DN v Secretary, Department of Communities and Justice

1. [1]

   MITCHELMORE JA: I agree with Basten AJA.

2. [2]

   STERN JA: I agree with Basten AJA and with the orders his Honour proposes.

3. [3]

   BASTEN AJA: This application for leave to appeal concerns a judgment in the Equity Division, refusing orders by way of judicial review of orders made in the Children’s Court. Those proceedings concerned an Aboriginal family of whom the mother (DN) is the applicant for leave to appeal. The persons the subject of the proceedings are two of her children, born in June 2008 and in July 2009. It is not in dispute that the children’s parents and the children themselves identify as persons of Aboriginal (Wiradjuri) descent.

Procedural background

1. [4]

   The children first came to the notice of welfare officers in October 2009, when there were reports prepared, leading to an application for a care order under s 61 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”). On 12 October 2009, the Minister applied to the Children’s Court for final orders pursuant to s 79(1). [1] The Children’s Court made final orders on 26 August 2010 giving the Minister sole parenting responsibility for the children until each attained 18 years of age. They were originally placed in the care of a maternal aunt, but the arrangement was not long-lasting. Placements with Indigenous families became difficult to maintain and it became likely that the children would be separated. In December 2017, Ms M, through her work with the Aboriginal agency KARI, learned of the children, their situation and the likelihood of separation. She and her husband, Mr L, were approved as authorised carers and the children were placed in their care in December 2017.

2. [5]

   As recounted by the Children’s Court magistrate in her judgment of 16 June 2022, the carers were UK citizens who were in Australia pursuant to Mr L’s working visa. In February 2019 he was made redundant and was required to leave the country if he could not find work within 90 days; he departed on 25 June 2019. Ms M’s linked visa expired on 1 August 2020. The primary judge stated that after Mr L returned to the UK, Ms M applied for authority to travel with the children to visit him, which was granted by the Minister. [2] She intended to return to Australia. Having left on 2 July 2019 with the children, she returned with them on 19 January 2020.

3. [6]

   Ms M was unable to find accommodation on her return to Sydney in January 2020 and her health and the stability of the children suffered. She sought permission from the Minister to return to the UK, a request of which the biological mother, DN, was informed. On 22 April 2020, DN applied to the Children’s Court seeking to have parental responsibility returned to her, and for contact orders. On 12 June 2020, the Children’s Court granted DN leave to bring an application for parental responsibility with respect to contact and the children’s culture.

4. [7]

   On 10 July 2020, the Minister gave consent to Ms M to return to the UK with the children, to visit her husband, but subject to a requirement that she return to Australia with the children by 26 October 2020. (As her visa was due to expire on 1 August 2020, she would have required a new visa to enter Australia.) She left Sydney on 15 July 2020. However, the return flight was cancelled as a result of the COVID-19 pandemic. Neither the children nor the carers have returned to Australia since their departure on 15 July 2020.

5. [8]

   On 14 October 2020, the carers (still overseas) sought to be joined to the mother’s application in order to seek their own orders for parental responsibility for the children.

6. [9]

   On 23 September 2020, the Secretary informed the carers that, whilst not supporting the children staying permanently in the UK, the Department would provide support for both the children and the carers in Australia, although by that stage neither carer had a current visa and they would have needed to apply for and be granted new visas to enter Australia.

7. [10]

   On 24 March 2021, the carers filed a separate application under s 90 of the Care and Protection Act (that is by instituting a further proceeding) seeking parental responsibility for the children. Their application, and that of DN, were heard together in March 2022. On 16 June 2022, a magistrate in the Children’s Court made “final orders” in the following terms with respect to each of the children:

8. [11]

   The undertakings referred to in order 4 were not before this Court, but s 73 of the Care and Protection Act provides as follows:

9. [12]

   It is unclear how an undertaking could be enforced, how breaches might be dealt with under s 73(2)-(5), and how order 5, requiring the Secretary to provide “an assessment of the child’s contact with the child’s maternal and paternal families”, might operate given that the children were living in the UK and were expected to remain there. Further, although no order appears to have been made with respect to DN’s application, the effect of the orders that were made was (presumably) to dismiss her application.

10. [13]

    The record of the hearing in the Children’s Court on 16 June 2022 identified legal representatives appearing for each of the children separately. They said nothing. Whether they had said anything on any previous occasion is unclear.

11. [14]

    The proceedings in the Court below appear to have been commenced by way of an appeal, though the basis of the appeal is not apparent from the material before this Court. [3] It was apparently lodged in the Protective List in the Equity Division and may have been intended to invoke the parens patriae jurisdiction of the Court. An amended summons, filed on 12 December 2022, again in the Protective List of the Equity Division, sought orders by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW).

12. [15]

    There were two grounds pursued in the proceedings heard by the primary judge, both of which were dismissed and are the subject of the present application for leave to appeal to this Court.

