VJ v Owens & Ors  [2001] NTSC 64

PARTIES:	VJ

	v

	SUSIE OWENS
	and
	MINISTER FOR TERRITORY HEALTH SERVICES OF THE NORTHERN TERRITORY OF AUSTRALIA
	and
	RH

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	APPEAL FROM THE FAMILY MATTERS COURT

FILE NO:	JA 37/2001 (20015718)

DELIVERED:	1 August 2001, Alice Springs

HEARING DATES:	18 and 19 June 2001

JUDGMENT OF:	THOMAS J

CATCHWORDS:

APPEAL FROM FAMILY MATTERS COURT

Appeal against declaration that child in need of care 

Community Welfare Act 1983 (NT), s 4(3)(b), s 9, s 11(b), s 11A, s 36(2), s 43(2), (3) and (4), s 43(5)(a), (b), (c) and (d), s 43(7)(a), s 48(3), s 49 (1) and (3), s 50, s 50(1) and (2)
Justices Act 1928 (NT), s 163, s 165, s 167(7), 168, s 171(1) and (2), s 172(2)

CC v Minister for Territory Health Services (NT) (unreported, Mildren J, 11 September 1998); Commissioner of Taxation (Cth) v Arnhem Aircraft Engineering Pty Ltd (1987) 47 NTR 8; Re J (1992) 8 WAR 561; Commissioner of Taxes (NT) v Tangentyere Council Inc (1992) 83 NTR 32, cited
Du Preez v Bullick (2001) 27 Fam LR 217; Minister for Territory Health Services (NT) v LG (1998) 146 FLR 396, agreed with
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Commissioner of Taxation v Ryan (2000) 74 ALJR 471, referred to

REPRESENTATION:
Counsel:
	Appellant:	G Georgiou
	1st & 2nd Respondents:	J Stirk
	3rd Respondent:	No Appearance
	Separate Representative:	J Carney
Solicitors:
	Appellant:	Northern Territory Legal Aid Commission
	1st & 2nd Respondents:	Povey Stirk
	3rd Respondent:	No Appearance
	Separate Representative:	Carneys

Judgment category classification:	C
Judgment ID Number:	tho200123
Number of pages:	36

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

VJ v Owens & Ors [2001] NTSC 64
No. JA 37/2001 (20015718)

	BETWEEN:

	VJ
	Appellant

	AND:

	SUSIE OWENS
	First Respondent

	and:

	MINISTER FOR TERRITORY HEALTH SERVICES OF THE NORTHERN TERRITORY OF AUSTRALIA
	Second Respondent

	and:

	RH
	Third Respondent

CORAM:	THOMAS J

REASONS FOR JUDGMENT

(Delivered 1 August 2001)

