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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: CP v Director-General of Community Services Directorate and Ors

Citation: [2017] ACTSC 394

Hearing Dates: 1, 2 and 7 April 2015

Decision Date: 21 December 2017

Before: Refshauge J

Decision: 1. The appeal be upheld.

2. The parties be heard as to consequential orders.

Catchwords: APPEAL – APPEAL FROM THE CHILDRENS COURT – Care and protection order – alleged error in interpretation of withdrawal of cross-application – whether concession that the children required an order had been made – alleged error in concluding appellant agreed that the orders were necessary – alleged inadequacy of written reasons by Magistrate – alleged breach of Browne v Dunn – challenge to the finding that each child was in need of care and protection – fresh evidence – appeal upheld

CHILDREN – CHILD WELFARE – Intervention – care and protection order – abused or neglected or at risk of abuse or neglect – “willing and able” to protect the children – capacity to protect the children – “Emergency Action” – weight of evidence of events leading to Emergency Action – Children and Young People Act 2008 (ACT)

Legislation Cited: Childrens Act 1999 (ACT), s 156Children and Young People Act 2008 (ACT), ss 7, 8, 9, 11, 16, 17, 342, 343, 344, 345, 345(1)(a), 345(1)(b), 349, 350, 350(1)(a), 350(1)(b), 352, 353, 354, 356, 366, 368, 403, 409(1), 427, 428, 433, 433(3), 464, 464(1)(c)(i), 464(1)(c)(ii), 464(5), 464(5)(a), 464(8), 465, 467, 476, 481, 482, 716, 723, 835, 836, 836(1), Pts 10.3, 14.2, DictionaryEvidence Act 2011 (ACT), ss 97, 101Family Violence Act 2016 (ACT), s 8Legislation Act 2001 (ACT), ss 126, 132 Magistrates Court Act 1930 (ACT), s 276, Pt 4.5

Court Procedures Rules 2006 (ACT), rr 492, 504, 509, 6421

Cases Cited: A and B v Director of Family Services (1996) 132 FLR 172 A and B v Director of Family Services (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 31 May 1996) A & B v Director of Family Services (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 26 March 1997) Allied Pastoral Holdings Pty Ltd v Federal Commissioner

of Taxation [1983] 1 NSWLR 1Autodesk Inc v Dyason (No 2) (1993) 176 CLR 301 Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430Brockway v Pando [2000] WASCA 192; 22 WAR 405Browne v Dunn (1893) 6 R 67Buckley v Buckley (Unreported, Supreme Court of Victoria, O’Bryan J, 11 December 1992) Bulstrode v Trimble [1970] VR 840Burnett v Mental Health Tribunal (Unreported, Supreme Court of the Australian Capital Territory, Crispin J, SC 84 of 1997, 21 November 1997)CDJ v VAJ (No 2) [1998] HCA 67; 197 CLR 172CD v Chief Executive, Department of Education and Community Services [2000] ACTSC 81; 27 Fam LR 19 Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 Coote v Ford [1899] 2 Ch 93Coulton v Holcombe (1986) 162 CLR 1 Crampton v The Queen [2000] HCA 60; 206 CLR| 161De Robillard v Carver [2007] FCAFC 73; 240 ALR 675 Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206Edwards v The Queen (1854) 9 Exch 628 at 631; 156 ER 268Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Faull v Commissioner for Social Housing for the Australian Capital Territory [2013] ACTSC 121; 277 FCR 61Flower and Hart v White Industries (Qld) Pty Ltd (1999) 163 ALR 744Gale v Superdrug Stores plc [1996] 3 All ER 468 Grey v Pearson (1857) 6 HL Cas 61 at 106; 10 ER 1216Heywood v Bishop [2015] ACTCA 58; 73 MVR 426 Hollis v Burton [1892] 3 Ch 226 In the Matter of A (A Child); Semple v Heijer (Unreported, Full Court of Supreme Court of Western Australia, Malcolm CJ, Nicholson and Ipp JJ, 2167 of 1992, 22 December 1992) In the Matter of J (A Child); S v Paskos (1992) 8 WAR 561Jardein Pty Ltd v Stathakis [2007] FCAFC 148 JL v Director-General, Community Services Directorate [ECD] [2015] ACTSC 24Kalis v New [2017] ACTSC 334 L (A Minor) [1997] AC 16 Leighton v The Queen [2017] ACTCA 55 Levinge v Director of Custodial Services (1987) 9 NSWLR 546 Lezabor Pty Ltd v Hogan (Unreported, New South Wales Court of Appeal, Gleeson CJ, Kirby P and Priestley JA, 429 of 1988, 14 April 1989) LP v Director-General of the Community Services Directorate [2016] ACTSC 57; 308 FLR 452L v Director of Family Services (1997) 22 Fam LR 275 MacIntosh v Lobel (1993) 30 NSWLR 441 Marelic v Comcare (1993) 47 FCR 437 Mifsud v Campbell (1991) 21 NSWLR 725Miller v Teale (1954) 92 CLR 406 Minister for Community Welfare v Hillier (1987) 47 SASR 553 MWJ v The Queen [2005] HCA 74; 222 ALR 436

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Norris v Illawarra Newspaper Holdings Pty Ltd [1998] NSWCA 162 O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132Pattison v Hadjimouratis [2006] FCAFC 153; 236 ALR 1 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Pioneer Plastic Containers Ltd v Commissioners of Customs & Excise [1967] Ch 597Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110Porter v Oamps Ltd [2004] FMCA 272; 207 ALR 635 Re B (Minors) (Care proceedings: evidence) [1997] 2 All ER 29 Roberts v Balancio (1987) 8 NSWLR 436 R v Birks (1990) 19 NSWLR 677R v CM [2005] ACTSC 21 R v Dainer; Ex parte Crawford (1989) 91 ACTR 11R v Foley [2000] 1 Qd R 290 R v JM [2010] ACTSC 35 R V JM [2010] ACTSC 35 R v Nguyen [1998] 4 VR 394 R v Rajakaruna (No 2) [2006] VSCA 277; 15 VR 592 R v Zorad (1990) 19 NSWLR 91SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65; 209 LGERA 233Secretary, Department of Health and Community Services v JWB (1992) 106 ALR 385Sobey v Nicol and Davies [2007] FCAFC 136; 245 ALR 389 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Talbot v Minister for Community Services (1993) 30 NSWLR 487Thomas v van den Yssel (1976) 14 SASR 205 Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168United Australia Ltd v Barclays Bank Ltd [1941] AC 1Vigolo v Bostin [2005] HCA 11; 221 CLR 191 Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd [2016] ACTCA 49 Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd (No 3) [2017] ACTCA 43 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Westpac Banking Corporation v Paterson [2001] FCA 556White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6 Zeccola v Barr (1978) 19 ACTR 1

Texts Cited: J H Wigmore, Evidence (Chadbourn rev., 1972)

Andrew Ligertwood and Gary Edmond, Australian Evidence (LexisNexis Butterworths, 5th ed, 2010)

Oxford English Dictionary (Clarendon Press, 1989)

Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed,

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2009)

Thea Brown and Renata Alexander, Child Abuse and Family Law (Allen & Unwin, 2007)

Hayley Boxall et al Historical review of sexual offence and child sexual abuse legislation in Australia: 1788-2013 (Australian Institute of Criminology, 2014)

R S Kempe and C H Kempe, Child Abuse (Fontana, 1978)Keiran O’Hagen, Emotional and Psychological Abuse of Children (Open University Press, 1993)

Parties: CP (Appellant)

Director-General of Community Services Directorate (First Respondent)

LC, JP, GP, DP and NP (Second to Sixth Respondents)

Representation: CounselMr P Walker SC and Ms H Robinson (Appellant)

Mr K Archer (First Respondent)

Ms R Dwyer (Second to Sixth Respondents)

SolicitorsWomen’s Legal Centre (Appellant)

ACT Government Solicitor (First Respondent)

Strong Law Pty Ltd (Second to Sixth Respondents)

File Number: SCA 56 of 2014

Decision under appeal: Court/Tribunal: Childrens Court

Before: Magistrate Fryar

Date of Decision: 24 June 2014

Case Title: In the matter of an application for interim and final Care and Protection Orders by the Director-General of the Community Services Directorate in respect of JP, GP, DP, LC and NP

Court File Numbers: KE 2572, 2573, 2574, 2575 and 2576

REFSHAUGE J:

1. The appellant, CP, is the mother of eight children. Three of the children, not directly relevant to this appeal, have been, and two still are, subject to care and protection orders placing them under the authority and responsibility of the Director-General of the Community Services Directorate, the first respondent.

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2. The care of the other five children are the subject of this appeal. They are the second to sixth respondents. They have some challenging behaviours and have been known to Care and Protection Services of the Directorate for some time. Although “child” is defined in s 11 of the Children and Young People Act 2008 (ACT) (the Childrens Act), to be a person under 12 years old and, in s 12, a “young person” is defined to be a person 12 years or older but not an adult, and although one of CP’s children the subject of the appeal was at the relevant time 13 years old, it is convenient to call the second to sixth respondents, the children or, individually, the child, without intending any disrespect to or to demean the older child in any way.

3. On 12 July 2013, the Director-General made an application to the Childrens Court for a care and protection order in respect of the five children for two years and, pending that final order, an interim care and protection order.

4. On 10 October 2013, the Director-General filed an amended Originating Application, seeking a final order for care and protection until the children were 18 years of age.

5. On 24 June 2014, a final care and protection order was made until the children attained the age of 18 years, effectively placing the children under the authority and responsibility of the Director-General.

6. CP has now appealed from that order.

Jurisdiction

7. The power to appeal against an order of the Childrens Court is provided for in ss 835 and 836 of the Childrens Act. Section 836(1) permits an appeal against a care and protection order. I described the provisions in JL v Director-General, Community Services Directorate [ECD] [2015] ACTSC 24 at [6]-[14]. In summary, what I there held was:

1. The appeal is subject to Pt 4.5 of the Magistrates Court Act 1930 (ACT).

2. Such an appeal is in the nature of a rehearing.

3. That means that it is conducted on the evidence before the Childrens Court together with any further evidence admitted by this Court as the appeal court.

4. The appeal court is required to exercise restraint on the appeal especially where facts are found based on the assessment of the credibility of witnesses because of the advantage that the Childrens Court has in seeing and hearing such witnesses.

5. The appeal court will intervene where the Childrens Court has fallen into an error of law, has made a finding of fact that is clearly wrong or has exercised a discretion on a wrong principle or in a way that is clearly wrong.

6. The decision of the appeal court is not restricted to the decision that should have been made by the Childrens Court but must have regard to the circumstances existing at the time of the appeal and may make its own decision in these circumstances.

7. The challenge to the exercise of a discretion must be based on a claim that the Childrens Court acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect the decision, mistook facts, did not take into account

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material considerations or made a decision that was unreasonable or plainly unjust.

8. These are the principles I shall apply in this case.

The appeal

9. The Notice of Appeal was filed on 21 July 2014, and pleaded a large number of complex grounds. It was, however, amended on 11 March 2015 by leave granted on 5 March 2015. The amended Notice of Appeal pleaded that CP would seek to put further evidence before the Court.

10. It again pleaded a large number of complex grounds as follows:

4. Grounds of Appeal

4.1 The Magistrate was in error in her interpretation of the consequence of the Appellant withdrawing her cross application seeking dismissal of the Respondent’s application. It led her to make the following errors:

a) The withdrawal ‘was apparently a concession that the evidence presented to the court established that each of the children were in need of case [sic] and protection.’;

b) ‘... the mother is not now able to revive her primary application as she had apparently endeavoured to do through her counsel’s submissions.’; and

c) that the Appellant was ‘seeking two year orders’.

5. The Magistrate was in error in concluding that the Appellant had agreed in her evidence that the orders were necessary ‘because of her inability to act protectively and her failings in the care of her children.’

6. The Magistrate has failed to make any or sufficient findings of fact to justify her making care and protection orders in respect of the children who were the subject of the application. Without limiting the generality of the ground but in particular there were inadequate primary findings of fact to justify:

a) the Magistrate’s findings of abuse and neglect;

b) that care and protection orders should be made until each child attains the age of 18;

c) the Magistrate’s finding that the mother had not provided adequate stimulation and discipline to the children;

d) the Magistrate’s condition of the house in which the children lived; and

e) the failure of the Magistrate to make findings individually in respect of each child whether that child was in need of care and protection and what was the appropriate order to make in relation to each child if there was such a finding.

7. The Magistrate was in error in concluding that the children were in need of care and protection.

8. The Magistrate was in error making orders in respect of each child to the age of 18.

9. The Magistrate failed to take into account when the following events occurred.

i The abusive relationship with [CP’s partner].

ii. The move to Sydney.

iii. The circumstances of the family’s return to Canberra.

iv. The finding of abuse and neglect.

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v. The ‘mother’s seeming inability to cope with dealing appropriately with’ the children’s needs.

vi Any exposure to violence.

vii Any exposure to emotional abuse.

viii Any failure to follow up medical care.

10. The Magistrate failed to take into account the circumstances of the matters outline [sic] in 7.

11. The Magistrate was in error in concluding that the Appellant has a ‘demonstrated incapacity to meet [the children’s] emotional and social needs and well-being and that no matter what assistance is provided to her that she is simply incapable of protecting the children and helping them to thrive.’

12. The Magistrate was in error in placing the weight she did on the events of 10 July 2013 when determining the applications in respect of the children.

13. The Magistrate failed to comply with section 352 of the Children and Young People’s Act 2008.

14. Irrespective of whether the Magistrate was in error or not, in light of the fresh evidence, the appellant says that a long term parental responsibility order should not be made at all.

Further evidence

11. Under s 276 of the Magistrates Court Act, this Court on appeal has power to receive what is referred to in that section as “further evidence”. This is sometimes called “fresh evidence” but, in my view, that term should be avoided as it is used commonly for what the common law allows as evidence to be adduced on appeal as described in Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435. As a result of the High Court’s decision in CDJ v VAJ (No 2) [1998] HCA 67; 197 CLR 172, that approach does not apply in these proceedings.

12. Relevant to the consideration of this issue is that the appeal must be decided on the circumstances existing at the time of the appeal, which circumstances of the children may have changed since the final care and protection order was made. Further, as explained in Sobey v Nicol and Davies [2007] FCAFC 136; 245 ALR 389 at 403; [70], the subject matter of the appeal, which, in this case, involves the rights and interests of the children, is relevant to the question of whether to admit further evidence. Also relevant is that s 352 of the Childrens Act requires a decision-maker, which includes the appeal court, to give children or young people a reasonable opportunity to express their views, which views appear to be included in the further evidence.

13. I set out the principles concerning the admission such evidence in JL v Director-General Community Services Directorate [ECD] at [43]-[48]. In this case, there was no objection to the admission of the further evidence. The further evidence was set out in two folders which were tendered. I admitted the contents of the folders.

The proceedings below

14. As noted above (at [3]), the Director-General initially applied to the Childrens Court, by Originating Application dated 12 July 2013, for a final care and protection order for two years, and, pending the final hearing, an interim care and protection order. In support, a lengthy affidavit of Kira Barbaric, a Child Protection worker of Care and Protection Services, was filed.

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15. The Originating Application was returnable on the afternoon of the day on which it was filed. All parties were represented and interim orders in terms of those sought in the Originating Application were made by consent in favour of the Director-General until the date to which the proceedings were otherwise adjourned, namely 18 July 2013.

16. The proceedings were then adjourned from time-to-time, with the consent interim orders being continued, until the final orders were made on 24 June 2014.

17. On 10 October 2013, however, the Director-General filed two amended Originating Applications, one in respect of the child, LC, and the other in respect of the children JP, GP, DP and NP, apparently substituting for the original Originating Application. It is not quite clear why the proceedings were so separated as they were all heard at the same time. The amended Originating Applications were returnable on the next date for mention, namely 17 October 2013. Two further affidavits of Ms Barbaric were also filed, one each supporting each of the two amended Originating Applications relating to the children the subject of each respective amended Originating Application.

18. Despite r 504 of the Court Procedures Rules 2006 (ACT), I could find nothing in the material before me to show that leave had been granted for the amendments to the Originating Application. The amended Originating Applications included in the Appeal Papers did not comply with r 509.

19. Nevertheless, no point was taken about this at trial, or on the appeal, and the proceedings thereafter seem to have proceeded as if such leave had been given for amendment and a proper document compliant with the Rules had been filed.

20. The significant change (and, in the absence of compliance with the helpful requirements set out in r 509 of the Court Procedures Rules, I did not minutely compare the original and amended documents) was that the Director-General now sought a care and protection order until the children were 18 years old.

21. On 5 February 2014, CP filed a cross-application in respect of three of the children, JP, GP and DP, seeking that the amended Originating Application of the Director-General in respect of these three children be dismissed. She also filed on that day a further cross-application in respect of the other two children, LC and NP, seeking that a care and protection order be made for two years for those children in favour of the Director-General. Affidavits of CP were filed in support of these cross-applications.

22. Subsequently, on 23 April 2014, CP filed a further cross-application, said to replace the earlier one, in respect of LC and NP, seeking that the amended Originating Application of the Director-General be dismissed.

23. Then, on 24 April 2014, CP filed a single document said to be an amended Cross-Application, in respect of all the children, seeking that the amended Originating Applications of the Director-General be dismissed or, in the alternative, that a care and protection order be made for two years. This document also failed to comply with r 509 of the Court Procedures Rules.

24. The final hearing commenced on 23 April 2014. There was an initial discussion about the cross-application filed on 5 February and 23 April 2014. Counsel for the Director-General submitted that, if all CP wished to do was to put the Director-General to proof of the necessary pre-conditions for making a care and protection order, then it was not necessary to file a cross-application.

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25. That is correct. Actions commenced by Originating Application are not subject to the rules of pleadings. The orders sought are just that – the relief claimed. If a defendant wishes to oppose the granting of that relief, it is not necessary to file any process. At the hearing, the defendant may argue any defence available. If no evidence is adduced by the defendant, then it will be difficult, if not impossible, to argue a defence that relies on any facts not in the evidence adduced by the plaintiff.

26. This, of course, restricts the arguments that can then be made; they will include that the plaintiff has no standing, that the plaintiff has no maintainable cause of action or that the evidence does not justify the court in granting relief. There may be others, such as questions of jurisdiction and, of course, any defence available as disclosed in the plaintiff’s evidence.

27. If the defendant wishes to make a positive defence, then that is usually done by filing an affidavit or affidavits which will set out the evidence from which the facts that justify such a defence may be found by the court. A cross-application is only required if a defendant seeks to have the court make an order, other than dismissing the Director-General’s application, that seeks different orders, such as a shorter term for the care and protection order or different provisions in the order from those sought in the Originating Application including by reference to those provisions listed in s 464(2) of the Childrens Act (including by reference to s 465). An affidavit or affidavits may need to be filed in support of such a cross-application.

28. This general approach is well supported by the Childrens Act, though the Act includes more procedural matters than usual in Acts, where such matters are usually, and generally preferably, left to the Court Procedures Rules, which the court can usefully craft to take account of relevant matters and which, as procedure must adapt to changing practices and needs, can be amended more readily.

29. Nevertheless, s 428 of the Childrens Act provides for a cross-application where a defendant wishes to seek “a different provision” in a care and protection order or “different terms in a provision” of such an order.

30. Thus, the wish of CP to have a two year final order made instead of a final order until the children were 18 would be a different provision and require a cross-application. On the other hand, a claim simply that the Director-General’s application be dismissed is not seeking that the Court make a different provision, so if that is all that is sought, the defendant does not need to file a cross-application.

31. A further matter was raised by the Director-General’s counsel, however; it was suggested that the cross-application for a two year final order needed to be served on persons not then appearing as parties to the proceedings, namely the fathers of the children. That is not correct.

32. Certainly, s 427 of the Childrens Act requires an Originating Application to be served on various persons, including each parent of the child or young person the subject of the application. In my view, that section does not apply to a cross-application. The Act makes a clear distinction between the two documents and does not suggest that a cross-application is a species of Originating Application. At the stage of filing a cross-application, the proceedings have commenced and the parties, including the active parties, are known, all of whom will have been served with a copy of the Originating Application.

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33. The structure of Pt 14.2 of the Childrens Act makes all this clear and it would be inconsistent with usual practice to require a cross-application to be served on a person not a party unless the Court specifically directed that it be done. In any event, r 6421 of the Court Procedures Rules would provide that service on a person who had been served with an Originating Application, but who had not filed a Notice of Intention to Respond, would be effective if the relevant document were merely filed, as happened here.

34. I do note that there were, in the Appeal Papers, no affidavits of service of the Director-General’s Originating Application on the father of LC or the father of JP, GP, DP and NP, despite s 427 of the Childrens Act. Neither father was present nor represented. An affidavit of service would normally then be required. There was a mention in the transcript of the hearing on 23 April 2014 of LC’s father being served but not of the other father. No point was taken about this on the appeal.

35. The proceedings then became confused. Counsel for CP appeared to withdraw the cross-applications which merely sought to have the amended Originating Applications by the Director-General dismissed as, for the reasons set out above, it was not necessary in order that CP might controvert the Director-General’s claims.

36. Unfortunately, the references to CP’s cross-applications were not entirely clear. Thus, the cross-application of 23 April 2014 was withdrawn. There was no reference to the already filed two cross-applications of 5 February 2014. One was in the same terms as that which had been withdrawn and may be assumed also to have been, or intended to have been, withdrawn. The other, however, sought a final order for two years. It does not appear that the latter one was formally withdrawn.

37. There was then, further, a rather confused discussion about that. It was suggested that by including a claim for a two year final order in that cross-application, CP had somehow conceded that a care and protection order should be made. It was, however, perfectly proper for CP to file such a cross-application in the alternative, a procedure well-known at law. In such a case, it was necessary for the general traverse claimed by CP, that no order should be made, to be expressly claimed, so as to make it clear that the two-year order claim was an alternative. That could be done orally or, perhaps, more conveniently in a cross-application. Such a claim in the alternative did not admit that the children were in need of care and protection.

38. In the first place, a claim is not evidence. Thus, it cannot be an admission. It is well-known for inconsistent claims to be made without becoming an admission. In Coote v Ford [1899] 2 Ch 93, Lindley MR, with whom Rigby LJ agreed, had to consider a claim where the plaintiff sought damages and an injunction, alternate and inconsistent remedies. The defendant denied the plaintiff’s claim but made a payment into court in respect of the damages. The Court held, that even if the plaintiff accepted the sum paid into court, the defendant could still deny the plaintiff’s claim for an injunction.

39. In the case of relief, inconsistent relief can be claimed as long as it is claimed in the alternative, and the claiming party will not be fixed with an admission asserted to arise from the claimed relief. Thus, in United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 30, Lord Atkin explained:

I therefore think that on a question of alternative remedies no question of election arises until one or other claim has been brought to judgment. Up to that stage the plaintiff may pursue both remedies together, or pursuing one may amend and pursue the other: but he

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can take judgment only for the one, and his cause of action on both will then be merged in the one.

40. Since CP, by her cross-application, was in effect a plaintiff, this approach applies to her claims in this case.

41. It is unfortunate that this confusion arose from some suggestions as to procedure, which were unhelpful and incorrect. This incorrect understanding of the position with service and the alternate claims led counsel for CP to seek an order under s 723 of the Childrens Act dispensing with any service required on either of the fathers to the children with the cross-application. This was unnecessary.

42. It was then suggested that a further complete cross-application be prepared and filed and this is how the cross-application of 24 April 2014 came to be filed, which specified the relief as in the alternative, first as to dismissal of the Director-General’s amended Originating Applications and then, in the alternative, two year final orders. This was entirely proper. It was filed on the second day of the hearing. It did not comply with r 509 of the Court Procedures Rules and, although her Honour remarked on that, she did not decline to receive it; to do so would have been inappropriate, not least because the Director-General’s amended Originating Applications, which were admitted, suffered the same problem, as I noted above (at [18]).

The Law

43. The law applying to care and protection orders is contained in the Childrens Act. The Act also contains many matters of procedure. This is not always desirable, for procedure is likely to need reform more frequently than substantive law to meet a range of needs, including changes in technology or court processes, or to meet unintended consequences of provisions which create problems that can complicate proceedings.

44. An example of this is in respect of the provisions relating to cross-applications, which clearly were confusing and, indeed, may have led to CP compromising her position as a result. This can readily be rectified were the provisions to be found in rules of court rather than in an Act.

45. In any event, even excluding the procedural provisions, the substantive law in the Childrens Act about care and protection orders is extensive and complex. That may be entirely appropriate, given the significance of a decision to make a care and protection order and, in effect, sever the day-to-day relationship between child and parent.

46. Under the Childrens Act, the Childrens Court can, in its discretion, make a care and protection order if certain criteria are met as set out in s 464 of the Act, as follows:

464 Care and protection order – criteria for making

(1) The Childrens Court may make a care and protection order for a child or young person if the court –

(a) is satisfied that the child or young person is in need of care and protection; and

(b) has considered the care plan prepared by the director-general for the child or young person; and

(c) is satisfied that –

(i) the provisions included in the order are necessary to ensure the care and protection of the child or young person; and

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(ii) making the order is in the best interests of the child or young person.

