DN v Secretary, Department of Communities and Justice

This is an application brought in the Court’s supervisory jurisdiction for review of a decision of the Children’s Court (the CC). The plaintiff, DN, is the birth mother of Michael (aged 14) and Mary (aged 13) (pseudonyms) (the children). The first defendant is the Secretary of the Department of Communities and Justice (the Secretary). The second defendant is the birth father of the children.

The proceedings arise from an unusual set of circumstances. In 2010, the CC made final care orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”) allocating all aspects of parental responsibility for the children to the Minister for Families and Communities (the Minister). In late 2017, Michael and Mary were placed with the third defendant, Mr A, and the fourth defendant, Ms L (the carers). The carers are both citizens of the United Kingdom.

On 15 July 2020, Ms L and the children travelled to the UK to visit Mr A, who had left Australia because his work visa had been cancelled. Although Ms L and the children had originally intended to return to Australia, their return flights were cancelled due to the Covid-19 pandemic. Since then, the children have resided with the carers in the UK.

In April 2020, prior to the children leaving NSW, the plaintiff filed an application, under ss 86 and 90 of the Care Act seeking parental responsibility and contact. In October 2020, after the children had left NSW, the carers sought to be joined to the plaintiff’s application. In March 2021, the carers filed their own application seeking parental responsibility over the children.

On 16 June 2022, the CC made orders allocating parental responsibility with respect to contact and culture to the Minister, and parental responsibility with respect to all other matters to the carers. The plaintiff submits that, at that time, the CC did not have jurisdiction over the children.

The essential question for determination in this appeal is whether the existence of a care order is itself sufficient to enliven the CC’s jurisdiction to determine an application to rescind or vary a care order under s 90 of the Care Act. For the reasons that follow, the learned magistrate was correct to find that the CC had jurisdiction under s 90. In summary, there are two essential reasons for this conclusion.

First, on the proper construction of the Care Act, the jurisdictional fact necessary to engage the Court’s power under s 90 is the fact of a final care order having been made. Section 4 of the Act is not relevant.

Second, if s 4 of the Act is relevant, then a child or young person who, under the Care Act, became subject to a care order as a result of being subject to an event or circumstances that gave rise to a report within the meaning of s 4(c) — continue to meet that description notwithstanding that the event or circumstances have passed. Section 4(c) is an example of the historic present tense.

The Court also rejects the plaintiff’s alternative contention that there was an error on the face of the record because, particularly in the case of an Aboriginal person, a suitable person under s 79(1) of the Act could never be a person who resided out of Australia. In summary, this is because who was a “suitable person” was not limited by the text of s 79, and insofar as other considerations were relevant, including the Aboriginal placement principles, they were subject to the paramountcy principle in s 9(1) of the Act. There is no textual warrant in the Act to conclude that, having regard to the paramountcy principle, a suitable person could never be a person who resided out of Australia.

Mr M Green SC and Mr B Dean of Counsel appeared for the plaintiff. Dr D Kell SC and Mr C McGorey of Counsel appeared for the first defendant.

The facts were not in dispute.

Michael is 14 years old. Mary is 13 years old. Both children, like their mother, are Aboriginal.

The children were removed from the care of their mother in October 2009 because of serious concerns regarding the parenting capacity of the biological parents. On 12 October 2009, the Minister applied to the CC for final orders pursuant to s 79(1) of the Care Act (proceedings 227-228/09).

On 26 August 2010, the Children’s Court made final orders giving the Minister sole parenting responsibility over Michael and Mary, until each respectively attains 18 years of age.

After removal from their mother, the children moved between multiple carers. Attempts were made to place the children with family members including, for a short time, with a maternal aunt, however this was unsuccessful. From 2015, it became increasingly difficult to find a suitable long-term placement and, as a result, it became likely that the children would be separated.

In late 2017, Ms L — who was familiar with the children, their difficulties in finding a suitable carer, and the high likelihood of their separation if a suitable placement could not be found — volunteered to care for Michael and Mary. In December 2017, Ms L and her husband Mr A became the authorised carers for the children. There were no Aboriginal carers available who could care for the children at that time. The children have been under the care of Mr A and Ms L ever since.

Mr A and Ms L are citizens of the United Kingdom. From 2016, they resided in Australia pursuant to Mr A’s working visa. In February 2019, Mr A was made redundant. Because he was unable to find work within 90 days following his redundancy, Mr A’s visa expired. He left Australia on 25 June 2019. Ms L’s visa was linked to Mr A’s so that it was scheduled to expire on 1 August 2020. Despite exploring numerous options, Ms L was unable to find a way to have her visa extended.

After Mr A returned to the UK, Ms L applied for authorisation to travel with the children to visit him, which the Minister granted. They left Australia on 2 July 2019 and returned on 19 January 2020.

After returning to Australia, Ms L struggled to find suitable accommodation. She and the children were moved between several places. This was traumatizing for both her and the children. As a result, Ms L’s health deteriorated. She understandably missed the support of her husband and expressed a desire to return to the UK.

On 22 April 2020, having been made aware of Ms L’s intentions to travel overseas, the plaintiff applied to the Children’s Court (in proceedings 227-228/09), seeking parental responsibility and for contact orders to be made.

On 12 June 2020, the Children’s Court granted leave to the plaintiff to bring an application for contact orders. The Court also granted leave to bring an application for parental responsibility, however, only in relation to two aspects of parental responsibility—contact and the children’s culture.

On 10 July 2020, the Minister gave consent to Ms L to travel with the children to the UK to visit her husband, subject to the requirement that she return with the children to Australia by 26 October 2020.

On 15 July 2020, Ms L travelled with the children to the UK. However, due to the COVID-19 pandemic, the return flights were unavoidably cancelled. Since that time, Michael and Mary have remained in the UK with Mr A and Ms L.

On 14 October 2020, Mr A and Ms L filed an application seeking to be joined to the mother’s application and indicated that they would also be seeking parental responsibility for the children until they attained 18 years of age.

On 23 September 2020, Mr A and Ms L were informed in writing that the Secretary would not support the children moving permanently to the UK. The letter did state, however, that the Department of Communities and Justice could support the carers to remain in Australia as the children’s long-term carers, indicating that casework and financial support would be available, as well as assistance in making a visa application.

At a hearing on 8 October 2020, the Secretary informed the Court that, pending the determination of the application, no action would be taken to compel the children to return to Australia.