[1]	This is an appeal from the Family Matters Court in Alice Springs.  On the appeal each of the parties were represented by counsel except the third respondent who advised the court in writing that he was aware of the hearing but did not seek to be represented or put forward submissions.
[2]	On 28 February 2001, the Deputy Chief Magistrate delivered reasons for her decision and the orders made on that date which can be summarised as follows:
1.	The child, SH, was found to be a child in need of care pursuant to s 43(4) of the Community Welfare Act 1983 (NT).
2.	That the sole rights in relation to the guardianship of SH be transferred to the Minister for Territory Health Services of the Northern Territory of Australia.
3.	That orders 1 and 2 above be for a period of ten months.
4.	That access be arranged by the Minister for both VJ and RH.
5.	The matter to be reviewed on 12 December 2001 at 9.30 am.
[3]	The grounds of appeal as set out in the amended grounds of appeal dated 18 June 2001 are as follows:
“1.	That the learned magistrate erred in declaring SH to be in need of care.
Particulars
1.1	There was no evidence or insufficient evidence to support a finding that SH had been maltreated (40.2, 28/2/2001).
1.2.	That the learned magistrate was in error in applying a test of ‘emotional or intellectual impairment’ instead of ‘serious emotional or intellectual impairment’ (page 40, 28/2/2001).
2.	That the learned magistrate misdirected herself as to the application of the burden of proof.
Particulars
2.1	The learned magistrate failed to enquire of the Minister whether or not SB continue to reside with VJ, or maintained a relationship with her.  (eg. Pages 39.8: 39.9, 28/2/2001).
2.2	The learned magistrate relied upon speculative inferences rather than inferences arising reasonably from the evidence.
3.	That the learned magistrate failed to apply s 43(7)(a) of the Community Welfare Act (NT) or failed to have sufficient regard to that section of the Act.  In particular there was no evidence or insufficient evidence to suggest that an order under s 43(5)(a) or (b) or (c) would not adequately provide for the welfare of SH.
4.	That the learned magistrate failed to consider, or failed properly to consider s 43(2) of the Community Welfare Act (NT).  In particular there was no evidence or insufficient evidence to suggest that the standard of care of SH as a result of a finding that he is in need of care would be significantly higher than the standard presently maintained.
5.	The learned magistrate erred in finding that because it was unlikely the child’s mother and the Minister for Territory Health Services could agree as to where the child would reside, joint guardianship between the mother and Minister would be untenable.”
[4]	It is relevant to go into some detail as to the history of this matter as appears from the file received from the Family Matters Court and marked Exhibit 1.
[5]	On 25 September 2000, an application for a holding order in respect of SH was made to the Registrar of the Local Court in Alice Springs.  The application contains the following grounds deposed to by the first respondent:
“SH has previously been the subject of a child protection investigation, which was substantiated on the grounds of physical abuse by his stepfather.  Family and Children’s Services (FACS), have now established that his mother is also the perpetrator of physical and extreme emotional abuse against him.  Remaining in her custody seriously compromises his physical and emotional wellbeing.  He has subsequently been placed in a safe location, supported by Family and Children’s Services.”
[6]	On the same date being 25 September 2000, the Registrar of the Local Court, Mr Peter Campbell, granted the application as he was satisfied on the oath of the applicant that there were reasonable grounds for believing that the child is in need of care and that a holding order is required.  Mr Campbell stated he formed this opinion on the following grounds: that the “child needs a safe environment”.
[7]	Mr Campbell made an order pursuant to s 11A of the Community Welfare Act authorising the holding of SH in a place of safety for a period beginning on the day on which he was taken into custody or detained under s 11 of the Act until (b) 14 days after he was taken into custody or detained under s 11 of the Act.
[8]	On 5 October 2000, the first respondent filed an application in the Family Matters Court for an order that SH be found in need of care.
[9]	The matter was listed for hearing on 6 October 2000 at 9.30am at Alice Springs.  It is common ground that neither Ms Carney, who represents the child SH, but had not received instructions to act at that time, or the mother of the child, VJ, were present when the matter was called on 6 October 2000.  No written notification had been given to the appellant VJ, of the hearing date as is required by s 36(2) of the Community Welfare Act.  On the morning of 6 October Mr Biesse, who represented the applicant, Susie Owens, telephoned VJ to advise her the matter was stood down to 11.30 am that day.  The bench sheet indicates that the mother, VJ, had stated she was not sure if she could be at Court by that time.
[10]	The matter apparently proceeded in the absence of the mother and the child representative.  Mr Trigg SM made the following orders:
“1.	That SH be declared a child in need of care.
  2.	That SH be under the sole guardianship of the Minister for a period of 3 months from today.
  3.	I adj[ourn] the matter to 20.12.00 at 0930 for review.
  4.	The mother to be served with a copy of this order.”
[11]	At the request of solicitors for the first and second respondents the date for the review of this order was changed to 13 December 2000 at 9.30 am.
[12]	On 13 December 2000, the matter came before Mr Bradley, the Chief Stipendiary Magistrate.  It would appear from the Court file that on that date the applicant, the mother VJ, and the child SH, were represented.
[13]	The learned Chief Stipendiary Magistrate made the following orders:
1.	The order of 6 October is extended until 10 January 2001.
2.	The proceeding is adjourned to 9.30 am on 10 January 2001 for mention and for fixing a hearing date if required.
[14]	On 10 January 2001 the matter came before the Deputy Chief Magistrate who made the following orders:
“1.	The application is adjourned for hearing at 10:00am on 19 February 2001.
 2.	The application is listed for confirmation at 9:30am on 14 February 2001.
 3.	Mr. Biesse to notify the mother and Ms. Carney to notify the father’s solicitor of the adjourned date.
 4.	The order of 6 October 2000 is extended until 19 February 2001.”
[15]	On 14 February 2001 the following order was made:
1.	This matter has been adjourned until 10.00 am on 19 February 2001 for a hearing.
[16]	On 19 February 2001 the Deputy Chief Magistrate made the following orders:
1.	The proceeding is adjourned to 20 February 2001 at 2.00 pm.
2.	The current order to continue.
[17]	The matter then proceeded to hearing on 20 and 21 February 2001.  On 28 February 2001, the learned Deputy Chief Magistrate delivered a decision and made the orders which are the subject of this appeal and have been set out above.
[18]	At the commencement of the appeal it was agreed between the parties that there was a preliminary issue which should be dealt with before the substantive arguments on the appeal were commenced.
[19]	The preliminary issue was the subject of a summons filed on 18 June 2001 on behalf of the first and second respondents seeking the following orders:
1.	The notice of appeal dated 26 March 2001 be dismissed as incompetent.
2.	Such further orders as this Honourable Court deems fit.