...

(5) The Childrens Court –

(a) must not merely accept the admission of the parties to the proceeding that the child or young person is in need of care and protection; but

(b) must satisfy itself that the child or young person is in need of care and protection.

47. The length of the order was clearly an important issue in these proceedings and that is provided for in s 465 of the Childrens Act by reference to ss 476 and 481. The effect of these provisions is that the Childrens Court may make an order for “short-term parental responsibility” (s 476) for a period that is not longer than two years. Alternatively, the Childrens Court may make an order for “enduring parental responsibility” (s 481) which is in force until the child is 18 years old. The length of the order must be stated in the order.

48. Before making an order which contains provisions with enduring parental responsibility, the Childrens Court must be satisfied that the criteria set out in s 482 of the Childrens Act are met. That provision is relevantly as follows:

482 Enduring parental responsibility provision – criteria for making

(1) The Childrens Court may, on application or on its own initiative, include an enduring parental responsibility provision in a care and protection order for a child or young person if –

(a) no-one with parental responsibility for the child or young person (other than under a care and protection order) has had care of the child or young person for –

(i) the 2 years immediately before the order is made; or

(ii) a total of at least 2 years in the 3 years immediately before the order is made; and

(b) the child or young person has been living with a stated person under a care and protection order for –

(i) the 2 years immediately before the order is made; or

(ii) a total of more than 2 years in the 3 years immediately before the order is made; and

(c) the court is satisfied that –

(i) no-one with parental responsibility for the child or young person (other than under a care and protection order) (a previous carer) is willing or able to exercise daily care responsibility or long-term care responsibility for the child or young person; or

(ii) it is not in the best interests of the child or young person for a previous carer to exercise those responsibilities for the child or young person; and

(d) the court is satisfied that –

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(i) it is unlikely that a previous carer of the child or young person will be willing or able to exercise daily care responsibility or long-term care responsibility for the child or young person before the child or young person is 18 years old; or

(ii) it is unlikely that it would be in the best interests of the child or young person for a previous carer to exercise those responsibilities for the child or young person before the child or young person is 18 years old; and

(e) the court is satisfied that the stated person is willing and able to exercise daily care responsibility or long-term care responsibility for the child or young person; and

(f) the court is satisfied that including the provision is the best way to meet the child’s or young person’s need for emotional security in the long-term;

...

49. As can be seen from s 464 of the Childrens Act, the Childrens Court must be satisfied that the child the subject of an application for a care and protection order “is in need of care and protection”. That phrase is defined in s 345, as follows:

345 When are children and young people in need of care and protection?

(1) For the care and protection chapters, a child or young person is in need of care and protection if –

(a) the child or young person –

(i) has been abused or neglected; or

(ii) is being abused or neglected; or

(iii) is at risk of abuse or neglect; and

(b) no-one with parental responsibility for the child or young person is willing and able to protect the child or young person from the abuse or neglect or the risk of abuse or neglect.

(2) Without limiting subsection (1), a child or young person is in need of care and protection if –

(a) there is a serious or persistent conflict between the child or young person and the people with parental responsibility for him or her (other than the director-general) to the extent that the care arrangements for the child or young person are, or are likely to be, seriously disrupted ...

50. Section 344 of the Childrens Act provides that a child is “at risk of abuse or neglect” if, on the balance of probabilities, there is a significant risk of the child being abused or neglected. Examples are given in that section which, under ss 126 and 132 of the Legislation Act 2001 (ACT), may extend, but not limit the meaning of the section. None are directly relevant and no party relied on any in these proceedings.

51. The terms “abuse” and “neglect” are themselves also defined in ss 342 and 343 of the Childrens Act respectively as follows:

342 What is abuse?

In this Act:

abuse, of a child or young person, means –

(a) physical abuse; or

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(b) sexual abuse; or

(c) emotional abuse (including psychological abuse) if the child or young person has experienced the abuse or is experiencing the abuse in a way that has caused or is causing significant harm to his or her wellbeing or development; or

(d) emotional abuse (including psychological abuse) if –

(i) the child or young person has seen or heard the physical, sexual or psychological abuse of a person with whom the child or young person has a domestic relationship, the exposure to which has caused or is causing significant harm to the wellbeing or development of the child or young person; or

(ii) if the child or young person has been put at risk of seeing or hearing abuse mentioned in subparagraph (i), the exposure to which would cause significant harm to the wellbeing or development of the child or young person.

343 What is neglect?

In this Act:

neglect, of a child or a young person, means a failure to provide the child or young person with a necessity of life if the failure has caused or is causing significant harm to the wellbeing or development of the child or young person.

Examples—necessities of life

1 food

2 shelter

3 clothing

4 health care treatment

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

52. The jurisdictional issue of a finding that the children are in need of care and protection, however, is only the first stage of making a care and protection order. The court then has a discretion whether to make such an order, as noted above (at [46]). The obligation of the Childrens Court in this complex and sensitive matter is underpinned by overarching principles which it must consider in addressing the discretionary issue of whether to make a care and protection order. In particular, s 464(1)(c)(ii) of the Childrens Act requires the Court to be satisfied that making the order “is in the best interests of the child”. That phrase is also defined in s 349 of that Act and the Court, as a decision-maker, is required to apply the care and protection principles set out in s 350 of that Act. Those sections are in the following terms:

349 What is in best interests of child or young person?

(1) For the care and protection chapters, in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that are relevant to the child or young person:

(a) the need to ensure that the child or young person is not at risk of abuse or neglect;

(b) any views or wishes expressed by the child or young person;

(c) the nature of the child’s or young person’s relationship with each parent and anyone else;

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(d) the likely effect on the child or young person of changes to the child’s or young person’s circumstances, including separation from a parent or anyone else with whom the child has been living;

(e) the practicalities of the child or young person maintaining contact with each parent and anyone else with whom the child or young person has been living or with whom the child or young person has been having substantial contact

(f) the capacity of the child’s or young person’s parents, or anyone else, to provide for the child’s or young person’s needs including emotional and intellectual needs;

(g) for an Aboriginal or Torres Strait Islander child or young person – that it is a high priority to protect and promote the child’s or young person’s cultural and spiritual identity and development by, wherever possible, maintaining and building the child’s or young person’s connections to family, community and culture;

(h) that it is important for the child or young person to have settled, stable and permanent living arrangements;

(i) for decisions about placement of a child or young person – the need to ensure that the earliest possible decisions are made about a safe, supportive and stable placement;

(j) the attitude to the child or young person, and to parental responsibilities, demonstrated by each of the child’s or young person’s parents or anyone else;

(k) any abuse or neglect of the child or young person, or a family member of the child or young person;

(l) any court order that applies to the child or young person, or a family member of the child or young person.

(2) For the care and protection chapters, in deciding what is in the best interests of a child or young person, a decision-maker may also consider any other fact or circumstance the decision-maker considers relevant.

350 Care and protection principles

(1) In making a decision under the care and protection chapters in relation to a child or young person, a decision-maker must apply the following principles (the care and protection principles) except when it is, or would be, contrary to the best interests of a child or young person –

(a) the primary responsibility for providing care and protection for the child or young person lies with the child’s or young person’s parents and other family members;

(b) priority must be given to supporting the child’s or young person’s parents and other family members to provide for the wellbeing, care and protection of the child or young person;

(c) if the child or young person does not live with his or her family because of the operation of this Act – contact with his or her family, and significant people, must be encouraged, if practicable and appropriate;

(d) if the child or young person is in need of care and protection and the child’s or young person’s parents and other family members are unwilling or unable to provide the child or young person with adequate care and protection (whether temporarily or permanently) – it is the responsibility of the government to share or take over their responsibility;

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(e) if the child or young person does not live with the child’s or young person’s parents because of the operation of this Act – the safety and wellbeing of the child are more important than the interests of the parents;

(f) a court should make an order for a child or young person only if the court considers that making the order would be better for the child or young person than making no order at all.

(2) The care and protection principles must be applied in addition to the principles under section 9 (Principles applying to Act) and section 10 (Aboriginal and Torres Strait Islander children and young people principle).

Note The Maori children and young people principle may also apply if an order or proceeding is transferred to the ACT from New Zealand (see s 678).

53. In this case, Emergency Action was taken initially on 10 and 12 July 2013. While there was some disagreement between the parties as to the effect of this in the proceedings, it is relevant to outline the provisions. They have been helpfully summarised by Burns J in LP v Director-General of the Community Services Directorate [2016] ACTSC 57 at [7] as follows (the reference to “CYPA”, of course, being to the Childrens Act):

‘Emergency Action’ means transferring daily care responsibility for the child to the Director-General: s 405 of the CYPA. Such action may be taken where the Director-General believes on reasonable grounds that the child is in need of emergency care and protection: s 406 of the CYPA. A child is in need of emergency care and protection if the child is in immediate need of protection, or is likely to be in immediate need of care and protection if Emergency Action is not taken: s 403 of the CYPA. The effect of the Director-General taking Emergency Action is that the Director-General has daily care responsibility for the child: s 409 of the CYPA. The duration of the transfer of daily care responsibility to the Director-General by reason of Emergency Action is limited to two working days, or slightly longer if a long weekend intervenes, without an order of the Childrens Court: s 410 of the CYPA.

The evidence

54. The reasons published by the learned Magistrate (the Reasons) were relatively short (21 paragraphs occupying nine pages). That is not a criticism in itself; indeed, there is much virtue in brevity, especially (but, it may be mentioned in the context of some of my decisions, not only) in the lower courts.

55. The difficulty for me in this case is that the evidence consisted of ten affidavits filed which, with annexures and exhibits, occupied 715 pages of the Appeal Book, and two days of oral evidence. Tendered exhibits which were also admitted totalled 45 pages. Thus, the material was extensive and there were differences and contradictions between the assertions by witnesses that needed to be resolved.

56. Her Honour, however, made few specific findings of fact and addressed none of the matters contested on the evidence though, as Ken Archer, counsel for the Director-General, accurately pointed out, her Honour was not much assisted in this task by the submissions of CP’s counsel.

57. Without the findings of the Court below, it is difficult for an appeal court to know what the facts were in order to address the appeal. Indeed, it may be said that this is the gravamen of the grounds of this appeal, that there were no such findings and, on the evidence, the orders were not justified.

58. As a result, it is necessary for me to set out, somewhat more extensively than would otherwise be required, the evidence before the learned Magistrate.

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59. It is, of course, well-known that a trial court enjoys a particular advantage over an appellate court when evaluating the evidence that the trial court has seen and heard being given, but that does not relieve an appellate court of its responsibility on rehearing. See, for example, Heywood v Bishop [2015] ACTCA 58; 73 MVR 426 at 444; [57]-[58], Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd [2016] ACTCA 49 at [53]-[54].

60. There was, in this case, affidavit evidence. While that evidence can be evaluated as effectively by the appeal court as by the trial judge, that is complicated where the deponent is subject to cross-examination, as here.

61. The Director-General filed seven affidavits, all made by Ms Barbaric, the Child Protection worker employed by the Directorate with “responsibility for the management of the cases” of the five children. As there were two sets of proceedings, one in respect of LC and the other in respect of the four male children, some affidavits were for one proceeding and some for the other. There was considerable overlap between the affidavits in the respective proceedings.

62. Ms Barbaric holds the qualifications of an Advanced Diploma in Community Service awarded by the Canberra Institute of Technology in 2007 and a Bachelor Degree in Social Work from the Australian Catholic University, also awarded in 2007. She had been employed as a Child Protection caseworker with the Community Services Directorate in September 2011. Prior to that she had, after graduation, worked as a care worker, support worker, social worker and case worker with young people and families, principally with the Marymead organisation, a non-profit children’s care organisation in Canberra, but also on a short-term contract with the Katherine (NT) Remote Aboriginal Health and Related Services organisation. She became responsible for management of the cases of the five children in May 2013.

63. The basic facts deposed to in the affidavits were not in dispute and may be set out shortly. Much of it came, of course, from Ms Barbaric’s inspection of the Directorate’s files, given her then relatively recent assumption of responsibility for management of the cases of the five children.

64. The appellant, CP, is the mother of the five children the subject of this appeal and three other children. OI is the father of two of the other children, SC is the father of the other child and also one of the children, LC, the subject of this appeal; BP is the father of the other four children the subject of this appeal.

65. The subject children were born in the following years: LC in 2001, JP in 2002, GP in 2004, DP in 2006 and NP in 2008.

66. Care and Protection Services had been involved with the children of CP for some time. Two of the children, not the subject of this appeal, are subject to care and protection orders until they are 18 years old with, it appears, the usual authorities, supervision and daily and long term care responsibilities vested in the Director-General.

67. Ms Barbaric’s first affidavit deposed to 36 reports made to Care and Protection Services, between 10 December 2002 and 25 June 2013, about some or all of the eight children of CP. Not all of the reports related to the children the subject of these proceedings. A summary of those reports was set out in Ms Barbaric’s affidavits.

68. The affidavit uses some technical terms when referring to the reports. Thus, the reports are all “child concern reports” which, under s 353 of the Childrens Act are

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voluntary (s 354) or mandatory (s 356) reports where the reporter “believes” or “suspects” that a child is being, or at risk of being, abused or neglected. It is not a high threshold, though a mandatory report, but not a voluntary report, must be based on “reasonable grounds”. It was not clear whether any of the reports were mandatory reports as this was not stated.

69. It also refers to an “appraisal” which appears to be a care and protection appraisal under s 366 of the Childrens Act. That is, essentially, an investigation of the circumstances of a child or young person. It can involve a visual examination of the child or young person, an interview with the child or young person, or seeking information or making inquiries of other people. Under s 368, an appraisal can only be conducted by order or by agreement with at least one of the parents or persons with daily care and responsibility for the child or young person. It is not specified, but one would expect that there would be a report or result of an appraisal. Without such an investigation, a child concern report remains simply an allegation.

70. It is difficult to summarise the reports, but the following comments seem to me to give a picture.

71. Some of the reports were generalised without a clear outcome. For example, on 13 July 2004, a child concern report was received suggesting that the children were “at risk of neglect”. It was stated that “an intervention was started … [and a] comprehensive family assessment was sought”. No description of the intervention was provided and no reference was made to the contents, findings, recommendations or implementation of any such recommendations, of any assessment, if conducted. So far as being helpful in these proceedings, it was difficult to see the relevance of such a report. It is by no means clear how that information is to be considered by the Childrens Court when the issues that the Court was required to decide come to be decided. There were similar comments in relation to reports received on 2 November 2004, 20 June 2015, 21 April 2009, 20 May 2009 and 29 June 2009; again, no details of what was done, if anything, or any outcome achieved, was provided.

72. On the other hand, there were some more significant reports: there were reports on 10 December 2002 of allegations of physical abuse of the second son of CP by his stepfather and of neglect by CP. Again, however, despite an “intervention [being] started”, the “[a]ppraisal was incomplete and ‘work load managed’”. This leaves the matter as a mere allegation which cannot be used as evidence of any actual abuse of the child.

73. There was a report on 13 October 2004 of physical injuries to LC, including marks seen on her wrist consistent with bite marks said to have been made by JP and sighting of bruising and scratches to her cheek, legs and upper arm. These are more useful as evidence. Further, bite marks were seen on LC on 2 November 2004. Bruises were reported on 22 February 2005 and 22 November 2005, said to have been caused by her mother, but without any clarity as to whether this was confirmed in any way. Other injuries to LC were noted on 8 May 2007, 14 September 2007, 10 January 2008, 4 July 2008, 4 September 2009 and 23 November 2012, though not all of these were alleged to have been caused by her mother. While the sighting of the injuries is relevant evidence, there was little evidence as to how they occurred, apart from general allegations, not obviously being investigated. Even some of the hearsay reasons were quite unhelpful. It was, however, said that LC was prone to accidents and workers did

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observe an example of that when they saw her run into a door resulting in a mark on her head. That, of course, is unlikely as a cause of bite marks.

74. There were a number of subsequent disturbing reports about LC’s behaviour which included a suggestion of possible sexual abuse, of her disrobing and exposing herself and of her engaging in sexualised behaviour. Again, it was not always clear whether these were hearsay reports or whether Child Protection workers had observed the behaviour.

75. There were other complaints but, for the most part, they appeared to be allegations and there was no evidence that they had been verified or even assessed in some cases. That is a matter of concern for it could be suggested that the picture was of 36 occasions where there had been problems, but that is not what was set out in the affidavit, rather complaints, the validity or full circumstances of which were not stated. As such, they could not form a basis for any findings as to the care provided for the children.

76. The reference to 36 reports is also arguably accurate but misleading in itself. I say “arguably accurate” because there are 36 dates when, it appears, there are records or entries in records of report or action in respect of CP and her family by or to Care and Protection Services. In fact, there were 37 dates recorded by Ms Barbaric. This may be because there were two reports of 22 November 2005, the second being described as “a multiple report of the same date”. That may explain the 37 entries for what was said to be 36 reports. Unfortunately, however, the reports of 4 September 2009, 11 October 2012 and 2 January 2013 were also described as being the same or multiple reports of earlier reports, suggesting that there were, in truth, 33 reports. This inaccuracy is a concern when, given the nature of the reports, as I have described them, the intention seems to have been to use the number of reports as some evidence of the need for court intervention, since the detail is often so vague and unhelpful.

77. Of the 33 reports, it should be noted that five were “not rated for appraisal”, in one the appraisal was incomplete, two did not proceed to appraisal and two were not appraised. That leaves 23 reports that were serious enough to involve appraisal, intervention or Emergency Action. One of these related to the second son of CP, not the subject of these proceedings.

78. Of the reports, 18 related to LC alone, two to JP and two to LC and JP. This important differentiation between the children did not seem to be in any way reflected in the findings of the learned Magistrate or the Reasons her Honour delivered on 24 June 2014.

79. Ms Barbaric then deposed to the events giving rise to the Director-General taking Emergency Action. These were as follows.

80. Ms Barbaric and a fellow Child Protection worker, Stacey Davis, arrived at the family home on 10 July 2013 for an “unannounced home visit”. The children were on holidays at the time; only JP, GP and DP were at the home. LC and NP were at holiday camp.

81. CP appeared annoyed at the attendance of the workers as she said that “she had just gotten the children to settle”. CP appeared to Ms Barbaric to be exhausted, perhaps unsurprising with five children under 13 years old on holidays. CP, however, said that the three children there had been misbehaving and that she had had difficulties managing this.

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82. Ms Davis went to see the children and returned saying that they had climbed out the window and onto the roof of the house. GP told Ms Barbaric that CP had punched JP in the nose, though CP said that she and JP had been wrestling and that “he gets blood noses all the time”. There was no further evidence to contradict what CP said.

83. GP then shouted that there were “kids in the garage smoking bongs”. Ms Barbaric seems to have gone straight to the garage and found BI (the eldest of CP’s sons and not a subject of these proceedings) who was 17 years old. He was with his girlfriend and “two or three friends”. Ms Barbaric observed an “extremely strong smell of spray deodorant (Lynx or similar)” and, while not observing any drug paraphernalia, believed that the young people were recently smoking cannabis, a belief apparently “due to all young people actively avoiding eye contact and the recent, overpowering smell of spray”.

84. Ms Barbaric suggested to the children on the roof that she and Ms Davis would leave if they came down, but they refused. GP and JP then started throwing rocks or cement particles off the roof aimed at the feet of the two workers.

85. When the workers moved back and engaged less with the boys, the boys started spitting off the roof. While the workers contacted Barnardos, which was providing support to the family and who suggested that the workers move away, further up the street, it does not appear from the evidence that the workers took this advice and actually moved away.

86. Ms Davis was then told by GP that BI and his girlfriend “have sex in front of us”; BI’s girlfriend was said to have heard him say that but did not deny it.

87. CP remonstrated, saying that she hoped that the workers were “happy, this is your fault, I had them calm before you came”.

88. The children continued to misbehave, throwing dirt and then turned a hose on the workers. Ms Barbaric and Ms Davis returned to their car. DP was still on the roof but GP and JP followed the two workers and attempted to get into the car and, when unable to do so, climbed on the bonnet and roof.

89. Ms Barbaric said that CP had made little attempt to get the boys off the roof and no attempt to get them off the car. Ms Barbaric then requested police assistance. Police arrived and, when they spoke to CP, she said that the boys’ behaviour was the fault of Ms Barbaric and Ms Davis for attending the property.

90. Ms Barbaric deposed that she formed the view that JP, GP and DP were in need of care and protection “as there was no parent willing or able protectively to meet their needs”. Police then picked up each child and took them to the police station and CP was advised that Emergency Action had been taken. Perhaps, unsurprisingly, CP reacted angrily and ordered the workers to leave her property.

91. Ms Barbaric deposed that she explained to the children at the police station what she had done. She added that, when she discussed the allegations, some of the children spoke. She told JP that “it wasn’t ok that he was hurt” and he responded “but I was bad”.

92. Ms Barbaric’s second affidavit annexed a Care & Protection Services Child Protection Assessment Report (Care and Protection Assessment Report) she had prepared in respect of LC. It was a detailed, comprehensive document.

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93. That Care and Protection Assessment Report, however, dealt not just with LC but included material relevant to all the children, though the primary focus was on LC.

94. It is clear from it that LC has an intellectual disability and behavioural challenges, though there had been some disagreement over some of the diagnoses she had received. She presented with sexualised and violent behaviours. She had a strong sense of family and clearly loved CP, her mother.

95. The description of what was said to relate to CP’s capacity to parent successfully was detailed but I found it somewhat difficult to identify the precise basis for the conclusions. Some had to be gleaned from anecdotes, such as that, while the children “presented as reasonably clean and tidy and there were no concerns with their physical presentation”, it was noted that when they entered care they had head lice. I note that, while in out-of-home care, they also had head lice, but that did not cause their removal.

96. It was asserted that some of their medical needs had not been met but details were scant so it was not clear the extent or seriousness of this. Examples given did not appear to be particularly serious, though the apparent care of DP’s asthma did not appear to be optimal; precise, helpful evidence was lacking.

97. The issue of safety centred around allegations that the children were exposed to their older brother’s drug use, which appears to be confined to cannabis use. There was also mention of the sexualised behaviour of LC and the incident referred to above when the boys climbed onto the roof. It mentioned that past relationships of CP had exposed the children to family violence, drug use and criminality, though it was not clear that this was current, other than the drug use of CP’s eldest son.

98. The Care and Protection Assessment Report raised issues of whether there was sufficient stimulation provided for the children, though it did not directly describe the inadequacy of this, if that was the conclusion, which was itself also unclear. It did record that CP acknowledged that she struggled to implement boundaries for the children. There was some disagreement about the form of discipline she used but no suggestion that CP engaged in illegal or excessive discipline.

99. The Care and Protection Assessment Report noted a degree of instability in schooling, living arrangements and carers, though other evidence did not seem to bear this out, except in the case of JP. It recorded, however, CP’s close emotional ties to the children and the fondness they have for her.

100. It attached a number of records of visits occurring after Emergency Action had been taken, to give the children ongoing contact with CP, particularly by LC and NP, and these showed reciprocated pleasure and generally a good interaction of the children with CP and her with them.

101. The case analysis in the Care and Protection Assessment Report set out the risks it identified for LC. It described LC as “a sweet girl … who has reduced intellectual ability, developmental delay and is about to commence puberty”, requiring a carer “who is very able to act protectively given her intellectual disability and sexualised behaviour … [who has] a high level of insight and ability to ensure [LC’s] safety and wellbeing”. Inferentially, it suggests CP does not have this capacity, but it did not expressly state it.

102. It noted that CP engaged with parenting assistance but that the support did not seem “intensive enough”. CP’s IQ of 74 was said to “raise concerns” about her ability “to implement the necessary routines, boundaries and engage in the appropriate

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developmental activities to meet the children’s needs”. The wording is elliptical; it seems that “raise concerns” is somehow code for “does not have” the abilities there described without actually saying so, or giving a basis for the “concern”. Indeed, this is a significant basis for me noting the absence of an independent report on CP’s parenting capacity, a concerning feature of these proceedings.

103. It noted that CP could identify the children’s difficulties and that she had a genuine desire to assist them, but asserted that she “has not shown the ability to meet all of the children’s needs in her care”. Again, the implication seems to be not merely that she cannot meet “all” of the needs but that she cannot meet enough of them, but this is neither stated nor explored, despite being at the heart of the issues that the Childrens Court had to address.

104. The Care and Protection Assessment Report further noted that the ability of CP to ensure safety and well-being “is also of concern”. Again, this may intend to infer that she cannot ensure these important matters, but it did not say so. In such a serious matter, the evidence needs to be direct and clear, for “concerns” are not sufficient to show CP’s lack of parenting capacity.

105. The drug use was a major matter and was apparently exacerbated by CP’s denials of its existence despite evidence to the contrary. In addition, the further “concern” was expressed of the sexualised behaviour of LC.

106. The Report then set out its conclusions and recommendations as follows:

The information included in this assessment as well as the developmental delays and behavioural difficulties the children present with is indicative of cumulative harm that has occurred over the course of their lives.

