child or young person has not been adopted-the child's or young person's birth parent."

Section 90(6):

"(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration:

(a) the age of the child or young person,

(b) the wishes of the child or young person and the weight to be given to those wishes,

(c) the length of time the child or young person has been in the care of the present caregivers,

(d) the strength of the child's or young person's attachments to the birth parents and the present caregivers,

(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded."

Section 106A:

"(1) The Children's Court must admit in proceedings before it any evidence adduced that a parent or primary care-giver of a child or young person the subject of a care application:

(a) is a person:

(i) from whose care and protection a child or young person was previously removed by a court under this Act or the Children (Care and Protection) Act 1987 , or by a court of another jurisdiction under an Act of that jurisdiction, and

(ii) to whose care and protection the child or young person has not been restored, or

(b) is a person who has been named or otherwise identified by the coroner or a police officer (whether by use of the term "person of interest" or otherwise) as a person who may have been involved in causing a reviewable death of a child or young person.

(2) Evidence adduced under subsection (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection.

(3) A parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2) by satisfying the Children's Court that, on the balance of probabilities:

(a) the circumstances that gave rise to the previous removal of the child or young person concerned no longer exist, or

(b) the parent or primary care-giver concerned was not involved in causing the relevant reviewable death of the child or young person,

as the case may require.

(4) This section has effect despite section 93 and despite anything to the contrary in the Evidence Act 1995 .

(5) In this section,

"reviewable death of a child or young person" means a death of a child or young person that is reviewable by the Ombudsman under Part 6 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 ."

Section 151:

"(1) The Director-General may make a temporary care arrangement in respect of a child or young person if the child or young person is, in the opinion of the Director-General, in need of care and protection.

(2) The Director-General must not make a temporary care arrangement in respect of a child unless:

(a) a parent of the child consents to the arrangement, or

(b) the parents of the child cannot reasonably be located before the time that the Director-General considers that the arrangement should be made.

(3) If the Director-General makes a temporary care arrangement without the consent of a parent of the child, the Director-General must take all reasonable steps to locate a parent of the child and to inform the parent of the arrangement.

(4) A temporary care arrangement cannot be made under subsection (2) with the consent of a parent unless a permanency plan involving restoration is in place in relation to the child or young person."

Section 152:

"(1) A temporary care arrangement ceases to be in force:

(a) on the receipt by the Director-General of a request for the termination of the arrangement made by the person by whom the application for the making of the arrangement was made, or

(b) on the child or young person the subject of the arrangement attaining the age of 18 years, or

(c) on the expiration of the period of:

(i) except as provided by subparagraph (ii)-3 months, or

(ii) if the Director-General has renewed the arrangement pursuant to subsection (2)-6 months,

after the making of the arrangement, or

(d) on its termination by the Director-General under subsection (5),

whichever first occurs.

(2) At the expiration of 3 months after the making of a temporary care arrangement in respect of a child or young person, the Director-General may, if of the opinion that the child or young person is still in need of care and protection, renew the arrangement for a further period of 3 months.

(3) Section 151 (subsection (1) excepted) applies to the renewal of a temporary care arrangement in the same way as it applies to the making of such an arrangement.

(4) A temporary care arrangement cannot be made or renewed in respect of a child or young person if the child or young person has, during the previous 12 months, been the subject of a temporary care arrangement for a period, or for periods in the aggregate, exceeding 6 months.

(5) The Director-General may, whether on the application of the child or young person, or a parent of the child or young person, or on the Director-General's own motion, at any time terminate a temporary care arrangement in respect of a child or young person if the Director-General is of the opinion that the child or young person is no longer in need of care and protection.

(6) An application for the review of a temporary care arrangement may, in accordance with the regulations, be made to the Children's Court:

(a) by or on behalf of the child or young person the subject of the arrangement, or

(b) by a person having parental responsibility for the child or young person.

(7) The decision of the Children's Court in respect of an application for a review is to be given effect to as if it were the decision of the Director-General with respect to the making of a temporary care arrangement under section 151 (1)."

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Decision last updated: 08 January 2014