[20]	The summons was supported by affidavit of Mr Geoffrey John Stirk sworn 18 June 2001 stating that the applicant had failed to comply with the provisions of the Justices Act 1928 (NT) relating to appeals.  In particular that s 50 of the Community Welfare Act regulates this appeal and that no recognisance had been filed by the appellant within 28 days of the order made on 28 February 2001 or at all.
[21]	The affidavit further stated that the notice of appeal was served by the Northern Territory Legal Aid Commission on 2 April 2001 which is more than 28 days after the decision of the Deputy Chief Magistrate on 28 February 2001.
[22]	At the conclusion of the argument on this preliminary issue, I ruled that with respect to the application to dismiss the appeal as being incompetent I refused the application.  I stated I would give reasons for the ruling at a later time which I now do.
[23]	Section 50 of the Community Welfare Act provides as follows:
“50. Appeal to Supreme Court
(1) The Minister or the parents, or the persons who were, immediately before the order, the guardians or persons having the custody of a child, or any other person who has an interest in the welfare of, or acting on behalf of and at the request of, the child in relation to whom an order under section 43(4) or 49 was made, may appeal to the Supreme Court against the order made or as varied under this Part. 
(2) The provisions of the Justices Act relating to appeals from a Court of Summary Jurisdiction shall apply, so far as they are applicable, to an appeal under subsection (1).”
[24]	It was common ground that the “appeal under s 50(1) is not confined to errors of law, but may include errors of fact” – CC v The Minister for Territory Health Services No. 2 of 1998 decision of Mildren J delivered 11 September 1998.
[25]	Section 163 of the Justices Act provides for a right of appeal to the Supreme Court.  Section 167 of the Justices Act provides for a recognisance to prosecute the appeal to be entered into by the appellant.  Section 171(1) requires the recognisance to be entered as required under s 167 and payment of the fee as specified in s172(2).  Section 171(2) provides that the appeal be instituted within one month from the date of the order with provision for extension of the time in certain circumstances.  Section 172 provides for service of the notice of appeal which shall be in writing.
[26]	The time of service as well as the filing must be within one month (Commissioner of Taxation (Cth) v Arnhem Aircraft Engineering Pty Ltd (1987) 47 NTR 8 Asche CJ at 10 and 19).
[27]	The argument for the first and second respondents is that in line with the reasoning adopted in Commissioner of Taxation (Cth) v Arnhem Aircraft Engineering Pty Ltd (supra), that because of the lack of recognisance and lack of service of the notice of appeal within the required time, this appeal is incompetent.
[28]	It is agreed between the parties that the appellant, VJ, instructed her solicitors at the Northern Territory Legal Aid Commission to lodge an appeal and that these instructions were given within the 28 day period.
[29]	Mr Georgiou on behalf of the appellant submits that there is no requirement that a recognisance be entered into in order to appeal from the Family Matters Court under s 50 of the Community Welfare Act.
[30]	Mr Georgiou argues that on a reading of s 171(1) of the Justices Act read with s 167 of the Justices Act, there is no requirement that a recognisance be entered into in order to appeal from the Family Matters Court.
[31]	I agree with this submission.  A reading of the provisions of s 167 make it clear that the requirement to enter a recognisance on appeal is only in respect of punitive or monetary orders made in the Court of Summary Jurisdiction.  The requirement to enter a recognisance is under s 167(7) which provides:
“(7) When any fine or sum of money is adjudged to be paid by a conviction or order, a person appealing against the conviction or order may, at his option - 
(a) enter into a recognizance on appeal; or 
(b) pay into Court - 
(i) the amount of the fine or sum of money adjudged to be paid; and 
(ii) the amount of $20, to abide the order of the Supreme Court on the appeal”
[32]	Section 167(1) starts with the words “Every recognizance on appeal.”  I do not read these words as meaning that every appeal requires a recognisance but rather when it is necessary to enter a recognisance then this must be entered into before the Justice whose decision is the subject of appeal, or some other justice and other conditions.
[33]	Section 168 of the Justices Act deals with the release from custody and applications for bail by a person who has instituted an appeal.  That provision also is not applicable to an appeal from an order in the Family Matters Court.
[34]	I further agree with the submission made by Mr Georgiou that this matter is distinguishable from the decision of Commissioner of Taxation (Cth) v Arnhem Aircraft Engineering Pty Ltd (supra) which dealt with an appeal from a decision imposing a monetary penalty.
[35]	Section 50(2) of the Community Welfare Act recognises that not all the provisions of the Justices Act are relevant to an appeal under the Community Welfare Act because of the reference to the provisions of the Justices Act “so far as they are applicable”.
[36]	With respect to the failure to serve the notice of appeal within the stipulated time of 28 days it is conceded by Mr Stirk for the first and second respondent that the appellant properly instructed her lawyers to prosecute the appeal.  It is conceded that it was through no fault of the appellant personally that the notice of appeal was served out of time.  The notice of appeal was served 33 days after the decision delivered by the Deputy Chief Magistrate.  This was five days out of time.
[37]	It is further conceded by the first and second respondents that they have not been prejudiced by the failure to serve the notice of appeal within the required time.
[38]	In these circumstances I would proceed under s 165 of the Justices Act which provides as follows:
“165. Power of Supreme Court to dispense with conditions precedent to appeal where compliance impracticable
The Supreme Court may dispense with compliance with any condition precedent to the right of appeal, as prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with this Act.”
[39]	I would dispense with the requirement to serve the notice of appeal within 28 days as in my opinion the appellant has done whatever is reasonably practicable to comply with the Act.
[40]	If I am wrong in my interpretation of the provisions of the Justices Act concerning the entering of a recognisance then I would in the circumstances of this case proceed under s 165 of the Justices Act and dispense with the requirement to enter a recognisance to prosecute the appeal.
[41]	I am in general agreement with the submissions put forward by Mr Georgiou on behalf of the appellant.  These submissions were supported by Ms Carney who appeared to represent the child SH.
[42]	Accordingly, the application to have the appeal dismissed as incompetent was refused.
[43]	Following this ruling which was made on 18 June 2001, the parties then proceeded to argue the substantive appeal.  At the outset Mr Georgiou advised that he was not relying upon Ground 2 in the amended notice of appeal.  Accordingly, I will deal with each of the other grounds in seriatim.
Ground 1.	That the learned magistrate erred in declaring SH to be in need of care.
Particulars
1.1	There was no evidence or insufficient evidence to support a finding that SH had been maltreated (40.2, 28/2/2001).
1.2.	That the learned magistrate was in error in applying a test of ‘emotional or intellectual impairment’ instead of ‘serious emotional or intellectual impairment’ (page 40, 28/2/2001).
