SJ v CEO Department of Children and Families & Ors  NTSC 71
CEO DEPARTMENT OF CHILDREN AND FAMILIES
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO: 21 of 2012 (21209296)
DELIVERED: 26 September 2012
HEARING DATE: 31 July 2012
JUDGMENT OF: BARR J
APPEAL FROM: HANNAM CM
APPEAL – LOCAL COURT – FAMILY MATTERS JURISDICTION – STATUTORY INTERPRETATION
Care and Protection of Children Act (NT) – Appeal against order by Chief Magistrate refusing appellant’s application to become a party to proceedings in Local Court – whether applicant has a “direct and significant interest in the wellbeing of the child” an issue of fact – meaning of “party to any Court proceedings” – determinations from which an appeal may lie – expression “any order or decision of the Court” does not limit appeals to final and determinative decisions – appeal allowed
APPEAL – LOCAL COURT – FAMILY MATTERS JURISDICTION – NATURAL JUSTICE
Care and Protection of Children Act (NT) – Chief Magistrate refused appellant’s application to become a party to proceedings in Local Court – Chief Magistrate’s finding that appellant did not have “direct and significant interest in the wellbeing of the child” based in part on material not disclosed to appellant – procedural unfairness – appellant not given fair opportunity to respond to material adverse to her application – denial of natural justice – appeal allowed
Care and Protection of Children Act 2007 (NT) s 10(1), s 88, s 121, s 125, s 128, s 137, s 140.
Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321, Director-General of Social Services v Chaney (1980) 47 FLR 80; 31 ALR 571, considered.
Appellant: J B Lawrence SC
First Respondent: G Brown
Child’s Representative: T Berkley
Appellant: A McLaren
First Respondent: Solicitor for the Northern Territory
Child’s Representative: M Orwin
Judgment category classification: B
Judgment ID Number: Bar1214
Number of pages: 20
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
SJ v CEO Department of Children and Families  NTSC 71
CEO DEPARTMENT OF CHILDREN AND FAMILIES
CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 26 September 2012)
 TM is a three year old girl, born 3 October 2008. She is the child of the second and third respondents. The appellant is the sister of the second respondent and so is the child’s paternal aunt.
 On 25 August 2011 TM was taken into provisional protection for a period of three days. On 26 August 2011 the first respondent, the Chief Executive Officer, Department of Children and Families (“the CEO”) applied for a protection order pursuant to s 121 Care and Protection of Children Act 2007 (“the Act”) seeking short term parental responsibility to be given to the CEO for a period of one year.
 The Local Court has jurisdiction (called “the family matters jurisdiction”) to deal with applications for protection orders, temporary protection orders and related applications.
 On 10 November 2011 the appellant filed an application pursuant to s 125(2)(d)(i) of the Act for an order “allowing the paternal aunt … to be joined as a party to these proceedings”. The appellant’s affidavit in support asserted a close and loving relationship between her and TM. I will say more about the appellant’s affidavit evidence in par  and par  below.
 The appellant’s application first came before the Court on 10 November 2011 when Chief Magistrate Hannam adjourned both the application for joinder and the application by the CEO for a protection order to 24 November 2011. Her Honour ordered, inter alia, that the respondents file and serve any affidavit material in response to the application for joinder.
 The application was further adjourned on 24 November 2011 and set down for hearing on 23 January 2012. Her Honour once more ordered that the
respondents file and serve, by 22 December 2011, any affidavit material in response to the application for joinder.
 The Chief Magistrate did not identify those whom she regarded as the respondents to the joinder application. However, it is tolerably clear that the reference included the CEO, who was the applicant for a protection order but who was a ‘respondent’ to the extent that the CEO opposed the joinder application.
 On 23 January 2012, the Chief Magistrate heard and determined the joinder application. She declined the application. She adjourned the application by the CEO for a protection order for further consideration.
 On 19 March 2012 the Chief Magistrate made a protection order under s 128 of the Act giving long term parental responsibility for TM to the CEO until the child turned 18.
 The appeal to this Court is against the order of the Chief Magistrate refusing the appellant’s application to be a party to the proceedings in the Local Court.
 Under s 140(1) of the Act, “a party to any Court proceedings may appeal to the Supreme Court against any order or decision of the Court … other than a temporary protection order”.
 I have concluded that the reference to a “party to any Court proceedings” in s 140(1) includes an unsuccessful applicant for joinder under s 125(2)(d)(i). The expression “any order or decision of the Court” is a clear indication that a narrow view should not be taken as to the nature of the determination from which an appeal may lie. The expression includes both orders and decisions. The natural and ordinary meaning of the expression extends beyond decisions which are final or which effectively determine the proceedings between the parties thereto.
 The appeal is somewhat unusual. The appellant does not challenge the order for long term parental responsibility to the CEO made on 19 March 2012 referred to in par  above. This is not a case where a party challenges the correctness of a final decision or order on the ground that an interlocutory decision was wrong. The appellant challenges only the order declining or refusing her application to be a party. Senior Counsel for the appellant, Mr Lawrence SC, has explained that the appellant’s purpose in instituting the appeal is to be acknowledged as “a party” to the proceedings in the Local Court relating to TM because she wishes to establish standing under s 137(1) of the Act to enable her at some future time to apply to the Court for an order varying the order for long term parental responsibility to the CEO. Only “a party to the proceedings for the making of the [protection] order” may later apply for the order to be varied or revoked.