[CP], whilst it is clear she would not intentionally place the children at risk, has failed to protect them from exposure to family violence, drug use and associated criminality and has not been able to ensure their immediate safety.

It is evidence that whilst [CP] clearly loves her children that she has been unable to keep them safe and ensure all the children’s needs are met.

[CP] has a genuine desire to meet all the children’s emotional and developmental needs however given the children’s high needs, behavioural difficulties and the need for a higher level of parenting [CP] would not be able to.

Given the above concerns it is respectfully recommended that [LC] be made subject to a Care and Protection Order with provisions including parental responsibility, supervision, residence and contact until [LC] reaches the age of 18 years.

107. Ms Barbaric’s third affidavit annexed a Care and Protection Assessment Report prepared in respect of JP, GP, NP and DP.

108. Unsurprisingly, and intended as no criticism, much of it covered the same ground as the one annexed to the second affidavit in relation to LC; indeed, the background, in particular, seemed to be virtually word-for-word identical.

109. The detailed assessments of the four children was, however, individualised and addressed the issues relating to each child separately and comprehensively.

110. The sections on the children’s development were also quite individualised.

111. In relation to JP, it recorded that he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder and mild intellectual disability, but was responding well to prescribed medication and, apart from this,

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required no other medical intervention. He displayed significant behavioural problems at school and, at one school, his behaviour was threatening and disruptive, but the school had managed to work through this and, at his then current school, it was being dealt with reasonably successfully.

112. GP had also a diagnosis of ADHD and Oppositional Defiant Disorder but was also responding well to prescribed medication. He was achieving reasonably sound results at his school in his academic work before Emergency Action was taken but displayed behavioural difficulties including threatening violent and aggressive behaviour, leading to several suspensions. His current schooling was reasonable, but with some reports of bullying behaviour.

113. NP presented as more complicated as he had earlier remained for a time in Sydney with his father. CP and the children had gone there when his father, BP, wanted to return to be near his mother. Later, CP and BP separated and she returned with the children, except NP, to Canberra. He himself later returned to Canberra. While a healthy child, he had significant communication skills deficits and eye problems. He had “significant global development delays and probably has a mild intellectual disability”. He had a constellation of other features, including a cardiac murmur and hypotonia. He had a high level of medical and psychological needs but these were said not to have really been addressed by CP. He was progressing at school but was academically behind his peers. His confidence, however, was growing.

114. DP had a significant problem with asthma and some developmental delays. His growth was otherwise normal, though he has been recommended to receive speech pathology assistance. His schooling has been uneventful without significant difficulties with behaviour, academic ability or peer interaction.

115. The sections of the Care and Protection Assessment Report on the Assessment of Parenting Capacity and Extended Family or Environmental Factors were, with minor exceptions, identical to the sections in the Report relating to LC, to which I have referred above (at [93]-[97]). Apart from three individualised paragraphs, the section on case analysis is also identical to that equivalent section in the one relating to LC.

116. It is, perhaps, unsurprising, that the Conclusions and Recommendations were, apart from the references to JP, GP, NP and DP, in the last paragraph, identical to those in the Report relating to LC quoted above (at [106]).

117. Also attached were reports from the Child at Risk Health Unit relating to DP, JP and NP (three reports), as well as many detailed reports of supervised contact visits which were the same as had been annexed to the Care and Protection Assessment Report relating to LC.

118. Ms Barbaric’s fourth affidavit related to the application in respect of LC and provided some updated information.

119. In it, she noted that CP “has continued to communicate and engage well with Care and Protection Services”.

120. It referred then to a social media posting CP had made on “Facebook”, a copy of which was attached. The posting was part of some family interactions, including some controversy. CP said of a person I will refer to as B:

Now he likes little girls after what he did to [LC] and [LC] don’t be

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121. In the affidavit, Ms Barbaric referred to a meeting with CP where CP had explained that LC had told her that B had “felt up her legs”. He had also been inappropriate with her, CP, as a child. Ms Barbaric commented, perhaps as a submission, rather than evidence, that this raised “concerns” that CP had been aware of LC’s possible exposure to inappropriate behaviour without reporting the incident. The basis for the “concerns” was not explained, though perhaps to be inferred.

122. There were also annexed further contact reports. The reports again showed good reciprocated warmth, affection and interaction between CP and the children, though there were times when one or more children did not attend. There were problematic incidents from time-to-time, though generally CP seemed to have been able to manage them.

123. These reports also showed that there were some problems with LC’s carer. On one occasion, when case workers came to collect her, they could hear yelling and swearing from the carer’s home and LC said on another occasion that she did not like living with her carer.

124. LC had made contact with her birth father and a connection between the two seemed to be proceeding satisfactorily, despite earlier allegations of violence that he had perpetrated. This did not seem to raise “concerns”. Nevertheless, it was reported that LC still exhibited behavioural problems: losing her temper, disobedience and engaging in inappropriate ways of gaining attention.

125. Ms Barbaric’s fifth affidavit related to updating the situation with the four boys. It was, in some ways, an odd affidavit. In parts, it was identical to her third affidavit, that is in connection with the issue about the posting on Facebook, even though it did not apparently set out to deal with LC in respect of whom the posting was relevant. It also annexed the same contact reports that had been annexed to the third affidavit.

126. The further information was that the boys continued to reside with the same carers, appearing settled and happy and calling the carers “Mum” and “Dad”, which was said to be unprompted. The boys were attending school and the principal had said that they had started well without any issues.

127. Medical reports also annexed relating to JP noted that he had made improvements to his behaviour, said to be from the new home environment. He had, however, experienced recurrent infestations of head lice, not, it appears, attributable to CP, who no longer had day-to-day care of him.

128. A medical report also annexed related to GP and noted that he had been very unsettled at first but his behaviour had also significantly improved and he seemed happy and well-behaved. His stimulant medication has also improved his attention span and ability to complete school work.

129. Ms Barbaric’s sixth affidavit related also to the four boys, again bringing the position up-to-date.

130. In relation to JP, he was noted “very much” to wish to continue contact with CP, which he enjoyed and that he wished to return to her care. He remained in a placement at Boorowa where he called his carers “Mum” and “Dad” and presented as happy and settled with a “huge improvement” in his behaviour. His carers were wishing to care for him and his two brothers on a long term basis. There were still some behavioural problems at school, especially with name calling and belittling of other students.

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131. GP had now attended contact with CP more regularly, but there were still occasions when he refused to go but no reason was given. He, too, called his carers “Mum” and “Dad” but was reported to have used offensive language at times and be verbally abusive. He had settled into school, making significant growth in his learning and improving his classroom behaviour, but could become verbally abusive with other students. He had expressed a wish to manage his anger.

132. DP also regularly attended contact with CP and said that he particularly liked to see NP at contact. He also called his carers “Mum” and “Dad” and showed affection towards them. He was also doing well at school.

133. NP was in a separate placement in Canberra. He was keen to maintain contact with CP and wished to return to her care. He was the only child in his placement but presented as happy and settled. His behaviour had also improved as had his speech difficulties. He was doing well at school.

134. Ms Barbaric’s seventh affidavit related to the then current situation with LC.

135. She deposed that LC continued to attend contact with CP and “articulates a strong desire to attend”.

136. LC was now living with her paternal grandparents, but there had been some suggestions that they made negative comments about CP. LC was initially cautious about the move but now said that she liked being there and spending time with them. LC has had difficulties at school but overall was regarded as doing well, engaging with her lessons and her peers, showing a “very caring attitude” to some of the high needs students at the school.

137. Before referring to CP’s evidence, it is appropriate to deal with Ms Barbaric’s oral evidence which may be summarised as follows.

138. In relation to LC, she gave some further oral evidence-in-chief setting out the various placements she had had since Emergency Action had been taken, confirming that she was now with her paternal grandparents.

139. In relation to NP, he was with a foster carer through Barnardos, another children’s non-profit care agency, and he was the only child at the placement, but it was supportive and he received a high level of attention.

140. JP, GP and DP were placed with carers at Boorowa who had one other foster child. Another foster child had turned 18 but continued to have contact with the carers.

141. Ms Barbaric recounted that, for a time, CP and the children (and their father or stepfather) moved to Sydney, but little information was available about their time there from the NSW authorities. They returned in January 2012 but Care and Protection Services were not aware until a child protection report was made.

142. Contact was then made and became more intensive over time. Ms Barbaric became involved in May 2013.

143. Initially, the family stayed with various family members until they obtained public housing through the YWCA. Issues arose as to the tenancy and a previous case worker had reported that the tenancy was at risk because, Ms Barbaric said, of police attendance, allegations of drug use and complaints by members of the public. A notice

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to quit was served, but, after the matter became a matter of public controversy, arrangements were made for the family to remain in the house.

144. Ms Barbaric was aware that other agencies were assisting CP through the children’s school and Barnardos as well, for a time, as was the YWCA. Both the latter agencies had a high level of contact with CP. There was some limited support from Therapy ACT and other agencies.

145. A meeting of nine relevant agencies was held on 7 June 2013. These agencies had been providing support to CP and to the children. The report of the meeting identified a number of tasks required to support the children, identifying also a timescale and responsible agency.

146. Ms Barbaric gave evidence of her attendance at CP’s home in May 2013 when police executed a search warrant relating to CP’s eldest son’s drug use. He was, it appears, living in the garage of the house with his girlfriend who, herself, had been involved with Care and Protection Services. Photographs of the interior of the garage were admitted into evidence. It is not entirely clear what they showed, but there was to be seen an item that could be a “bong”, that is a device for smoking cannabis, but it was not so identified in the evidence.

147. Ms Barbaric gave evidence of her interaction with CP, whom she attempted to visit weekly. She was aware of the behavioural problems exhibited by the children. There was then some evidence of the visit on 10 July 2013, which is set out in the affidavit and referred to above (at [80]-[91]).

148. She accepted that LC’s biological father, SC, had been violent to CP during their relationship, but confirmed that he now had access to LC, supervised by SC’s mother.

149. Ms Barbaric gave some oral evidence in response to affidavit evidence of CP. It is appropriate to deal with it when I have referred to CP’s affidavit evidence.

150. She was asked further about the circumstances of Care and Protection Services taking Emergency Action. She identified the following issues:

the allegation that JP had been hit, though CP denied that; CP asserted that he had had to be restrained for his escalating behaviour and the stress made his nose bleed; there was no other evidence that he had been hit;

the children saying that they had witnessed CP’s eldest son and his girlfriend engaging in sexual activities; the only support for this was the lack of denial by the girlfriend who was said, but who did not admit, to hearing this allegation said;

the children engaging in “very, very unsafe behaviour”, namely being on the roof of the house, running over it to the neighbour’s house and spitting from the roof while “leaning quite far over”; and

“cumulative harm” from the matters that were of ongoing concern to Care and Protection Services, though these were not expressly identified.

151. Ms Barbaric said that while the primary position of Care and Protection Services was the restoration of children to their parents, there was concern about CP’s ability to meet the children’s needs, ensure their safety and support them. As a result, restoration was not considered to be in the children’s best interests.

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152. Ms Barbaric acknowledged that CP “loved her children very, very much” but that she was unable, for example, to take what was said to her by agencies and medical professionals and put it into practice in her home, despite her willingness to engage.

153. Ms Barbaric acknowledged that CP had, since the Emergency Action had been taken on 10 July 2013, undertaken some parenting courses, but expressed no view about CP’s response to them.

154. Ms Barbaric was cross-examined by both counsel for CP, Gary Hill, and the separate children’s representative, Rhiannon Dwyer.

155. Initially, Mr Hill asked Ms Barbaric to repeat the disability of each of the children, and the medication prescribed; she did so. He then turned to the day of 10 July 2013 when Emergency Action was taken. She agreed with him that, had the children taken their medication in the morning, then, by the time Ms Barbaric and Ms Davis arrived for their unannounced visit, the effect of it would have been wearing off.

156. Ms Barbaric had, she said, recently become the responsible case officer (apparently May 2013) and had made an agreement with CP, who agreed that she would work with Care and Protection Services, and Ms Barbaric had informed CP that announced and unannounced visits would be conducted, the latter, she pointed out, giving the workers a more accurate reflection of how the children were functioning within the home. She had also made it clear to CP that drug use on the premises was a matter of concern and an action plan had been put into place in respect of it.

157. Ms Barbaric agreed that, when she first arrived at the house on 10 July 2013, she had no concern seeing one of the children at the window. She agreed that CP was upset because, as she had said, she had earlier managed to settle the children; this was consistent with Ms Barbaric’s initial observation.

158. She agreed that children diagnosed with Oppositional Defiant Disorder, as had both JP and GP been diagnosed, have a problem with people in authority and that children diagnosed with ADHD, as had JP and GP, act out to gain attention, though she pointed out that she and her co-worker had met the children on prior occasions. She agreed also that the children were aware that two of their siblings (not the subject of this appeal) were subject to long-term care and protection orders.

159. She agreed that some of the behaviours of the children during the visit could have been indicative of attention seeking behaviour, though she said that some, such as climbing on the roof, were “quite extreme”.

160. She explained that CP tried to get the children off the roof by shouting at them to come down, but that it did not work, which, Ms Barbaric agreed, could be indicative of Oppositional Defiant Disorder.

161. Ms Barbaric was also asked about her visit to the garage. It was accepted by Mr Hill that the tendered photographs showed a bong or bongs present at the earlier time when police attended on 17 May 2013 but Ms Barbaric had seen no bong on 10 July 2013. She said that she relied for her belief that the occupants of the garage had been smoking cannabis not only because they avoided eye contact with her but also from the children telling her that it had happened.

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162. She said that she made it clear that the presence of CP’s eldest son, BI, was a problem as his drug use posed a risk for the children, though she did not explain this further, and she understood that CP was arranging for him to leave.

163. Ms Barbaric was then asked about her actions on that day. She had made contact with staff from Barnardos who had suggested that she and her colleague move further up the street, which they later “did attempt” after engaging with the children to try and get them off the roof, but without themselves having any success in getting them down. It was unclear on the evidence whether, as suggested to them, she and her colleague actually moved up the street to try and allow calm to be restored. She agreed that CP was not aggressive nor confrontational.

164. She said that while the children had been diagnosed with ADHD and Oppositional Defiant Disorder for some time, this was the most extreme behaviour that she had experienced which, she said but on unstated experience, was not normal routine behaviour even for children with such diagnoses. She had visited them at various other times and not witnessed such behaviour, but it was unclear whether she had visited during school holidays. She agreed, however, that the behaviours she then witnessed could be attributed to their diagnoses, but suggested not solely so.

165. She agreed, however, that these extreme behaviours would be difficult for anybody to handle. She said that CP, nevertheless, was not dealing with the behaviours. She said that CP had tried to get the children off the roof by shouting at them but that she did not succeed. Neither Ms Barbaric nor Ms Davey managed to get the children down from the roof.

166. Ms Barbaric agreed that CP had a variety of agencies supporting her and that she engaged with paediatricians, schools and, sporadically, speech pathologists. She would not agree, however, that CP was able to deal with the children on the whole and Ms Barbaric said that CP, even with the level of support CP was receiving, was not managing.

167. She agreed that, after the children had been removed following Emergency Action, JP and GP had taken knives to school in their out-of-home placements, extreme behaviour which could not be attributed to CP, but she pointed out that this was one incident in the 12 months post removal. She agreed, however, that there had been a further incident in which GP had been suspended, but that generally the children were still attending school full-time.

168. She agreed that, wherever placed, the children’s behaviours would need to be dealt with but that a more consistent, structured environment would result in lessening the problematic behaviour and that, in fact, this had happened.

169. A copy of an article from The Canberra Times about the likely eviction of the family, including a photograph of the family, was admitted into evidence, but Ms Barbaric pointed out, that while its publication would cause distress to CP and the children, the children were at the time in the care of CP who would have had to agree to the photograph being taken and published.

170. Ms Barbaric agreed that CP had demonstrated a willingness to engage with the various support agencies and did do so, but that she had not demonstrated the capacity then to implement what she had learnt within the home to create stability, structure and boundaries. She particularly referred to the need for the creation of a structured environment within the home.

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171. She said that, in her opinion, in the case of LC, CP was unable to look after her. She said that CP was unable to say from where LC had learnt the sexualised behaviour that she displayed and CP did not appear to recognise the risks of the presence of drug use on the premises and act protectively. She mentioned, also, LC’s significant speech delay which had remained and that there had only been “some engagement with Therapy ACT” which had not been sufficient to resolve the issue. This, she said, would worsen as LC entered puberty with her intellectual disability and sexualised behaviour which, in her estimation, CP could not successfully manage. She admitted that, while in care, LC had not had a psychological assessment to help her carer manage these behaviours, partly because her carer was not always available. The difference between that situation and when CP cared for LC was not explained.

172. As for NP, she said that he had a number of current medical needs while in CP’s care with no follow-up or diagnosis as required. She did not believe that CP could adequately care for him.

173. Ms Barbaric was asked also about GP and JP, their use of knives and fighting. She acknowledged these as, in part, sibling altercations which, because of the additional challenges they faced, tended to escalate. She considered, however, that desirably, they and DP should be placed together.

174. Ms Dwyer then cross-examined Ms Barbaric. Initially, Ms Barbaric was asked to confirm that the children were in need of care and that, in her view, CP did not have the capacity to protect the children from potential risk of abuse and neglect because she was unable to implement the information given to her by the various support services; she confirmed this as her opinion. She also said that she did not believe that the action plan arising from the interagency meetings, one of which was referred to above (at [145]), would improve the situation as intensive support had been available for some time but had not been effective, despite some gains.

175. Ms Dwyer asked about a problem with LC’s placement where a common children’s game of “Truth and Dare” had led to LC and another child at the placement engaging in sexualised behaviours, but she said that the result was that the other child had immediately been removed from the placement.

176. When her paternal grandparents received LC, they had been made aware of her behaviour and had been willing to “take that on”. Ms Barbaric had no concerns about an older brother being in the home as there had been no problematic behaviour involving him.

177. Ms Barbaric also said that she did not believe that a care and protection order limited to two years would be appropriate. She said, however, that the children would have ongoing contact with CP; all had expressed a desire to see her and were developmentally able to express those views, such that they should be taken into account. The contact would be “at a higher level”, so fortnightly with more flexible phone contact. The children’s wishes, however, would be respected, so that if GP did not wish to have contact he would not be forced to have it. This could, however, be reduced for LC and NP from twice a week to fortnightly. It would not be reduced even further as it was not in accordance with the children’s wishes.

178. Ms Barbaric was asked about the children’s likely reaction to an order being made for their care and protection by the Director-General until they were 18 years old and she expected that LC would be upset and the other children would “have an element of

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being upset”. She noted, however, that they had been in their placements for some time and she had had a number of discussions with the children. Except for JP, they said that they were happy where they were. They would all be upset at a long-term order and, though it was not entirely clear from how she expressed it, it seems that their preference would be to live with CP. She said the current placements appeared to be working and would be continued.

179. Ms Barbaric also said that, in the time that the children had been in out-of-home care placements, she had noticed an improvement in their behaviour and development. Hence, JP and GP were now attending school full-time as opposed to part-time previously and despite two suspensions, there had been an overall improvement in behaviour. NP has had speech improvement “wonderfully” and had settled into school. LC had been a little less settled, but was building a relationship with her father and had made a good transition into high school.

180. CP made three affidavits which addressed issues relating to all five children.

181. The first affidavit was initially a response to Ms Barbaric’s evidence. Unfortunately, it was quite difficult to follow as it referred to the affidavits of Ms Barbaric but the cross-references were not correct. Thus, it referred to pages 5, 6, 7, 8, 9, 10 and 11 of the affidavit but it was only of two pages in length.

182. It appears that what was intended was to respond to the Care and Protection Assessment Report which was Annexure B to the affidavit. Reading it that way made sense. CP took issue with a number of the assertions in it, especially in relation to a number of incidents the subject of the 36 reports recorded. I do not need to refer to all of the challenges.

183. CP denied that she or her then partner, BP, had intentionally injured any of the children and she denied that she had smacked them. She noted that LC was accident prone, a fact that was observed by a Child Protection worker. She denied hitting JP and said that he was prone to nose bleeds which, again, was demonstrated in other circumstances. She admitted that BP was emotionally abusive towards her. She admitted that her partner before BP, being SC, who was LC’s father, had been violent towards her and the children.

184. As to LC’s sexualised behaviour, she made a number of comments. She said that she did not know where it had originated, but that LC was always wanting to go to the bathroom when the boys were there; she, CP, would stop her. She also said that, after visiting CP’s mother, LC said that her grandmother had “got drunk and done it in front of her on the lounge”, apparently referring to sexual intercourse, but that CP had reported that to Care and Protection Services and refused to let her children return there. It appears that this episode happened on 10 October 2012 and the report was one of the 36 reports referred to above (at [67]).

185. She denied any domestic violence had occurred between her and BP, though she said that he was emotionally abusive to her and that they separated because he found it difficult “managing the children”.

186. CP admitted that she suffered from depression but denied any acts of self-harm and said that she sought appropriate assistance for the condition.

187. She asserted that she regularly bathed the children every day, bought enough food for them and cleaned the house regularly. She was not challenged on this evidence.

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188. CP denied that she sold or used drugs other than prescribed medication and, although she knew her eldest son smoked cannabis, she did not know that he did so on the property.

189. She deposed that, when Ms Barbaric and Ms Davis attended on their unannounced visit, it made the children very agitated as they were afraid that “they would be taken away”. She said that, after the workers left, the children came down from the roof but went back up when the police attended. I found this difficult to reconcile with the other evidence.

190. She then made some general comments. She said that all the children wished to return home to live with her and that they regularly expressed that wish on contact visits, crying on separation. She and they had a strong emotional bond as the children did also with each other.

191. She was aware of the various learning and medical difficulties suffered by the children and said that she was willing to ensure that they had relevant therapy.

192. She deposed that she no longer lived with BP. She would, if the children were returned to live with her, ensure that BI goes to drug counselling. She was willing to engage in parenting courses and was willing to work with Care and Protection Services and enlist the support of other agencies. She had, she said, a strong emotional bond with the children. She would ensure that they attended regular medical check-ups.

193. CP expressed some concerns about the welfare of the children while in care. She noticed that LC had suffered sunburn while in care and that she came on a contact visit without her hair having been brushed.

194. CP acknowledged that it was difficult to provide attention and emotional warmth to six children as a sole parent.

195. CP’s second affidavit was more comprehensive. It asserted that she was competent in everyday life, being able to read and write, manage a household, operate a computer, and engage well with her children with whom she has a loving relationship.

196. She acknowledged that the children were challenging because of their medical and learning problems but asserted that she had provided appropriate boundaries for them. She noted that ADHD is “a complex problem” which requires a lot of patience to prevent the escalation of behaviour.

197. She deposed that she was sensitive to her children’s needs, was able to stay calm and be patient, never hit her children, but used the strategy of removing them to their room to calm down and then redirected their behaviour. She repeated the examples of distress expressed by the children when separated from her.

198. She had enrolled in a parenting course and expressed a willingness to receive support from recommended agencies. She repeated that she did not use non-prescription drugs, did not drink alcohol and never became drunk. She was single and her priority was to provide a safe and loving home for her children.

199. She kept a diary and noted occasions when she took children to medical or other appointments and stated that she provided follow-up action when required. She said she was reliable.

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200. She expressed concerns about her children while in care. The taking of them by the police was, she deposed, traumatic. She annexed a copy of the Police Report of the incident. It was, however, generally consistent with the account given by Ms Barbaric. Significantly, however, the report refers to NP and does not refer to GP. CP said that NP was not there that day as he was in respite care; LC was at a camp. Ms Barbaric also referred to GP and not NP. It is of concern that the police made such an error.

201. CP also referred to the sexual incident in LC’s first foster placement. When she spoke to her subsequently, LC was hysterical and said that she had been distressed, had damaged the house and had run away. LC said she had been chased by a case worker who had stopped her. CP said it had taken her quite some time to calm LC down.

202. CP expressed concern about LC living with her paternal grandparents who were also caring for another of CP’s children and who had not let CP have contact with him.

203. CP also referred to problems she saw with the placement of JP, GP and DP. She referred to an incident where, while in care at Boorowa, JP and GP had taken knives to school and threatened people; police had been called. She referred to an allegation that JP had been smacked by his female carer with a wooden spoon but the carer denied this, saying that she had picked up a wooden spoon and waved it at him but did not hit him. The carer had said that she had smacked DP on one occasion with an open hand for using “foul language”. She also referred to the report where the carers did not wish the boys to attend a contact visit with CP which led to concerns for a placement break down.

204. There were further complaints about the placement, including that the carers were using an unacceptable threat, namely refusing to let them have contact with CP, to encourage good behaviour, which, as Care and Protection Services agreed, was clearly an inappropriate means of behaviour control.

205. CP deposed that the male carer for JP, GP and DP rang her in January 2014 and “verbally abused” her about the way JP was brought up and the way he would swear. He suggested that CP should chastise JP on his next contact visit, but she said that that would be inappropriate because contact was meant to be positive.