13. [16]

    The first ground was, in substance, that the Children’s Court lacked jurisdiction to make orders with respect to children who were not in New South Wales at the time the orders were made. The second ground was that, assuming the Court had any jurisdiction to make care orders, it could not make orders allocating parental responsibility for the children to “another suitable person or persons” (that is, other than a parent or the Minister) within the meaning of that phrase in s 79(1)(a) of the Care and Protection Act, if such persons were not resident in New South Wales.

14. [17]

    The primary judge dismissed both of these grounds, but as the submissions in this Court were (understandably) repetitive of those which were articulated in the Court below, it is convenient to address the issues raised directly. Grounds 1-4 in the draft notice of appeal raised challenges to the primary judge’s reasoning as to the scope of the jurisdiction of the Children’s Court. It is convenient to turn directly to that issue, which lay at the heart of the proceeding.

Jurisdiction of Children’s Court

1. [18]

   The Children’s Court is a statutory tribunal constituted as a court of record by s 4 of the Children’s Court Act 1987 (NSW). Pursuant to s 6, it is composed of a President (who is a judge of the District Court) and such Children’s Magistrates as may be appointed by the Chief Magistrate, pursuant to s 7.

2. [19]

   Jurisdiction is conferred by s 12 of the Children’s Court Act:

3. [20]

   The jurisdiction therefore includes jurisdiction (and powers) conferred by the Care and Protection Act, including Chapter 5 dealing with “Children’s Court proceedings”. Most of the provisions are expressed to confer powers, but should be understood as having the dual function of conferring jurisdiction and power. Thus, for example, s 45(1) provides that where a child or young person is removed from premises or a place, or the care and responsibility for the child is “assumed” by the Secretary (pursuant to s 44) the Secretary is obliged to make a “care application in the Children’s Court”: s 45(1). That section is effective to confer jurisdiction with respect to such applications.

4. [21]

   It will be necessary to return to the geographical scope of the jurisdiction identified in s 12(2).

5. [22]

   The submissions for the applicant in the Children’s Court, in the Equity Division and in this Court, focused upon s 4 of the Care and Protection Act as imposing a constraint on the jurisdiction otherwise conferred by the Act to determine a care application. While s 4 does not in terms address the jurisdiction of the Children’s Court, but “functions conferred or imposed by this Act”, [4] those functions include the conferral of jurisdiction on the Children’s Court. In that sense, s 4 is a form of localising law, having a similar effect to that of s 12 of the Interpretation Act 1987 (NSW) discussed below.

6. [23]

   Section 4 of the Care and Protection Act reads:

7. [24]

   The relevant functions for present purposes include s 71(1) of the Care and Protection Act, which confers power on the court to make a care order “if it is satisfied that a child or young person is in need of care and protection for any reason including, without limitation, any of the following…”. The relevant circumstances set out in s 71(1) are all expressed in the present tense. However, s 71A provides that “for the purposes of this Act, it does not matter whether the conduct constituting a reason for the purposes of s 71 occurred wholly or partly outside the State”. Whether that provision qualifies s 4(c) is not clear, but that geographical limitation is not presently in issue.

8. [25]

   More importantly for the purposes of s 4(c), s 72 provides:

9. [26]

   It may be noted that s 72(1) both confirms in categorical terms the need for the Court to be satisfied that the young person “is” in need of care and protection, qualified by the possibility that the person “was” in need of care and protection, and would (presently) be in need of such care and protection but for the existence of arrangements preventing the need arising. Although s 72(2) is expressed in the discretionary form that the Court, if not so satisfied, “may” make an order dismissing the application, there is little doubt that if not so satisfied, the Court cannot make a care order.

10. [27]

    The first order made by the Children’s Court in June 2022 was to rescind the final care order made in October 2010. That power was conferred by s 90, which relevantly provides:

11. [28]

    The jurisdiction of the Children’s Court was first invoked by an application for a care order made by the Secretary, pursuant to s 61 of the Care and Protection Act. When that application was made in October 2010, the children were living in New South Wales, within the terms of s 4(a). Further, they were then “subject to an event or circumstances” occurring in New South Wales that had given rise to a “report”. (The term “report” is defined to include a report by a person having reasonable grounds to suspect that a child is at risk of significant harm. [5] )

12. [29]

    There was no challenge to the jurisdiction of the Children’s Court to make orders in 2010, and, indeed, in 2017 when the children were placed with the carers: the challenge related to the power of the Children’s Court to determine the application made by the carers in March 2021 when neither they nor the children were in New South Wales, but were all in the UK. That challenge extended to the jurisdiction of the Children’s Court to make orders on 16 June 2022 conferring parental responsibility on the carers.

