Civil Trials Bench Book — Particular proceedings

A party dissatisfied with a decision of the Children’s Court may appeal to the District Court: s 91(1) of the Children and Young Persons (Care and Protection) Act 1998 (the “Care Act”). However, if the decision is made by the President of the Children’s Court, the appeal must be made to the Supreme Court.

Judges of the District Court hearing such appeals have, in addition to any functions and discretions that the District Court has, all the functions and discretions that the Children’s Court has under Ch 5 and 6 of the Care Act (ss 43–109X): s 91(4). The decision of the District Court in respect of an appeal is taken to be a decision of the Children’s Court and has effect accordingly: s 91(6).

The provisions of the Care Act (Ch 6) relating to procedure apply to the hearing of an appeal in the same way as they apply in the Children’s Court: s 91(8).

Applications are sometimes made to the Supreme Court in its parens patriae jurisdiction by parties who are dissatisfied with decisions of the Children’s Court or the District Court in relation to children. Parties are discouraged from attempting to bypass the statutory appeal mechanism from decisions of the Children’s Court. Exceptional circumstances are required to be demonstrated for the Supreme Court to interfere with orders that have been made by judicial officers exercising specialist jurisdiction such as those in the Children's Court: Re M (No 4) — BM v Director General, Department of Family and Community Services [2013] NSWCA 97 at [21]-[23].

The Care Act contains an inextricable mixture and combination of both judicial and administrative powers, duties and responsibilities. It is often difficult to precisely discern where the Department of Family and Community Services’s powers and responsibilities begin and end as opposed to those of the court. In summary, however, the Act establishes a regime under which the primary, and ultimate, decision-making as to children rests with the Children’s Court, or the District Court (exercising Children’s Court jurisdiction on appeal).^[1]

The Care Act contains a small number of key concepts. They include:

A care appeal proceeds by way of a new hearing and fresh evidence, or evidence in addition to, or in substitution for, the evidence on which the order was made by the Children’s Court: s 91(2). The District Court may decide to admit the transcript or any exhibit from the Children’s Court hearing: s 91(3).

The proceedings are to be conducted in closed court (s 104B), and the name of any child or young person involved, or reasonably likely to be involved, whether as a party or as a witness, must not be published: s 105(1). This prohibition extends to the publication or broadcasting of the name of the child or young person who is or has been under the parental responsibility of the Minister or in out-of-home care: s 105(1A). The prohibition includes any information, picture or other material that is likely to lead to identification: s 105(4).

There are exceptions, such as where a “young person” (ie a person aged 16 or 17: s 3) consents, where the Children’s Court consents, or where the Minister with parental responsibility consents: s 105(3), or to the publication by the Coroners Court of its findings in an inquest concerning their suspected death: s 105(3)(a1).

The media is entitled to be in court for the purpose of reporting on proceedings, subject to not disclosing the child’s identity. But, the court has a discretion to exclude the media: AM v Department of Community Services (DOCS); ex parte Nationwide News Pty Ltd (2008) 6 DCLR(NSW) 329.

Care proceedings, including appeals, are not to be conducted in an adversarial manner: s 93(1). They are to be conducted with as little formality and legal technicality and form as the circumstances permit: s 93(2). The court is both empowered and required to proceed with an informality and a wide-ranging flexibility that might be thought not entirely appropriate in a more formally structured court setting and statutory context: Re “Emily” v Children’s Court of NSW [2006] NSWSC 1009.

The court is not bound by the rules of evidence, unless it so determines (s 93(3)), but see Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 per Meagher JA at [79].

The standard of proof is on the balance of probabilities: s 93(4). The High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re “Sophie” [2008] NSWCA 250.

The provisions of the United Nation’s Convention on the Rights of the Child 1989 (“UNCROC”) are capable of being relevant to the exercise of discretions under the Care Act: Re Tracey (2011) 80 NSWLR 261; Re Kerry (No 2) (2012) 47 Fam LR 212.

However, in the decisions of Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 and JL v Secretary, Department of Family and Community Services [2015] NSWCA 88, failure to raise a specific point of differentiation between the Care Act and the UNCROC did not constitute error.