206. She also deposed that the female carer told her that, if the boys were returned to CP’s care, she would be willing to provide support.

207. CP referred to an occasion when LC had attended a contact meeting with “serious sunburn on her nose”.

208. CP was also concerned to ensure that the four boys understood their Aboriginal heritage from their father, BP.

209. CP responded to some of Ms Barbaric’s third affidavit concerning the inappropriate contact with LC by B. CP said she did not know B would be there when LC went to stay with her aunt. She said that, when told of the incident, she immediately removed LC from the house; she did not advise Care and Protection Services as they “were not that hardly involved with [the] family” and she did not think it necessary as she had immediately removed LC.

210. As to Ms Barbaric’s fourth affidavit, CP responded to criticisms Ms Barbaric had made of her. She rejected the comment of Dr Suzanne Powell, Paediatrician, suggesting that

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CP did not provide boundaries for the children, noting that Dr Powell had never visited her house. She also stated that she believed that the behaviour of JP, GP and DP had worsened while in care.

211. CP responded, too, to some comments made in the reports of contact visits. A number referred to CP having a “noticeable body odour”. She said that she has good personal hygiene, bathing regularly and using deodorant, but that her medical practitioner had told her that the body odour was caused by problems with her glands.

212. CP’s final affidavit repeated much of the earlier material. In it she expressed concern at LC’s placement where she sees her father who, CP says, had a criminal record and was violent to CP. Certainly, it seemed that the criticism of CP’s ability to care for her children referred to the exposure of LC to violence, but that she was now allowed to have contact with SC, who had perpetrated that violence.

213. She referred to the ongoing wishes of the children to return home, suggesting that, after one contact visit, she had been told by Ms Barbaric that LC had been uncontrollable. She referred to a telephone conversation with NP where he told her that he was leaving and wanted to come home.

214. She also expressed a concern that JP was being teased by his male carer because of his speech disability. When the boys telephoned her, CP could hear JP saying that he wanted to return home.

215. I refer now to further oral evidence of Ms Barbaric about some of these matters. As to the conversation between CP and the three boys’ male carer, who had abused CP, Ms Barbaric confirmed that such a conversation had taken place; it was verified by the placement co-ordinator at Barnardos.

216. Ms Barbaric tried to minimise the contact, describing the male carer as “quite gruff … quite blunt … [but] very loyal and very protective of his family and the people he cares about”. That did not excuse such abuse.

217. As to the offer of assistance by the female carer of the three boys referred to above (at [206]), Ms Barbaric pointed out that the boys had been with the carers for some time and that to be “without ongoing future contact [with the carers] wouldn’t be in their best interests”.

218. Ms Barbaric denied describing LC as “uncontrollable” but did say that she may have used a word such as “meltdown” or “wobbly”, apparently confirming the distress of LC at the separation. She was unaware of NP’s strong preference to live with CP, though he also expressed a wish to live with BP because he “rides Harley Davidsons”.

219. Ms Barbaric said in relation to the sunburn CP had seen that she had made inquiry and the carer of LC had suggested that it had happened during the contact visit but that CP denied that. She said that she was not able to come to a conclusion but that the carer had had to address the issue.

220. Ms Barbaric was also asked about the incident with the knives that JP and GP had taken to school. She said that she had spoken to both boys. A detailed record of that was annexed to CP’s second affidavit.

221. JP and GP are recorded there as telling her that a boy at the school had told them to take the knives to school, though both said that they did not think it was “ok” to do so. The boy who told them to take the knives to school had then “told on them” and they

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had been in trouble with the teachers. This seemed a little inconsistent with the allegation recorded in CP’s affidavit, which also annexed a report from Barnardos about the incident, which stated that the boys had threatened others, including a teacher, with the knives, but that was not further explored in the evidence.

222. Ms Barbaric said in her oral evidence that she was also aware of other incidents involving violence with the boys while in out-of-home care, though not involving knives. The boys were disruptive and it was said that other students in their classes were “quite fearful” of them.

223. CP also gave oral evidence. She gave no further evidence-in-chief but was extensively cross-examined.

224. The cross-examination commenced with some questions about the family which I do not need to summarise, save to say that she acknowledged that her three elder children were, by court order, taken into care after they had been in interim care and, at the time, she was in no position to take them back. Her eldest son, however, was, by court order, returned to live with her when he was “young”. She had little contact with her family in Canberra.

225. She was asked about the occasion when LC had said that CP’s mother had sex in front of her. CP said that she had reported that to Care and Protection Services. She said, however, that LC later said that she had lied about the incident, but CP did not tell Care and Protection Services about that.

226. She was also asked about “Uncle B” who was said to have touched LC inappropriately. He was in a relationship with CP’s aunt. The incident was said to have happened when LC was living with CP’s aunt at the time. She said that she was aware of the incident and as soon as it came to her notice, she moved LC from the placement.

227. She was then asked about SC, LC’s father. She agreed that he had played a role in the care of her older children not the subject of the appeal and she said that he had been violent towards them. She did not leave him immediately, however, but did finally do so. She was referred to a particular incident which CP reported to the police. It appears that SC was charged with an assault offence on CP’s eldest daughter, but was acquitted. She did not give evidence against him because, she said, she was scared, a common response by victims of domestic violence, including those who witness it inflicted on other members of the family. She was later herself convicted of assaulting him with a pair of scissors, but she explained how it occurred, when he was assaulting her. CP said that the relationship ended a few months later, but she was then pregnant with LC.

228. SC’s parents, LC’s paternal grandparents, had some care involvement with CP’s eldest child after she was in a relationship with BP, as there were allegations that CP and BP were abusing him. She agreed that BP had a “fair history” of abusing alcohol before he had come to live with her and that he suffered from depression. He did not, however, take illicit drugs while living with her.

229. CP also acknowledged that she had had a problem with depression over a long period of time but that it was controlled by medication.

230. CP also confirmed the move to Sydney from 28 October 2009 to January 2012 with her children and BP, though they later separated and the relationship with him ended at the beginning of 2011. She was not involved with child protection authorities while in

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Sydney, though there did, on the evidence, seem to have been some contact with the Department of Family and Community Services.

231. Before moving to Sydney, she and BP had broken up, but they thought that the move, to be closer to BP’s mother, may help to restore the relationship. Before the move, CP had been depressed and was seen by mental health workers. She was taken to a record of that consultation, but denied some of the statements recorded in it. While she admitted to some thoughts of self-harm at that time, she denied ever being overwhelmed in looking after her children. She also denied the comment that she was unable to care for the children and said that she had not been hitting them, though she had been angry at them and shouting at them. She did admit that her mental health made it difficult to cope in the family environment. She said, however, that she was now “a lot different than I was back then”.

232. As to her relationship with BP, she agreed that, in the last several years of her relationship with him, they had started to argue, but denied that the arguments had taken place in front of the children. He had a long history of depression and alcohol abuse, but did not use drugs while they were in a relationship. She had no concerns about any sexual conduct between BP towards LC or between LC and her eldest son. She agreed that LC exhibited sexualised behaviour. She agreed that the other children showed knowledge of sexual matters not consistent with their age, though an objection was taken and thereafter CP denied that the boys talked about sexual matters, apart from swearing.

233. CP accepted that findings had been made by the Childrens Court that she could not care for two of her three eldest children when all three were taken into care. She also agreed that, while in care, her eldest son had been sexually abused, which was suggested to mean that he was a risk to the other children, though she assumed that Care and Protection Services would have dealt with that while he was in care.

234. She agreed that she took NP to physiotherapy in Canberra but said that she did not take LC to speech therapy in Sydney as she was “doing speech” at school; it was also hard to access such services in Sydney. However, she said that it was easier looking after the children without BP.

235. As to the move back to Canberra from Sydney, CP agreed that she decided to return as “a last-minute thing” because she was not coping and local children also with ADHD were causing trouble for her and the children. She returned, however, without a place to go. At the time, NP and GP had been staying with BP. There had been, however, weekend contact in Sydney where one weekend she would have all the children and the next weekend he would have the four boys. When she decided to return to Canberra, she took GP but BP threatened to kill himself unless NP stayed with him so she agreed to allow NP to stay with him. NP came to Canberra in April 2013. Even though BP had tried to kill himself before, she was not concerned about leaving NP with him because, she said, BP loved NP. In the meantime, she had phone, but not face-to-face, contact with NP.

236. On the family’s return to Canberra, she initially lived in a two bedroom unit with her sister and her sister’s boyfriend. LC went to live with CP’s aunt, where the incident referred to above (at [226]) was alleged to have occurred, and CP and the boys lived in the living room of the unit. They made immediate application for public housing. She saw LC every day.

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237. Later they were approved a house through the YWCA. LC then returned to live with the family. Problems developed over the lease. She was shown a Notice to Remedy and admitted that there were some holes in the walls made by the children but she said that she tried her best.

238. She agreed that she had received two Notices to Remedy in which the state of cleanliness was said to be unsatisfactory, but she denied that it was so. She denied that there was violence to people lawfully on the property but admitted that the children occasionally got into conflict. She also agreed that police had attended at the house on more than one occasion.

239. She then agreed that she had later been served with a Notice to Vacate. It was then that she contacted The Canberra Times and the article earlier admitted into evidence was published. She agreed that she had given the paper permission to photograph the children, but said she did not know if the photograph was going to be published.

240. CP was asked about some events after she had returned to Canberra in 2012. She said that, in April 2013, NP was returned to her care rather suddenly as BP said “I’ve had enough of him”.

241. CP also agreed that while the family was living with CP’s sister, JP attacked CP with a knife. He pulled her hair also, making it bleed. She said that, at the time, JP had run out of his medicine and had become aggressive. There was also another incident with JP and a knife but no details were asked for or given.

242. She agreed to that, on one occasion, she was driving with her eldest son, who was, to her knowledge, unlicensed and the car was stopped by police. She said that she had initially been driving but that her head had begun to hurt from a bad migraine and so she had asked her son to take over. The police report showed that DP was, at the time, not in an approved child restraint. Police also noticed injuries to LC caused by her eldest son accidentally opening a door into her face causing her to lose a tooth. The next day police came and spoke to her. They recorded that the house was “in a state of messiness although still liveable”.

243. She was also asked about another event with JP when he was holding a knife and the other children were “egging him on”. Her eldest son had called the police but, she said, that was the only other incident with a knife. She said that she had then arranged some counselling for JP.

244. CP also agreed that police attended on another occasion when NP and DP had left the house, jumping through a window, described as “running away”. They were found on a busy street, playing in the middle of the road and falling in the path of cars. Police ultimately brought them home.

245. A further incident occurred when police attended with a warrant to search for evidence of cannabis trafficking. They searched the garage and took some money, bongs and electrical items. This is the occasion where the photograph, referred to above (at [161]) was taken. CP said that, when accompanying the police, she saw evidence of cannabis use in the garage, where her eldest son was living. She said that it was a complete surprise to her that this evidence had been there.

246. As I had noted above (at [188]), CP admitted that she knew that her eldest son smoked cannabis, but she did not know that he was doing so in her garage.

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247. She said that, prior to 10 July 2013, Care and Protection Services workers had visited several times. She said each visit “was always unannounced”.

248. Her attention was drawn to the inter-agency meeting on 21 May 2013, similar to that to which I referred earlier (at [145]). She denied that she was reluctant to engage with agencies but agreed that the behaviour of the children was challenging. She agreed that she had been told that her parenting had reached a crisis point and that she needed to accept support and fully engage with agencies.

249. CP said that, after the meeting, she went home and cleaned her house. She generally denied, however, that it was unclean. In the hearing of the appeal, neither Mr Archer nor Ms Dwyer submitted that the house was unclean.

250. She was asked about a conviction of her in relation to animal care. She said that it was in respect of the care of a dog owned by LC’s father. She had let it out because he was to pick it up, but he did not, and she could not get it back because it was vicious. It was eventually picked up by a ranger and traced back to her. The relevance of this incident was not entirely clear.

251. It was put to CP that all her children had developmental delays but she did not accept that this was due to, or contributed to, by inadequacy in her parenting. However, she accepted some responsibility, saying, “I could have done more for my kids”. She said that she could have been a better parent. She worried about their behaviour which could be described as extreme. She attributed some of the problems to the fighting between her and BP. She said that she read to the children all the time. She agreed that, if the behaviours of her children were not addressed, they would get into trouble with the law; that they would “not … go anywhere” and may end up in gaol. She agreed that she had trouble containing the behaviours of her children.

252. She had made arrangements for assistance through the behaviour unit of Belconnen Community Service, an agency with whom she had had contact. She said that she would do things differently and talk to the children more if they were returned to her.

253. CP was then cross-examined by Ms Dwyer, the children’s representative. She agreed that, if the children were returned to her, it would be a challenge if all of them returned at once. She said that she would do things differently, get the boys back into sporting activities. She had made a connection with an agency (apparently Belconnen Community Service) that was willing to help and she had undertaken some parenting courses from which she had learnt a lot, including how to control the children’s behaviour. She thought that her parenting skills had improved. She would also restrict the visitors to her house.

254. She recognised that the children had high needs and that especially NP and LC had complex needs.

255. CP was shown a letter reporting on the completion of work done by the NSW Department of Family and Community Services with JP and LC. It noted CP’s “determination to improve [her] children’s behaviour despite circumstances faced”. Although the letter referred to work with LC and JP, the report relating only to LC was attached.

256. It is a complex document, difficult to summarise but matters of need were:

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LC had a difficult relationship with CP, blaming her for things that did not go her way but for which CP was not responsible;

she did understand the need to observe appropriate behaviour in public, such as not undressing;

it was necessary for LC, who was capable of being co-operative, to be rewarded for appropriate behaviour and develop clear routines at home; and

further assessments were required.

257. CP said that she did implement the recommendations; she arranged for LC to see a paediatrician and to get her to see a family planning agency. She gave LC positive reinforcement and instituted for all the children an awards chart, but this lasted about four months, after which the children got bored. CP then, however, started a new awards chart.

258. CP said that she wanted the children returned and that she thought that she could cope “really well”. She said that she loved all five of the children the subject of the appeal.

259. She said that, because of the high needs of LC and NP, a two year order may be appropriate but that JP, GP and DP should be returned to her at once.

260. She gave evidence about how she would parent the children. This included:

she would be more patient and calm, assisted by a change in her anti-depressant medication;

she would apply the rules that the present carers had set so as not to change the expectations of the boys;

if there were difficulties, she would not yell at the boys but talk to them to find out what was “bugging” them;

if that did not work she would ask them to sit in their room until they were calm;

she would not stop them messing up their room (which, she said, they did not damage) but then make them tidy it up;

she had a good relationship with the children which she would use to calm them down;

if a child, particularly LC called her names, she would walk away, choosing which “fight to fight” and not “pick on the kids” all the time;

she would use deprivation of treats as a method of discipline; and

if she had problems getting the children to school, she would get help.

261. CP said that she had started an English and maths course at the Canberra Institute of Technology and was planning to complete it so that she could assist the children with their homework. She was arranging for her car to be fixed so that it could be registered.

262. CP said that, while the children had been in care, she had noticed an improvement in NP but not the other boys, who did a few things that they would not have done at home, like taking knives to school. She conceded, however, that JP and GP had, while in her care, threatened to burn down their school, but suggested that this was a different scenario. She denied having a problem saying “no” to the children.

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263. In answer to Ms Dwyer, CP did confirm that some of the developmental delays and behaviour of the children was a result of her care for them.

264. She disagreed with Ms Barbaric’s assessment that, no matter how many supports were put in place, she would not have the capacity to care for the children. She said that Ms Barbaric had not “really seen [her] handle the situation”. She said that, before Ms Barbaric and Ms Davis had left, she had calmed the children “right down”.

265. Based on a helpful tabulation of the circumstances of each child by Mr Archer in his submissions to the learned Magistrate, the particular medical, psychological and behavioural situation of each child may be summarised as follows:

LC (6 July 2001)

LC has been diagnosed as suffering from moderate intellectual disability, features of Attention Deficit Disorder, Hyperactivity Disorder, features of Oppositional Defiant Disorder, some conduct disorder features (involving violent and threatening behaviour), speech impairment/articulation disorder and a propensity to self harming behaviour in addition at times her behaviour has been grossly sexualized indicating exposure to sexual conduct or abuse.

JP (6 December 2002)

In March 2012 JP was assessed psychologically after his mother reported behavioural difficulties. He had difficulties understanding differences between ‘right’ and ‘wrong’. He was non-compliant. He would not follow routines. His attendance record as school was poor and his academic levels were low. He was difficult to calm and his behaviours would become aggressive, involving threats of violence, swearing yelling and shouting. Generally he had difficulty with emotional regulation. He had threatened self-harm. He had knowledge of sexual concepts beyond his development age.

GP (6 April 2004)

GP has been diagnosed with having ADHD. He was also assessed as having Oppositional Defiant Disorder. He is medicated for his ADHD. His problems with emotional regulation have led to extreme behaviours that can and regularly have led to violence. This has also involved threats and intimidation of others.

NP (6 September 2006)

Prior to and after being taken into care, NP was the subject of medical assessment. He has significant global development delays and a mild intellectual disability. His language development was noted as delayed (his speech was often unintelligible) and had comprehension difficulties. Dr Bragg assessed him as functioning at around the 3-3 ½ year old level. She further stated ‘[NP] has a constellation of features which could be due to Velocardiofacial Syndrome including cardiac murmur, speech problems, hypotonia, developmental delay, facial features’. He has a history of behavioural difficulties including head banging and non-compliance. Dr Bragg diagnosed chronic developmental trauma and exposure to violence. Sexualized modes of expression have been noted.

DP (6 February 2008)

After being taken into care, DP was assessed. A history of behaviour disturbance was noted. Previously (December 2012) his receptive and expressive language skills were moderately delayed for his age. His expressive language skills were severely delayed and speech pathology is now being sought out at school. He has a history of asthma which seems to have been left unaddressed in the mother’s care.

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Childrens Court Submissions

266. Counsel for the parties made submissions to the learned Magistrate. It is not necessary to summarise them or refer to them in detail.

267. The principal points made were as follows. The Director-General identified what was said to be proved from direct evidence and inferences that there was abuse and neglect in: (a) the history which was said “highlights how consistent the mother has been in failing to need [sic] the care needs of her children over a significant period of time”; (b) the relationship of the boys to their father, though this does not seem to be directly linked to the children the subject of the appeal; (c) the behavioural issues and developmental delays which are said to “suggest that [the children’s] behaviours have been moulded by the environment in which they have been brought up”; (d) the failure of the mother to follow up issues concerning the care of the children or set boundaries for the extreme behaviour of the children. No submissions, however, were directed to exactly what was abuse, what was neglect and how the differences in the evidence should be resolved. There were, also, no submissions as to the issues set out in s 349 of the Childrens Act. It was, strongly, suggested that the principles in s 350 of that Act could not be used “to subvert an evidence based assessment of what is in the best interests of the children”. The Director-General had no plans to restore the children to CP’s care so a two year order was inappropriate. The current care arrangements are addressing the children’s developmental needs and are in the best interests of the children.

268. The Children’s Representative took a similar approach. She submitted that the “overwhelming evidence” showed that the children had been “exposed to abuse and neglect” with particular reference to their exposure to sexual activity or the understanding of sexual matters beyond their years as well as the asserted failure of the mother to protect and promote the well-being and developmental needs of the children. The mother, it was submitted, was unable to protect the children from the risk of abuse or neglect. The views of the children, who wished to return home, was acknowledged, but it was submitted that their wishes “must not take precedence over their future psychological and emotional needs”. It was further submitted that CP had not provided sufficient evidence of her capacity to care for the children. It was also submitted that the children had strong bonds and that their separation was not in their best interests. It was submitted that it would be “critical” that the children have three hours of contact with CP and each other once a fortnight. There were submissions as to the matters set out in s 349 of the Childrens Act, but none in relation to s 350 of that Act.

269. CP’s counsel submitted that the only independent evidence of CP’s parenting capacity was a report that was more than 10 years old, that caution had to be exercised in reliance on out-of-court reports and that much of the evidence about her eldest child was irrelevant, thus providing an insufficient ground for a finding of incapacity. It was submitted that CP was aware of the children’s needs and had a history of engagement with Care and Protection Services and other agencies. She had completed a further parenting course. She was warm, affectionate and able to articulate the needs of the children. The Emergency Action, it was submitted, was a result of the unannounced arrival of Care and Protection Workers who caused the children, who had before that been calm, to become agitated and disruptive which, it was conceded in cross-examination, was possibly the result of their disorders. The wishes of the children were clear and should be given full weight.

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Decision and the Reasons

270. The Court reserved its decision and on 24 June 2014 made a final care and protection order in respect of each child until he or she attained the age of 18 years.

271. Written reasons were given, namely the Reasons. The Reasons set out the relevant principles, referring to s 7 of the Childrens Act which enacts the objects of the Act, including providing for and promoting the well-being, care and protection of children and young people in a way that recognises their right to grow in a safe and stable environment and to take into account the responsibilities of parents, families, the community and government for them.

272. In the Reasons, her Honour referred to the requirement under s 8 of the Childrens Act that a decision maker (which includes a court: see Dictionary) must regard the best interests of the child as a paramount consideration and the principles set out in s 9.

273. The Reasons referred to the criteria for making a care and protection order set out in s 464 of the Childrens Act, set out above (at [46]), and the criteria for finding a child in need of care and protection in s 345, also set out above (at [49]). Reference was made to the definitions of abuse in s 342 and of neglect in s 343, set out above (at [51]), and reference to examples of where a child is at risk of abuse or neglect as examples to s 344 referred to above (at [50]).

274. The Reasons referred to the matters required to be considered under s 349 of the Childrens Act, set out above (at [52]), and the care and protection principles which apply as required by s 350, also set out above (also at [52]), though there was no consideration of either of them.

275. The Reasons then referred to the application filed by the Director-General and to CP’s cross-application. It was noted that the “primary position” of CP had been that the Director-General’s application be dismissed with a “secondary position” that the care and protection order be for two years. It was stated that the “final position” was that only the application for a two year order was pursued by CP noting that this was “apparently a concession that the evidence presented to the court established that each of the children were in need of care and protection”.

276. It was then stated that CP was “not … able to revive her primary application” but no reason was given to this, though it was acknowledged that she “endeavoured” to do so.

277. The Reasons then addressed the issue of abuse and neglect. The history of the family and its involvement with Care and Protection Services was noted. The Court addressed the evidence as follows (Reasons at [10]):

The weight of the evidence before me in relation to the circumstances in which the children were living, the abusive relationship between the mother and [BP], the move to Sydney and the circumstances of the family’s return to Canberra, the significant high level needs of each of the children and the mothers seeming inability to cope with dealing appropriately with each of those needs, together with other issues identified in the submissions from the Independent Children’s representative, satisfies me that on the balance of probabilities that the children have been abused or neglected, and that they continue to be at risk of such abuse or neglect, and that their mother is unable to protect them. Accordingly I find each of the children is in need of care and protection.

278. That was the totality of the reference to the evidence about abuse and neglect in the Reasons.

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279. The Reasons addressed CP’s capacity. It first set out, in summary, the medical, behavioural and intellectual circumstances of each child. Accepting that “dealing with such high needs children would be challenging for most parents”, it was said to be “apparent from the evidence” that the children had been exposed to “violence and emotional abuse” and that CP had failed to provide “adequate stimulation and discipline”, was unable to set “appropriate boundaries” and had failed to follow up medical care.

280. It was noted that CP’s counsel made “much” of the day on which Emergency Action was taken, when it was said the children were “out of control”, but that whether it was attributed to their ADHD and Oppositional Defiant Disorder was “beside the point”; CP was “quite incapable of regaining control of the situation” as the children continued their “dangerous and extreme behaviour”.

281. In the Reasons, the Court then addressed the appropriate orders. It was noted that the “unchallenged evidence … is that the children are doing much better in their current placements”.

282. The Reasons noted that, in her evidence, CP acknowledged that she “could have been a better parent”, but could not explain in what way. Her Honour found in the Reasons that CP believed “the responsibility for getting help and support to deal with the children is someone else’s, not hers”. She was, it was said, vague on details and unable to give concrete examples of how matters could be improved.

283. In the Reasons, the Court noted the agencies that had supported the family, but that CP’s engagement had been sporadic and “essentially unsuccessful”; CP had failed to develop insight into her lack of parenting skills and what was needed to meet the children’s developmental needs.

284. The Court noted in the Reasons that CP loved her children dearly and that the bond the children had with her is strong. The Court’s view was that the wish of some children to return to live with CP was not based on a sense of dissatisfaction with their present placement but on loyalty to CP, a lone parent. It was concluded that CP had no plans for addressing the needs of the children, had demonstrated an incapacity for meeting the children’s emotional and social needs and well-being and that assistance to her would not meet this incapacity. Accordingly, it was concluded that short-term orders were not in the best interests of the children.

The Appeal Grounds

285. In the light of this background, it is appropriate to address each of the appeal grounds argued and I will do so, though some can be jointly considered.