13. [30]

    The Secretary’s submission was that once a final care order had been made by the Children’s Court with respect to the children, the Court retained power to vary or rescind the order at any time until it expired when the children turned 18 years of age. The Children’s Magistrate accepted that submission. As will be addressed below, there may be a need to distinguish between on order rescinding an earlier order the effect of which is spent, and an order creating new rights and obligations concerning children no longer in NSW.

14. [31]

    That submission gave rise to a factual issue, namely as to the application in relation to which the orders of 16 June 2022 were made. One of the Court orders, relating to the young boy, carried the case No 2020/126155. The transcript of the hearing, for what it was worth, also carried that notation. If that indicated that the care application the subject of that proceeding was made in 2020, it can only have been the application made by DN when the children were still in Australia. It is apparent from the Magistrate’s reasons that that was the application she understood to be before her, noting: [6]

15. [32]

    The Magistrate observed that the Secretary had agreed that “the care order [made] on 26 August 2010 should be rescinded or varied”. [8] Turning to the mother’s submission that the Court had no jurisdiction to hear and determine the matter, the Magistrate noted that that would, in effect, mean that “the final orders made in 2010 remain on foot”. Whether there was inconsistency in those positions is not entirely clear: the mother may have thought that her best chance of having the children returned to Australia, if the Court were not willing to return parental responsibility to her, would be if the Secretary retained such authority and might be open to persuasion to direct the carers to return the children to NSW. In any event, it is not necessary to pursue that speculation.

16. [33]

    The factor which appears to have carried weight with the Children’s Magistrate was the proposition that the Court could be deprived of power to vary or revoke an order which it had made, on the basis of reports (of which there were said to be several) within the meaning of s 4(c). In her view, the children remained “subject to an event or circumstances occurring in New South Wales”, although the children were living in the UK. The submission that a report would likely cease to have effect after final care orders were made, was said not to deprive that ground of jurisdictional application. The fact that s 4(c) was expressed in the present tense was said to be immaterial, or else a use of the continuing present tense.

17. [34]

    The present tense is clearly important: unless a continuing need is established, a care order should not be made. If an order has been made, but the need has passed, the order should be varied or revoked.

18. [35]

    The primary judge relied upon three considerations in support of the view adopted by the magistrate, namely that the Children’s Court retained jurisdiction in the circumstances of the case. The first was the proposition that “laws conferring jurisdiction are to be construed broadly”. [9]

19. [36]

    The second matter relied upon by the primary judge was that the subject matter of the legislation was “children”, a matter which entailed the need for the legislation “to deal with dynamic factual circumstances”. [10] The judge described this as requiring “a maximal, beneficial and practical approach”. [11] This was said to be inconsistent with DN’s approach which would require “a continuous reassessment of whether jurisdiction exists every time a function is proposed to be exercised by the court or anyone else under the [Care and Protection Act]”. [12]

20. [37]

    There is an element of inconsistency between this last concern and acceptance that the needs of children will change over time. However, it appears that the matter that the judge had in mind was that the jurisdiction (or, in his view, powers) of the Children’s Court had been engaged by s 4(c) and his third consideration, namely that once engaged, jurisdiction could not be lost.

21. [38]

    That third consideration relied upon the fact that the “final care order” made on 26 August 2010 was valid when made. [13] The existence of such an order was, the judge concluded, the only precondition to the exercise of a power of rescission or variation pursuant to s 90. However, that reasoning disregarded the operation of s 4 with respect to the separate function conferred on the Court under s 90. To ask the question in practical terms, if neither the Secretary nor the Court had any function to exercise in respect of a child of English parents living in London, and could not carry on an investigation into the child’s circumstances, nor make an order as to parental responsibility for the child, why should the Court (and the Secretary) assume power to do so, having once had the power and authority to take such steps when the child and parents were in New South Wales, before the family had moved to London?

22. [39]

    Finally, it should be noted that, although the primary judge expressed some doubts as to whether DN’s case raised an issue of “jurisdiction” or “power” he ultimately did not resolve the issue as “nothing turned upon it”. [14] The judge correctly identified the fundamental issue as one of statutory construction, but, importantly, the issue of construction was whether the Parliament had legislated to confer on the Children’s Court powers (or jurisdiction) with respect to the carers and children in the circumstances which arose in 2022.

23. [40]

    Bell P observed in DRJ v Commissioner of Victims Rights (No 2), [15] that often “no guidance is given at all by legislatures as to the territorial reach and operation of a particular statute”. The default position is then that set out in s 12 of the Interpretation Act, which reads:

24. [41]

    As was explained in DRJ (No 2) (not for the first time) the application of that section can be fraught. Those difficulties need not be considered in this case, as s 4 provides its own set of localising criteria. However, before considering how they operate, it is convenient to set out some general or contextual considerations which lie behind such provisions.