On 24 March 2021, Mr A and Ms L filed a separate application under s 90 of the Care Act (proceeding 2020/126155), in which they sought parental responsibility to be transferred to them.

The hearing of both applications took place on 8, 10 and 11 March 2022.

In written submissions filed on 8 April 2022, the Secretary indicated that, while it was preferred that the children and carers should return to Australia, the Secretary “supports the children remaining with the carers in the UK in the long-term”.

On 16 June 2022, the learned magistrate made final orders in the proceedings, giving her reasons orally. At this time the children resided in the UK.

The Magistrate made identical orders with respect to Michael and Mary (the Orders):

The learned magistrate’s reasons relevant to the present appeal were:

By an amended summons filed on 12 December 2022, the plaintiff seeks the following orders with respect to the orders made on 16 June 2022:

The plaintiff advances two grounds in support of these orders:

On 15 March 2022, the Secretary filed an amended response to the summons, opposing the relief sought by the plaintiff on the following grounds:

The first ground of appeal, the plaintiff submits, is that s 4 of the Care Act did not confer jurisdiction on the CC to make the Orders:

A “report” is defined under s 3 as “a report made under section 24, 25 or 27” of the Care Act. Sections 24 and 25 provide:

Section 27 of the Care Act imposes mandatory reporting requirements on specific classes of persons.

The plaintiff’s contention is, contrary to the learned magistrate’s conclusion, that ss 4(a)-(c) of the Care Act were not engaged.

The plaintiff also submits that the magistrate made a jurisdictional error when she held that:

The plaintiff argues that the application to which the magistrate refers is the initiating application filed on behalf of the Secretary on 12 October 2009. It does not refer, the plaintiff contends, to either the initiating application filed by the plaintiff on 22 April 2020 or the initiating application filed by the carers on 14 October 2020. The plaintiff relies on the following passage from the magistrate’s judgment to support this argument:

The plaintiff asserts that this approach is erroneous. Instead, the relevant time to determine jurisdiction, the plaintiff submits, is the time at which the CC is to exercise its power under the Care Act. The plaintiff made several arguments to support this claim.

Mr Green SC suggested that Parliament’s use of the word “exercised” in s 4 of the Care Act accords with a reading of the section in which jurisdiction coincides with the exercise of power.

Mr Green SC also put that the magistrate’s interpretation — in which the functions of the Care Act might be exercised in circumstances where its preconditions are presently not met but have previously been met — is an approach not reflected in the text of the Care Act. For instance, he submitted this approach does not accord with s 72(1)(a) of the Care Act:

Furthermore, Mr Green SC relied on this passage from Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 at 420-1:

Mr Green SC submitted that, on the plain meaning of s 4 and consistent with the rest of the Care Act, the magistrate was required to determine whether any of the preconditions to the exercise of power in ss 4(a)-(c) were met on 16 June 2022.

The plaintiff accepted that, if the date of the initial application (filed on 12 October 2009) was held to be the relevant time, then her remaining arguments on jurisdiction would fail, as both children were ordinarily living in New South Wales at that time.

The plaintiff submits that, on the date that the magistrate exercised her powers under the Care Act (16 June 2022), Michael and Mary were not ordinarily living in New South Wales. It was noted by Mr Green SC that, despite the parties addressing the issue in their written submissions, the Magistrate made no finding of fact relating to where the children ordinarily live or have lived.

In the plaintiff’s written submissions, Mr Green SC noted that the plaintiff could not point to any authority that had directly considered the phrase “ordinarily live” in the context of the Care Act. Nevertheless, he proceeded to make several submissions relating to the construction of s 4(a).

First, relying upon the Macquarie Dictionary’s definition of the words “ordinary” and “live”, Mr Green SC argued that a person will “ordinarily live” in a place if they “usually dwell or reside there”.

Second, Mr Green SC sought to rely upon the case of LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9, where the High Court considered the phrase “habitually resided” — a phrase that the plaintiff submitted is similar to “ordinarily live[s]” and thus of some relevance — in the context of interpreting the Hague Convention on the Civil Aspects of International Child Abduction 1986:

The Court further held that the intention of a person will be a relevant consideration in determining whether an individual is habitually resident in a location, however, not a determinative factor (LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 [28]-[35]).

With this construction in mind, the plaintiff contended that, from 15 July 2020, the centre of Michael and Mary’s personal and family life has not been New South Wales. In her written submissions, the plaintiff argued this was apparent from the fact that:

The plaintiff contends that, if, as submitted above, the relevant time to determine jurisdiction under s 4 of the Care Act is when the CC exercises its power, then it must be accepted that Michael and Mary were not present in NSW at the relevant time on 12 June 2022, as the children have not been present in NSW since 15 June 2020. On this basis, the plaintiff argues the CC did not have jurisdiction under s 4(b) of the Care Act.

If, on the other hand, this Court decides that, under s 4 of the Care Act, jurisdiction is determined at the time at which the application is filed, not exercised, then the plaintiff accepts that the CC had jurisdiction to determine the application filed by the plaintiff on 22 April 2020, as on that date the children were present in NSW. The plaintiff argues, however, that in such circumstances the CC would not have had jurisdiction to determine the application filed by the carers on 14 October 2020, as by then the children had left NSW.

The plaintiff submits that the CC did not have jurisdiction under s 4(c) of the Care Act because, at the time of the decision, Michael and Mary were not subject to an event or circumstance occurring in NSW that gives or give rise to a report. The learned magistrate, the plaintiff contended, thus erred when she held:

The plaintiff argued that, under s 4(c), the questions for the CC are: first, whether there exists a report concerning a child describing an event or circumstance occurring in NSW; and second, if there is such a report, whether the child identified in the report remains subject to the event or circumstances described therein. According to the plaintiff, the CC will only have jurisdiction under s 4(c) where an affirmative answer can be given to both.

The plaintiff contended that the magistrate failed to direct her attention to the second element mentioned above—namely, whether the children remained subject to the event or circumstances described in the report. Mr Green SC argued that, while the magistrate was correct to find that the children had previously been subject to events or circumstances giving rise to a report, they were no longer subject to those events or circumstances at the time of the decision.