CP’s Cross-Application (Ground 4)

286. There is no doubt that the conduct of the proceedings was problematic. This was, at least, in a significant part because of the approach taken by CP’s lawyers to the various documents (mostly described as cross-applications) filed by them which were said to set out what CP wanted from the proceedings.

287. I have set out in general terms above (at [21]-[42]), the course of the proceedings in respect of the cross-applications. For a consideration of this ground, it is important to describe a little more.

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288. Before doing so, however, it is appropriate to articulate as clearly as I can what I understand to be the grounds on which CP actually relies.

289. As best I understand it, the challenge is that the withdrawal of CP’s cross-application that the Director-General’s application be dismissed and CP’s reliance on her cross-application that a care and protection order be made, but for two years, was wrongly taken by the learned Magistrate to constitute a concession that the children were in need of care and protection and that her Honour was still required to make a proper finding based on the evidence, including an appropriate assessment of the differences and inconsistencies in the evidence.

290. As articulated, this challenge overlaps with other grounds of appeal, in particular, grounds 5, 6 and 7. Rather than deal with all of those together, it is, under this ground, sufficient to deal with the question of whether a concession had been made and, if so, what effect it had. The further consequences can then be dealt with under other grounds.

291. Her Honour made the following finding in the Reasons:

8. As noted in the submissions by counsel for the director-general [sic], the mother is not now able to revive her primary application as she had apparently endeavoured to do through her counsel’s submissions. However I note in any event that the conclusion that each child is now in need of care and protection is a finding that the court must also make on the evidence before it.

292. The reference to “the primary application” is clearly to be understood to be a reference to the initial cross-application made by CP that the Director-General’s application be dismissed.

293. The matter came about in this way. Initially, as discussed above (at [23]-[25]), the cross-application was withdrawn as unnecessary. The transcript relevantly records the following exchange between the learned Magistrate, Mr Hill and Mr Archer:

HER HONOUR: … it seems to me that the cross-application that’s sought to be filed today simply asks for the director-general’s amended originating application to be dismissed.

MR HILL: Yes, your Honour.

HER HONOUR: There’s no need for an application in those terms.

MR HILL: And accordingly I’ll withdraw the application.

HER HONOUR: That’s right, isn’t it, Mr Archer? That’s what we’ve just both said, I think.

MR ARCHER: Yes, that’s correct.

294. The effect of the withdrawal of the cross-application was to reduce the paperwork but not to estop CP from challenging the Director-General’s application on the basis that it should be dismissed because the children were not, on the evidence, in need of care and protection.

295. This left on foot the cross-applications seeking two year care and protection orders. It was made clear that these were alternative orders sought were the Court to find that the children were, contrary to the submissions of CP, in need of care and protection, the entitlement to make which submissions had expressly been preserved.

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296. Had the position been left there, then the first sentence of [8] of her Honour’s Reasons set out above (at [291]), would be quite incorrect.

297. Later, however, Mr Hill sought a short adjournment at the end of the evidence “to get instructions about our primary application”. That must, in the context, refer to the submissions to be made that the Director-General’s application should be dismissed.

298. When the Court resumed after the adjournment, the transcript records the following exchanges:

MR HILL: Thank you for the opportunity, your Honour. I have instructions to formally withdraw our primary application.

HER HONOUR: You had better be very clear about what that means, so your primary application being?

MR HILL: The primary application is for the Director-General’s application to be dismissed in relation to all five children.

HER HONOUR: And yet she maintains the application for the two years?

MR HILL: The secondary application which is the two year orders.

299. There was no further discussion of that or explanation of the effect of the withdrawal.

300. The parties were then directed to provide written submissions and, when these were filed, the Court did not reconvene to hear oral submissions but only to deliver judgment.

301. In the written submissions for CP, filed after those for the Director-General, Mr Hill submitted on her behalf:

44. It is further submitted that it is open to the Court that the Director-General has failed to discharge the burden of proof on the balance of probabilities that the children are in need of care and protection from their Mother as a result of risk of abuse or neglect.

…

64. In circumstances where the Director-General has failed to particularise its case it is submitted that the appropriate order the Court make is that the application of the Director-General be dismissed, the children be returned to the care and protection of their Mother, and no order as to care and protection be made.

302. In reply, Mr Archer for the Director-General, responded:

10. In effect the mother seeks to resurrect her primary application and seeks to have the Director-General’s application dismissed.

11. However, there is a further complication. In one paragraph (62) the mother’s counsel briefly addresses what the Director-General and the Children’s Representative thought to be the mother’s only ground of application:

If the Court is to find that the children are in need of Care and Protection and that the mother with support cannot meet these needs the mother in her secondary proposal seeks short term orders for the children with a restoration provision to provide certainty.

12. There is no ‘secondary proposal’. The only application of the mother that was on foot at the end of the hearing was an application for two year orders. What the submissions (again) leave unanswered is how it is possible to make two year orders in the absence of a finding that the children are in need of care and protection as that concept is defined in the Act. Given the mother is the applicant for these orders she bears the onus of pointing to evidence that would justify the Court in finding that the children are in need of care and protection and why it is in the best interests of the children for two year orders to be made. Virtually all of the mother’s submissions are

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directed at arguing the contrary proposition; that is, that there is insufficient evidence to justify a finding that the children are in need of care and protection. That approach to the evidence had been abandoned at hearing.

303. There are three matters to note about these submissions. In the first place, contrary to what was said by the learned Magistrate, these submissions of the Director-General do not note that CP “is not … able to revive her primary application”, though they clearly suggest – as it is clear from her submissions – that she wishes to do so. If there was unclarity, then it would have been appropriate to relist the matter for clarification, bearing in mind that there has been no oral submissions to allow such unclearness to be clarified. See, for example, Westpac Banking Corporation v Paterson [2001] FCA 556 at [22]. A trial judge can always decide in the light of written submissions that oral submissions may be desirable: Norris v Illawarra Newspaper Holdings Pty Ltd [1998] NSWCA 162 at 6. Indeed, there may be cases where that is the proper course to take: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 301 at 307; Lezabor Pty Ltd v Hogan (Unreported, New South Wales Court of Appeal, Gleeson CJ, Kirby P and Priestley JA, 14 April 1989) at 34-5.

304. The second matter is that the proposal by CP for a care and protection order for two years was clearly, despite the apparent efforts of counsel and the learned Magistrate, an alternative to the Director-General’s application for orders until 18, if the children were found to be in need of care and protection. There is no basis for finding that this was what CP actually sought, other than as an alternative. She wished the children, apart, perhaps, from LC and NP, to be returned to her at once.

305. It is to be accepted that the procedural efforts by Mr Hill were inadequate and unclear. They did not assist the learned Magistrate to understand what was genuinely in issue. Nevertheless, CP was not prevented from raising issues which would show that a care and protection order should not be made at all.

306. Nevertheless, the real issue seems to have been seen in the following way, namely that the making of an application (the cross-application, the “second application”) constituted some concession or admission that the children were in need of care. That seems to be the implication from what is said at [12] of Mr Archer’s submissions for the Director-General quoted above (at [302]).

307. If so, that is not correct. There are a number of reasons for this. In litigation, matters such as admissions and concessions are, in adversarial litigation, what Wigmore called a judicial admission, as opposed to an evidentiary admission (sometimes called a confession), where they have a special status. See J H Wigmore, Evidence (Chadbourn rev., 1972) v4, paras 1057, 1064. They bind a party to the facts admitted and, for example, evidence is neither required nor permitted of facts admitted in this way: Pioneer Plastic Containers Ltd v Commissioners of Customs & Excise [1967] Ch 597 at 602.

308. Further, a judicial admission can only be withdrawn by leave: Hollis v Burton [1892] 3 Ch 226 at 236, 241; Gale v Superdrug Stores plc [1996] 3 All ER 468 at 470, 478, 480. The common law principle has now been enshrined in the rules of court: r 492 of the Court Procedures Rules.

309. The argument seemed to be that, as a care and protection order can only be made if the court finds that a child is in need of care and protection, the cross-application by CP for care and protection orders for two years inevitably implies that CP is asserting, by

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filing the cross-application, that this requirement has been met. It is a judicial admission of that fact. I reject that conclusion.

310. There are a number of answers to this. In the first place, care proceedings appear not to be truly adversarial. In A & B v Director of Family Services (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 26 March 1997) at 9, Higgins J accepted that such proceedings are “partly inquisitorial”. See also Minister for Community Welfare v Hillier (1987) 47 SASR 553 at 560; Talbot v Minister for Community Services (1993) 30 NSWLR 487 at 498-9; L (A Minor) [1997] AC 16 at 26; Re B and Anor (Minors) (care proceedings: evidence) [1997] 2 All ER 29 at 38.

311. Nevertheless, some of the procedures of an adversary proceeding may be applicable, because the proceedings are not an inquiry and there are parties who have litigation rights: Talbot v Minister for Community Services at 499. There are, however, limits to this approach.

312. As a result, it does not seem to me appropriate to apply the concept such as those associated with judicial admissions to these proceedings.

313. Secondly, s 464(5) of the Childrens Act, set out above (at [46]), makes it clear that such an admission by a party, whether apparently judicial or evidentiary, is not sufficient to give the Court jurisdiction. The Court must satisfy itself that the child is in need of care and protection.

314. I accept that, where the other parties do make such an admission, the Court’s obligation to be satisfied may be met all the more easily because there is no issue as to that between the parties: JL v Director-General, Community Services Directorate [ECD] at [175]. That does not, however, relieve the Court from having to be positively satisfied that the criteria for care and protection has been made out in respect of each child. That is a jurisdictional fact that must be found before the Court can make a care and protection order.

315. It is clear, however, that her Honour was aware of this as the second sentence in [8] of the Reasons makes clear.

316. Thus, while it seems unclear just what Mr Hill was withdrawing when he sought an adjournment and later announced that he was “formally” withdrawing the primary application, especially in the light of his apparently inconsistent written submissions, it was still open to him to assist the Court in its task of determining whether the children were in need of care and protection by pointing out difficulties with the evidence of the Director-General and, indeed, challenging the whole basis of that case.

317. While the first sentence of [8] of the Reasons was an error, for the reasons I have given, it was not a material error and the so-called “concession” did not materially affect the decision of the learned Magistrate.

318. I do not uphold this ground of appeal.

Findings on Prior Orders (Ground 5)

319. The next ground challenged a finding said to relate to earlier care proceedings taken in respect of CP’s children not the subject of this appeal.

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320. The background is that, as noted above (at [1]), CP had three children prior to the birth of the children the subject of these proceedings. These children were a boy and a girl by one father and a second boy by another.

321. There were interventions by Care and Protection Services in respect of these three children and court proceedings at various times between about 2000 and 2002. Emergency Action was taken on various occasions.

322. In July 2000, an order was made for the children not to be returned to CP but that order was successfully appealed. There were times when the elder children spent time with their father’s after each had separated from CP.

323. While the details are not apparent in the evidence, at some stage care and protection orders were made in respect of these three children. Ms Dwyer submitted that it was around 2003, that is about a decade before the events with which this appeal is concerned.

324. There was, in these proceedings, quite a lot of evidence about these three children, CP’s parenting capacity of them and their circumstances. CP was subject to extensive cross-examination about these children and the circumstances under which they were reared.

325. It was put to her that she “could not care for them” and, frankly, she admitted “I accept that, yes. Back then, no, I couldn’t care for my kids”.

326. It was further put to her that their development had been delayed whilst in her care. She accepted that this was so in respect of the two younger children of the three, but not the eldest. No evidence was produced of that earlier finding to challenge her response and she was not further challenged on it. Indeed, she was then asked – and the question was expressly limited to the two younger of the three – whether their developmental delays were identified as in part attributable to the failings of her care and she accepted that.

327. It was also suggested to CP that she had not provided sufficient stimulation to the three and she accepted that as well. She denied that her mental health, in particular her depression, had anything to do with her inadequate care.

328. A report from a psychologist at the time suggested that there was a “poverty of warmth and emotional closeness” between her and her children and that this “is often associated with depression”. It was hardly direct evidence that her depression had caused abuse or neglect to the children.

329. What needs also to be noted is that her behaviour as described by the psychologist, namely that she “did not initiate hugs or other physical contact with [the children] or talk to them in a calm and soothing manner” was a description in sharp contrast with the many direct observations of the persons who supervised contact between CP and LC, JP, GP, DP and NP after they had been taken into care following the Emergency Action, where such physical contact and talk was evident and in abundance. That alone raises a question as to the relevance of this earlier evidence to the situation with the children the subject of the appeal.

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330. As a result of this evidence, the learned Magistrate made summary reference to it (Reasons at [9]) and recorded that CP:

agreed in her evidence that the orders [in respect of the three older children] were necessary essentially because her inability to act protectively and her failings in the care of the children.

331. Her Honour made no other reference to this or, indeed, how she dealt with it in coming to the conclusions that she did.

332. The ground of appeal as articulated in the Notice of Appeal suggested that the finding was inaccurate. I disagree. As is clear from the summary of the evidence above, (especially [325]), CP did accept, as the making of care and protection orders found, that the older children had been in need of care and protection and that she was responsible for that situation.

333. As argued, however, the point of the challenge became a little more complicated.

334. Unfortunately, Philip Walker SC, who appeared with Heidi Robinson for CP, misunderstood that the reference was to the children the subject of these proceedings. When it was clarified that this could not be so on a fair reading of the Reasons, which he accepted, he submitted that the comment was then irrelevant. It would have been clearer if her Honour had said “the orders had been necessary essentially because of her inability to act protectively and her failings in the case of those children”, but that appears to have been what she meant.

335. In response, the Director-General submitted that the concession was very relevant “given the same case was put by the Director-General in respect of the children [the subject of the appeal proceedings]”.

336. In my view, there are significant problems with that approach. The risk of such evidence is obvious. Although the rules of evidence do not apply to these proceedings (s 716 of the Childrens Act), they are not irrelevant and the Court should have regard to them unless, for some reason it is appropriate to dispense with them: A and B v Director of Family Services (1996) 132 FLR 172 at 177. Any evidence admitted, despite the rules of evidence being abrogated, must still be rationally probative: Roberts v Balancio (1987) 8 NSWLR 436 at 440-1.

337. Evidence of the prior applications is rather like tendency evidence which, under ss 97 and 101 of the Evidence Act 2011 (ACT), is admissible, but only where there are appropriate safeguards.

338. To hold that, a decade earlier, different children were in need of care and protection does not provide evidence of significant probative value of the likelihood that the children, the subject of these proceedings, are in need of care and protection. There needs to be specific evaluation of the circumstances of the latter children and an application to them of the statutory criteria in the first place to see whether they have been or are being abused or neglected or are at risk of abuse or neglect.

339. Whether other children, even of the same mother, were found to have been or were being subjected to or were at risk of abuse or neglect will ordinarily be quite unhelpful to determine whether the children the subject of this appeal are in that situation. The definitions of abuse and neglect make it clear that it is the existential situation of the children that is to be considered and in respect of each child.

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340. The second limb, namely whether CP was willing and able to protect the children from abuse or neglect or risk of abuse or neglect is a little more complicated.

341. CP was willing to look after the children and said so clearly. She was not challenged on that.

342. As to whether she was able to do so may be a conclusion that, in appropriate circumstances, might be assisted by findings in earlier proceedings or the evidence in those proceedings. That, however, is a problematic exercise and needs to be considered very carefully to avoid unfairness and prejudice to the parent.

343. In this case, there were a number of relevant factors. The passage of time itself was relevant and had to be evaluated, especially in the context of efforts made by CP to improve her parenting skills, especially in the meantime. Thus, the role of courses undertaken by her needed to be considered and evaluated.

344. The evidence in this case showed two other matters of importance. In the first place, the eldest child had been returned to CP’s care, apparently by court order. That must imply that she was, at that stage, willing and able to protect him from abuse or neglect or the risk of abuse or neglect. While the fact that the other two children were not returned to her care complicates the picture, the reasons for that may be relevant (e.g. wishes of the children, failure of application by CP and so on), but were not the subject of any evidence.

345. The second such matter is that the description of her behaviour as reported in the report of the psychologist to the earlier proceedings had changed as was evident from the evidence in these proceedings about her conduct at contact sessions.

346. It is not irrelevant that, unlike at the earlier proceedings, or indeed, in other proceedings (see J L v Director-General, Community Services Directorate [ECD] at [110]-[116]), there was no independent report of at least the capacity of CP to protect the children from abuse or neglect or the risk of abuse or neglect. I note that Ms Dwyer expressed, at the hearing of the appeal, regret that this had not been done. It may well have been at least highly desirable.

347. The mention of the history by the learned Magistrate could be considered problematic where her Honour did not make it clear how it was relevant to the issues that she had to decide. See, for example, Kalis v New [2017] ACTSC 334 at [242].

348. Nevertheless, while these matters must be found to have been irrelevant, I cannot see that her Honour did improperly take them into account. Thus, this ground is not made out.

Insufficient findings of fact (Ground 6)

349. This ground and, to some extent, grounds 7, 8, 9 and 10, raised the issue of whether the Reasons were adequate. There is now a considerable body of authority about that matter.

350. In O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132 at [20], the Court of Appeal summarised the position helpfully relevantly, as follows:

20. A trial judge’s obligation to give reasons for his or her decision is well recognised. For present purposes the authorities can be summarised as follows:

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(a) Judges at first instance, as part of the exercise of their judicial office, have a duty to state the findings and reasons for decision adequately to enable a proper understanding of the basis on which the verdict has been reached. Failure to fulfil this judicial obligation may constitute an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 per Asprey JA.

(b) An appeal court should not be left to speculate from collateral observations as to the basis of any particular finding: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 per McHugh JA.

(c) Although the obligation does not require the spelling out of every detail of the process of reasoning, the reasons must resolve critical points in contest and facilitate appellate review: Kendirjian v Ayoub [2008] NSWCA 194 at [169] per McColl JA.

…

(e) Merely stating a preference for particular evidence as opposed to a competing body of evidence is not sufficient. In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 191; [28], Ipp JA said:

It is not appropriate for a trial judge to merely set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.

351. As is clear from s 345 of the Childrens Act, there are two criteria or limbs in the decision as to whether a child is in need of care and protection, which is one of the three pre-conditions to the making of a care and protection order under s 464, both of which must be satisfied. As Crispin J said in CD v Chief Executive, Department of Education and Community Services [2000] ACTSC 81; 27 Fam LR 19 at 30; [65], of a care and protection order:

The law insists that such a step not be taken merely because a government officer perceives it to be in the best interests of the children concerned.

352. The first criterion is that the child has been or is being abused or neglected or is at risk of abuse or neglect. The terms “abuse” and “neglect” are defined in ss 342 and 343 of the Childrens Act, set out above (at [51]).

353. While these definitions include the simple (e.g. physical abuse), some are more complicated, needing some care in addressing the actual meaning. Thus, neglect requires not merely a failure to provide a necessity of life, but the failure must have caused or is likely to cause “significant harm to the wellbeing or development” of the child. The terms “at risk of abuse or neglect” are further spelt out in s 344 of the Childrens Act to which there are some statutory examples (the effect of which is set out in ss 126 and 132 of the Legislation Act) which are not easy to summarise or to identify in them the precise issues in each example which bring them within the meaning of the relevant terms.

354. This background is important for the consideration of this issue was confined to [10] of the Reasons as set out above (at [277]), save only for an earlier reference to the history of the three elder children which I have discussed earlier (at [334]-[348]) and found to be irrelevant.

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355. The paragraph in the Reasons simply lists some issues without any description of the findings made which would be necessary to justify the matters being probative of the conclusion that the children had been abused or neglected and the continuing risk.

356. This is important because the evidence was by no means all one way and CP gave evidence which challenged some of the evidence given by the Director-General. Indeed, on this issue, a reader would not know from the Reasons that CP had given evidence on this critical issue at all. If her evidence was to be completely disregarded, then the authorities to which I have referred make it clear that her Honour had to deal with it and engage in a process of evaluation. This was not done.

357. Further, her Honour did not identify whether the conduct and circumstances constituted abuse or whether they constituted neglect; her Honour merely commented that the children “have been abused or neglected”. This was the precise terms of the finding. It is not possible to identify which it was. That is worrying, for the two concepts are quite different. In this context, it is not insignificant that Mr Archer’s submissions actually referred twice to “abuse and neglected [sic]” which is not the term used by her Honour. This finding also suggests that her Honour found that the children were not currently being abused or neglected and that there was no risk that the children would be abused or neglected, matters very relevant to the exercise of the discretion of the second stage.

358. While I am critical of the way Mr Hill conducted the case and the rather vague generalities of his written submissions, it is clear that, in his submissions, he placed reliance on the evidence given by CP and that her evidence challenged directly the allegations of abuse or neglect as well as her alleged lack of capacity as a parent.

359. Indeed, Mr Hill submitted that her evidence was required to be accepted in its entirety. That was based on a submission that CP’s evidence was not challenged in the cross-examination of her. This, Mr Hill submitted, required the acceptance of her evidence as that failure constituted a breach of the so-called “Rule in Browne v Dunn”: see Browne v Dunn (1893) 6 R 67.

360. The rule is, as described by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16, a rule of professional practice, though it also applies to litigants who represent themselves: R v Zorad (1990) 19 NSWLR 91 at 101-2. It is not a rule of law.

361. As pointed out by Samuels JA, with whom Meagher JA agreed, in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587, it has two aspects: first it establishes a rule of procedural fairness, and secondly a rule relating to the weight or cogency of evidence not challenged by cross-examination.

362. The first aspect has, it seems, two limbs in itself. In the first place, as explained by Redlich JA in R v Rajakaruna (No 2) [2006] VSCA 277; 15 VR 592 at 606-7; [48], a party is obliged to give appropriate notice, usually by cross-examination, to the other party and its witnesses, of any adverse allegation that the party proposes to make against the party or the witnesses about their conduct relevant to the case or their credit.

363. Secondly, as explained by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 686, it is necessary for a party to put to a witness or the other party matters by which the party intends to contradict the evidence of the witness. Thus, it shows not only that the evidence is to be challenged but how it is to be challenged.

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364. The reasons, as set out by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation at 23 are:

Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.

365. As noted, the notice required is usually given in the cross-examination of the relevant witness. That, however, is not the only way in which it can be done.

366. In civil cases in particular, the pre-trial preparation, including discovery through production of documents and the administration of interrogatories, will often make clear the issues where the evidence of witnesses is contradicted.

367. This may, in appropriate cases, discharge the obligation of the rule: Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 at 210. Indeed, in Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168 at 181, Toohey J held that where the respondent’s legal advisers were fully alerted before and during the hearing to the allegations made against the company and the evidence on which the applicant relied, it was unnecessary to consider the operation of the rule in Browne v Dunn.

368. It is, however, necessary to ensure that the relevant issues are fairly raised in this way. Thus, in Marelic v Comcare (1993) 47 FCR 437 at 442-4, Beazley J found that certain allegations of the respondent had been disclosed in an adequate way without the need for them to be put to the appellant in cross-examination, but in relation to others, there had not been compliance with the rule and procedural fairness had been denied to her.

369. As Malcolm CJ, with whom Murray and Kennedy JJ agreed, said in Brockway v Pando [2000] WASCA 192; 22 WAR 405 at 419; [55], that White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169, affirmed on appeal to the Full Court of the Federal Court in Flower and Hart v White Industries (Qld) Pty Ltd (1999) 163 ALR 744:

is authority for the proposition that the rule in Browne v Dunn is not broken, even if a material matter or allegation is not put to a party, if that party can fairly and objectively be said to be on notice of it, where, for example, it is sufficiently apparent from the materials and evidence that it will be relied on.

370. As pointed out by Andrew Ligertwood and Gary Edmond, Australian Evidence (LexisNexis Butterworths, 5th ed, 2010) at 699-700; [7.130], where the contradiction is known, there can be no unfairness for the witness has notice that the matter is being contested and can raise these matters in evidence-in-chief of the witness or, indeed, call contradictory evidence.

371. Indeed, there will be cases where there is no point in cross-examination of an issue clearly joined over which there is a direct contradiction and nothing more to be said: Porter v Oamps Ltd [2004] FMCA 272; 207 ALR 635 at 638-9; [12].

372. In this case, the extensive affidavit material, especially that of CP which directly addressed the matters raised in Ms Barbaric’s affidavits, was sufficient compliance with this aspect of the rule in Browne v Dunn.

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373. The second aspect is that on which Mr Hill principally relied. He submitted that, as CP had not been challenged in cross-examination as to the majority of the evidence in her affidavits, her Honour was required to accept it.

374. In Levinge v Director of Custodial Services (1987) 9 NSWLR 546 at 560, McHugh JA said that the rule “prevents a court from refusing to act on or disbelieving evidence which has not been the subject of cross-examination” unless it is “inherently improbable”.

375. This apparently absolute approach to a breach of the rule, in particular, a failure to cross-examine, has been rejected and is, in my respectful view, not the law.

376. A trier of fact, whether judicial officer or a jury, retains the prerogative to reject testimony, even when it has not been the subject of cross-examination: Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 507.