25. [42]

    First, the world, and in a different form Australia, is divided into separate law areas with territorial boundaries. [16] Although land is not generally transferrable, people and property move readily between the different law areas. It follows that a polity may have an interest in persons and activities occurring beyond its territorial boundaries. It is not now in doubt that each of the Australian States has extra-territorial legislative competence. [17] However, extra-territorial legislative competence is not unlimited; there must be a “real connexion – even a remote or general connexion – between the subject matter of the legislation and the State”. [18] Ironically, the phrase to be found in the Constitution Act 1902 (NSW), s 5, conferring on the Legislature, subject to the Commonwealth Constitution, power “to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever”, once thought of as words expressing the plenitude of legislative power, may now also be seen as defining its limits.

26. [43]

    Accordingly, the question will usually not be one of legislative power (and is not in this case), but rather of determining the scope of a particular statute as a matter of construction.

27. [44]

    Leeming JA noted in DRJ (No 2) that s 12(1) of the Interpretation Act appears to require that everything found within the legislation must necessarily be connected to New South Wales; but that is not so. [19] In O’Connor v Healey [20] the Court considered whether the New South Wales workers’ compensation legislation applied to a worker travelling home to Victoria after working in New South Wales, who was injured in the course of the journey. Jacobs JA (delivering the judgment of the Court) stated: [21]

28. [45]

    One consideration which will be material in many civil cases is that legislation having extra-territorial effect may give rise to conflicts with legislation of another law area. For example, each Australian State and Territory has laws governing the welfare of children. Similarly, other countries have such laws. One way to determine whether New South Wales intended its law to operate extra-territorially is to look to the principles established by private international law (or conflict of laws) to determine which law is applicable. In some circumstances such a principle may be decisive. In Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society, [22] Dixon J identified a “well settled rule of construction” in the following terms:

29. [46]

    However, there are other circumstances in which such an approach is not accepted. Where conflict of laws rules adopt the proper law of the contract, which may be chosen by the parties, [23] laws regulating contracts may apply to local contracts despite the parties’ choice of a different proper law, to avoid manipulation. As explained by Kitto J in Kay's Leasing Corporation Pty Ltd v Fletcher: [24]

30. [47]

    A State law governing liability under a contract for the supply of recreational services, has been held to apply only to recreational services supplied within the State. In Insight Vacations Pty Ltd v Young, [25] the High Court stated:

31. [48]

    As noted in DRJ (No 2), the appropriate test to be applied as a matter of statutory construction, may be identified in different ways. Leeming JA summarised the idea in the following passage:

32. [49]

    Although many of the statements of principle considered above refer to circumstances where a statute does not provide its own localising rules, they are not irrelevant in cases where a statute does provide its own rules. That is because each case will tend to blur into the other: statutory provisions may readily give rise to an implication of limited operation, even in the absence of express rules. Further, there are underlying principles of construction which will apply even where express rules are found. The Care and Protection Act and the Children’s Court Act, each contains a localising rule.

33. [50]

    Before addressing the specific provisions, it is necessary to refer to the principles of interpretation relevant to jurisdiction-conferring provisions. As noted above, the primary judge placed weight on the well-established principle that a provision conferring jurisdiction should be read broadly. While it is true that the text relied upon for that proposition commences with the statement that “[l]aws conferring jurisdiction are construed broadly”, [26] the statement should be read in context; the text from which the primary judge sourced the statement continues over many pages considering exceptions and exclusions. Being a principle and not a rule, it may be expected to encounter conflicting principles. Further, the author relied upon two cases. The first was the well-known statement from Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc, [27] that provisions conferring jurisdiction should not be read down by “making implications or imposing limitations which are not found in the express words”. The second was the observation in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [28] that such a provision is to be construed “with all the amplitude that the ordinary meaning of its words admits”. These cases do not require that a court strain to achieve a result beyond the ordinary meaning of the language used by the legislature.

34. [51]

    There are three factors which are important in applying the principle in the present case. First, the principle will operate differentially as between courts of general jurisdiction and a court like the Children’s Court which has a limited specialist jurisdiction. In the latter case it may be important to note the extent to which the specialist court has exclusive jurisdiction. Secondly, the principle does not require a narrow reading of a localising provision reflecting fundamental constraints, including comity between nations. Thirdly, there are Constitutional constraints to be considered. The welfare jurisdiction is subject to an express exclusion from the operation of the Family Law Act 1975 (Cth), [29] but that legislation will prevail to the extent that orders of the Children’s Court were to impinge on the federal jurisdiction of the Federal Circuit and Family Court. Provisions of the Care and Protection Act, and the Children’s Court Act, should not be construed as conferring a greater jurisdiction on the Children’s Court than is consistent with the division of powers between State and Commonwealth institutions.