[44]	With respect to Particular 1, Mr Georgiou on behalf of the appellant submits there was insufficient evidence to support a finding that the child SH had been maltreated.  “Maltreatment” is defined in s 4(3) of the Community Welfare Act.  In this matter the relevant provision is s 4(3)(b) which provides:
“(3) For the purposes of this Act, a child shall be taken to have suffered maltreatment where - 
…….
(b)	he has suffered serious emotional or intellectual impairment evidenced by severe psychological or social malfunctioning measured by the commonly accepted standards of the community to which he belongs, because of his physical surroundings, nutritional or other deprivation, or the emotional or social environment in which he is living or where there is a substantial risk that such surroundings, deprivation or environment will cause such emotional or intellectual impairment;”
[45]	At the hearing before the Deputy Chief Magistrate, evidence was heard from the following persons: Ms Susie Owens, Ms Larissa Ellis, both employees of Family and Childrens Services, and the father of the child and third respondent in these proceedings, RH.  With the consent of the parties, her Worship questioned SH in chambers.  Access to this conversation was made by telephone to the representatives of each of the parties who were invited to ask questions of her Worship.  It appears that it was very difficult for the parties to hear the conversation between the Deputy Chief Magistrate and SH.  However, no point is taken on this appeal with any aspect of the interview the Deputy Chief Magistrate conducted with SH.  In addition to this oral evidence, four reports were tendered in evidence.  These were as follows:
Exhibit A1 – an undated report prepared by Ms Owens.
Exhibit A2 – report of Ms Ellis dated 6 December 2000.
Exhibit A3 – report of Ms Ellis dated 13 February 2001.
Exhibit A4 – report of psychologist Mr Tyrell dated 2 February 2001.
[46]	The summary of the report in Exhibit A1 reads as follows:
“While VJ has stated she believes FACS have acted unethically by placing SH under a holding order, it has been explained to VJ that her behaviour towards SH is considered by the Department as physical and emotional abuse and the fact that she had requested respite (or any other action) does not justify her abuse of her child.
FACS have not been prepared to return SH to VJ on the basis of the very strong possibility of the abuse continuing.  SH has also requested that he not return home.”
[47]	It is the submission of Mr Georgiou that the first and second respondents were motivated to maintain the application to remove SH from his mother’s care because of the child’s expressed wish that he not return home.  It is the appellant’s submission that too great an emphasis has been placed on the expressed wishes of the child.  It is relevant to note that on 23 September 2000 when SH was removed from his place of residence with his mother, he was eight years of age.  Prior to 23 September 2000, SH resided with his mother and two siblings aged two and one.
[48]	Evidence of Ms Owens given on 20 February 2001, is that SH was at the time he was taken into care and has since been unequivocal in his determination that he was not going to return home.  Ms Owens agreed in her evidence that the primary reason for the orders sought by the Minister for Territory Health Services was because they held a belief it was not safe for SH to return to his mother at that time and because the mother had refused to engage with officers from the Department to enable a further assessment to be carried out or to seek a resolution of the situation.
[49]	In the report prepared by Ms Owens (Exhibit A1) the family background is stated as follows:
“SH is an eight year old child, who lived with his mother, VJ, and his younger siblings, ZJ and JB.
Until recently SH, his mother and his siblings lived with her partner SB who is JB’s father.
FACS knowledge of SB and the environment in which SB and VJ maintained their children is one of continual violence and abuse.  FACS believe SB is currently incarcerated in Alice Springs Gaol as a result of a severe physical assault on VJ.
FACS have previously been involved in a Child Protection investigation with regard to SH.  At this time it was reported to FACS that SB had thrown SH against a wall.  SH was interviewed by FACS and police.  Initially VJ denied there was an assault, but eventually supported SH and an assault charge was made by police.
This charge was not successful, however SB later assaulted VJ and he was charged and convicted.
FACS have also been concerned about VJ’s other two children and notifications have led to the children previously being taken into care for a short period on a holding order.  At this time there were allegations from a notifier about VJ’s neglect of the children and her drug and alcohol abuse.  During the previous involvement of FACS VJ underwent a drug test where amphetamines were identified in her system.  Medical advise at the time stated that some other drugs (which were of interest to FACS in the assessment of the welfare of the children) only remained in an individual’s system for 48 hours, and therefore may not have been identifiable at the time of testing.”
[50]	The report also refers to the situation that existed on 23 September 2000 when VJ called Family and Community Services after hours on call worker.  VJ was aggressive and demanded she be provided with respite from her son SH.  When the worker arrived, SH was on the roof of the house.  His mother was extremely abusive to him, which included calling him a “prick”, “stupid dickhead” and “little cunt” and threatened to tell SB, who had previously assaulted SH, about the incident.  The report describes what occurred when SH came down from the roof.  The case worker intervened and took SH into care.  SH has been in foster care since that date.
[51]	Mr Georgiou referred to the following evidence given by Ms Owens on 20 February 2001 (t/p 9):
“Has your office ever extended to VJ services such as counselling?---That would have been an option that would have been offered had we been able to engage - - -
Do you know whether it was offered?---I haven’t offered it myself.  I don’t know whether it’s been offered by the caseworker.
So at the time you wrote your first report it – you weren’t minded to recommend to VJ to have any counselling or explore the array of services offered by FACS?---My first interview with VJ was in regard to the court report, talking to her about what was in the court report and why we had put the information that we had into the court report.  The meeting was very –wasn’t exactly hostile but it wasn’t a – it wasn’t one where we were reaching a lot of agreement either.”
[52]	It is Mr Georgiou’s submission that there was no proper attempt made by the Department to explore alternative arrangements other than the most draconian of all which was to seek sole guardianship of the child under s 43(5)(d) of the Act which should be an option of last resort.  Mr Georgiou points out VJ was seeking help when she called the Department for a respite.  It was further submitted that the mothers behaviour on 23 September 2000 may not be acceptable, however, SH was not in any way physically injured.
[53]	It is Mr Georgiou’s further submission that Ms Owens is in error when she states VJ would not engage with the officers from the Department because a lot of the information used to compile the report came from discussions with VJ.