The objects of the Care Act are as set out in s 8.

The Care Act is to be administered under the principle that the safety, welfare, and well-being of the child are paramount (the paramount concern): s 9(1). This principle is the underpinning philosophy by which all relevant decisions are to be made. It operates, expressly, to the exclusion of the parents, the safety, welfare and well-being of a child or young person removed from the parents being paramount over the rights of those parents.

It is now well settled law that the proper test to be applied is that of “unacceptable risk to the child”: The Department of Community Services v “Rachel Grant”, “Tracy Reid”, “Sharon Reid and “Frank Reid” [2010] CLN 1 per Judge Marien at [61]; NU v NSW Secretary of Family and Community Services [2017] NSWCA 221.

Whether there is an “unacceptable risk” of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] FamCA 1235. This test of whether there is an “unacceptable risk” of harm to the child is the sine qua non for the application of the Act: see M v M (1988) 166 CLR 69 at [25]. If ever in doubt, return to this principle for guidance.

For applications made on or from 15 November 2023, subject to the “paramountcy principle”, functions under the Act must be in accordance with the principle of active efforts: s 9A(1), (5); Sch 3 Pt 14 cl 2(a). The “principle of active efforts” means making active efforts to prevent the child from entering out-of-home care, and in the case of removal, restoring the child to the parents, or if not practicable or in the child’s best interests, with family, kin or community: s 9A(2). Active efforts are to be timely, practicable, thorough, address the grounds on which the child is considered to be in need of care and protection, conducted in partnership with the child, their family, kin and community, and culturally appropriate, amongst other things, and can include providing, facilitating or assisting with access to support services and other resources — considering alternative ways of addressing the needs of the child, family, kin or community: s 9A(3), (4).

Other, particular principles to be applied in the administration of the Act are set out in ss 9(2), 10, 11, 12 and 13. Reference should be made to the full text of these principles, which require, in summary, that:

The basis for making a care order under the Care Act is a finding that the child is in need of care and protection: s 71. This is known as the “establishment” phase and is the trigger for the main operative provisions, such as removal (s 34), allocation of parental responsibility (s 79), and permanency planning: s 83.

“Care and protection” is not conclusively defined, and the concept is at large; a finding may be made for “any reason”. But the Care Act does specify a range of circumstances that, without limitation, are included in the definition, or to which the definition extends: s 71.

If the Director-General forms the opinion that a child is in need of care and protection, he or she may take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child: s 34(1).

Removal may be sought by seeking orders from the court (s 34(2)(d)), by the obtaining of a warrant (s 233), or, where appropriate, by effecting an emergency removal: s 34(2)(c). See also ss 43 and 44.

“Parental responsibility” means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children: s 3.

The primary care-giver is the person primarily responsible for the care and control of a child, including day-to-day care and responsibility.

If the Children’s Court finds that a child is in need of care and protection, it may make a variety of orders allocating parental responsibility, or specific aspects of parental responsibility: s 79(1).

Under s 38E, breach of a parent responsibility contract (“PRC”) does not give rise to a presumption that a child is in need of care and protection. Additionally, the applicability of PRCs extends to expectant parents: s 38A(1)(b).

A parent capacity order (“PCO”) can be used as a stand-alone provision, during proceedings or as a result of a breach of a prohibition order: s 91B. The threshold test set out in s 91E for the making of a PCO is lower than the threshold test for a care application: s 72. An application for a PCO can also be referred to a dispute resolution conference (“DRC”): s 91D.

In order to make a PCO there must be an identified deficiency in the parenting capacity of a parent/primary care-giver that has the potential to place the child or young person at risk of significant harm. Secondly, the court must be satisfied that the parent/primary care-giver is unlikely to attend or participate in the program, service or course or engage in the therapeutic service: s 91E.

The Children’s Court can make a PCO by consent: s 91F. This function may be exercised by a Children’s Registrar in relation to an application made the Secretary: s 91B(a).