The plaintiff further submitted that the magistrate’s approach is not reflected in the plain language of s 4(c) of the Care Act. If Parliament had intended for s 4(c) to apply to events or circumstances that had occurred in the past but were not ongoing, then the statutory text would make this intention explicit. It would read, for instance:

The plaintiff noted that the children are “safe and well” in the UK under the care of Mr A and Ms L, and that significant time had passed since a report had been made arising from an event or circumstances, occurring in NSW, to which the children were subject. On this basis, the plaintiff submitted that, at the time of the decision, there was no longer an event or circumstances occurring in NSW to which the children were subject that would give rise to a report. Hence, the plaintiff contends, the CC could not exercise jurisdiction under s 4(c) of the Care Act.

The plaintiff also sought to address concerns raised by the magistrate, in her reasons, relating to the plaintiff’s approach to s 4 of the Care Act. The magistrate said:

First, the plaintiff submitted that this reasoning is erroneous, in that the CC, under s 43(2) of the Interpretation Act 1987 (NSW), has the power rescind or vary orders previously made, provided those orders are within power.

Second, the plaintiff submitted that it is neither irrational nor unjust for s 4 of the Care Act to be construed in a way that provides finality to proceedings and for jurisdiction to be determined in the circumstances and at the time at which its exercise is prompted.

Mr Green SC argued that in most cases the power to exercise a function conferred by the Care Act would fall under ss 4(a) or (b), because children under the parental responsibility of the Minister will, in the majority of cases, be living in NSW. Furthermore, Mr Green SC submitted that, were a child to leave NSW and live elsewhere, the Minister’s ability to exercise parental responsibility over the child would be limited. Thus, the Care Act reflects these practical limits to the Minister’s power by confining jurisdiction to where the Minister may effectively exercise parental responsibility. Although Mr Green SC accepted that the Minister, exercising parental responsibility, may decide where a child ordinarily lives, he asserted that this could only extend to places in NSW so that the Minister could continue to effectively exercise parental responsibility.

Mr Green SC argued that, in circumstances where ss 4(a) and (b) fail to ground jurisdiction, s 4(c) is relied upon where a relevant “event or circumstances” has a “nexus” with NSW and a report has been made describing the resulting potential risk of harm to a child. Thus, s 4(c) permits the Secretary to take protective action under the Care Act in respect of a child who is not in NSW, nor ordinarily lives in NSW, but who remains subject to the event or circumstances giving rise to the harm report, but only so far as the event or circumstances persist. Otherwise, the child is under the protective regime of the other jurisdiction.

In oral submissions, Mr Green SC argued that ss 9, 10A, 13, 15, 16, 45, 49, 60, 61, 62, 71, 72, 73, 78A, 79, 82, 87, 90, 91, 98, 99D, 102, 105, 109A 109O, 231A, 231G, 231S, 231Z, 245 and 247 evince a legislative intention that, apart from Chapter 14A, the operation of the Care Act be geographically limited.

The Secretary submits that the magistrate did not commit a jurisdictional error in finding that the CC’s jurisdiction was grounded in s 4(c) of the Care Act. This was either because the CC did in fact have jurisdiction under s 4(c), or because the Magistrate’s error was immaterial on the basis that jurisdiction would have otherwise been grounded in ss 4(a) and (c) of the Care Act. Alternatively, the Secretary argues that s 4 is irrelevant to jurisdiction exercised under s 90.

The Secretary submitted that the final care orders made on 12 October 2009 provided the CC with jurisdiction under s 4(c) of the Care Act.

In the course of submissions, the Secretary made arguments that s 4(c) of the Care Act is properly construed in the historic present tense. This is in contrast with the plaintiff’s construction, which reads the section wholly in the present tense. Under the Secretary’s preferred construction, it is the existence of a report, arising from an event or circumstances, which engages the Secretary’s power under the Care Act and provides connection to NSW. This, the Secretary contends, is evident from the text, context, and purpose of the Care Act.

The Secretary submitted that reading s 4(c) wholly in the present tense ignores the temporal reality of what occurs in the making of a report. Dr Kell SC contended that the natural course is for a report to be made once an event has, or circumstances have, taken place. Thus, for a report to exist, it is natural to assume the related event or circumstances have concluded. On this reading, it is the report that provides the jurisdictional fact, not whether the event or circumstances remain ongoing. Whereas reading the section wholly in the present tense leads to an absurd construction requiring that the event or circumstances are actively giving rise to a report at the time a decision is made. This reading, the Secretary submits, ignores the nature of how a report is made. Thus, s 4(c) of the Care Act ought to be read with these temporal and sequential expectations in mind.

This construction, the Secretary submitted, accords with the purpose of the Care Act, which is to protect the safety, welfare and wellbeing of children and young persons in need of care and protection. Given the protective purpose of the Care Act, the Secretary contended it ought to be broadly and beneficially construed, giving paramountcy to the welfare of children.

Dr Kell SC further submitted that whether the requisite jurisdictional fact arises (i.e. whether a report exists) is to be determined at the time proceedings are instituted. This aligns, he argued, with the conventional approach to jurisdiction, in which (quoting Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463) judicial power is “concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted”.

The Secretary submitted that this construction of s 4(c) — where the making of a report is the relevant jurisdictional fact to be determined at the time an application is filed — is necessitated by the structure of the Care Act.

First, the statutory process for the making of a care order under s 71(1) of the Care Act envisions that the event or circumstances giving rise to a report are, by necessity, things of the past.

A report contains the reasonable grounds on which a person suspects a child or young person is at risk of significant harm (Care Act, s 24). Once a report is made to the Secretary, a statutory process commences under s 30 of the Care Act, in which the Secretary investigates whether the child is at risk of significant harm. This may lead to an application being made by the Secretary, under s 61 of the Care Act, for the making of a care order under s 71 by the CC. The argument is that, by the time the CC determines a care application, the report (and the event or circumstances giving rise to it) are necessarily something of, and about, the past, as the Secretary’s actions stem from the report, and do not coincide with the making of a report.

In making a care order under s 71(1), the CC determines whether it is “satisfied that the child or young person is in need of care and protection for any reason”, this includes where “the child or young person is subject to a care and protection order of another State or Territory that is not being complied with” (Care Act s 71(1)(g)). The Secretary contended that, if jurisdiction is to be determined at the moment the power is exercised, the CC would need to ask the additional question of whether a condition of s 4 is satisfied. Such a reading, it was submitted, is incompatible with a beneficial construction of the Care Act because it would deprive the CC of the power to address the needs of a child in circumstances where the child has been removed from the jurisdiction and the event or circumstances giving rise to a report no longer subsist.