377. In Ellis v Wallsend District Hospital at [587]-[588], Samuels JA expressly rejected what McHugh JA had said as a rule of law, adding that “it is not ‘Australian law’ that evidence unchallenged by cross-examination must be accepted”.

378. That, however, does not mean that the evidence cannot be rejected. That is one of the possible consequences of a breach of the rule: Jardein Pty Ltd v Stathakis [2007] FCAFC 148 at [32]. The failure may certainly be taken into account when deciding whether or not to accept the evidence: R v Foley [2000] 1 Qd R 290 at 296. It has been suggested that judges should in general abstain from making adverse findings about parties and witnesses in respect of where there has been non-compliance with the rule in Browne v Dunn: MWJ v The Queen [2005] HCA 74; 222 ALR 436 at 448; [39].

379. The fact that evidence is contradicted by other evidence may provide a proper basis for rejecting it even where it has not been challenged in cross-examination: Bulstrode v Trimble [1970] VR 840 at 848; Zeccola v Barr (1978) 19 ACTR 1 at 8. The fact that evidence is clearly in issue in the proceedings may be a legitimate basis for not complying with the rule: Thomas v van den Yssel (1976) 14 SASR 205 at 207.

380. In this case, the circumstances were that the issues had been well ventilated in the affidavits filed before the proceedings, the parties had agreed that only Ms Barbaric and CP would be called to give evidence. Neither party sought to call other witnesses. There was no unfairness in the failure to cross-examine CP and the learned Magistrate was at liberty to reject CP’s evidence if she explained why she came to the view that she should do so.

381. The problem is that her Honour did not make any finding about CP’s evidence. It is not possible to tell whether she rejected it or found “abuse or neglect” notwithstanding the evidence and gave no reasons for doing so.

382. As a consequence, neither the parties nor this Court on appeal are in a position to understand the reasons for the findings her Honour made.

383. The Director-General, however, submitted that the way in which the hearing was conducted before the Childrens Court meant that the Reasons were sufficient.

384. Thus, it was submitted, it was important to take into account “what was not put” by counsel for CP. This relied, to some extent, on the submissions with which I have earlier dealt, that there was an implied concession in the cross-application made by CP

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for a care and protection order for two years. I have already considered and rejected that submission above (at [315]-[318]).

385. I accept that the written submissions for CP did not condescend to particulars in respect of this limb as to whether the children had been or were being abused or neglected or were at risk of abuse or neglect.

386. Mr Walker SC analysed in some detail how there was a real question about whether it had been proved on the evidence, that the children had been or were being abused or neglected or were at risk of abuse or neglect. That was in stark contrast to the quite limited material put by Mr Hill.

387. The principles about the evaluation of reasons have recently been helpfully summarised by Pepper J in SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65; 209 LGERA 233 at 253-7; [69]-[86].

388. Where no or no adequate reasons are given in accordance with the duty to give them, this will result not only in a miscarriage of justice (Mifsud v Campbell (1991) 21 NSWLR 725 at 728) but an error of law (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 444).

389. The giving of inadequate reasons amounts to the same as giving no reasons at all.

390. The duty is to refer to material evidence and to make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at 1835; [130]. This does not mean that the evidence must be referred to in turgid or lengthy detail: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280. Not every conflict of fact needs to be resolved or every step in a chain of reasoning to be disclosed: Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41]. Critical evidence, however, must be mentioned, else the appeal court will consider that it has been overlooked: Beale v Government Insurance Office (NSW) at 443.

391. The fundamental test is one of adequacy: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[66].

392. In my view, the Reasons as to the findings on the first limb, namely in respect of abuse or neglect, are inadequate for the following reasons.

393. The submissions that the Reasons were apposite for the conduct of the case must be rejected. Insofar as this relies on the alleged concession, there are three reasons to reject it. In the first place, her Honour did not expressly say that this was the reason. In the second place, her Honour addressed at some greater length the equally important second limb of the jurisdictional issue (that is whether there was someone with parental authority willing and able to care for and protect the children), an approach inconsistent with reliance on the alleged concession. Thirdly, s 464(5) of the Childrens Act prohibits her Honour from “merely” relying on any such concession.

394. I need briefly to comment on two matters arising from these reasons. I accept that the reference in the Reasons to her Honour apparently finding that CP could not “revive” her “primary application” could be taken as a finding that CP had conceded that the children were in need of care and protection.

395. I reject that. Her Honour does not say that nor, as my first reason notes, her Honour does not say that she is relying on that as a concession and, indeed, acknowledges

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that she must make the decision herself. The second matter supports this reason also; the concession either went to both limbs or did not amount to a concession of either.

396. I accept that, in Mr Hill’s written submissions, there was little analysis of the evidence said to justify a finding of abuse or neglect and quite significant attention to the capacity of CP to care for and protect the children. The submissions, however, did expressly refer to ss 342 and 343 of the Childrens Act, did expressly rely on CP’s affidavits in which the issue was addressed, then did submit, though I have found wrongly, that CP’s evidence had to be accepted, and, finally, did expressly submit that it was open to the Court to find that the Director-General had not made out the grounds that the children “have been, or are likely to be abused or neglected by the Mother”.

397. Finally, the findings required for the first limb are complex and by no means straightforward. They need also to be addressed in relation to each child. For example, while there was some suggestion that at one time LC may have been subject to sexual abuse, an element of a finding of abuse, this may not have applied to any of the other children.

398. There was no direct evidence of physical abuse against the children other than contested evidence about NP and JP.

399. Accordingly, there had to be, for abuse to be made out, findings that the other children were subject to emotional abuse, about which there appeared to be little evidence. Further, such abuse had to be such that it had caused or was causing “significant harm” about which there was even less evidence.

400. Since her Honour found “abuse or neglect”, it was incumbent on her Honour to identify how the evidence showed that there was abuse and there is no such finding. Her Honour did not engage with the evidence, resolve contradictions or relate her findings to the meaning of “abuse”.

401. Insofar as neglect was concerned, there was no suggestion in the evidence that the children were not provided with food, shelter or clothing. While there was some uncertainty about accommodation at various times, the children were, in fact, never homeless. The evidence about health care treatment was limited and, again, seems largely to be relevant to NP with what was described as an “unresolved/unexplored” medical condition. It may also relate to some issues involving speech therapy for LC but that does not involve the other children. It remains entirely unexplained what was sufficient on the evidence after resolution of contradictions to show that in terms of the legislation there was neglect.

402. Thus, there are real issues to be addressed as to whether the statutory test has been made out and made out in respect of all the children.

403. Even were the claimed concessions or admissions to be accepted or the failure of Mr Hill’s submissions to address the first limb of the pre-condition adequately be accepted, the Court was still required under s 464(5) of the Childrens Act to make its own findings and not “merely” accept the admission of the parties.

404. That means that there can obviously be some reliance on any admission if, contrary to my findings, there was such. That, however, is not enough. “Merely” is not defined, so it will bear its ordinary meaning. Thus, in the Oxford English Dictionary (Clarendon Press, 1989), the relevant meaning seems to be “purely”. In the Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009), the relevant meaning seems to be

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“only as specified and nothing more”. That is to say, the admission can be taken into account but is not enough. That requires the Court to engage with the elements and make its own finding to ensure that the elements are made out.

405. This is entirely understandable, for the Court is entitled by reliance on such findings to sever the parental responsibility which, the Childrens Act itself provides, reflects a “fundamental public policy that save in compelling circumstances the care and protection of children should be entrusted to the parents and not usurped by the State”: CD v Chief Executive; Department of Education and Community Services at 30; [65]. Though this decision related to the Childrens Act 1999 (ACT), the relevant provisions were relevantly identical.

406. Accordingly, I am satisfied that this ground has been made out.

Challenge to finding that children in need of care (Grounds 6, 7, 8 and 9)

407. While each of these grounds is articulated in different ways, they are really all directed at challenging the finding that each of the children was in need of care and protection.

408. As noted above (at [351]), there are two limbs to the statutory criteria required for such a finding:

(a) that the relevant child had been or was being abused or neglected or was at risk of abuse or neglect; and

(b) that there was no person with parental responsibility for the relevant child who was willing and able to protect the child from abuse or neglect or the risk of abuse or neglect.

409. As Crispin J pointed out in CD v Chief Executive, Department of Education and Community Services at 30; [63], these grounds must be established for the Court to have jurisdiction to make any order for the care and protection of children. The establishment of such grounds merely enlivens the court’s jurisdiction. Although his Honour was referring to s 156 of the Childrens Act 1999, that finding is equally applicable to the Childrens Act which is structured in relevantly the same way.

410. Thus, his Honour continued at 30-1; [66], it is incumbent on the applicant to prove the grounds alleged to justify the court’s intervention. His Honour emphasised at 31; [67], the need for the Childrens Court to be vigilant to ensure that the statutory requirements are met and the grounds adequately proven.

411. For a finding of abuse, there must be a finding that the child has suffered physical abuse, sexual abuse or emotional (including psychological) abuse, which latter must be experienced in a way that has caused or is causing significant harm to the child’s well-being or development. The child may also suffer emotional abuse if the child has seen or heard physical, sexual or psychological abuse, the exposure to which has caused or is causing significant harm to the child’s well-being or development.

412. There are, in the Childrens Act, no definition of the terms “physical abuse”, “sexual abuse”, “emotional abuse” or “psychological abuse”.

413. In the submissions to the learned Magistrate and to me, there was no identification of what kind of abuse was alleged. It was apparently left to some method of inference from the evidence for her Honour to identify what abuse was involved.

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414. This is important, for there are separate considerations between the physical and sexual abuse on the one hand and emotional and psychological abuse on the other.

415. For the purposes of these proceedings, I define the terms as follows. I have been assisted in formulating these definitions by Thea Brown and Renata Alexander, Child Abuse and Family Law (Allen & Unwin, 2007) at 72-3, 94-8; Hayley Boxall et al, Historical review of sexual offence and child sexual abuse legislation in Australia: 1788-2013 (Australian Institute of Criminology, 2014) at 2, being a report prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse, and R S Kempe and C H Kempe, Child Abuse (Fontana, 1978) at 60.

416. Since none of the parties made relevant submissions, these definitions must, to that extent, be provisional, but they seem to meet the needs of the legislation.

417. Thus, I consider physical abuse to be the infliction on a child or the exposure of a child to serious non-accidental and unlawful hurt, injury or pain by a person with parental responsibility for the child or by another person with the concurrence or unreasonable non-interference by the person with parental responsibility for the child and also the exposure of the child to serious accidental but foreseeable hurt, injury or pain which is reasonably preventable by the person with parental responsibility for the child.

418. It would, thus, exclude proper medical procedures, but not improper ones such as may be inflicted through a parent’s Munchausen syndrome by proxy. It would also exclude lawful discipline, injury caused in sport which the parent reasonably believes is properly supervised, and likely injury or pain caused in protecting a child from greater injury.

419. Sexual abuse is, perhaps, a more nebulous phenomenon but may be defined as follows. The involvement of an immature child by a person with parental responsibility for the child, or another adult or person older than the child with the concurrence or unreasonable non-interference of the person with parental responsibility for the child, in sexual activities which the child does not fully comprehend, to which they are unable to give informed consent or that violate the social taboos of family roles and which has been undertaken with the child by using powers over the child or young person or taking advantage of their trust. Such activities include both contact activities such as fondling of breasts or genitals or intercourse and non-contact activities such as exposure to pornography, grooming or commission of inappropriate sexual activities in the presence of the child or adolescent.

420. Emotional abuse is the most difficult of all to define. Further, I do not think that it is necessarily the same as emotional abuse as defined in other legislation, such as s 8 of the Family Violence Act 2016 (ACT). It is also not entirely clear that it is very different from psychological abuse, despite the efforts of Keiran O’Hagen, Emotional and Psychological Abuse of Children (Open University Press, 1993) to distinguish the two and the apparent distinction drawn in s 342 of the Childrens Act.

421. Accordingly, I would define emotional abuse as the infliction of harm, by a person with parental responsibility, or by another person with the concurrence or unreasonable non-interference by the person with parental responsibility for the child, to the emotional development of a child or causing the child’s behaviour to be disturbed by unfavourable treatment by words or actions which is inconsistent with the caring and nurturing treatment that a child should be able to expect from a person with that responsibility. Examples would include tormenting, intimidating, harassing the child, acting with persistent coldness to or rejection of the child, or demeaning the child.

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422. Of course, in the case of emotional or psychological harm, the harm is required to be significant. That is to say, some harm may be contemplated without it constituting emotional abuse.

423. In Buckley v Buckley (Unreported, Supreme Court of Victoria, O’Bryan J, 11 December 1992) at 6, O’Bryan J made the point that a finding of such harm to the degree required would require expert evidence before the court. His Honour added, “[i]t would be very difficult to make a finding in favour [of an applicant for a care or protection order] in the absence of credible expert evidence”.

424. As to the issue of significant harm, his Honour discussed that issue also in Buckley v Buckley at 4. His Honour referred to the equivalent section of the Victorian Act which required “significant damage” to be found; I take that to mean the same as significant harm. His Honour found:

In my opinion, there is no warrant to read a temporal connotation into the expression ‘significant damage’. The expression uses two ordinary English words neither of which, in their plain meaning, have any connection with something that is lasting or permanent unless resolved.

In my opinion, in choosing the word ‘significant’, the legislature intended that harm to the child’s emotional or intellectual development will be more than trivial or insignificant but need not be as high as serious.

The word ‘significant’ means ‘important’, ‘notable’, ‘of consequence’. Cf McVeigh v Willara Pty Ltd (1984) 57 ALR 344; Oxford Dictionary. The word ‘damage’ means injury or harm that impairs value or usefulness.

Had the legislature intended that to satisfy the requirements of ground (e) damage must be serious and permanent if untreated, it would have chosen the word ‘serious’ or the words ‘serious and permanent’.

425. I respectfully agree.

426. As to neglect, it is also difficult to understand. It involves a failure to provide the child with the necessities of life and examples and food, shelter, clothing and health care treatment are given. Those examples may extend but not limit the meaning to be given to the term in the section: s 132 of the Legislation Act. The failure, however, must have caused or be causing significant harm to the well-being or development of the child.

427. There is, of course, an uncertainty about what are the necessities of life. The examples are, in this case, not so helpful, as they are fairly obvious. One can add, of course, access to clean drinking water and access to hygiene. Perhaps, access to proper sleep would also count. It is interesting that access at least to some education is not mentioned, though that would seem to me to be appropriately included. It would also likely include proper dental care: R v JM [2010] ACTSC 35 at [69].

428. The definitions suggest that the phrase “necessities of life” is meant to be wider than in the common law where provision of medical, much less dental, treatment was not regarded as a necessity of life: Secretary, Department of Health and Community Services v JWB (1992) 106 ALR 385 at 454.

429. On the other hand, it does seem that it does not go as far as the common law notion of advancement, maintenance and support which are different from the notion of the necessities of life in this context: Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at 228-9; [115].

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430. There is, also a need to distinguish, in this context, between what might be regarded as negligent acts: R v CM [2005] ACTSC 21 at [25].

431. The need for the failure to cause significant harm is important also and I think the comments I have cited above (at [424]) from Buckley v Buckley are applicable.

432. Section 344 of the Childrens Act defines “at risk of abuse or neglect”. It includes, as I have noted above (at [50]), some examples. These are aids to interpretation and can be most useful. They are part of the Act: s 126 of the Legislation Act. They are, however, not exhaustive and do not limit but may extend the meaning of the provision to which they relate: s 132 of the Legislation Act. That means that the meaning of the provision is conditioned by the examples: Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6 at [87].

433. Unfortunately, the examples do not identify how they are said to show likely abuse or neglect within the statutory meanings. This seems, in this case, to lead to an approach where all that is required is to show some failure to provide an undefined standard of care and protection without locating the failures clearly within the statutory regime which is the required jurisdictional facts to justify an appropriate intervention. That approach, however, must be limited to the factual circumstances of the examples. In that sense, they are regrettably not particularly helpful. None were directly relevant here.

434. The second limb of the jurisdictional requirement for the Court is that a person with parental responsibility for the children must be shown to be unable and unwilling to protect the child from abuse or neglect or the risk of abuse or neglect.

435. When the Originating Application was lodged, it sought, as well as final care and protection orders, interim orders under s 433 of the Childrens Act. In this case, as permitted, the interim orders that were made by consent for each child, effectively transferred parental responsibility to the Director-General.

436. At the time of the hearing in this case, the children had been the subject of the interim orders, thus transferring the daily care and responsibility of the children to the Director-General: s 409(1) of the Childrens Act.

437. At this stage, while CP did not have daily care responsibility for the children, she remained the parent and, though, as a parent had, under s 16 of the Childrens Act, parental responsibility for the children, that had, under s 17, been transferred to the Director-General.

438. In LP v Director-General of the Community Services Directorate [2016] ACTSC 57; 308 FLR 452, Burns J had to consider whether the requirement that “no-one with parental responsibility for the child … was willing and able to protect the child”, when an interim order had been made and the Director-General was then the person with parental responsibility for the child, meant not the parent, but the Director-General.

439. It was submitted to his Honour that, as at the time of the hearing for the final order in that case and when the final care and protection order was made, the Director-General had parental responsibility for the subject child, this jurisdictional fact could not be met.

440. His Honour rejected the contention. I respectfully agree. His Honour held at 457-8; [20], that as, under s 433(3) of the Childrens Act, an interim order ends at the latest on the day final orders on the application (including any cross-application) for final orders

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is made, the two cannot co-exist and so, when the final order is made, the effect of the transfer of parental responsibility for the child is ended and, for the period between that point and the making of the final order, the parental responsibility reverts to the parents.

441. Despite agreeing with the outcome, I regret that I am not convinced that his Honour’s reasoning is correct. There will, in my view, be no point in time between when the interim order ends (i.e. “the day the application or cross-application is decided”) and the time when the decision on the application and cross-application take effect.

442. There will be no such time because of the ancient and established rule that a judicial act, as is the making of a final care and protection order, is to be taken always to date from the earliest minute of the day on which it is done: Edwards v The Queen (1854) 9 Exch 628 at 631; 156 ER 268 at 269; Miller v Teale (1954) 92 CLR 406 at 411.

443. I would rather base my decision on the approach that the test for whether there is a person with parental responsibility for the child is willing and able to protect the child is to be assessed as at the date on which the application for the care and protection order (final and interim) is made.

444. It is the person or persons whose willingness and ability or capacity at that time is in question; it is that person or those persons to whom that responsibility will be restored (if an interim order has been made) if the final order is not made.

445. That approach seems consistent with that of Kelly J in R v Dainer; Ex parte Crawford (1989) 91 ACTR 11 at 17, though on quite different legislation.

446. I am fortified in that approach by the fact that the Director-General is, in effect, the parent of last resort and therefore must, at all times, be regarded as willing and able to accept parental responsibility for a child and offer the relevant protection. Thus, to hold that, after an interim order is made, the test of whether someone is willing or able to protect the children refers to the Director-General would be absurd.

447. I am further fortified by the bizarre and, perhaps, absurd consequence should this construction of the provision not be accepted. If the person who had parental responsibility at the time when the application for a care and protection order is made is not to be regarded as the person with such responsibility for the purposes of s 345(1)(b) of the Childrens Act, then the hearing of the application would not address whether that person was willing and able to protect the child and young person. If a care and protection order was not made, then the children would be returned to that person, whose willingness and ability to protect them had not been assessed. That is what would be bizarre, if not absurd. This justifies the construction of the section on which Burns J and I have given it. See Grey v Pearson (1857) 6 HL Cas 61 at 106; 10 ER 1216 at 1234.

448. I do, however, also adopt, with respect, his Honour’s finding and reasons in LP v Director-General of the Community Services Directorate at 458; [22], that the terms “willing and able” are properly conjunctive and both must be shown. To show that the person with parental responsibility is willing to protect the children is not sufficient; he, she or they must also be able to do so.

449. I note that the tests are factual issues; is the person or are the persons actually willing to accept the obligation to protect the children? As to capacity, it is again a question of fact but to be proved only to a reasonable degree. That is to say, there is not some

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ideal or perfection by which the person or persons must be tested. That they engage in behaviour that would not be regarded as the most effective parenting techniques is not sufficient to show incapacity: L v Director of Family Services (1997) 22 Fam LR 275 at 289. As was said in that case at 277, there must be an unacceptable risk of real physical or psychological harm. See also CD v Chief Executive, Department of Education and Community Services at 30; [65].

450. It is in this context that, on appeal, CP addressed the matters listed by the learned Magistrate as said to prove that the children had been abused or neglected with a view to showing that there was no analysis of those matters in the Reasons nor an assessment of them by reference to the statutory criteria. It was submitted that they did not meet the statutory tests.

451. Before analysing these contentions, it is salutary to be reminded of the evidentiary test that the applicant for a care and protection order must meet. As Murray J said in In the Matter of J (A Child); S v Paskos (1992) 8 WAR 561 at 566:

Recognising the tension between the need for the court to exercise sound judgment for the protection of the child, but on occasions the need to bear in mind the nature of the orders contemplated by a section such as the Child Welfare Act, s 30, and their perhaps devastating impact upon the relationship between the child and the person in the position of its parent, leads next to the fact that, as is evident from the terms of s 30(1) [to a similar effect of s 464 of the Childrens Act], the onus to establish the circumstances which will lead to a declaration and consequential order under the section, will lie upon the applicant therefor. All the cases recognise that to be the case.

Because these are civil proceedings, the standard of proof to be applied will, however, be the civil standard of proof upon the balance of probabilities and not the criminal standard of proof beyond a reasonable doubt. But it has also often been said that having regard to the seriousness of the factual allegations in such cases, the application of a standard of proof upon the balance of probabilities will often require evidence of relatively high persuasive force, leading to the court being satisfied to a relatively high degree of the facts upon which the court’s declaration is to be grounded.

452. I turn then to the matters identified by the learned Magistrate.

453. The first is the history of the interaction between CP and Child Protection Services, especially in respect of her three elder children not the subject of this appeal. While some background is relevant, it must be approached with caution.

454. There is, in care proceedings, no res judicata nor issue estoppel. See In the Matter of A (A Child); Semple v Heijer (Unreported, Full Court of Supreme Court of Western Australia, Malcolm CJ, Nicholson and Ipp JJ, 2167 of 1992, 22 December 1992) at 32.

455. Thus, the fact that care and protection orders have been made in respect of other children of CP does not, of itself, prove that the children the subject of this appeal have been or are subject to abuse or neglect or at risk of abuse or neglect nor that CP is unable or unwilling to provide care and protection to the children the subject of this appeal.

456. It is incumbent on the Court and, indeed, the parties, to approach the history of CP’s involvement with Child Protection Services previously with great caution. It cannot be used merely to blacken her reputation or attempt to predispose the Court against a fair assessment of the position of the children (and each of them) and CP’s capacity, willingness not being an issue in this case, at the time of the application and the hearing.

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457. Thus, Mr Archer’s submissions that the evidence was relevant because “the same case was put by the Director-General in respect of the children dealt with in [the previous] proceedings” is very problematic. Superficially, it was the same case, for the case was for a care and protection order because it was alleged that the children were in need of care and protection.

458. The case was quite different, however; these were different children, the living circumstances were different, the relevant adults, other than CP, were different and so on.

459. As Malcolm CJ said in In the Matter of A (A Child); Semple v Heijer at 22, “the court must look at the matter de novo untrammelled by any previous orders that have been made”. Those words are even more significant since his Honour was there referring to an application for the release of the child from the custody of the Minister apparently akin to a revocation application under s 467 of the Childrens Act.

460. As a factual matter, too, there were matters of significance that made simplistic reference to and reliance on the earlier hearing inappropriate. In the first place, the earlier proceedings were over 10 years prior to the current situation. Further, since then the eldest son had, by court order, been returned to CP’s care, which undermines a direct comparison with the earlier proceedings. In addition, as I have noted above (at [345]), some of the evidence adduced at that earlier hearing was no longer relevant.

461. Neither the Director-General nor the Children’s Representative made clear in their submissions how the prior history was to be taken into account. This lack of clarity would lead a reasonable observer to conclude that it was simply led to show that CP was a bad mother, a kind of tendency evidence when, on its face, it had no probative value and certainly none which outweighed the prejudice that such a conclusion would show.

462. In the absence of any basis on which the orders made in respect of CP’s three eldest children could show that the children the subject of these proceedings were in need of care and protection, this aspect does not of itself or in combination with other matters justify the order made. I do not suggest it could never be relevant. It has, however, to be made plain that it has probative – perhaps significant probative – value before it can be relevant.

463. The next matter referred to by CP was the learned Magistrate’s reliance on “the abusive relationship between the mother and [BP]”.

464. There was no doubt that BP had a somewhat unsavoury history and suffered problems. He had convictions for assault, aggravated burglary, breaching domestic violence orders and damaging property for some of which he had spent periods in gaol, though prior to his relationship with CP. He was positive for Hepatitis C and suffered from depression which had included some attempts at suicide. He smoked tobacco though, of course, so do many (perhaps too many) others in our community. He had caused CP’s second son “physical harm”.