After “establishment” the process moves towards “final orders”. Prior to the making of final orders, the Director-General is required to undertake permanency planning for the child. The court must not make a final care order unless it expressly finds that permanency planning has been appropriately and adequately addressed. “Permanency planning” means the making of a plan that aims to provide a child with a stable, preferably permanent, placement that offers long-term security and meets their needs.

As part of the permanency planning, the Director-General is required to assess whether there is a realistic possibility of restoration of a child to the parent(s): s 83(1). There is no statutory definition of the phrase “realistic possibility of restoration”: Department of Family and Human Services (NSW) re Amanda and Tony [2012] NSWChC 13 at [29]–[32] and DFaCS (NSW) re Oscar [2013] NSWChC 1 at [29]–[34].

The court is to decide whether to accept that assessment: s 83(5). If the court does not accept the assessment of the Director-General, it may direct the Director-General to prepare a different permanency plan: s 83(6).

Before the court can make a final order approving a permanency plan involving restoration, within a reasonable period (which must not exceed 24 months: s 83(8A)), it must expressly find that there is a realistic possibility of restoration, having regard to two matters: the circumstances of the child; and secondly, any evidence that the parents are likely to be able to satisfactorily address the issues that have led to the removal of the child. It follows that when deciding whether to accept the assessment of the Director-General, the court must have regard to both those considerations: s 83(5).

“V V” v District Court of New South Wales [2013] NSWCA 469 is significant as it relates to two key legal principles. Specifically, the interpretation given to “circumstances of the child” under s 83(1)(a) and the need to provide reasons under s 79(3).

First, Barrett JA held that “circumstances of the child” under s 83(1)(a) should be given a wide interpretation. Barrett JA states at [68]:

Second, Barrett JA makes clear that judicial officers are required to consider the principles under s 79(3) and that their decision and reasons may be examined to determine whether they have done so: [84]–[85].

The Care Act provides for a hierarchy of permanency planning principles to guide decision making, entitled the “permanent placement principles”: s 10A. The intent is to focus case planning on long-term options that would be more likely to offer the child and carers greater certainty and stability.

Permanent placement refers to a long-term placement following the removal of a child or young person from the care of a parent or parents that provides a safe, nurturing, stable and secure environment for the child of young person: s 10A(1).

The permanent placement principles provide that the first preference is for the child or young person to be restored to the care of his/her parent or parents so as to preserve the family relationship: s 10A(3)(a).

If restoration is not practicable or in the best interests of the child or young person, the second preference is to order guardianship to a relative, kin or other suitable person: s 10A(3)(b).

If neither of these options is practicable or in the best interests of the child or young person, the next preference is for the child to be adopted (excepting in the case of an Aboriginal or Torres Strait Islander child or young person): s 10A(3)(c).

Under s 78A(3) of the Care Act, a permanency plan for an Aboriginal or Torres Strait Islander child submitted to the Children’s Court must address how the plan has complied with the placement principles in s 13 of the Care Act. Pursuant to s 83(7), the Children’s Court must not make a final care order unless it expressly finds that “permanency planning for the child or young person has been appropriately and adequately addressed” and that prior to approving a permanency plan involving restoration, there is a realistic possibility of restoration within a reasonable period, having regard to the circumstances of the child or young person, and the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

In cases where restoration, guardianship and adoption are not practicable or in the best interests of the child or young person, the last preference is for the child to be placed under the parental responsibility of the Minister: s 10A(3)(d).

Where restoration, guardianship and parental responsibility to the Minister are not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person, the Aboriginal or Torres Strait Islander child or young person is to be adopted: s 10A(3)(e). Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 states the principles for the identification of an Aboriginal child for the purposes of the Adoption Act.

There are two types of final orders. The first involves restoration to the persons (usually the parents) who enjoyed parental responsibility prior to removal. The second involves out-of-home care, which means residential care and control provided by others at a place other than the usual home: s 135.