Second, the Secretary submitted that the plaintiff’s construction of s 4 would frustrate the operation of s 90 of the Care Act. In his submissions, Dr Kell SC noted that s 90 of the Care Act empowers the CC to vary or rescind a care order “in light of evolving circumstances”. Under s 90(2) of the Care Act, the CC may grant leave to vary or rescind a care order where “there has been a significant change in any relevant circumstances since the care order was made or last varied”. This relevantly “requires a comparison between the situation at the time when the application was heard and the facts underlying the decision when the order was made” (S v Department of Community Services [2002] NSWCA 151 at [27] per Heydon JA; Hodgson JJA agreeing). This necessarily includes consideration of circumstances “arising after the original orders were made” (Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 [28] per Basten JA; Ward and Emmett JJA agreeing).

Therefore, the Secretary contended that, not only is it unlikely that the event or circumstances triggering the original care order would still exist at the time a care order is varied or rescinded, the operation of s 90 hinges precisely on the fact that circumstances have changed. To summarise the Secretary’s argument, if s 90 of the Care Act can only be exercised when there has been a significant change of circumstances, this necessarily entails that Parliament envisioned the CC would be able to exercise its jurisdiction where the original event or circumstances had ceased, and new circumstances have emerged. The Secretary contends that the plaintiff’s construction of s 4(c) — which requires that the original event or circumstances giving rise to a report must exist at the time a power under the Care Act is exercised — would deprive the CC of its capacity to exercise its functions under s 90, because that section necessarily requires the original event or circumstances to have ceased. Thus, the Secretary contended, the plaintiff’s construction frustrates the operation of s 90.

Third, the Secretary contended that a further problem with the plaintiff’s construction is that, if jurisdiction is determined at the time the power is exercised, once proceedings are instituted a person may simply flee to avoid jurisdiction. The Secretary submits this construction would be both contrary to the objectives of the Care Act and incompatible with the conventional approach to jurisdiction, in which a person who flees to avoid proceedings “may be treated as under notice of the obligation of [the Court’s] command” and so be subject to the Court’s jurisdiction (Laurie v Carroll (1958) 98 CLR 310; [1958] HCA 4 at 328 per Dixon CJ, Williams and Webb JJ).

The Secretary submitted that the plaintiff’s construction of s 4(c) would detrimentally affect the broad set of statutory functions which operate under the Care Act. In the course of submissions, Dr Kell SC drew attention to several such functions.

Section 91 of the Care Act confers on parties to proceedings who are dissatisfied with a care order a right of appeal to the District Court under certain circumstances. The Secretary argued that, on the plaintiff’s reading, it would be possible for the CC to validly make a care order where, for instance, the child was ordinarily living in NSW, but for the District Court to then lack authority to hear an appeal from that order if the child subsequently moved interstate. The District Court’s authority would then rely upon s 4(c). However, circumstances having changed, on the plaintiff’s construction s 4(c) would not provide a basis for jurisdiction. Thus, the plaintiff’s reading of s 4(c), contended the Secretary, adversely effects the operation of the right of appeal conferred by s 91.

Section 157(1) of the Care Act vests an authorised carer with statutory authority to provide consent on behalf of a child with respect to certain matters. Under s 157(3), this statutory function is subject to the written directions of the agency which placed the child with the authorised carer. The Secretary submitted that, if a child was to subsequently move with their authorised carer from NSW, under the plaintiff’s reading of s 4(c), the carer would no longer be authorised to exercise their statutory functions under the Care Act, nor would the agency be authorised to make written directions to the carer, because the Care Act would no longer apply to the child, as they would no longer to be ordinarily living in NSW and the original event or circumstances giving rise to a report is likely to have ceased.

Similarly, the Secretary argued, the ability to permanently place a child with a family member who resides in another state under s 10A of the Care Act is frustrated by the plaintiff’s construction of s 4(c). Dr Kell SC contended that jurisdiction to place a child interstate would only be possible insofar as the event or circumstances giving rise to a report subsisted. Moreover, a placement would cease to be authorised once the event or circumstances had ceased.

Chapter 14A contains a statutory regime for the transfer of child protection orders and proceedings between States, Territories, and New Zealand. The Secretary submitted that Chapter 14A of the Care Act — in particular ss 231E, 231J and 231ZB — operate on the assumption that the Secretary and CC have sufficient jurisdiction to exercise certain statutory powers which relate to children ordinarily living outside of NSW. The Secretary contended that, if the plaintiff’s construction of s 4(c) is accepted, those functions would not be exercisable where a child ceases to be subject to the event or circumstances giving rise to a report. The Secretary’s argument is, essentially, that such a reading significantly limits the scope of these statutory powers and defeats their beneficial purpose. Furthermore, it renders the various functions of the Care Act “highly contingent and fragile”, dependent on jurisdictional facts which are volatile.

The Secretary submitted that, contrary to the plaintiff’s submissions, s 43(2) of the Interpretation Act does not assist the plaintiff’s construction of s 4(c).

First, relying on the authority of Hollingsworth v Commissioner of Police (2007) 160 IR 456; [2007] NSWIRComm 7 (Walton J Vice-President, Bolland and Blackman JJ) at [31], [33], [41] and [49], the Secretary contended that s 43(2) is not a source of power to allow a court to revisit an order once “entered or perfected”.

Second, the Secretary argued that, even if s 43(2) could apply to an order under the Care Act, by providing specific arrangements for the variation or setting aside of care orders, s 90 negates the application of s 43(2) because it supplies a sufficient contrary intention to enliven s 5(2) of the Interpretation Act. This is particularly so, asserts the Secretary, given the CC’s status as an inferior court of record.

Third, the Secretary submitted that, given s 43 of the Interpretation Act enacts a principle of construction, s 43 should support a construction of s 4 of the Care Act which promotes a power to vary or rescind orders, rather than a construction which limits the CC’s jurisdiction to do so through a restricted reading of s 4(c).

Finally, if it is accepted that s 43(2) of the Interpretation Act provides jurisdiction to amend or set aside care orders, then it was said this implies that s 43(2) could provide jurisdiction to vary or set aside orders under s 90 in circumstances where the requirements of s 4 are not met.