[54]	The submission for the appellant is that there is no evidence to support a finding that the child had been “maltreated” as defined in s 4(3)(b) of the Act.  The appellant further submits that there is nothing in Ms Owens’ evidence or her report that substantiates a finding the child was in need of care.  Mr Georgiou referred to the provisions of s 43(7)(a) of the Act which provides:
“(7) An order shall not be made under subsection (5) (d) unless the Court is satisfied that –
(a) no other order that it may make will adequately provide for the welfare of the child; or”
[55]	It is the submission on behalf of the appellant that the Department did not consider the possibility of any other orders being made.
[56]	Counsel for the appellant then referred to the evidence given by Larissa Ellis who is a social worker at Family and Children’s Services.  Ms Ellis gave evidence on 20 February 2001 (t/p 23) that her concerns are that the child SH is adamant that he does not wish to return to his mother’s care, that he was frightened to return to his mother and that he is very concerned about having any further contact with SB.  Ms Ellis also gave evidence that she had obtained information from the school SH was supposed to attend that whilst SH resided with his mother he had not been attending school.  Ms Ellis gave evidence as to the attempts she has made to discuss access and other issues with VJ who has made such efforts difficult because she either turns up late for appointments or does not attend at all.  Ms Ellis gave evidence that SH had told both her and his foster mother that if the court did not grant the orders sought by the Department he would run away and would not remain with his mother.
[57]	It is the submission on behalf of the appellant that whilst the court is required to take into account the wishes of the child it cannot be the basis for a need of care order.
[58]	Counsel for the appellant points to the wishes expressed by the child to live with his father.  I agree this may be a somewhat idealistic and unrealistic wish as SH has had very little contact with his father over the last two to three years.  However, the fact that this wish may lack objective reality does not mean that he does not have good reason for his adamant and consistent desire not to return home to reside with his mother.  The two reports prepared by Ms Ellis (Exhibits A2 and A3) detail efforts that have been made to make arrangements for access and resolve other issues with VJ.
[59]	The report prepared by clinical psychologist Michael Tyrrell is Exhibit A4.  This report details the description SH gave to Mr Tyrell of the domestic violence to which he had been exposed and the affect upon him of his mother’s drug use.
[60]	I refer to two passages from the report of Mr Tyrrell at p 3 par 4:
“He alluded to many unsatisfactory incidents that occurred at his mother’s and alleged that her partner had physically abused him, that his mother had left him to care for his baby brothers too much especially when she used injected drugs.”
and p 4 par 2:
“Regardless of his mothers actual lifestyle it is also evident that he has been traumatised by some elements of it including exposure to domestic violence or its effects on the family and his perception that she is an IV drug user who sleeps a lot accordingly.”
[61]	It is the submission of the appellant that Mr Tyrell does not directly address the issue of whether or not SH has suffered serious emotional or intellectual impairment or whether if he were returned home there was a substantial risk that such surroundings, deprivation or environment will cause serious emotional or intellectual impairment.
[62]	Mr Georgiou submitted there was a paucity of evidence as to whether SH had been physically abused by his mother’s partner, or that his mother was a drug user as distinct from the child’s own perceptions.
[63]	This Court is asked to find that the evidence falls far short of establishing maltreatment under the Act and that the magistrate was in error in concluding that SH was a child in need of care.
[64]	Reference was made to the interview between the learned Deputy Chief Magistrate and SH in which SH was asked whether his mother did anything else beside yell and SH had replied “No”.
[65]	I accept the submission made by Mr Georgiou that the Community Welfare Act casts a high burden on the Minister for Territory Health Services in an application such as this which seeks the enforced removal of a child from a parent – see Re J (1992) 8 WAR 561 at 566.
[66]	It is relevant to note the duty of the Minister as set out under s 9 of the Community Welfare Act:
“9. Duty of Minister
In exercising his powers under this Part, the Minister shall, at all times, have as his main consideration the welfare of the child in relation to whom those powers are exercised and particularly for - 
(a) securing for the child such care and guidance as will promote that welfare; and 
(b) the maintenance and development of those family relationships that are, in his opinion, in the best interests of the child.”
[67]	A feature of this matter is that the child SH has consistently maintained that he does not wish to return home to reside with his mother.  Whilst the wishes of the child are significant and must be taken into consideration, I accept the submission made by Mr Georgiou on behalf of the appellant that the expressed wishes of the child is not sufficient to draw the conclusion that there has been maltreatment or that this in itself is sufficient evidence on which to base a finding that the child is in need of care.  However, in this matter there is objective evidence to support there were good reasons for the child’s expressed wishes.
[68]	At the time of the hearing of this matter in February 2001, the learned Deputy Chief Magistrate had made her own inquiries from the court record as to the allegations of domestic violence and the allegation of an assault on the child by his mother’s partner.
[69]	I have set out the following findings made by the learned Deputy Chief Magistrate based on matters contained in the Court of Summary Jurisdiction files.  There has been no challenge to the following recital of the background facts (t/p 39 – 40, 28 February 2001):
“……  On 29 May 2000 a restraint order against SB was made for 12 months, that being a contact order and the victim was VJ.
  On 31 May 2000 there was an application for variation, which was made to a no contact order.  On 9 August 2000 the interim orders were dismissed.  On 28 May 2000 SB was charged with an assault on VJ.  On 9 August 2000 that was withdrawn.  On 30 June 2000 there was an application for a restraint order concerning SH.  On 9 August 2000 that order was varied to delete the no contact with SH, presumably to continue the relationship.  On 26 June 2000 SB was charged with aggravated assault on SH.
  On 9 August 2000 he was convicted and given a 3 month suspended sentence.  On 7 September 2000 there was an application for a restraint order by VJ, which was a no contact order.  On 29 September 2000 there was an application to vary which changed that order to a contact order.  I note that this was 6 days after the incident which led to the in need of care application in which VJ threatened SH that she would tell SB what had happened.
  On 6 and 7 September of 2000 there were charges of aggravated assault relating to SB on VJ.  SB was remanded in custody.  On 27 September 2000 there was no case to answer found on each count and SB was released from custody.  The restraint order for 29 September 2000 was served on SB on 16 November at 22 Pedlar Avenue, Alice Springs, that being VJ’s address.  This would appear to be confirmation of the fact, as VJ apparently told SH, that SB had returned to the house.