465. All of this suggests that BP is something of an unpleasant character and unlikely to be a perfect father. None of it, however, shows that the children the subject of these proceedings have been, are being or are at risk of being abused or neglected.

466. The two matters which did seem to be relevant were his physical behaviour towards LC and CP and his “emotional abuse” toward CP.

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467. The evidence was equivocal. While CP agreed that BP had assaulted her second son, she denied that he had assaulted her or the other children. I note that, when she returned from Sydney, she left NP with BP and there was no evidence to suggest that NP had been subject to abuse or neglect during that time. Indeed, there was virtually no evidence of what then happened, much less that NP was subject to abuse or neglect.

468. CP did agree that she and BP had argued, but she denied that he was violent. She felt that arguing may have contributed to the behaviour of the children but it is not clear on what basis she could say that, particularly as she said that most of the arguments occurred when the children were in school, though she conceded that some were in front of them. Both LC and JP reported that BP assaulted CP. That suggests that they may have seen it, but they may have merely been reporting what they were told or, indeed, what they made up for some reason.

469. It was reported that LC had made a disclosure that had alleged that BP “bashes her and her mum”, but this does not seem to have been a matter that Care and Protection Services assessed as requiring intervention, especially as LC was said to be accident prone and an incident of this was seen by a Child Protection worker as noted above (at [73]).

470. The evidence of abuse of the children in relation to BP is therefore significantly contested. More significant is that CP separated from BP in 2011 and appears to have had no contact of any significance with him since she returned to Canberra from Sydney in 2012.

471. That, it was submitted by CP, was significant because it meant that any abuse was unlikely to be repeated. That is, of course, relevant. See the comment of Higgins J about reliance on past circumstances in A and B v Director of Family Services in a passage not reproduced in the reported version of the judgment but in (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 31 May 1996) at 12.

472. It seems to me, however, that this is relevant not at the stage of determining whether abuse had occurred, for the legislation expressly refers to the fact that the abuse may have occurred in the past, but at the second stage as to whether it is appropriate to make a care and protection order notwithstanding a finding of abuse, having regard to the other relevant principles, including whether the order is in the best interests of the child (s 464(1)(c)(ii) of the Childrens Act) in the light of the principles and considerations in Pt 10.3 of that Act. Given the principle favouring children being cared for by their parents (s 350(1)(a) and (b) of the Childrens Act, the departure of an abusive parent who is unlikely to have further relevant contact with a child would justify the exercise of the court’s discretion not to make a care and protection order removing the remaining parent from parental responsibility, especially as the date of prior events or incidents will be particularly relevant to the exercise of the discretion.

473. While the learned Magistrate seems to have found that the conduct of BP caused the children to be abused, there was no consideration of the conflicts in the evidence, nor recognition of the fact that it occurred well before the application was made nor what harm had been caused, especially as it seemed that the abuse was likely emotional abuse about which there was no expert evidence, nor whether the ending of the relationship meant that a care and protection order was no longer justified.

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474. While these matters did not require extensive reasons, there was no sign that her Honour addressed them at all.

475. The next matter referred to by the learned Magistrate was the move to Sydney.

476. It is not easy to see what reliance was placed on the fact that the family moved to Sydney. None of the written submissions made to her Honour addressed the significance or relevance of the move directly, though there was reference to it as a part of the narrative recounting the history of the children.

477. In the submissions before me, submissions were made by the Director-General and the Children’s Representative suggesting a way in which the move may have been relevant. Given the absence of any explanation by her Honour as to how it was relevant to a finding of abuse or neglect, these must be regarded as entirely speculative.

478. There was evidence that LC did not access speech therapy in Sydney, but that was said to be because “she was doing speech at her school”. CP did say, however, that it was difficult to get speech therapy appointments in Sydney. There was no exploration of that in the evidence, especially any consequences, and this cannot be a sufficient basis for a finding of neglect on the basis of lack of health care treatment.

479. The physiotherapy required for NP in Canberra had been effective by the time the family left for Sydney according to the unchallenged evidence. Arguably, it was not further needed and the evidence of the need for any further physiotherapy treatment after NP returned to Canberra was thin to non-existent.

480. When NP returned to Canberra, there was a meeting at Barnardos where his physiotherapy needs were discussed, but there was no evidence that he continued to need physiotherapy or that there had been any neglect because he had not received physiotherapy treatment in Sydney. The evidence simply was not there.

481. Indeed, CP’s evidence was that there was good health care in Sydney, that she “had a really good doctor” that she “saw all the time with all of the kids”, including seeing paediatricians and “a big report on [NP] at the children’s hospital”.

482. While this evidence may possibly have justified some finding of abuse in relation to LC if it had been properly explored in the evidence, it forms no basis whatsoever for any finding in relation to any of the other children.

483. The next matter was the “circumstances of the family’s return to Canberra”. Again, there is no explanation of what this means, how it discloses any evidence of abuse or neglect.

484. The reason for the return to Canberra was a perception that the children were at risk from neighbourhood children. That must be to the credit of CP. That CP had not made prior application for housing is a legitimate criticism of her and the decision she made. Nevertheless, she did gain accommodation on her return to Canberra, though it was less than ideal.

485. The reason NP did not return to them was because of a threat by BP that if NP was not permitted to remain with him, he would commit suicide. This is a decision that could be criticised (and was by the Director-General and the Children’s Representative) but without any attempt to relate it to the statutory requirements of abuse or neglect.

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486. Similarly, it was put that the move – presumably without prior accommodation arrangements – “highlights the chaotic nature of [CP’s] parenting”. That may be so, but such a criticism is irrelevant unless it can be shown to have caused or contributed to abuse or neglect as statutorily defined and there was no such attempt to do so at all.

487. There was, for example, no evidence to show that NP was abused or neglected as a result of his stay in Sydney with BP.

488. While the decision could be criticised as imprudent or even wrong, that is not sufficient to find that NP (or, indeed, any of the other children) were abused or neglected.

489. It was also put that CP “made no attempts to ensure his safety”, but that is a rather rhetorical submission without much relevance. It was never put to CP that NP was at risk of abuse or neglect, or had been, abused or neglected, while with BP.

490. Indeed, while the family had been in Sydney, GP and NP had stayed with BP and CP saw them every weekend. They were, she knew, also attending school. Thus, she was in a position to know the parenting they were receiving and if there were problems. It was never suggested to her that it was other than adequate.

491. While NP was in Sydney with his father, after her return to Canberra, CP had regular phone contact with him. It was never suggested to her that she was unable to assess or know whether there was any abuse or neglect.

492. There was evidence that the accommodation, when they first arrived in Canberra was not ideal, but again the evidence must go further than that in order to show abuse or neglect.

493. In respect of LC, there was evidence that she stayed with an aunt who was alcohol dependent and it was there that an alleged sexual assault was committed on LC. That may well have constituted abuse of LC, but it is quite irrelevant to a finding of whether the other children had been abused or neglected. In that case, it is difficult to show any responsibility of CP for the incident, which she reported to Care and Protection Services.

494. Apart from LC, there was nothing in the circumstances of the return from Sydney that showed that the other children were abused or neglected or at risk of abuse or neglect.

495. The next matter was the finding that CP “seemingly” could not cope appropriately with the high level of needs of the children.

496. There is no doubt that all the children had problems with which they had to cope and for which they needed assistance. While these problems would, it is conceded by all parties, have created a considerable difficulty for any parents, they were particularly challenging for CP, who herself had an intellectual disability and was a single parent. I note that in out-of-home care, the children have been separated, so no carer has all five of them.

497. No-one addressed whether this finding constituted a matter of abuse or neglect and, indeed, the statutory criteria make it difficult to see how these matters must be addressed in the context of the application of the Director-General.

498. I have set out above (at [265]), a summary of the medical, psychological and behavioural issues which the children experience. These, as I understand it, are the “high level needs” of the children.

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499. Unfortunately, however, there was little attention paid to how to characterise these matters for the purpose of deciding whether any of the children were in need of care and protection.

500. It seems to me, and this appeared to be the position of the Children’s Representative, that a failure to deal with these matters was likely to be characterised as a matter of neglect. This suggests that addressing the identified issues must be found to constitute necessities of life. For the purpose of these reasons, I am prepared to accept that at least a significant part of that does meet that description in the circumstances.

501. Each child, however, has to be considered separately and each child’s needs and how CP addressed them needs to be evaluated separately.

502. Thus, the report on LC was that “[o]verall [LC] has been in good health, there are no reported ongoing medical conditions”. She appears to have coped well at school though with significant challenges from her disabilities which the school has worked with her to manage. While she has behavioural problems and clearly has some proneness to accidental injury, the most concerning matter has been her sexualised behaviour and a certain level of violent and threatening behaviour. Her self-care skills were age appropriate and appropriate for her developmental level.

503. In relation to JP, there were “no medical conditions that would require ongoing medical intervention”. Though, on admission to out-of-home care, he suffered from head lice which was difficult to manage, and later experienced lice again while he was in out-of-home care. It does not seem to be evidence of abuse or neglect in the statutory sense. He exhibited significant behavioural problems at school, leading to periods when he was not attending school. Some of these behaviours persisted during out-of-home care to the extent that he continued, at times, to be on a limited period at school (“partial days”). When positive, he could follow routines, co-operate and assist others. He was a defiant child and had sexual knowledge beyond that appropriate for his age. His self-care skills were age appropriate.

504. GP exhibited no matters which caused medical concern, though he, too, suffered from head lice when taken into care and then later. He exhibited behavioural difficulties, though he appeared to be more “academically on par with his peers”. He was prone to extreme behaviour which was more likely to result in actual violence than was the case with JP. Since in out-of-home care, there had been reports of him “ganging up” with peers to bully other children. He was able to adapt and manage changing situations well. His self-care skills were age appropriate.

505. NP’s medical needs were more complicated. He had some developmental problems. There appeared to have been medical investigations recommended by various medical agencies that CP did not implement. He is described as having “a high level of medical needs”, but the reports were not particularly specific. He had, however, a heart murmur and had experienced “significant developmental delays”. While his heart issue had not been further addressed, it is not clear what the possible consequences were or how serious they may be. He was making good progress at school, though the report was only for a period of three months. He was academically behind his peers and, in particular, his speech was significantly delayed. He had good social skills and there appeared to be few behavioural concerns.

506. Finally, DP suffered from asthma which, according to the Care and Protection Assessment Reports, was not well controlled at the time when Emergency Action was

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taken. His receptive and expressive language was moderately delayed for his age and speech pathology sessions were recommended but there was no evidence of what had eventuated.

507. The asthma may have been significant, but it was simply not explored in the evidence. Thus, Dr Bragg had suggested that the management of his asthma had been poor, but there was no evidence to show that this was leading to significant harm. Indeed, by 13 August 2013, after he had been in out-of-home care for about one month, his chest was clear and he needed no intervention. Inferences could be drawn about all this but not clearly enough to make a finding on the balance of probabilities to evidence neglect as statutorily defined.

508. He appears otherwise to have had no particular medical needs. His behaviour and academic ability at school were of no particular concern. He had a range of inappropriate language and behaviours, probably learnt from his elder siblings.

509. There are some issues raised here about the response in some cases to the needs of the children, but, importantly, there was little assessment as to whether this raised issues of significant harm so as to constitute neglect. Certainly, the evidence was general in description with little attention to the effects or consequences of the issues and a relation of that to the statutory criteria.

510. For example, there was no evidence about the consequences of any failure of CP to seek further medical investigation of NP’s heart condition and whether this had led or was likely to lead to significant harm. It might be possible to infer that DP’s asthma would likely lead to significant harm if not managed or inadequately managed, but not without further evidence could a proper finding be made.

511. As to abuse, there does seem to be an issue with LC and her exposure to what may have been sexual abuse. There was some slight evidence that some or all of the children had been exposed to sexual activities between CP’s eldest son and his girlfriend. The evidence was vague as to exactly what they had seen and which of the children had seen it. This may be a case of sexual abuse, though CP denied that it happened.

512. There was a general assertion that attendance by JP and GP, as well as LC and NP, at Therapy ACT was “sporadic”. While undesirable in a perfect world and an ideal family, that is not the test and it was not at all clear on the evidence that this would have constituted significant harm.

513. There was also a general assertion of the children’s “developmental needs not being met or addressed”. It may be that developmental delay is a significant harm but there was no evidence about that. Indeed, the very notion of delay as opposed to development being impeded, arrested or defeated does not, of itself, suggest significant harm. In any event, the identification and aetiology of delay is a complex and difficult matter and it is not clear that these matters had been addressed.

514. While I could not say that LC was not subject to abuse and NP to neglect, the same cannot easily be said of the other children and, so far as NP is concerned, the evidence that there is likely to be significant harm was not easily inferred from the evidence; the evidence in relation to the other children by no means clearly establishes either. It may be that a more rigorous analysis of the circumstances of the children and a clearer relationship between the failings asserted of CP in her care of the children and the statutory tests might have justified the finding. For example, a clearer picture of the

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developmental issues, their consequences and an analysis to show that the necessities of life were not being provided which has led, or might lead, to significant harm could result in such a finding. It is not enough, however, to show that what the community may see as a less than ideal mode of parenting, with gaps in what should desirably be provided to and for the children, is being provided; the legislature, as the expression of the community, has set out particular tests which, construed as liberally as is reasonable, must still be met.

515. The next matters addressed in these grounds then go to the capacity of CP, the second limb of the jurisdictional pre-condition, namely that someone with parental responsibility is willing and able to protect the children.

516. The learned Magistrate made comments about the children, broadly summarising their needs and disabilities. There was no challenge to the adequacy of the summary. Her Honour then commented:

Although it is conceded that dealing with such high needs children would be challenging for most parents, it is apparent from the evidence that the children have been exposed to violence and emotional abuse, the mother has failed to provide adequate stimulation and discipline, that she is unable to set appropriate boundaries, and that she has failed to follow up medical care and attention as recommended and required.

517. These matters were also challenged by CP in the grounds of appeal.

518. The first issue was the exposure of the children to violence and emotional abuse. The latter, of course, is an element of abuse. It is not clear whether the former was used by her Honour as a synonym for physical abuse or whether it was intended to mean that the children had seen violence perpetrated on others, especially CP, and this was to be taken as an element leading to emotional abuse. This is characteristic of the lack of clarity and precision in the approach that has been taken to this case.

519. CP challenged this finding. There was some evidence of physical abuse. For example, there was a very general reference in the Care and Protection Assessment Reports of “domestic/family violence” when CP was living with SC, LC’s father. He was said to have exhibited “issues with alcohol, controlling behaviour and inappropriate methods of discipline”. There were various reports of domestic violence.

520. Thus, CP said in her affidavit:

There was never domestic violence between [BP] and myself but I do admit that there was emotional abuse towards me from [BP]. I admit that there was violence towards me and the children from [SC] when we lived together.

521. She also denied any violence from her earlier partner, the father of her two eldest children, though that denial was challenged. It is not entirely clear what the basis was for such a challenge, for there was no evidence of such violence. The highest it came was a sentence in the Care and Protection Assessment Report concerning the time her earlier partner was living with his “step wife” (apparently not CP), and that CP’s eldest daughter had allegedly received non-accidental injuries and was returned to CP’s care under a six month supervision order, hardly to be held against CP.

522. It was stated as follows:

It was reported that during this time there was [sic] concerns regarding domestic violence, neglect of the children and that the family were moving frequently and [CP’s] life style was ‘chaotic’.

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523. Of course, in relation to the period when CP was living with SC, none of the children, the subject of this appeal, had been born.

524. The relationship with SC ended in 2001 when CP commenced a relationship with BP. CP denied any violence to her or the children by BP. It was not put to her that her evidence was wrong. Apart from signs of injury on LC and an allegation of JP being hit, which CP denied, there appears to be no reports in the Care and Protection Assessment Reports of violence to the children or violence on CP in their presence.

525. One area where, however, the children may have been exposed to violence was when BP engaged in disciplining CP’s eldest son who had, by court order, returned to live with CP.

526. The Care and Protection Assessment Reports were a little coy, stating that CP had said that her eldest son:

‘did not have a good childhood’ as [BP] was controlling of him and used inappropriate methods of discipline. [CP] stated she would ‘get between’ [BP] and [her eldest son] and then [BP] would ‘back off’.

527. It is not clear what “inappropriate methods of discipline” meant – corporal punishment or emotional abuse. It may be the former, but this was not clarified.

528. As to the other children, the Report continued in relation to the boys the subject of this appeal (that is, not, apparently, including LC), that the four boys:

were not subject to maltreatment by [BP] they were in the home and present for this [i.e. the treatment by BP of CP’s elder son]. [CP] was asked if she believed this would have impacted the children. She responded that she believed it had a ‘big impact’. When this was further explored [CP] stated that the children ‘looked up to him’. [CP] was asked if she believed that the children’s experience of her and [BP’s] relationship had impacted on their current behaviours. [CP] replied ‘yes’ that they might think she is a ‘push over’ and doesn’t ‘follow through’ when she is disciplining them.

529. This may have been some exposure to violence but it is by no means clear and no-one sought to clarify it.

530. The signs of injury on LC were explained by CP as a result of her proneness to accidental injury. Indeed, Child Protection workers experienced an incident of that themselves. There was no challenge to this.

531. On one occasion, such injuries were “recommended” for “same day appraisal by Care and Protection and Police”. There is no evidence as to whether that recommendation was accepted and, if so, what was the result. This cannot support a finding by the learned Magistrate of violence on LC. If there was found to be such injury, it would presumably have been reported by an experienced and qualified social worker such as Ms Barbaric. It cannot be left to innuendo and speculation. Indeed, when LC arrived at school with an “egg” (presumably a lump) on her head, it “was not rated for appraisal”.

532. There was a reference by LC that she told Child and Protection Service workers that “dad bashes her and her mum”. There was a formal visit but again the report “was not rated for appraisal”. There were two reports of rough play between the children resulting on one occasion in “significant injury” to LC.

533. It is not clear, because the learned Magistrate did not condescend to particularity, whether the violence to which she referred was to CP by SC or BP, to the children by any of CP, SC or BP or as between the children or all of these possibilities. Once that

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was clear, then it was necessary to see how these instances fit within the statutory tests for abuse or neglect.

534. It is also quite unclear what it was to which her Honour was referring in the reference to emotional abuse. The Director-General in submissions to her Honour referred to emotional abuse, but it seems, on the evidence, only to refer to BP engaging in “emotional abuse” to CP, not to the children. The Childrens’ Representative submitted:

the description by the mother of [BP] controlling and overly authoritarian behaviour indicates that the mother and the children were subject to emotional and verbal abuse by [BP].

535. The evidence of CP about this appeared only in the Care and Protection Assessment Reports as follows:

[CP] reports that during their relationship [BP] was controlling and restrictive. [CP] reports that they regularly fought, he would call her names and he thought [CP] was ‘too soft’ on the children.

536. There was no oral evidence given about this; in particular, CP was not asked about it in cross-examination. It is difficult to see how this is a proper basis for a submission that the children were subject to emotional and verbal abuse; there is no suggestion that the name-calling was done in the presence of the children, nor that the “controlling and restrictive” conduct involved the children. While that is, of course, possible, it was not explored in cross-examination with CP such as would lay a foundation for the submitted finding being made.

537. Accordingly, it does not seem to me that the finding that the children were subject to emotional abuse could have been made from the evidence. That the children were exposed to violence was also a very problematic finding.

538. In any event, the question of exposure to violence and emotional abuse was dealt with by her Honour in the context of the capacity of CP to protect the children – the second limb. There was, in fact, a good example of CP protecting the children from violence when she decided to move from Sydney where they were exposed to violence and return to Canberra.

539. So far as any violence from SC was concerned, she ended the relationship with him in a relatively short period of time and years before the application for care and protection orders the subject of this appeal was made.

540. Given the evidence as I have described it, it does not seem to me that a case has been made out that, on the question of physical and emotional abuse, the evidence shows CP does not have the relevant parenting capacity.

541. The next issue was that CP had failed to provide adequate stimulation and discipline. This was not the subject of particular submissions made for CP on the appeal. That is perhaps unsurprising as it was not at all clear how stimulation or discipline was an issue in these proceedings.

542. This matter was dealt with in the Director-General’s submissions to the learned Magistrate by submitting that the Care and Protection Assessment Reports had concluded that the social and developmental delays of the children had been:

referable to the inability of the children’s parents and specifically the mother to provide the stimulation, attention and discipline structures that would allow normal development to

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take place. The exposure to violence, emotional abuse and sexual conduct of others may also in part explain the violent and sexualized conduct of the children.

543. That, however, does not really seem to be the evidence. For example, under the heading “Stimulation” in the Care and Protection Assessment Reports, Ms Barbaric acknowledges that CP “stated that she engaged the children in appropriate activities to encourage learning and development”. She cooked with the children, JP, GP and DP were all enrolled in football and the two elder of the boys enjoyed playing on the computer and a counting game they played on the laptop. LC enjoyed cooking, though CP was still “working out” the best activities for NP. Later, in her oral evidence, however, she explained that she read to him and DP and that they responded to that.

544. The Care and Protection Assessment Reports continued that the children were observed, presumably by Child Protection workers drawing, using the trampoline, riding bikes and scooters and using electronic devices, which CP said included educational games. This appears to be stimulating activity.

545. The Care and Protection Assessment Reports concerning the boys did make specific reference to NP:

[NP] has significant developmental delays and unmet medical needs. It is highly likely that [NP’s] stimulation needs were not met whilst he was in [BP’s] care, given his presentation upon returning to the ACT.

546. Much was also made of a report of a psychologist, Mr Corcoran, that was prepared for the application for care and protection orders for the three eldest children. It was about 10 years old and a number of the descriptions of CP, her behaviour and capacities were quite different from the evidence available to the learned Magistrate.

547. All the children were going to school and CP’s evidence was that she managed to get them all to school, except for JP, who has had difficulties and initially attended sporadically and then, for a time, was only attending part-time. I note that he was, while in out-of-home care, also only attending part-time, though this did not seem to raise concerns with Care and Protection Services about the parenting capacity of the foster carers.

548. Ms Barbaric did not address this issue in her oral evidence either in her additional evidence-in-chief or in cross-examination.

549. The evidence does not seem to justify the submissions so far as stimulation of the children is concerned. There was, also, no evidence from a psychologist or educational psychologist about this issue, as may have been expected.

550. As to discipline, CP admitted in her evidence that she might be seen by the children to be a little soft. See above (at [534]). She said, however, that she has no difficulty in disciplining the children. If an infraction was not “big enough”, she would ignore it; otherwise she would deprive the child or children of treats, such as ice cream, or send them to bed early. She denied screaming at the children, though she said that perhaps she may have screamed at NP.

551. She did, however, use recommended strategies, including a “rewards chart” which seemed to work for a time. She also said that, were the children returned to her care and responsibility, she would talk to the children more, be patient and calm.

552. If that did not work, she would send them to their room. This was seen by Child Protection workers to be successful, at least with DP.

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553. The Care and Protection Assessment Reports stated, however, that, while CP attempted to implement strategies for setting boundaries, these did not result in sustainable changes. There was no further evidence about this.

554. CP also sought assistance from an agency such as Barnardos when the management of the children was too problematic.

555. Again, the evidence did not seem to justify the submissions so far as discipline was concerned. The children, however, did engage in extreme behaviour and, certainly on occasions, CP was not able to prevent that.

556. The final issue was the asserted failure to follow up medical care and attention as recommended and needed.

557. Some instances of this were conceded by CP. The evidence was, however, somewhat vague. For example, as noted above, NP’s cardiac irregularities were not followed up, but there was no evidence of the consequences of that; such evidence would be necessary to determine whether this was causative, or a risk, of significant harm.

558. Speech therapy was not followed up with LC in Sydney, but she was having speech attention at school. That is, in fact, consistent with what was noted in the Care and Protection Assessment Reports:

It is noted that therapy begins to be implemented through the class room once a child reaches school age.

559. There seems to have been a problem with DP’s asthma but it is not clear how serious that was or the circumstances as noted above (at [507]).

560. These were the only issues identified. They did not relate to JP or GP. It is difficult to see how, on the evidence, they were relevant to LC and, as I have indicated, there was a problem with the assertion and the evidence with respect to NP.

561. The approach that one problem affected all the children infected the consideration of this issue. There was, also, significant evidence of CP taking serious steps to address problems. For example, she had engaged with Therapy ACT, she had arranged for LC to see a paediatrician and, when he threatened her with a knife, she arranged for JP to see a psychologist.

562. Finally, CP challenged the acceptance of the Care and Protection Assessment Reports, submitting that they were not cogent, the foundation for the opinions expressed were questionable, the correctness of the facts were disputed and the qualifications and training of the author of them did not justify her expressing the opinions that she did.