35. [52]

    State institutional arrangements can also provide an important constraint on the breadth of the jurisdiction conferred on a specialist court. Thus, in a trilogy of cases dealing with the jurisdiction of the Industrial Court of New South Wales, the High Court considered the constraints imposed on its jurisdiction with respect to unfair contracts. In Fish v Solution 6 Holdings Ltd, [30] the joint reasons in the High Court referred to the Industrial Relations Act 1996 (NSW) under which jurisdiction was conferred on the Industrial Court and noted:

36. [53]

    Some limited weight may be placed on the language in s 12(2) of the Children’s Court Act, providing that the Court may exercise its jurisdiction “throughout the whole of New South Wales”. The language has a long history. The Justices Act 1902 (NSW) established a new basis for Courts of Petty Sessions, and declared in s 5:

37. [54]

    When Courts of Petty Sessions were abolished by the Local Courts Act 1982 (NSW), and replaced by “Local Courts”, the courts, and the place at, and the district for which, the court was constituted, were established by order of the Governor: s 6(1). It was only with the enactment of the Local Court Act 2007 (NSW) that there was constituted a court of record to be known as the Local Court of New South Wales (s 7(1)) which was said to have jurisdiction throughout the whole of New South Wales, wherever sitting: s 11. Thus, when the Children’s Court was established in 1987, the statute in effect anticipated the Local Court Act 2007 by making clear that there was a single court which was to have jurisdiction throughout New South Wales.

38. [55]

    Accordingly, the purpose of s 12(2) may be seen as consistent with the abandonment of a system whereby magistrates were appointed to sit in particular places in particular “police districts”. However, there was at least an implicit limitation, namely that the Children’s Court could not exercise its jurisdiction beyond the boundaries of the State. The ordinary meaning of “exercise … jurisdiction” can include both convening to hear a case, and making orders with respect to persons or places. Given the known existence of similar schemes of child welfare and protection in other States and jurisdictions, it might be supposed that both meanings were intended and s 12(2) should be so construed.

39. [56]

    The next question concerns the operation of s 4 of the Care and Protection Act.

40. [57]

    As noted above, the Care and Protection Act replaced the Children (Care and Protection) Act 1987 (NSW) (“the 1987 Act”). In December 1997 the Legislation Review Unit within the NSW Department of Community Services produced a document titled, Review of the Children (Care and Protection) Act 1987: Recommendations for Law Reform. Part A was titled “The Government’s responsibility for the care and protection of children and young people”. [32] The relevant heading in the Review was “Duty to children present in NSW”. [33] The section contained a recommendation and a comment, which appear to be the only parts of the Review relevant to what became s 4.

41. [58]

    The Explanatory Note which accompanied the Bill stated that the Bill gave effect to the principal recommendations of the Parkinson Review. It noted that the new provision “identifies the children and young persons to whom the proposed Act applies”. [34]

42. [59]

    The connections identified in s 4(a) and (b) involve children who ordinarily live in New South Wales, or who are merely present in New South Wales. In the latter case, the parents or carers may not be resident in or present in New South Wales, but the functions of the Secretary and other persons or bodies upon whom functions are conferred or imposed under the Act can be engaged in relation to the child or young person. Section 4(c) appears on its face to have an element of circularity, at least if it were assumed that the making of a report constituted the exercise of a function under the Act. However, reports are made pursuant to Pt 2 of Ch 3, which is headed “Requests for assistance and reports”. It is convenient to set out the operative provisions of the three sections identified in the definition of “report”:

43. [60]

    Thus, the making of a report is not a function conferred on the Secretary or a welfare officer, and precedes the exercise of the statutory functions of making an assessment (s 27A), recording the report (s 28), and undertaking an investigation or assessment of a child or young person suspected of being at risk of significant harm (s 30).

44. [61]

    Chapter 4 deals with the action which may be taken by the Secretary with respect to a child or young person who “is in need of care and protection”: s 34(1). One of the powers available to the Secretary is to “remove the child from the place of risk: s 43(1). If not satisfied that removal is in the best interests of the child, the Secretary may “assume the care responsibility of the child”: s 44(1). It is clear that these and other powers can only be exercised if the child is present in New South Wales. At least, neither the submissions in this Court, nor the reasoning in the primary judgment, or in the Children’s Court judgment, identified functions which might be exercised in another jurisdiction.

45. [62]

    Although it is possible that s 4(a) and (c) can permit functions to be exercised under the Act in respect of children who are not in New South Wales, there would need to be ancillary powers available to the Secretary and NSW officers, allowing them to undertake such functions in another law area. That is not the scheme; rather there is power to transfer responsibility to officials in another law area. Such provisions are found in Ch 14A, but they assume the existence of a “child protection order” and proceedings on foot in New South Wales. The purpose of Chapter 14A is to provide protection for children and young persons “despite moving from one jurisdiction to another” and “to facilitate the timely and expeditious determination of court proceedings”: s 231A(a), (b). The Chapter provides for transfer between New South Wales and another State or Territory and between New South Wales and New Zealand.