  There is no evidence before me at this stage that the relationship with SB and VJ has continued, nor that it has been terminated.  I cannot make either assumption.  Whilst I am well aware of the dynamics of domestic violence and of the helplessness of the victim, it is apparent that SB continued to live in the home after the assault by him on SH.  It is also apparent that VJ, on 23 September last year, threatened to tell SB of what had occurred and therefore was intimidating SH by that means.”
[70]	The report prepared by psychologist Mr Michael Tyrrell (Exhibit A4) contains a number of observations which are relevant to the issue of whether the child SH had suffered maltreatment and was accordingly a child in need of care, at p 2 of the report under the heading  “Brief History”:
“SH stated that he is the oldest son of three to VJ.  His father is Rodney.  He expressed somewhat confusingly about the number of siblings and half sibs he has, including at least one that reportedly died at birth.
He stated that his step father is SB, the father of two of his siblings.  He said the he is younger than VJ and is no longer allowed to see her because of domestic violence that he has perpetrated.  SH is extremely angry with him about such matters.”
and at p 3 par 4:
“He alluded to many unsatisfactory incidents that occurred at his mother’s and alleged that her partner had physically abused him, that his mother had left him to care for his baby brothers too much especially when she used injected drugs.”
and at p 4:
“It appears that SH has felt weighed down with the responsibilities of living with his mother and his small siblings as the oldest sib who has assumed the feelings of caretaker to his mother rather than feeling cared for by his mother.
Regardless of his mothers actual lifestyle it is also evident that he has been traumatised by some elements of it including exposure to domestic violence or its effects on the family and his perception that she is an IV drug user who sleeps a lot accordingly.
Overall there is a powerful argument to consider very closely his preferred option of living with his father presuming that his household would not offer risk too.
SH appears to be a resilient boy who is clearly stating need for ongoing emotional nourishment and an opportunity to express and develop his eight – nine year old boy needs.
This is a critical time development for him to receive safe fathering within a loving family environment.”
[71]	The reports prepared by Ms Ellis (Exhibits A2 and A3) made reference to the incident on 23 September 2000 and to SH’s current placement in foster care.
[72]	On the totality of the evidence presented by Ms Owens, Ms Ellis, the background to the instances of domestic violence and the assault upon SH as related by the Deputy Chief Magistrate and the report of Mr Tyrell, I consider is sufficient to support a finding that SH had been maltreated.  There is evidence that counselling had been attempted for the mother VJ but she had not responded to the efforts made by members of the office of Family and Children’s Services.  There was no evidence that if SH was returned to reside with his mother anything would have changed.
[73]	Part of the evidence presented relates to an apparent conflict and allegations of domestic violence made by VJ in respect of her partner SB.  Details of this were included in the quote referred to in par [70] of these reasons for judgment.  I consider that for an eight year old child to be living in an environment of serious and persistent domestic violence may in itself be sufficient to base an application that a child is in need of care.  With respect I agree with the conclusion of Miller J in Du Preez v Bullick (2001) 27 Fam LR 217 at 227:
“Although it is argued that conflict between the parents no matter how serious and persistent is an insufficient reason to warrant a care and protection order, no authority was cited by counsel in support of that proposition, and I do not accept it.”
[74]	In the case before this Court, incidents of domestic violence by SB upon VJ are only one aspect of the application that the child be declared in need of care.
[75]	It is the submission on behalf of the appellant that the magistrate applied the wrong test in stating (t/p 40, 28 February 2001):
“…..  I have no doubt he has suffered emotional impairment, as evidenced by his serious nature, his lack of attachment to his mother and a significant alienation from his mother.  Further, I am satisfied the environment in which he was living, whether or not SB was present, was such that there was a substantial risk that it would cause emotional or intellectual impairment.”
Counsel for the appellant refers to the wording of s 4(3)(b) of the Act which stated has “suffered serious emotional …… impairment”.
[76]	I agree it appears from the transcript of proceedings that in her Worship’s reasons for decision (t/p 40) the word “serious” is omitted.  However, at the commencement of her reasons for decision delivered orally, her Worship referred specifically to the provisions of s 4(3)(b) of the Community Welfare Act and used the wording of the Section.  I am satisfied the learned Deputy Chief Magistrate was well aware of the test to be applied and it was merely an oversight that the word “serious” was omitted from her finding about emotional impairment.  There was evidence to support a finding of “serious emotional impairment”.  I am not persuaded that the omission of the word “serious” is significant in the full context of the decision that was delivered.
[77]	Ground one of the appeal has not been made out.
Ground 3.	That the learned magistrate failed to apply s 43(7)(a) of the Community Welfare Act (NT) or failed to have sufficient regard to that section of the Act.  In particular there was no evidence or insufficient evidence to suggest that an order under s 43(5)(a) or (b) or (c) would not adequately provide for the welfare of SH.
[78]	Section 43(7)(a) of the Act provides as follows:
“(7)	An order shall not be made under subsection (5)(d) unless the Court is satisfied that -
(a)	 no other order that it may make will adequately provide for the welfare of the child; or”
[79]	Mr Georgiou submits on behalf of the appellant that there was insufficient evidence to suggest that an order under s 43(5)(a), (b) or (c) would not adequately provide for the welfare of SH.  It is the contention for the appellant that her Worship did not give consideration to the alternatives provided in s 43(5)(b) and (c).  Section 43(5)(a), (b) and (c) of the Act states as follows:
“(5) Where the Court makes a declaration under sub-section (4)(a), the order may include one of the following: 
(a)	a direction to the parents, guardians or persons having the custody of the child to take the necessary steps to secure the proper care and welfare of the child (including a direction that they comply with the direction, if any, of the Minister in relation to the child's care and welfare), as it thinks fit, subject to review by the Court at the end of a period not exceeding 12 months after the date of the making of the order;
(b)	a direction that the child reside with a person whom it considers suitable, for such period, subject to subsection (6), not exceeding 12 months, as it thinks fit;
(c)	a direction that the child be under the guardianship of the Minister and the parents, guardians or persons having the custody of the child (including a direction relating to the custody of and access to the child while under that guardianship) for such period, subject to subsection (6), not exceeding 12 months, as it thinks fit;”
[80]	I do not accept this submission.  Her Worship found, as she was entitled to do on the evidence before her, that VJ had “not been helpful in organising consultations which have been attempted by FACS workers”.