563. While an appeal is a re-hearing, it is not the occasion to conduct a different case to that put at trial. In general terms, a party is bound by the conduct of the trial, save in exceptional circumstances or where the Court gives any necessary leave, to preserve the finality of litigation: Coulton v Holcombe (1986) 162 CLR 1 at 7. An appeal is not the opportunity to raise points not taken at trial and to conduct a different case than that conducted at trial. Hayne J made this clear in Crampton v The Queen [2000] HCA 60; 206 CLR 161 at 217; [157] and, though criminal proceedings, his Honour’s remarks are apt. As the Court of Appeal put it in Leighton v The Queen [2017] ACTCA 55 at [29], “[a] trial is not a rehearsal for an appeal”.

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564. This prohibition is especially applicable where further evidence would be required to deal with the matter and there may be prejudice to the other party: Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd (No 3) [2017] ACTCA 43 at [46]-[48].

565. No objection was taken before the learned Magistrate to the expertise of Ms Barbaric nor was any objection taken to the admissibility of the Care and Protection Assessment Reports. Indeed, it seems from the transcript that there was an agreement that only the evidence of Ms Barbaric and that of CP would be adduced. The consequences of that agreement and how I should consider it impacted evidentiary issues was not explored on the appeal.

566. While it may well be that a proper consideration of the issues of the qualifications and experience of Ms Barbaric may have justified the challenge made, and I do not so find, it is too late to exclude that evidence.

567. While, as stated by Mr Walker SC, it is unclear what reliance the learned Magistrate placed on the Care and Protection Assessment Reports, as her Honour did not expressly refer to them in the Reasons, there was reference to the submissions, particularly of the Director-General, and these were significantly reliant for evidentiary matters on those Reports.

568. I have already commented (at [102]), that they are, to an extent elliptical, referring to “concerns” without any finding as to whether the matters raising the “concerns” were proved, or whether the concerns were justified or were found not to be relevant, significant or even existent. This made the Care and Protection Assessment Reports read rather as if they were implying matters by innuendo rather than with evidence.

569. Of course, the use of such Reports is permitted, but they must be approached with care, especially where they are statements of hearsay or of indirect “concern” rather than assertions of fact, either from direct evidence or even hearsay. Nevertheless, the author was called to give evidence and was available for cross-examination, though not, of course, on much of the hearsay. Such material makes fact finding by the Court difficult especially where there is, as here, direct contradictory evidence. Unless the direct oral evidence is rejected for good reason – and her Honour did not do so in the Reasons – then such evidence should perhaps be preferred over hearsay. The problem here is that her Honour did not engage in any evaluation of the evidence and express any findings on the matters where there was any contradictions by CP.

570. Mr Walker SC relied on the decision of Crispin J in Burnett v Mental Health Tribunal (Unreported, Supreme Court of the Australian Capital Territory, Crispin J, 21 November 1997). In that case, Crispin J rejected psychiatric reports which were based on allegations of behaviour by the appellant and which were said to show her to be mentally impaired. The allegations were denied.

571. To that extent, there is some similarity between the psychiatric reports in that case and the Care and Protection Assessment Reports in this appeal. In the hearing before the Mental Health Tribunal, however, the President expressly told Ms Burnett that the Tribunal did not accept that the allegations made in the Reports were correct. This is not the situation here.

572. Further, s 464(5)(a) of the Childrens Act applies to the Director-General as well as to CP. The mere assertion that the children are in need of care and protection is not sufficient; the Childrens Court must be satisfied from the evidence.

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573. While the criticisms that Mr Walker SC made of the Care and Protection Assessment Reports have substance and, indeed, I have echoed some, it seems to me that they could, in the circumstances of this case, have been acted upon by the learned Magistrate, though the extent she actually did so remains unclear.

574. This is another of the grounds on which I am satisfied that the Reasons are inadequate as they do not disclose the extent to which her Honour relied on the Care and Protection Assessment Reports especially where challenged and, perhaps more importantly, how the disputes on facts, some of which were quite significant in the case, were resolved.

575. The difficulty in this case is that there are issues which could have disclosed the need for care and protection, certainly in relation to LC and NP. The situation of JP, GP and DP is much less clear.

576. The question of whether CP is willing and able to protect the children is more problematic. She is certainly willing and there was no contest about that. Whether she was able to provide the necessary protection to LC is unclear but the Reasons do not in their terms show that the evidence relied on in them seems strong enough to make that finding, though there was evidence that may have done so.

577. The position of NP is less clear for the evidence was largely incomplete. What was the consequences of his cardiac situation? Was there significant harm likely? What were the consequences of his speech problems? These were important questions simply not explored.

578. Then there was the question of whether, if care and protection orders were made for LC and NP – and I do not suggest it must be made – could CP then adequately care for the three remaining boys, a question simply not addressed.

579. This has implications for the family would, under such an outcome, be separated, but that is the situation at present where both LC and NP are in out-of-home care separately from each other and from the three other boys who are together.

580. As well as findings that did not justify the conclusions reached, these questions were simply inadequately addressed or not addressed at all and for these reasons the grounds are, to that extent, made out. That, however, does not mean that the evidence actually adduced could not have sustained some findings were each child to be considered separately and evidence of the consequences adduced. In the circumstances, I do not need to address that here, but will seek submissions on consequential orders.

CP’s capacity to protect the children (Ground 11)

581. To some extent, this ground has been dealt with already. It challenges the finding of her Honour that “she [CP] has a demonstrated incapacity to meet [the children’s] emotional and social needs and well-being”. This, of course, is not the statutory test. Her Honour continued that this is despite “assistance … provided to her”, concluding that CP “is simply incapable of protecting the children and helping them to thrive”.

582. It was not in contention that CP provided emotional warmth for the children and that they had a strong bond with her. She loves them and they love her.

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583. The relevant test is set out in s 345(1)(b) of the Childrens Act, namely that CP is required to be “willing and able to protect the [children] … from the abuse or neglect or the risk of abuse or neglect”.

584. It is relevant to notice the definite article “the” before the first reference to “abuse or neglect” for it must refer to the abuse or neglect that the court has found under s 345(1)(a) of the Childrens Act that the children had suffered or were suffering. In this case, that is problematic, for I have found that the Reasons do not identify with the necessary precision what abuse had been suffered or was being suffered or what neglect had been suffered or was being suffered. The same is true of the risk of abuse or neglect.

585. It is accurate to say that the household CP ran was rather chaotic. It was not a household that would find favour with many others in the community. There is no doubt that some of the circumstances and of CP’s conduct could be criticised. The children were apparently not getting all the care and nurture that is desirable in a good family. That, however, is not the test. This is not the occasion for the Court to pass judgement generally on how CP manages her household or her children.

586. The test is the statutory test and is required, in these cases of great personal significance to both a parent or parents and their children, to be applied so that they can see that the community’s response to such issues by enacting such legislation is the true basis for a court order.

587. The first challenge was to the learned Magistrate’s finding that CP could not meet the children’s social needs. What these needs were was not explained by her Honour. In particular, it is not clear what “social needs” is meant to involve when considering the statutory test for the terms “abuse” and “neglect”. Without that, it is difficult to assess whether the statutory test has been applied. No party addressed this issue.

588. If the absence of CP meeting the social needs of the children do not lead to abuse or neglect, then CP’s failure, whatever it may be, is not probative of her incapacity to protect the children and thus cannot meet the test of whether the children are in need of care and protection.

589. The evidence was that all the children, except for JP, go to school, apparently, regularly. She had kept Care and Protection Services advised of the difficulties with JP. He has had difficulties with school while in out-of-home care as well. He has been, for a time, placed on half-time schooling, as he had in previous schools apparently while under CP’s care. That does not seem to have been a significant source of concern for Care and Protection Services.

590. There is no doubt that the use of cannabis by CP’s eldest child, who lived in her garage, but apparently had left at the time of the hearing, is a matter of concern. By itself, however, it may not have the necessary connection with abuse or neglect that is required. That he had left the home by the time of the hearing also needed to be addressed.

591. While CP said that she was not aware of his use of cannabis at home, the evidence was that the children knew and she did not know that. This is a matter of significance. The extent to which it amounts to abuse or neglect was not explored. However undesirable, it needs to be shown to be abuse or neglect.

592. The fact that CP was nearly evicted from her premises is also clearly a matter of significance. There is no doubt that her inability to provide a house for the children

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would constitute neglect. Of course, in this case, there was no gap in the provision of a home for the children. Whether that was a result of the publicity given in The Canberra Times to CP’s impending eviction or not the evidence does not reveal. Perhaps it is irrelevant since the children were, in fact, never homeless.

593. It was submitted by CP that the concern about the state of the house was not really an issue. Briefly, reliance was placed on a police report which described the house as “in a state of messiness, although still liveable”. In addition, Ms Dwyer accepted, on the appeal, that the house was not dirty; her reliance was simply on the fact that a Notice to Remedy had been served, regardless of whether CP disputed the basis for it. Mr Archer was less clear but made no final submission that the house was dirty, avoiding the need for Mr Walker SC to tender an inspection report of 6 March 2013.

594. The Director-General also relied on the tenancy breaches. A Notice to Remedy dated 25 March 2013 was admitted into evidence. The Notice in evidence did not state in its terms any matters “needing concern”. It stated that “the level of cleanliness and upkeep of the property is unsatisfactory” for the landlord. This CP disputed.

595. There was no evidence about the level required or the failings. There was no report of the condition of the house. It is not difficult to describe a house which would meet an unsatisfactory state so that it could be compared with what was unreasonable. See, for example, R v JM at [31]-[38]. In the light of the matters set out above (at 593), I do not need to consider this matter further.

596. The grounds for the Notice to Vacate were as follows:

Two Notices to Remedy have previously been issued to you [CP] in relation to tenancy breaches.

The property remains at an unsatisfactory level of cleanliness and repair.

Illegal substances and property have been kept on the premises.

Violence has occurred towards people lawfully on the property.

Concerns have been raised during the time of your tenancy with the YWCA HSS of the children’s welfare and safety.

Complaints have been received via external organisations of neighbourhood disturbances.

Police attendance has been required on more than one occasion.

597. CP submitted that the “principal concern” behind the Notice was the drug use of CP’s eldest son and the police attendance at the premises to execute a search warrant seeking drugs and stolen property. This, indeed, with complaints by members of the public, is how Ms Barbaric summarised the reasons for the Notice to Vacate. I am not satisfied, however, that this is the inference that, in the absence of other evidence, can properly be drawn. While these matters are obviously part of the concern, there is no suggestion that lack of cleanliness or repair were less significant or less relevant; indeed, these were the second matters mentioned on the Notice after the reference to the two prior Notices to Remedy.

598. On the other hand, CP did, in her evidence, challenge the assertion that she did not clean her house or keep it tidy, indeed, she said, “spotless”, and she was not challenged on this in cross-examination. She denied that it was unclean, despite the

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Notice to Remedy saying that it may not have met the landlord’s requirements. I have dealt with this above (at [593]).

599. No mention was made by her Honour of the “Circle of Security” course completed by CP at Barnardos or the course “Turning into Teens: Emotionally Intelligent Parenting” conducted by Belconnen Community Service in which she had enrolled.

600. Other matters not mentioned included the rewards chart process, which worked, but only for a while, and changes to her medication which made her more patient.

601. Despite this, it is to be accepted that CP had, at the time Emergency Action was taken, nine different organisations involved in considering the issues involved in the family. These, however, included the children’s schools and Housing ACT, which were not involved in direct support of CP. It was acknowledged that, to her credit, CP engaged well with the agencies actually supporting her. Ms Barbaric, however, suggested that the gains achieved from this engagement had, nevertheless, not been effective to ensure the developmental needs of the children.

602. Ms Barbaric expressed the view, both orally and in the Care and Protection Assessment Reports, that CP did not have the capacity, despite support, to be able to “ensure the children’s needs are met”.

603. I note, however, that the Children’s Representative conceded, at the hearing of the appeal, that it would have been beneficial, especially in the context of determining whether the care and protection order should be for two years or until the children are 18 years old, for there to have been an independent assessment of CP’s parenting capacity. It is not clear to me why that was not done.

604. An assessment of this ground of appeal continues to be bedevilled by the failure to identify with appropriate precision the abuse or neglect or both said to be suffered by each of the children or of which they were at risk of suffering and the failure to address the ability of CP to protect them from that abuse or neglect or risk.

605. The failure to obtain an independent assessment also is troubling.

606. For these reasons, I do not consider that I can find that, on the evidence before the learned Magistrate that she could not, were the failures of the test in relation to abuse or neglect or both properly addressed, have found that CP did not have the capacity, but that this really did not address the length of the order and whether all the children were required to be subject to the order so, in that sense, the ground has substance. It may well be that, were LC and NP to be subject to an order, CP would have had the capacity to protect the other children. This was a proper consideration that was simply not addressed, partly because there appeared not to be any individualised consideration of the issues. To that extent, these grounds are made out, though the consequences for the appeal are not straightforward.

Events of 10 July 2013 when Emergency Action taken (Ground 12)

607. The events of 10 July 2013, when an unannounced visit was made by Ms Barbaric, involved extreme behaviour by the children.

608. The outline of the events has been set out above (at [80]-[91]). It is to be noted that it only involved JP, GP and DP as LC and NP were at camp at the time. They were, however, also the subject of Emergency Action when they returned home on 12 July

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2013, even though they were not part of the events in question. The justification for Emergency Action for them is unclear.

609. Earlier on 10 July 2013, it appears that there had been an outburst by JP. He became worked up, apparently from his ADHD, and this led to a nose bleed. Nevertheless, CP had successfully quietened him down. All the children were settled when the two Child Protection workers, Ms Barbaric and Ms Davis, arrived.

610. In cross-examination, Ms Barbaric accepted that two of the children suffered from ADHD and Oppositional Defiance Syndrome which made an interaction with authorities complex. Her response that Ms Davis “wasn’t following them in order to instruct them to behave in a certain way” seems to me to miss the point; it is not the intention of the person in authority that is relevant, but the actual effect as perceived by the children. Her apparent lack of appreciation of the difference is somewhat troubling.

611. In any event, this led to extreme behaviour on the part of the children; climbing onto the roof, throwing concrete dust, spitting at the workers, and later jumping on their car.

612. Mr Walker SC pointed out that this was not the first time that children in general have engaged in dangerous behaviour such as climbing on roofs or trees or the like. While that may be accepted, this seems to me to be rather more extreme than that. In any event, CP could not control them while the workers were present. Further, their behaviour was more that the rather limited “got on roofs or climbed trees or did something of that nature” expressed by Mr Walker SC. It included the other behaviour and was clearly extreme. While the workers were there, CP did not appear to be able to get the children to come down or stop their behaviour.

613. Interestingly, despite the Child Protection Service workers attempting to assist CP with getting the children from the roof, they were apparently easily diverted from that task by GP shouting that “there are kids in the garage smoking bongs, go have a look!” Instead of continuing to try and get the children off the roof and apparently out of danger and to safety, Ms Barbaric then went, apparently directly, with CP to the garage.

614. She said that, when she went there, she could see no direct evidence of any smoking of cannabis – no bong, for example, as had earlier apparently been found. She relied on circumstantial matters to come to the conclusion that the occupants of the garage, including CP’s eldest son and his girlfriend, had been smoking cannabis. There was a strong smell of deodorant and the occupants “actively avoiding eye contact”. There was no explanation of how the occupants would have known that Ms Barbaric was coming to the garage so as to clear away any evidence of cannabis smoking and apparently disguise the smell with deodorant if that was what was being implied. She also did not explain why the avoidance of eye contact was not an ordinary adolescent or young adult behaviour to authority figures. On the other hand, the circumstances were certainly such as to invite suspicion.

615. The children obviously did get off the roof at some stage, for Ms Barbaric said that two of them went inside to get food and a saucepan and then got a hose and turned it on her and her colleague, unlikely to have occurred while they were on the roof. It appears that DP remained on the roof, while JP and GP got onto the bonnet of the workers’ car.

616. The two workers then requested police assistance. They may have left the premises as had been recommended, but the evidence was not entirely clear.

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617. CP’s evidence was that the children did come down from the roof but that seemed to be after the workers had departed as recommended by their supervisor, if they did. The evidence was a little unclear, but it appears that the children went back up onto the roof when the Child Protection workers returned.

618. The police arrived and Ms Barbaric told them that she believed that the children were “in need of care and protection as there was no parent was willing and able to act protectively and meet their needs” and so the children were the subject of Emergency Action. This was not, of course, the actual statutory test for Emergency Action. I note in passing, that the police report shows that NP was taken into care on that day, though he was not, in fact, there. It appears to be an error and should have been referred to DP. It is an unfortunate and undesirable error that shows some problem with the process.

619. The learned Magistrate found as follows (Reasons at [14]):

Quite clearly the children’s behaviour that day was out of control. Whether it can be attributed to the ADHD and oppositional defiance disorder that they have been diagnosed as suffering from is beside the point. The reality is that the mother was quite incapable of regaining control of the situation, that the children paid the mother’s attempts at discipline no regard and continued with their dangerous and extreme behaviour. That incident itself is not one of the determining issues in this case, but it is simply an example of the problem as a whole. The behaviours of the children were indicative of the significant issues that these children face and the real issue in this matter is whether the mother is capable of managing them and working with others in the children’s best interests. As the caseworker stated in her evidence, cumulative harm was the ongoing concern for these children.

620. CP complains that the role of the Care and Protection workers in the escalation of the behaviour of the children is “not to be overlooked”. I am not so clear how this is relevant. It is clear that CP had the children calm, but there was no allegation that, apart from the actual presence, the workers engaged in what could fairly be deemed provocative behaviour.

621. Certainly the visit was unannounced but that was known by CP to be part of the arrangements with her and Child Protection Services. Indeed, it would be expected that this was the case because, as Ms Barbaric pointed out in her evidence, such visits would “give a more accurate reflection of what is happening in the home” as noted above (at [156]).

622. While there may be some connection with the visit and the boys’ behaviour, it was not the first time that Care and Protection workers had visited the home. It was suggested that, at the time, the effect of the medication that the boys were taking had been wearing off, but that does not detract from the fact of the behaviour and its seriousness and riskiness, nor the fact that CP had difficulty in controlling them. It is accepted that she, rather than the workers, did get the boys off the roof, but they did go back and came down in order to engage in challenging behaviour with the workers.

623. CP submitted that the disclosures of the drug use in the garage, though unconfirmed, the explained bleeding nose of JP, not caused by CP striking him, or that CP’s eldest son had engaged in sexual intercourse in front of the children, did not justify Emergency Action.

624. That may be so. This is not really in issue in these proceedings, however, for the appeal concerns the care and protection orders and not the Emergency Action. Certainly, the children were at risk of physical injury while climbing on the roof. The

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need of a child for Emergency Action is defined in s 403 of the Childrens Act to mean the “immediate need for care and protection”, though it includes the notion of the children being in need of care and protection as statutorily defined. It was not the test that Ms Barbaric explained to police. That test and her opinion would not necessarily justify Emergency Action. It is a more limited concept than that which Ms Barbaric articulated. Whether it was satisfied on 10 July 2013 is not a matter I need to decide. It seems quite doubtful that it was satisfied for LC and NP.

625. While the learned Magistrate did rely on the events of 10 July 2013, her Honour did so to show that CP did not have the capacity to protect the children, in this case, from the risk of physical harm by the boys climbing onto and remaining on the roof. This could, in my view, constitute neglect by risk of serious physical harm to the boys.

626. I do not consider this ground discloses an error in the Reasons nor a basis for successfully challenging the orders made.

Failure to comply with s 352 of the Childrens Act (Ground 13)

627. Section 352 of the Childrens Act requires a decision maker, including a court to take into account the views and wishes of the children. It is an important provision to demonstrate the respect with which the Childrens Act requires to be afforded to children who are subject to actions of various kinds under its care and protection provisions.

628. The ground is not pressed, however, and I do not need to address it further.

Fresh evidence (Ground 14)

629. Evidence that was not before the learned Magistrate was adduced before me.

630. The basis of the tender was that the evidence would be relevant if I found that the orders of the Childrens Court had to be set aside and other orders made.

631. Under this heading, however, CP addressed another issue, namely whether the learned Magistrate was correct in finding, as she did, that there was unchallenged evidence that the children were “doing much better in their current placements”. This relied not on evidence that was tendered in the appeal and which her Honour had not seen, but also on evidence of contact visits with CP and the children and assessments of the placements of the children’s out-of-home care conducted by agencies since the Emergency Action was taken, some of which was before her Honour.

632. There is no doubt that there had been problems experienced by the children since Emergency Action was taken and interim orders made. For example, LC had experienced some sexual abuse and JP and DP took knives to school and threatened other children. There were a number other matters on which CP relied to submit that the placements were not in the interests of the children.

633. Against, this, there were gains reported in various areas. For example, DP’s behaviour was said to have “settled” and the response to his medication while in care was suggestive that “he was not being managed appropriately at home”. NP had improved his reading habits. JP’s behaviour had improved while in out-of-home care. The same is true for GP. As noted above (at [507]), DP’s asthma was well controlled.

634. This issue, however, was not linked to the statutory regime and so it was difficult to see how CP put the issue.

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635. Once a child or young person is found to be in need of care and protection, the Childrens Court has jurisdiction to make a care and protection order. In this case, each order gave the Director-General the authority to decide where the child was to live and with whom he or she may have contact and it gave the Director-General supervision, daily care responsibility and long-term care responsibility for the child or young person.

636. The Court did not decide where the child or young person was to live; the Director-General was given that authority.

637. Whether there would be a power of judicial review of a decision of the Director-General as to with whom a child or young person was to live is not a matter I have to decide. In this appeal, the issue was whether the care and protection orders should have been made and, if so, whether they should have been made until the children reached the age of 18 years.

638. Thus, the question of whether each child was in a good foster home or not is not strictly relevant to the question of whether a care and protection order is made or, if so, for how long.

639. It may be that, if the Director-General did not have a place for the child or young person to live at all, that may justify the Childrens Court, even where it decides that the child or young person is in need of care and protection, to decline to make such an order.

640. The legislation gives the Childrens Court a discretion as to whether to make a care and protection order even if the child or young person is in need of care and protection: s 464 of the Childrens Act. Matters such as the time when earlier events of abuse or neglect occurred, the circumstances then pertaining, subsequent events and so on will be very relevant to the exercise of this discretion as well as the options for how the Director-General is to exercise the responsibility given by the care and protection orders.

641. That a particular placement is a good one is a factor that the Childrens Court could take into account when exercising this discretion.

642. Thus, the finding of the learned Magistrate was not irrelevant but it was not determinative.

643. Again, it is relevant that, in the proceedings in the Childrens Court, Mr Hill, did not address this issue at all in the written submissions.

644. There was some brief cross-examination of Ms Barbaric as to the incident involving JP and GP taking knives to school and a later suspension of GP from school, but this was in the context of the issue that, as asked by Mr Hill, “Isn’t it the case that whoever these children are placed with, will need support to deal with these children’s behaviour?” Ms Barbaric agreed. There was no challenge to the evidence in the various reports annexed to Ms Barbaric’s affidavit that suggested that the children were, with some exceptions and acknowledging ongoing challenges, doing well – sometimes better – in their out-of-home care placements.

645. In those circumstances, it does not seem to me that her Honour’s finding was incorrect; the evidence of the children doing better was unchallenged, though there was evidence that they were, as would be expected in the case of such children, experiencing still some difficulties.

646. I do not consider that this challenge has been made out.

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647. As to the other use of the fresh evidence, that which was actually fresh in the sense that it was not before the learned Magistrate and, for the most part, related to periods after the making of the care and protection orders (R v Nguyen [1998] 4 VR 394 at 400-1), that must await the final disposition of these proceedings.

Disposition

648. I have found some of the appeal grounds were made out justifying interference with the orders made by the learned Magistrate. The appeal must be upheld.

649. It may be that by setting aside the orders made by the learned Magistrate, the interim orders become operative again. This would be a convenient way to deal with the matter.

650. This depends on the effect of the order which I should make, having found that there was an error of law in the proceedings before the learned Magistrate. That ordinarily would require the orders her Honour made to be set aside. There is some uncertainty about the effect of such an order.

651. There is high authority to suggest that the setting aside of an order is to avoid it ab initio: Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225; MacIntosh v Lobel (1993) 30 NSWLR 441 at 459. Those decisions make it clear that actions done on reliance on the quashed order are protected. See also Faull v Commissioner for Social Housing for the Australian Capital Territory [2013] ACTSC 121; 277 FCR 61 at 80; [97]-[100].

652. Similarly, where an order effects a change in status, it has been held that the setting aside of such an order has the effect that it was as if the original order had never been made: Pattison v Hadjimouratis [2006] FCAFC 153; 236 ALR 1 at 6; [14]; 10-11 [51]-[58]; 30-1; [177]-[181]; De Robillard v Carver [2007] FCAFC 73; 240 ALR 675 at 702; [149]-[150]. This may apply in these circumstances.

653. If this is the consequence, then the interim orders would not have ended under s 433(3) of the Childrens Act by the making of the care and protection orders which have been set aside and would still apply under the hearing of the various applications.

654. Thus, the question of consequential orders is problematic and I expect that some submissions may be required.

655. The appeal must be upheld but I shall hear the parties as to the consequential orders to be made.

I certify that the preceding six hundred and fifty-five [655] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 21 December 2017

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