The Secretary adopted the Magistrate’s construction of s 4(c) which, it was submitted, has been mischaracterised by the plaintiff:

To paraphrase the Secretary’s submissions, the magistrate’s construction best promotes the purpose of s 90, in contrast to the plaintiff’s reading, which places limits on the CC’s power to vary or rescind existing care orders. Jurisdiction, the Secretary contended, is grounded on the existing care order and report, both of which were brought about by the past event or circumstances that gave rise to the report. A child will be subject to that event or circumstances so far as they continue to be subject to the report and care order that resulted from them. Thus, s 90 allows the CC to continue to exercise a supervisory jurisdiction over persons who continue to be subject to orders previously made by the CC. On this basis, the Secretary contended, the 12 October 2009 final order was sufficient to ground the jurisdiction of the CC.

If, however, this Court does not accept that the care orders made on 12 October 2009 grounded the CC’s jurisdiction under s 4(c) of the Care Act, then the Secretary alternatively submitted that the magistrate’s error was immaterial, and thus, not jurisdictional.

The Secretary contended that as of 22 April 2020 (when the plaintiff commenced proceedings under s 90) and 13 October 2020 (when the carers filed their application) the children were ordinarily living in NSW. Thus, the CC had jurisdiction by virtue of s 4(a). Dr Kell SC submitted that the phrase “ordinarily lives” must be understood consistently with the rest of the Care Act, which creates a statutory regime for the allocation and exercise of parental responsibility. Thus, where a child ordinarily lives, argues Dr Kell SC, “will generally be determined by reference to the position of the parents” (Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1459 at [22] per Katzmann J). On the relevant dates, the Minister held parental responsibility over the children and, the Secretary contends, was of the view that the children’s residence in the UK was temporary and that the children should return to NSW. Therefore, the Secretary submits, at the relevant times the CC had jurisdiction under s 4(a) of the Care Act.

The Secretary contended that, as of 22 April 2020 (when the plaintiff commenced proceedings under s 90), 13 October 2020 (when the carers filed their application), and 16 June 2022 (when the CC made its decision), the children were subject to an event or circumstances occurring in NSW that gives or give rise to a report. Dr Kell SC argued that, based on the historic present tense construction of s 4(c), jurisdiction under s 90 is satisfied where a care order exists capable of variation or recission. Therefore, he submitted that, on those dates, as a final care order existed capable of being varied or rescinded, the CC had jurisdiction under s 4(c) of the Care Act.

The Secretary submitted, alternatively, that s 4 of the Care Act is wholly irrelevant to the jurisdiction conferred by s 90, which includes:

Dr KelI SC submitted that the only jurisdictional fact relevant to whether the CC may exercise its power to vary or rescind a care order under s 90 is the existence of a care order. He argued that, on this construction, one of the three prerequisites in s 4 must be satisfied at the time a child comes into contact with the care and protection system. This begins a process which might result in final care orders being made with respect to that child. From that point on, the final care orders (not s 4) ground the exercise of functions under the Care Act with respect to that child, including the power to vary or rescind those orders under s 90. Therefore, given the existence of final care orders relating to Michael and Mary, the CC had jurisdiction to make orders under s 90 of the Care Act.

The plaintiff responded to the Secretary’s argument that jurisdiction under the Care Act is determined at the “conventional” time (being the moment proceedings are instituted) by arguing that TF v Department of Family & Community Services [2015] NSWSC 694 (“TF”) — the authority cited by the Secretary in support of this proposition — is not a binding authority, because the relevant time for determining jurisdiction under the Care Act was not in issue in that matter. Rather the Court in TF treated jurisdiction as being determined at the “conventional” time because the parties had agreed that this was the case. The plaintiff submitted, instead, that the parties in TF were wrong to accept that the relevant time for determining jurisdiction was when proceedings were instituted. She argued that the language of s 4, which nowhere refers to the institution of proceedings but refers to the “exercise” of functions conferred under the Care Act, supports a construction in which jurisdiction is determined at the time a function is exercised.

This construction, the plaintiff submitted, is consistent with the fact that numerous functions are conferred on persons under the Care Act. On the plaintiff’s construction, when a person intends to exercise a function under the Care Act, they must, at that point in time, satisfy themselves as to whether the child with respect to whom they are exercising their power falls under one of the three categories in s 4. The plaintiff contended that it is necessary that this assessment occurs at the time the power is being exercised because, if it occurred at another time, then, the plaintiff submitted, there would be an “unworkable degree of confusion” in the operation of the Care Act. Such an outcome, says the plaintiff, could not have been the intention of Parliament.

The plaintiff accepted the Secretary’s contention that the overriding purpose of the Care Act is to protect the safety, welfare and well-being of children. Hence, the plaintiff noted, in keeping with that purpose s 34(1) of the Care Act requires that “[i]f the Secretary forms the opinion, on reasonable grounds, that a child or young person is in need of care and protection, the Secretary is to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child or young person”. The point of s 4, the plaintiff argued, is to identify, at the moment the power is being exercised, precisely which children and young persons may receive this statutory protection. This, the plaintiff contended, is not to limit the protective scope of the Care Act, but to identify the class of children and young persons who are protected under it.

The plaintiff rejected the Secretary’s “historic present tense” construction of s 4 of the Care Act and challenged the Secretary’s contention that her approach would have serious structural consequences for the Care Act.

First, on its express terms, s 4(c) imposed a requirement that functions under the Care Act can only be exercised in respect to children or young persons who are “subject” to an event or circumstances occurring in NSW that gives or give rise to a report. Vitally, argued the plaintiff, the section requires that a child be subject to an event or circumstances, as distinct from the statutory processes of the Care Act, which is what the Secretary’s construction implies when it is asserted that the relevant jurisdictional fact is the existence of a care order. Similarly, it is significant that the language of s 4(c) refers to children or young persons who “are” subject to an event or circumstances. This excludes an historic present tense construction of s 4(c), which would instead apply to children or young persons who “were” subject to an event or circumstance in the past. However, this construction, argues the plaintiff, is not reflected in the text.