[81]	In her reasons for decision the learned Deputy Chief Magistrate referred to the failure of VJ to attend appointments for the counselling that had been offered to her.
[82]	Her Worship gave consideration to the option of joint guardianship of the child by the Minister and the child’s mother.  Her Worship specifically rejected this option as being unworkable because of the attitude of the mother toward the department and the lack of agreement by the Department that the child should reside with his mother and the child’s own expressed wish not to reside with his mother.
[83]	The learned Deputy Chief Magistrate had already given reasons why there should be no order that the child return to reside with his mother.  Her Worship then went on to consider the option of placing SH in the care of his father.  Her Worship noted that SH had not had contact with his father for some two to three years and there had been no opportunity at that time for Victorian welfare authorities to assess the father’s circumstances.  Her Worship noted that the mother had been awarded custody of SH pursuant to a Family Court order.
[84]	Whilst the learned Deputy Chief Magistrate acknowledged the importance of promoting and encouraging contact between SH and his father, there were her reasons, already stated, why it would not be appropriate to order joint guardianship between the Minister and SH’s father.
[85]	In addition to these findings her Worship stressed the importance of SH having access to both parents, noted the wording of s 43(5)(c) of the Act, including a direction relating to the custody of and access to the child while under that guardianship.
[86]	I consider that there was evidence to support a finding that an order under s 43(5)(a), (b) or (c) of the Act would not adequately provide for the welfare of SH and that her Worship stated reasons why such an order would not be appropriate.
[87]	I would dismiss this ground of appeal.
Ground 4.	That the learned magistrate failed to consider, or failed properly to consider s 43(2) of the Community Welfare Act (NT).  In particular there was no evidence or insufficient evidence to suggest that the standard of care of SH as a result of a finding that he is in need of care would be significantly higher than the standard presently maintained.
[88]	Section 43(2) provides:
“(2)	Subject to subsections (1) and (3), the Court shall only declare a child to be in need of care where it is satisfied that an order declaring the child to be in need of care would ensure that the standard of care of the child as a result of that order would be significantly higher than the standard presently maintained in respect of the child.”
[89]	There was evidence in the four reports that were tendered that SH had been placed in foster care that this placement is stable and his current carers are prepared to have SH continue in their care.  That he is able to have weekly telephone contact with his father.  There is evidence from Ms Ellis that he is now attending school regularly and not turning up late or not at all as had occurred whilst he resided with his mother.  There is a statement in the report of Mr Tyrell that SH told him he lived with foster carers and that “he loves being with them and their children.”  There is evidence SH consistently maintained he did not wish to return to live with his mother.
[90]	These matters contrasted to what had occurred prior to SH being taken into care are sufficient to base a finding that an order declaring the child to be in need of care would ensure that the standard of care of the child as a result of that order would be significantly higher than “the standard presently maintained in respect of the child”.
[91]	I am satisfied that from her Worship’s finding of fact and her conclusion that she did not consider that any order other than an order transferring the sole right in relation to the child’s guardianship to the Minister would adequately provide for his welfare mean there was an implicit finding that the provisions of s 43(2) of the Act had been satisfied.
[92]	I would dismiss this ground of appeal.
“Ground5.	The learned magistrate erred in finding that because it was unlikely the child’s mother and the Minister for Territory Health Services could agree as to where the child would reside, joint guardianship between the mother and Minister would be untenable.”
[93]	There was evidence for the conclusion that it would not be tenable to grant joint guardianship to the Minister and VJ.  The order of the Deputy Chief Magistrate is for a period of 10 months.  The matter will come back before the Court for review on 12 December 2001 at 9.30 am.  It is possible that by that time matters have developed such that it would be appropriate to make an alternative order.  The learned Deputy Chief Magistrate did order that the Minister arrange access for the child to both his mother and father and suggested that parenting counselling be made available to VJ.  However, as at 28 February when the order was made there was evidence to support a conclusion that joint guardianship between the Minister and the mother would be untenable.
[94]	Accordingly, I would dismiss this Ground of Appeal.
[95]	It is the submission of Mr Stirk, counsel for the first and second respondents, that what occurred in the hearing between 19 to 28 February 2001 when the decision was handed down was a review of the order made by Mr Trigg on 6 October 2000.  It is the submission for the first and second respondents that the order made on 6 October was not an interim order but a final order.  Mr Trigg had made a finding that the child was in need of care and the Minister was made the sole guardian for a period of three months.
[96]	It is Mr Stirk’s submission that the declaration that a child is in need of care is a once only event.  His further submission is that it is a condition precedent to everything else but on a proper interpretation of the Act there is no provision for a refinding or a new declaration that the child is in need of care.
[97]	This requires an interpretation of s 43(2) which provides as follows:
“(2)	Subject to subsections (1) and (3), the Court shall only declare a child to be in need of care where it is satisfied that an order declaring the child to be in need of care would ensure that the standard of care of the child as a result of that order would be significantly higher than the standard presently maintained in respect of the child.”
[98]	It is the submission for the first and second respondents that if the child is in the care of the Minister it is not possible to make a finding that impugns his own standard of care and that in those circumstances it is not possible to conclude that the standard of care would be higher than already exists.
[99]	Accordingly, the argument for the first and second respondents is that when the matter came before the Family Matters Court it was only for review and the court was not empowered to make a fresh finding that the child was in need of care, that finding having been made on 6 October 2000.
[100]	I note that under the provisions of s 48(3) there is power to revoke or vary an order made under s 43 of the Act.
[101]	On the submission made by Mr Stirk, the learned Deputy Chief Magistrate and the parties were mistaken in their belief when the matter came before the Family Matters Court in February 2001 that it was necessary to consider whether the child was in need of care, that declaration having already been made.  This would mean the learned Deputy Chief Magistrate proceeded without jurisdiction to make a finding that the child was in need of care.  A magistrate cannot make an order without jurisdiction even with the consent and at the initiative of the parties (Commissioner of Taxes (NT) v Tangentyere Council Inc  (1992) 83 NTR 32).