Where the Director-General assesses that there is a realistic possibility of restoration within 24 months, a permanency plan involving restoration is submitted to the court: s 83(2). If the court expressly finds that the plan appropriately and adequately addresses permanency planning and that there is a realistic possibility of restoration, it can proceed to make final orders in accordance with the plan.

Where the Director-General assesses that there is not a realistic possibility of restoration, a permanency plan for another suitable long-term placement is submitted to the court: s 83(3). The Director-General may consider whether adoption is the preferred option: s 83(4).

Decisions concerning out-of-home placement of children in need of care and protection are not decisions that the court undertakes lightly or easily. But at the end of the day, a risk assessment is required, in accordance with the principle that the safety, welfare, and well-being of the child are paramount. It is now well settled law that the proper test to be applied is that of “unacceptable risk” of harm to the child: M v M, above, at [25]. Whether there is an “unacceptable risk” is to be assessed from the accumulation of factors proved: Johnson v Page, above.

The permanency plan need not provide details as to the exact placement, but must provide sufficient detail to enable the court to have a reasonably clear understanding of the plan: s 83(7A). The care plan must make provision for certain specified matters: s 78. If a care plan made on or after 15 November 2023 is for an Aboriginal or Torres Strait Islander child, it must include a cultural plan to show how the connection with First Nation’s family, community and identity will be maintained and developed: s 78(2A)(a); Sch 3, Pt 14 cl 2(c). The plan must be developed in consultation with the child, their parents, family and kin, and relevant First Nation’s organisations and entities: s 78(2A)(b). The plan must comply with permanent placement principles, the Aboriginal and Torres Strait Islander Children and Young Persons Principles and the placement principles for Aboriginal and Torres Strait Islander children under s 13: s 78(2A)(c). For earlier applications, see former s 78A(3)(rep).

Importantly, the care plan involving removal must also include provision for appropriate and adequate arrangements for contact: s 78(2). In addition, the court may, on application, make orders in relation to contact, including orders for contact between children and their parents, relatives or other persons of significance: s 86. Section 86 empowers the court to make a range of contact orders, both as to frequency and duration, and whether or not the contact should be supervised.

The court’s power to make contact orders where there is no realistic possibility of restoration is confined. Accordingly, where restoration is not planned, the maximum period that may be specified in a contact order is 12 months: s 86(6). These reforms highlight the clear legislative and policy shift toward including contact arrangements in a care plan rather than in a court order.

The process for varying contact orders and making applications for contact orders following the conclusion of the initial proceedings are found in ss 86(1A); (1B); (1C); (1E) and (1F).

Applications for rescission or variation of care orders require the applicant to obtain leave, which will only be granted if there has been “significant change in any relevant circumstances” since the original order: s 90(2). The Care Act sets out a number of matters that the court must take into account before granting leave: s 90(2A). The primary considerations concern the views of the child or young person, the stability of present care arrangements, and, if the court considers that present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in his or her best interests: s 90(2B). Additional considerations are set out in s 90(2C).

A refusal of leave is an “order” for the purposes of s 91(1) of the Care Act: S v Department of Community Services [2002] NSWCA 151 at [53]. A refusal (or the granting) of leave may, therefore, be the subject of a statutory appeal to the District Court.

Once leave is granted, the Care Act goes on to prescribe another set of requirements that must be taken into account when the rescission or variation sought relates to an order that placed the child under the parental responsibility of the Minister, or that allocated specific aspects of parental responsibility from the Minister to another person: s 90(6).

For a detailed discussion of s 90 applications, see In the matter of Campbell [2011] NSWSC 761 and Kestle v Department of Family and Community Services [2012] NSWChC 2.

Special provisions are set out in the Children and Young Persons (Care and Protection) Regulation 2022 in relation to the leave requirement in s 90(2) as it relates to guardianship orders: cl 4.

In Re Mary [2014] NSWChC 7, Blewitt ChM considered whether the decision of Rein J in Re Timothy [2010] NSWSC 524 was conclusive. Specifically, Blewitt ChM considered whether the Children’s Court could amend an interim order without the need for an application to be made under s 90 of the Care Act. Blewitt ChM concluded that interim orders can be amended without the need for a s 90 application; it is not an essential requirement.