Second, the plaintiff argued that, contrary to the Secretary’s submission, her construction does not deprive the CC of its ability to exercise its powers under ss 71 and 90. The plaintiff submitted that the purpose of s 4(c) of the Care Act is to allow persons conferred with a statutory function under the Care Act to exercise their powers in circumstance where it is unclear whether an individual is presently living or ordinarily lives in NSW. For instance, in an environment of limited information about whether a child is presently living, or ordinarily lives, in NSW, the plaintiff argued that s 4(c) of the Care Act provides the Secretary with jurisdiction to take whatever action is necessary to fulfill his obligations under s 34(1), so long as s 4(c) is satisfied. However, on this construction, once the event or circumstances cease, and it is established that the child is not presently within, nor ordinarily living in, NSW, then the Secretary’s obligations would fall away. The plaintiff contended that this reading of s 4(c) is not limiting because, in the majority of cases, these powers will be exercisable on the basis that the child or young person falls within ss 4(a) and (b). If a child does not fall within s 4, then presumably they fall under the protection of another child protection regime in a different jurisdiction. They would not, however, fall within the protection of the Care Act.

Third, the plaintiff accepted the Secretary’s submission that, on the plaintiff’s construction of s 4, were a child to move out of (or flee) the jurisdiction, those conferred with a relevant function under the Care Act, including the CC and the responsible carer, would be prevented from exercising their statutory supervisory functions with respect to that child. However, the plaintiff argued that this reflects the legislature’s intention that, under the Care Act, children or young persons should continue to have some ongoing connection with NSW. Otherwise, the Care Act makes provision for the transfer of child protection matters to other jurisdictions under Chapter 14A or, failing that, the child simply falls under the new jurisdiction’s child protection regime.

Fourth, in her reply submissions, the plaintiff made the following argument with respect to s 231ZB:

Fifth, the plaintiff accepted the Secretary’s submission that the purpose of s 90 of the Care Act is to “set out a regime by which the Court can consider the continuing need for the arrangements put in place under the original care order in light of a significant change in any relevant circumstances”. While this may be so, the plaintiff argued that s 90 is nevertheless subject to the requirements imposed by s 4. To do otherwise, says the plaintiff, is to deprive s 4 of its intended effect.

Responding to the Secretary’s submissions in relation to s 43 of the Interpretation Act, the plaintiff argued that, however the Court chooses to vary or rescind a care order — either under s 43 of the Interpretation Act or s 90 of the Care Act — the exercise of that power remains subject to the requirements of s 4.

The plaintiff argued that, if she is correct that the magistrate erred in holding that the children fell under s 4(c) of the Care Act because, as of 12 October 2009 (the date of the original care order), the children were subject to an event or circumstances that give rise to a report, then this error was material because the necessary preconditions to the exercise of power by the CC were, at the time of the Magistrate’s decision, not met. Thus, the error was jurisdictional.

The plaintiff rejected the Secretary’s submission that s 4 of the Care Act has no relevance to the jurisdiction conferred by s 90. The plaintiff accepted that an earlier made order is a necessary precondition to the exercise of the power to rescind or vary a care order under s 90. However, the plaintiff argued, this is not the only precondition to the exercise of s 90, which is what the Secretary’s submissions assert. On the contrary, the plaintiff contended that s 90 is one among many statutory functions conferred by the Care Act, all of which are subject to the express language of s 4. Nothing in s 90 indicates that it is a special function immune from the operation of s 4. If Parliament had intended for the CC to exercise its functions under the Care Act with respect to children who did not currently fall under s 4(a)-(c), then it would have made this clear in the text of the statute. Therefore s 90 should not be read as providing a basis for jurisdiction that is independent of s 4.

The parties were content to characterise the debate between them as being about the jurisdiction of the CC. There is an often invoked distinction between jurisdiction and power, the former relating to the limits of authority to exercise judicial power (see M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) at 1.7 (Leeming)). I will adhere to the parties’ use of the word “jurisdiction” because nothing turns on it, notwithstanding that in its terms s 4 of the Act, which is at the heart of this case, identifies the categories of persons in respect of whom the CC’s “functions” (in my respectful view materially synonymous with powers) may be exercised. At least to my mind, this does not sit entirely squarely with the notion of jurisdiction.

The Court accepts the submissions on Ground 1 put on behalf of the Secretary for the reasons which follow.

The starting point must be to identify the correct approach to statutory interpretation in a case such as this. It is not to derogate from the primacy of text and context to begin with the proposition that where the text and context present a constructional choice, laws conferring jurisdiction are to be construed broadly (see Leeming at 5.4). This applies with particular force in relation to the Care Act, which is an archetypal example of protective, beneficial legislation directed to the care of some of the most vulnerable in our community.

Furthermore, its subject matter – children – compels the recognition of the fact that it is legislation intended to deal with dynamic factual circumstances. This includes circumstances of great urgency, other circumstances which can change rapidly in the short term, but also necessarily more gradual changes in the long term as a child grows to maturity with all of the vicissitudes that may attend the passage of time. Where it is open on the text and in the context and consistent with the purpose, in my respectful view the construction of the Care Act requires a maximal, beneficial and practical approach. I shall refer to this as the “constructional preference”.

The constructional preference also informs what is a fundamental difficulty in the plaintiff’s overall approach. That is to adopt the plaintiff’s construction of the relevant provisions, beginning with s 4, would require a continuous re-assessment of whether jurisdiction exists every time a function is proposed to be exercised by the Court or anyone else under the Care Act. It permits of the possibility that, depending on the facts, there may be jurisdiction one month, not the next, and then jurisdiction again two months later. In my respectful opinion, a construction which has that result is contrary to the constructional preference. It would be impractical and inconvenient, and should only be adhered to if the text, context and purpose clearly did not permit an alternative approach. As I shall next explain, they do permit the constructional preference to be exercised in favour of the construction contended for by the Secretary.

There is no dispute that the final care order made on 26 August 2010 was validly made, that is to say including that one or more of the limbs of s 4 was satisfied. In those circumstances, in my respectful opinion, the language of s 90 (see [95] above) sets out a detailed and self-contained code for the application of the section which does not contain any indication that a jurisdictional fact other than the existence of the final order must be found. For that reason, the Court accepts the Secretary’s submission that s 4 has nothing to say about jurisdiction under s 90 once the final care order has been made such that the CC had jurisdiction to make the Orders.

That same comprehensiveness is why the Court accepts the Secretary’s submission (see [87] above) that any application of the Interpretation Act is impliedly excluded.

However, if the existence of a final care order is insufficient of itself to establish jurisdiction under s 90, the same result pertains because of the proper construction of s 4(c).