46. [63]

    Chapter 14A Pt 2, Div 2 deals with “Judicial transfers”. The Children’s Court may make an order transferring “a child protection order”, but only on application by the Secretary and if the order is not subject to appeal to the District Court. [35] Proceedings may also be transferred, pursuant to Pt 3 and s 231L. Matters to which the Children’s Court must have regard are set out in s 231M:

47. [64]

    There are other provisions in Ch 14A dealing with removal of orders and proceedings to New South Wales (Pt 4) and with reciprocity generally (Pt 6).

48. [65]

    These provisions have significance in two respects. First, they recognise and reflect a territorial constraint on the powers of the Children’s Court (and indeed the Secretary) with respect to children and carers who are not present in New South Wales. Secondly, while making provision for transfers to other jurisdictions, the relevant steps can only be taken with the cooperation and consent of officers in the receiving jurisdiction. Those powers do not demonstrate any intention that the Children’s Court would have jurisdiction to make orders in respect of children not in New South Wales at the time when the orders are made, indeed, rather the contrary.

49. [66]

    Section 4 does not, in its terms, impose a territorial limitation on the operation of the Care and Protection Act; rather, it is expressed permissively as to the circumstances in which the functions “may be exercised”. Further, like s 12(2) of the Children’s Court Act, its purpose is expansive, being intended to remove doubt as to when the functions should be exercised. Nevertheless, pars (a) and (b) imply that, absent the engagement of par (c), the functions will not be exercised with respect to children who neither ordinarily live in New South Wales, nor are present in New South Wales. To what extent par (c) was intended to expand that operation of the Act is unclear. Generally, if a child is subject to an event or circumstance occurring in New South Wales, he or she must have been in New South Wales at the relevant time or times, but is no longer present, or the case would fall within par (b). That could include circumstances where one parent lives in New South Wales and the other lives in a different State, and the child ordinarily living with the out-of-State parent visits the New South Wales parent from time to time. As the Parkinson Review noted, similar circumstances could arise in border areas. It is also possible that a child ordinarily resident in Western Australia with his or her parents, was exposed to abuse whilst holidaying with the family in New South Wales, but the family had since returned to Western Australia. The Secretary might wish to investigate a report emanating from a New South Wales hospital, where a member of the family had been treated. However, it does not follow that the Children’s Court would have power to make orders with respect to the care of the child when, at the time the matter came before the Court, the child and parents were living in Western Australia.

50. [67]

    As noted above, jurisdiction-conferring provisions must be understood in the context of the general law and the functions of superior courts of general jurisdiction. In this case, that includes the parens patriae jurisdiction of the Supreme Court, which is expressly recognised as unaffected by the Care and Protection Act: s 247. It should be assumed that, in enacting the Children’s Court Act, the Parliament was conscious of the extra-territorial limits of that jurisdiction.

51. [68]

    In 1980, before the enactment of the Children’s Court Act, Powell J considered the jurisdiction of the Supreme Court with respect to an ex-nuptial child born in Melbourne. The mother and child came to live in New South Wales, but the father took the child and returned with him to Melbourne: McM v C (No 1). [36] Addressing “the question of jurisdiction”, Powell J concluded:

52. [69]

    There were at that time, as Powell J noted, different opinions as to the situation of a child who was an Australian citizen and was resident in an overseas jurisdiction. In Kelly v Panayioutou, [37] Waddell J had upheld the Court’s jurisdiction with respect to a female child born in Sydney but taken by her father to Cyprus where she remained with his family. Waddell J noted that “[t]he parties have at all relevant times ordinarily resided in Sydney”, but held that the “allegiance” of the child was to the Queen and, “if a matter comes before a State court concerning the custody of a child outside Australia, and the jurisdiction of the court depends upon whether the child is a British subject or not, the court should simply enquire whether the child is an Australian national, having regard either to any relevant federal law or to the rules of the common law. In the present case, the child has the status of a British subject by federal law. Accordingly, in my opinion, this court has inherent jurisdiction to make an order concerning the custody of the child, although she is in Cyprus”. Waddell J then considered a judgment of Wells J in the South Australian Supreme Court, who had held that “[t]he occasion for the exercise of the jurisdiction depends upon the physical presence within South Australia of an illegitimate infant as to whose welfare there is cause for concern, more especially when there is a dispute as to his or her custody and control”. [38]

53. [70]

    In McM v C, Powell J noted that two subsequent Supreme Court decisions (one in Victoria and one in New South Wales) had expressed doubts as to the correctness of Kelly, which he shared. (The Family Law Act 1975 (Cth) now provides jurisdiction in relation to a child if at the date of institution of the proceedings the child was present in Australia, was an Australian citizen, or was ordinarily resident in Australia, or a parent of the child was an Australian citizen or ordinarily resident or was present in Australia: s 69E(1).)