Section 90AA of the Care Act enables a party to care proceedings before the Children’s Court to make an application to vary an interim care order during the proceedings (instead of having to seek leave to make an application under s 90). Section 90 does not apply to an application to vary an interim order.

Section 79A of the Act governs guardianship orders. The court may make an order allocating to a suitable person all aspects of parental responsibility for a child or young person who is in statutory or supported out-of-home care, or who it finds is in need of care and protection until the child or young person reaches 18 years of age: s 79A(2).

The court must be satisfied of each of the following (s 79A(3)):

Parental responsibility may be allocated jointly to more than one person under a guardianship order: s 79A(4).

A guardianship order cannot be made if it would be inconsistent with any Supreme Court order with respect to the child made under its custody and guardianship of children jurisdiction, or a guardianship order made by the Guardianship Tribunal: s 79A(5).

Unless varied or revoked under s 90, a guardianship order remains in force until the child reaches age 18: s 79A(6).

The court’s power to order suitability reports or to undertake a progress review applies only to orders allocating parental responsibility under s 79, and not to orders allocating parental responsibility by guardianship order under s 79A: s 82(1).

The maximum period of supervision has changed and the court may now specify a maximum period of supervision that is longer than 12 months (but does not exceed 24 months): s 76(3A).

The reforms have also impacted upon orders prohibition action (prohibition orders): s 90A. The changes include an extension to the class of persons subject to a prohibition order. The persons subject to a prohibition order can now include “any person who is not a party to the care proceedings” in addition to a parent of a child or young person: s 90A(1).

The Care Act gives the Children’s Court a limited power to make an order for an award of costs. The Care Act provides that the Children’s Court, and therefore the District Court, can only make an order for costs in care proceedings where there are exceptional circumstances: s 88. These must be seen as being case dependent in the context of the statutory scheme for child protection: Re: A Costs Appellant Carer (a pseudonym) v The Secretary, Department of Communities and Justice [2021] NSWDC 197 at [90].

The costs power does not extend to the making of an order against a non-party: Director General of the Department of Family and Community Services v Amy Robinson-Peters [2012] NSWChC 3.

The Children’s Court clinic is established under Pt 3A of the Children’s Court Act 1987, and is given various functions designed to provide the court with independent, expert, objective, and specialist advice and guidance.

The court may make an assessment order, which may include a physical, psychological, psychiatric, or other medical examination, or an assessment, of a child: Care Act s 53. The court may also make an order for the assessment of a person’s capacity to carry out parental responsibility (parenting capacity): s 54. In addition, the court may make an order for the provision of other information involving specialist expertise as may be considered appropriate: s 58(3).

A clinician can provide impartial, independent, objective information not contained in other documents, give context and detail to issues that others may not have picked up on, and which the court, trammelled by the adversarial process and the “snapshot” nature of a court hearing, would not otherwise have the benefit of.

The Children’s Court has alternative dispute resolution processes. The dispute resolution conference (“DRC”) model has now become an integral aspect of Children’s Court proceedings. This includes Aboriginal care circles, which aim to encourage more culturally appropriate decision making for Aboriginal children and families involved in care and protection cases in the Children’s Court, and external mediation.

Conferences are regularly conducted at the court by legally qualified Children’s Registrars and are also trained mediators and adopt an advisory, not a determinative role: see s 65 of the Care Act.

Section 37(1A) requires the Secretary to offer the family of a child or young person alternative dispute resolution processes before seeking care orders from the Children’s Court if the Secretary determines the child or young person is at risk of significant harm. However, the Secretary is not required to offer DRC if, in their opinion, that participation would not be appropriate due to exceptional circumstances (s 37(1B)), or if there are criminal proceedings or a police investigation and, considering advice by the Commissioner of Police, is of the opinion that it is not appropriate: s 37(1C).

The District Court, when conducting a care appeal, has all the functions and powers of the Children’s Court, the District Court may refer an appeal at any time to a DRC.

Legislation

Rules and Practice Notes

Further references