[102]	Counsel for the first and second respondents seek an order that the Court set aside the finding made by her Worship on 28 February 2001 that the child was in need of care on the basis there was no jurisdiction to make a further order upon the order made by Mr Trigg SM on 6 October 2000.
[103]	Counsel for the first and second respondents has submitted there was no error demonstrated in the order made by the learned Deputy Chief Magistrate that the child be placed in the sole guardianship of the Minister for a period of 10 months to be reviewed again on 12 December 2001, or if considered appropriate at some earlier time.
[104]	I do not agree with the submission made by Mr Stirk as to the lack of jurisdiction of the Court to make an order in need of care on 28 February 2001.  I accept the submission made by Ms Carney who represented SH, that the order made by Mr Trigg SM on 6 October was for a period of three months only.  It was then extended for a further period to enable a suitable date be obtained for the hearing of the matter.  I also agree with the submission made by Ms Carney that it is clear from the provision of s 49(3) of the Act that a court may revoke or vary an order including an order that a child is in need of care.
[105]	Section 49(3) of the Act provides as follows:
“(3)	The Court may, at such times as it thinks fit, vary or revoke an order made under this section.”
[106]	Mr Stirk relies very heavily on the provisions of s 43(2) of the Act to support his argument there can only be one order that a child is in need of care.  I do not accept the interpretation of s 43(2) that he urges upon this Court.  I consider the words “standard presently maintained” must mean the standard maintained at the time the child was taken into care or alternately prior to there being an application that a child be taken into care.  To read this provision as meaning the court had to find it was significantly higher than the standard of care being presently provided in foster care or some other existing arrangement made by the Minister would be an absurdity.
[107]	In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, the High Court considered the question of statutory interpretation and stated at 408:
“…  Instances of general words in a statute being so constrained by their context are numerous.  In particular, as McHugh JA pointed out in Isherwood v Bulter Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.  Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.”
[108]	In Commissioner of Taxation v Ryan (2000) 74 ALJR 471 Kirby J at 488:
“In the last decade, there have been numerous cases in which members of this Court, referring to the statutory and common law developments, have insisted that the proper approach to the construction of federal legislation is that which advances and does not frustrate or defeat the ascertained purpose of the legislature, to the full extent permitted by the language which the parliament has chosen.  Even to the point of reading words into legislation in proper cases, courts will now endeavour, more wholeheartedly than in the past, to carry into effect an apparent legislative purpose.  Examples of this approach abound in Australia, England and elsewhere.  This Court should not return to the dark days of literalism.”
[109]	Considering the context of the legislation it would create an absurdity to interpret s 43(2) of the Act literally to mean the standard of care being provided by the Minister.  Further support for this interpretation of s 43(2) is provided by a reading of the provisions of s 43(3) which provides:
“For the purpose of subsection (2), the Court shall, in assessing the standard of care of the child, consider the social and cultural standards of the community in which the parents, guardians or persons having the custody of the child (and, where appropriate, the extended family of the child) reside or with which they maintain social and cultural ties.”
[110]	Section 43(3) of the Act is clearly not referring to the standard of care whilst the child is in the care of the Minister.
[111]	In the context of this legislation the words “standard presently maintained” in s 43(2) of the Act must mean the standard prior to being taken into the care of the Minister.
[112]	The Community Welfare Act provides for “the protection and care of children and for the protection of family welfare and for other purposes”.  It makes good sense that there be provision in the Act to vary or revoke an order that a child is in need of care or where necessary make a further order that a child is in need of care.  The Act makes provision for flexibility and fluidity in situations where a few months in the life of a child can bring about substantial changes in the child’s needs for care and protection.  The Act is designed to enable there to be an adequate response to such changes.  The purpose of the Act is not about punishing parents but about doing what is in the best interests of the child.  I consider the Deputy Chief Magistrate did have the jurisdiction to make an order declaring the child to be in need.
[113]	With respect I agree with Mildren J in matter of Minister for Territory Health Services (NT) v LG (1998) 146 FLR 396 in which his Honour held that an order that a child is in need of care could be an interim order.  His Honour also recognised that at p 403:
“In practice it would be very rare for a hearing, in the sense of a final hearing at which evidence was received leading to an order under s 43(4) to commence the first time a matter was mentioned in the Family Matters Court.  ……”
[114]	In the matter before this Court the first date the matter was listed was for 6 October 2000 the application having only been filed the previous day.  There was no compliance with s 36(2) of the Act which provides as follows:
“(2) Where the Minister intends to make an application under this Part, he shall give notice in writing - 
(a)	to the parents, guardians or persons having the custody of the child in relation to whom the application is intended to be made; and 
(b)	where the child has attained the age of 10 years, to the child,
which shall include - 
(c)	a copy of the application endorsed with particulars of the time, date and place of the hearing of the application; and 
(d)	a statement of the requirements of this Act, including requirements as to the attendance of the parents, guardians or persons having the custody of the child at the hearing of the application.”
[115]	On 6 October 2000 there was no appearance by or on behalf of the mother or the child.  It would appear the only information provided to Mr Trigg SM was a report of Ms Owens.
[116]	The order made on 6 October 2000 could not have been made following a final hearing.  Even if the argument that it was a final order could be sustained there was provision to resolve or vary such an order when the matter came before the Family Matters Court in February 2001.
[117]	If the hearing before the Family Matters Court in February 2001 were in fact limited to a review of the order made by Mr Trigg SM on 6 October, then in my opinion, s 49(1) of the Community Welfare Act gives the Family Matters Court power “to make such further orders in relation to the child as it could have made on the original applications” and this must include the power to make an order or a declaration that a child is in need of care.
[118]	For the reasons already stated, I would dismiss the appeal and confirm the orders made by the learned Deputy Chief Magistrate on 28 February 2001.

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