54. [71]

    Given the state of the law, as explained by Powell J in 1980, with respect to the jurisdiction of the Supreme Court of New South Wales, it is quite implausible, as a matter of statutory construction, that Parliament intended in 1987 that the Children’s Court, having jurisdiction within New South Wales, should have powers to make orders with respect to the care and protection of children who were neither present, nor ordinarily living, in New South Wales. To do so would have conferred, sub silentio, a jurisdiction not enjoyed by the Supreme Court, and involving potential consequences for national comity, both with other law areas within Australia and with foreign countries.

55. [72]

    The next question is whether the issue of jurisdiction is to be determined at the date of the institution of proceedings, or at the date the order is made. On one view this issue does not arise because, other than order 1 rescinding the conferral of parental responsibility on the Secretary, the 2022 orders of the Children’s Court were made in relation to the carers’ application which was filed when the children were already living in the UK. However, the issue may be determined by reference to the considerations addressed above.

56. [73]

    There are several reasons for concluding that the Children’s Court cannot make an order conferring on a person not in New South Wales parental responsibility for a child who is not present, nor ordinarily living, in New South Wales at the time the order is made. First, the geographical reach of the court’s jurisdiction, specified in s 12(2) of the Children’s Court Act, should be understood as referring to both where the court may sit, or the area within which its order may operate. It is inherently unlikely that the New South Wales legislature intended to set up a new court with jurisdiction to make orders having operation in foreign countries. As discussed in McM v C, it has been held that an English court would only make such orders having effect in a foreign country in exceptional circumstances and would usually decline to exercise any jurisdiction it had in that regard, as a matter of international comity. New South Wales legislation establishing an inferior court to be constituted by magistrates, should not be construed as conferring a jurisdiction necessitating taking into account principles of international comity.

57. [74]

    Secondly, the Court would be required to consider whether it was appropriate to confer parental responsibility on the Minister or the Secretary that would, in effect, require the Minister or the Secretary to exercise functions under the Care and Protection Act in a foreign country. Again, it is unlikely that the Parliament had any such intention.

58. [75]

    Thirdly, the inference that arises from the principle that jurisdiction which accrued at the time a proceeding was instituted would remain unabated until the child turned 18 years ignores the important consideration identified by the primary judge, namely that the circumstances of a child are likely to change over the years of its development and the expectation that rescission or variation of an order will at least need to be considered. The same problems arise with respect to any varied order as with respect to making the original order, where the child is overseas at the time of the variation.

59. [76]

    For these reasons the jurisdiction conferred on the Children’s Court should be understood as limited to its exercise with respect to children who are present, or ordinarily living, in the jurisdiction of the court, that is New South Wales, when the order is made.

60. [77]

    The applicant’s submissions with respect to the lack of jurisdiction in the Children’s Court to make orders conferring parental responsibility with respect to the children in the UK should be upheld. Orders 2-5 should be set aside. The reasoning set out above would be consistent with the Children’s Court having jurisdiction and power to rescind an existing order conferring parental responsibility with respect to children no longer in NSW. Where the officer or person with parental responsibility can no longer effectively exercise that function, such an order would be appropriate. Accordingly, order 1 should stand.

61. [78]

    It does not follow that existing orders will cease to operate once a child moves from New South Wales. It is not necessary for present purposes to identify the circumstances in which that might occur. It is sufficient to conclude that in June 2022 the Children’s Court had no power to allocate parental responsibility for the children who were then resident in the UK, to the carers, who were also resident in the UK and had no existing right to reside in New South Wales.

Ground 5 and 6 – suitable persons

1. [79]

   The mother sought to raise an alternative basis to deny the power of the Children’s Court to make the orders in June 2022 conferring parental responsibility on the carers. The order was made in exercise of the power contained in s 79(1) to “make an order allocating the parental responsibility for the child”, not to a parent or to the Minister, but to “another suitable person or persons”.

2. [80]

   Submissions in support of these grounds introduced a number of separate elements. First, it was submitted that where the Minister and other suitable persons shared parental responsibility, persons who might “frustrate the effective exercise of the parental responsibility allocated to the Minister” could not satisfy the phrase “suitable persons”. Secondly, whilst the Minister remained responsible for decisions about persons with whom the children should have contact and the nature of such contact, the decision of the carers to remain in the UK would tend to frustrate any requirement of the Minister that the children have face to face contact with their mother. Thirdly, it was submitted that, to give effect to the Aboriginal placement principles in s 13 of the Care and Protection Act, it was necessary that a suitable person be a person residing permanently in New South Wales, or at least within Australia, being a “zone” created by Ch 14A of the Care and Protection Act.

3. [81]

   Apart from the reliance on the Aboriginal placement principles, these considerations merely restated problems which have been addressed above. That is, whilst the Minister retained aspects of parental responsibility, the location of the children in another country was apt to frustrate the exercise of those aspects of parental responsibility in any event. The contention is not advanced by reformulating the question as a jurisdictional constraint on the nature of the term “another suitable person”.