Section 4(c) is a type of hendiadys, that is to say the event or circumstances to which the child or young person is subject is a single idea expressed by two components, in this case joined by “that” rather than an express “and”. The text itself demonstrates that it is to be read as a historical present – each verb (“are”, “occurring”, “gives or give rise”) is expressed in the present tense but referring to a past event. That construction is necessitated by “that gives or give rise to a report”. Whether that has occurred can only be assessed after the event or circumstances and after there has been a report.

Importantly, this also means that it is a descriptor which persists as applicable to the child or young person even after both the “event or circumstances” and the report have happened. For this reason the Court does not accept the plaintiff’s submission that the “event or circumstances” must still be extant at the time the function under the Care Act is exercised.

Quite apart from the text of s 4(c) itself, there are two other dispositive features arising from the fact that the Care Act must be read as a whole.

First, and contrary to Mr Green SC’s reliance on this section (see [44] above), s 72 when read as a whole expressly contemplates that the circumstances which gave rise to the report may no longer apply at the time the care order is being made (emphasis added):

Second, the Court accepts the Secretary’s structural arguments set out in [70], [74] and [75] above.

It follows from the foregoing that jurisdiction must be determined at the time of commencement of the proceedings. This is the conventional approach (see [72] and [79] above). In addition, the constructional preference again supports this construction as being consistent with certainty and not bringing about the distraction of having to consider whether jurisdiction exists at any particular moment when a function is to be exercised. In reaching this conclusion, I record that I have not relied on TF because the plaintiff was correct (see [97] above) that in TF it was common ground that jurisdiction had to exist at the time the proceedings were instituted (see TF at [64]).

The plaintiff accepted that there was jurisdiction when the initial application was filed (12 October 2009). The result of the Court’s acceptance of the Secretary’s position is that the children also satisfied s 4(c) of the Act at the time the plaintiff’s application was filed (22 April 2020 – noting the plaintiff accepts the children were in any event also present in NSW at this time) and when Mr A’s and Ms L’s application was filed (14 October 2020). That is sufficient to demonstrate that the learned magistrate was correct to conclude the CC had s 90 jurisdiction at the time the orders were made on 16 June 2022.

In any event, if the view I have come to as to when jurisdiction must be demonstrated is wrong, there was also jurisdiction as at 16 June 2022 when the functions conferred on the CC by the Care Act were exercised, because the children still satisfied s 4(c) at that date for the reasons I have given. It is therefore not necessary to consider the Secretary’s contentions concerning the residency of the children for the purposes of s 4(a).

Given these conclusions, it is also not necessary for the Court to consider the Secretary’s alternative argument that any error (had it been such) was immaterial and therefore not jurisdictional.

The plaintiff submitted that, even if the CC had jurisdiction, the Magistrate erred on the face of the record in construing the phrase “suitable person or persons” in s 79(1) of the Care Act to include Mr A and Ms L.

Section 79(1) of the Care Act provides (emphasis added):

The plaintiff contended that, while the class of persons who may be suitable is not closed, given the statutory limits on the supervisory jurisdiction of the Care Act, a person will only be a suitable person if they ordinarily live, or are otherwise typically present, in NSW. This is because, according to the plaintiff’s argument, a person can only effectively exercise their parental responsibility under the Care Act if they are present or ordinarily living in the jurisdiction.

This is especially the case, the plaintiff argued, in circumstances like the present case where a person is only partially allocated parental responsibility. In this case, the carers ordinarily live in the UK, thus the Minister, who is responsible for cultural upbringing and contact, cannot effectively exercise his parental responsibility over the child. It is antithetical to the objects of the Care Act to assign parental responsibility to a person who lives beyond the jurisdiction of the Act’s statutory protections. Particularly, the plaintiff submitted, where the Minister may retain some responsibility for the care of the child, as is the case here.

The plaintiff contended that this is supported by the principles of administration in s 9 of the Care Act, which state that the administration of the Act ought to take into account the child or young person’s entitlement to “special protection and assistance from the State”, that a child or young person’s “name, identity, language, cultural and religious ties” should be preserved as far as possible, and that a child or young person should retain a relationship with people significant to them. These, argued the plaintiff, are only possible if a person with parental responsibility does not ordinarily live outside of NSW.

The plaintiff contended that this limitation is further supported by s 13 of the Care Act, which detail placement principles applicable to Aboriginal and Torres Strait Islander children and young persons. Sections 13(5) and (6) provide:

The plaintiff submits that it is significant that these principles in s 13(6) are a mandatory consideration, in that Parliament used the phrase “are to determine the choice of carer” and not “may determine the choice of carer”. Moreover, it is significant that, while s 13(6)(a) is “subject to the best interest of the child or young person”, s 13(6)(b) is not. The plaintiff contends that a “suitable person” must be a person who ordinarily lives in NSW in order to ensure these placement principles are met. This submission was further developed in the course of argument to the proposition that a “suitable person” could not be a person who would have the children living permanently offshore, because that necessarily terminates their connection with country.

The Secretary disputed the plaintiff’s submission that the magistrate made an error on the face of the record when she held that the carers were “suitable persons” under s 79(1) of the Care Act.

Referring to DRZ v Barnardos Australia [2020] NSWCATAP 47 at [37], the Secretary submitted that “[t]he concept of a “suitable person”, like that of a fit and proper person, “takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities””.

Thus, the Secretary argued, discerning whether a person is a “suitable person” necessarily involves an evaluative judgment:

The Secretary further contended that, in the context of the assigning of parental responsibility under the Care Act, determining whether a person is suitable under s 79(1) will involve an assessment of the “significance of the bond between the child and the person in question” and will require the CC to privilege “the relationship that is most conducive to the child’s safety, welfare and well-being in keeping with the principal object stated in ss 8(a) and 9 of the Care Act”.

The Secretary’s submitted that, to demonstrate an error of law on the face of the record, the plaintiff must demonstrate that, in assessing whether the carers were “suitable persons” under s 79(1) of the Care Act (a process which the Secretary argued is necessarily evaluative and subjective), it was not open to CC to make such a finding. This, argues the Secretary, requires the plaintiff to demonstrate that, construed properly, the Care Act excludes the carers from the scope of “suitable person”.

The Secretary submitted that the plaintiff’s requirement, that a person may be “suitable” only if they have an “inalienable connection” to NSW, is a “hard statutory boundary” that is inconsistent with the “open-ended and evaluative” nature of the determination the CC is being asked to make in s 79(1).

The Secretary contended that the requirement of an “inalienable connection” with NSW is not a criterion which lends itself to meaningful characterisation because it is unclear precisely which characteristics could reliably point to whether a person has an inalienable connection to NSW. For instance, the Secretary argued, it cannot simply be that a connection exists where a person is present or resides in NSW, as their presence or residence is necessarily alienable by virtue of freedom of movement between the states. Moreover, the Secretary submitted, if the relevant criterion was citizenship status (because all other persons do not have an inalienable right to remain in Australia and thus NSW), this would have the “absurd consequence” that the CC would be unable to treat, for example, a family member who is a permanent resident as a suitable person, contrary to the placement principles outlined in s 10A of the Care Act.

Furthermore, the Secretary put that the plaintiff’s requirement could not meaningfully achieve its own purposes, because a person who is found to have an “inalienable connection” to NSW at the time of a decision could promptly sever that connection after the fact. Thus, argued the Secretary, the plaintiff’s qualification is unworkable.

The Secretary also contended that the Court should not accept a requirement that a person must be capable of facilitating the effective exercise of the Minister’s parental responsibilities, in this case for culture and contact, in order to be considered a “suitable person” under s 79(1) of the Care Act. This approach should be rejected, argued the Secretary, because judgments about whether a carer will facilitate the exercise of the Minister’s parental responsibilities is already a factor in, and not a limitation on, the CC’s decision making about the allocation of parental responsibility. The CC, in allocating parental responsibility, considers (among other things) the willingness of the carers to undertake to support the caring arrangements proposed by the Court. Due to the ongoing reporting process under s 82 of the Care Act, a failure to comply with the undertakings given under s 73 would invariably raise questions regarding the suitability of the carers to exercise parental responsibility and, furthermore, would be subject to an application to rescind or vary the care orders under s 90.

The Secretary argued that the qualification the plaintiff places on s 79(1) is inconsistent with several provisions of the Care Act:

The Secretary submitted that the Aboriginal placement principles in s 13 of the Care Act do not provide textual support to the plaintiff’s contended requirement that a “suitable person” ordinarily live or be typically present in NSW.

Section 13 asserts various principles to be applied on a “case by case basis in the course of undertaking the broad evaluative judgment associated with s 79”, consistently with the principles contained in ss 8 and 9. Relying on ss 13(3) and (4), the Secretary contended that the Aboriginal placement principles are subject to the best interests of the child, and thus, could not be the source of an implied limitation on the exercise of s 79.

More specifically, the Secretary sought to answer the plaintiff’s contention that ss 13(5) and (6) (see [131] above) provide her construction with textual support. The Secretary argued that, although s 13(5)(a) requires that arrangements be made to provide a child with the opportunity for continuing contact with their Aboriginal family, community and cultures and s 13(6)(b) requires that a child have continuing contact with their Aboriginal family, community and culture, neither of these sections imply that a person being assigned parental responsibility must ordinarily live in NSW. To do so, said the Secretary, would insert a further condition on the section which is not reflected in the text. Moreover, s 13(6)(b) is subject to the “expressed wishes of the child or young person” under s 13(2), which necessitates that a strict limitation cannot be implied from that section, otherwise that requirement may conflict with the intentions of the child or young person.

The plaintiff accepted that she must demonstrate that, as a matter of law, it was not open to the magistrate to find that the carers were “suitable persons” under the Care Act. She also conceded that the concept of a “suitable person” is not a “closed set”, but a concept that is restricted to only those persons with an inalienable connection to NSW.

The plaintiff responded that the Secretary misapprehends the purpose of her proposed limitation, which is not to prevent a carer from leaving NSW, but to safeguard the capacity of the Minister to exercise the functions under the Care Act and to ensure the principles set out in ss 9 and 13 are capable of realisation.

The plaintiff accepted that the CC will, in allocating parental responsibility, consider the willingness of carers to make undertakings to facilitate the exercise of the Minister’s responsibilities. However, notwithstanding this, the plaintiff contended that the Magistrate erred in her approach to construing “suitable person” because she failed to consider the carers’ lack of connection to NSW, being their inability to re-enter or remain in NSW and the potential for this to frustrate the Minister’s capacity to exercise his powers under the Care Act.

The plaintiff did not accept that her proposed limitation to s 79 is unwarranted or inconsistent with other provisions in the Care Act. Furthermore, the plaintiff submitted that the Secretary has failed to show how, on his construction, the Care Act protects the exercise of the Minister’s parental responsibility in circumstances where the Minister shares those responsibilities with persons ordinarily living beyond the ordinary jurisdictional boundaries of NSW.

The plaintiff set herself a very high bar, being to demonstrate that as a matter of law – and therefore as a matter of construction – a person who resided outside of Australia could never be a suitable person under s 79(1) of the Care Act. That submission fails, and the Court accepts the Secretary’s submissions, for these reasons.

First, there is nothing in the text of s 79 to support such a limitation. On its face, the evaluation of who is a suitable person is, as the Secretary submitted, an evaluative and intensely fact sensitive exercise.

Second, the constructional preference militates against it. The Care Act must be applied in a myriad factual situations. A limitation of the kind proposed by the plaintiff, not apparent from the text, would need to rely on other textual and contextual considerations that pointed clearly to such a universal limitation. None of the matters relied on by the plaintiff go that far.

Third, and in my opinion dispositively, the paramountcy principle in s 9(1) governs the application of all other principles, including the Aboriginal and Torres Strait Islander principles in s 13 of the Care Act. Section 9(1) provides:

In the absence of an explicit textual limitation, the paramountcy principle does not permit a limitation of the kind proposed by the plaintiff. In reaching this conclusion, I have not overlooked the plaintiff’s submission in [132] above. I accept the Secretary’s submission set out in [145] above. Furthermore:

Fourth, I do not agree that the Secretary has failed to show how, on the Secretary’s construction, the Care Act protects the exercise of the Minister’s parental responsibility in circumstances where the Minister shares those responsibilities with persons ordinarily living beyond the ordinary jurisdictional boundaries of NSW. I accept the Secretary’s submissions set out in [141] above. The requirement of undertakings from the carers and ongoing reports enables those responsibilities to be both implemented and monitored. To the extent those things are not done or the reports do not support a continuation of the arrangement, the answer lies in the Secretary making a further application under s 90.

The amended summons will be dismissed. The Court will hear the parties as to costs.