4. [82]

   Reliance on Aboriginal placement principles had a different quality. The operation of those principles was considered at some length in Hackett (a pseudonym) v Secretary, Department of Communities and Justice [39] and need not be expanded upon in this case. It is sufficient to note that, in addition to their operation with respect to placement in “out-of-home care”, the principles require the choice of a carer, if not an Aboriginal or Torres Strait Islander, who can ensure continuing contact between the child and his or her Indigenous family, community and culture, with a fundamental objective of reuniting the child with his or her family or community: s 13(6).

5. [83]

   However, this is another, although perhaps more emphatic, factor involving the obligations of both the Minister and officers administering the Care and Protection Act, and the Court in making care orders having continuing operation, which supports the conclusion that the Act was not intended to impose functions with respect to children who are not within New South Wales and, in particular, not within Australia.

Ground 2 – power of revocation of Children’s Court order

1. [84]

   Ground 2 sought to challenge the conclusion of the primary judge that the Children’s Court had no power, pursuant to s 43(2) of the Interpretation Act, to amend or rescind its final care order, but that its powers were found exclusively in s 90 of the Care and Protection Act. Ground 2 was abandoned. Its potential relevance derived from the reasoning of the primary judge that s 90 of the Care and Protection Act set 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”. [40] The primary judge further accepted that the “self-contained code” excluded the application of s 43(2) of the Interpretation Act. Section 43(2) confers on “any person or body” with power to make “an order”, the power to amend or repeal the order. Although ground 2 was abandoned, it should be observed that, read in context, the reference to “any person or body” probably does not include a court, so that s 43(2) was not a relevant source of power.

Notice of contention

1. [85]

   The Secretary filed a notice of contention, contingent upon the applicant obtaining a grant of leave to appeal, submitting that the judgment below could be upheld on the basis that, as at the time the carer’s application was filed, namely 14 October 2020, the children were ordinarily resident in New South Wales. The proposition rested upon two foundations. First, it was submitted that the “intentions and expectations of the person who is statutorily responsible as a parent for the residence of the child are relevant to determining where the child ‘ordinarily lives’”. Secondly, that person being the Minister, the Secretary and officers of the department by whom the Minister acted, being of the view that the children’s residence in the UK was only temporary, and that they should return to Australia, supported the conclusion that they were ordinarily living in Australia.

2. [86]

   The provenance of a notice of contention in judicial review proceedings is often based on an unstated assumption. The Secretary’s notice of contention was directed to a factual basis not relied upon by the primary judge. However, the question is whether the primary judge had power to make findings of fact which would support a basis of jurisdiction of the Children’s Court.

3. [87]

   There are circumstances in which a court exercising powers of judicial review may be called upon to make findings of fact. The obvious case is one involving a challenge based on procedural unfairness, where it may be necessary for the court to resolve disputed issues of primary fact, before determining whether the process was procedurally unfair. However, where the court sets aside a decision on the basis of another form of jurisdictional error, the matter will necessarily be remitted to the decision-maker, unless only one outcome was legally available. It is not appropriate to invite the judge exercising judicial review to exercise the fact-finding functions of the original decision-maker, to determine whether, on the merits of the case, the same result would have been achieved.

4. [88]

   On the basis that s 4(a) provided an available criterion for the exercise of jurisdiction by the Children’s Court, it would only be appropriate for a reviewing court to consider whether the qualification is satisfied if it were an objective fact to be determined by that court, rather than a fact to be determined, in the first instance, to the satisfaction of the Children’s Court. In accordance with the principles stated by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte, [41] the latter reading of the section is to be preferred:

5. [89]

   Those statements were made with respect to a Court of Petty Sessions; they must apply with no less force to the Children’s Court, being established as a court of record. Accordingly, the question of whether the children “ordinarily lived in New South Wales” for the purposes of s 4(a) of the Care and Protection Act, was not a question to be answered by the primary judge, but by the Children’s Court. Accordingly, it would be wrong for this Court, or the Equity Division, to determine that question.

6. [90]

   In any event, as it was not contended that the children were ordinarily living in New South Wales at the time the Children’s Court made orders in June 2022, the question does not arise. The notice of contention should be dismissed.

Orders

1. [91]

   The issue as to the jurisdiction of the Children’s Court of New South Wales with respect to children living overseas at the time the orders are made is a matter of public importance for the administration of State welfare laws affecting children and young people. The applicant should be granted leave to appeal.

2. [92]

   For the reasons set out above, the Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal from the order made in the Equity Division on 2 June 2023 dismissing the applicant’s amended summons.

   2. (2)

      Allow the appeal and set aside the order made in the Equity Division.

   3. (3)

      Quash orders 2-5 made by the Children’s Court on 16 June 2022.