 I set out below the full text of s 137 Care and Protection of Children Act 2007:
137 Variation and revocation of order
(1) Before the order ceases to be in force, a party to the proceedings for the making of the order may apply to the Court for the order to be:
(a) varied; or
(b) revoked; or
(c) revoked and replaced by a new protection order.
(2) However, a parent of the child must not:
(a) apply for the order to be replaced if the proposed new order will give parental responsibility for the child to a different person; or
(b) without the leave of the Court – apply for the order to be varied or revoked if a similar application has been decided by the Court.
(3) The Court may only grant the leave if the Court is satisfied the parent has new evidence to present to the Court.
(4) An application under subsection (1) must be made as if it were an application for a protection order.
(5) This Subdivision applies to the application with the following changes:
(a) as soon as practicable after making the application, the applicant must give a copy of the application to the CEO and each parent of the child (except a parent who is the applicant);
(b) section 124(1) and (2) does not apply to the CEO, but the CEO must comply with section 124(3) as soon as practicable after receiving the copy of the application;
(c) in considering the application, the Court may take into account:
(i) any contravention of the order by a person; or
(ii) any contravention of this Act in relation to the child by a person.
(6) The Court may revoke the order only if the Court is satisfied the order is no longer necessary.
Issues on appeal
 There were in all seven grounds of appeal, but, in light of my decision, it is necessary to refer only to the first three. I set them out below.
(1) The learned Chief Magistrate erred in law in failing to determine whether or not the applicant had a direct and significant interest in the wellbeing of the child.
(2) The learned Chief Magistrate erred in law in relying upon evidentiary material extrinsic to the application and to which the applicant had, to the knowledge of the learned Chief Magistrate, had no access.
(3) The learned Chief Magistrate erred in law in failing to provide the applicant with a fair hearing consistent with the rules of natural justice.
 In order to understand the above three grounds of appeal, it is necessary to have regard to s 125 of the Act, which I set out below:
125 Parties to the proceedings
(1) The parents of the child are the respondents in the proceedings for the application.
(2) The other parties to the proceedings are:
(a) the child; and
(b) the CEO; and
(c) a person proposed to be given daily care and control of, or parental responsibility for, the child under the order; and
(d) any other person who:
(i) has applied to the Court to be a party to the proceedings; and
(ii) is considered by the Court to have a direct and significant interest in the wellbeing of the child.
 The parties to an application by the CEO for a protection order for a child are thus specified by the statute. The provision is largely self explanatory, but s 125(2)(d) has the effect that a person who has applied to the Court to be a party to the proceedings and who is considered by the Court to have “a direct and significant interest in the wellbeing of the child” is a party. There is no discretion in the Court to permit or refuse an application to be a party. Rather, the Court has to consider as an issue of fact whether an applicant has “a direct and significant interest in the wellbeing of the child”. If the Court decides that issue affirmatively in favour of an applicant, then that applicant is a party. If the Court makes such an affirmative finding, there is no discretion or residual discretion as to whether to allow the applicant to be a party.
 Ground 1 of the Notice of Appeal complains that the Chief Magistrate did not determine the crucial issue whether or not the appellant (then the applicant) had a “direct and significant interest in the wellbeing of the child”. In my view the first ground is not made out, for reasons I explain in par  below.
 Grounds 2 and 3 are linked. The appellant’s complaint is that affidavit material filed by the CEO contained adverse comment about the appellant (or was such as to enable adverse findings to be made against the appellant). The Chief Magistrate had access to such affidavit material, but did not permit the appellant or the appellant’s counsel to have access to the material, and otherwise did not take measures to comply with the requirements of procedural fairness. Then, in declining the appellant’s application to be a party, her Honour referred in her reasons to the contents of the undisclosed affidavit material in such a way as to indicate that she had taken such material into account in deciding against the appellant.
 The evidence relied on by the appellant in the Local Court was contained in an affidavit sworn 9 November 2011. The appellant deposed to being 52 years of age and having lived in a Darwin inner city unit for the previous 23 years as a tenant. She had worked with the NT Education Department for 10 years until being made redundant in 1996. Since that time she had been in receipt of a pension. In February/March 2009 the child and the child’s parents had moved in with the appellant. The child was then 4 months old.
The evidence primarily relied on to establish the appellant’s “direct and significant interest in the wellbeing of the child” was in par 6 of her affidavit, reproduced below:-
(6) I have been taking care of T ever since she was born. Initially I used to babysit her. I purchased essential items such as nappies, baby formula, baby food and clothes for her. GM and TCS often left T with me and I took good care of her. During these times I have given her baths, changed her nappies, made her a milk bottle and later as she grew up fed her breakfast lunch and dinner. I also took her out with me to visit my sister in Palmerston or on shopping trips regularly. I was there for her when she woke up in the morning, then I took care of her during the day and put her to bed at night by rocking her in my arms. I would sing her to sleep and she would snuggle into me. When she was awake I used to play with her and used to have loads of fun playing together. One of her games was to come up behind me and throw her arms around my neck and pull me down on top of her backwards. I used to call her my snuggle snuggle pillow and [she] would laugh her little head off. When she first learned to walk she would walk over to me with her bottle and climb on to my lap or my bed and fall asleep with me. Little T loved me so much she would follow me everywhere. The feeling was mutual. I bought her first walker and it was a delight to see her walk in it. I also purchased a toy motorcycle for her to pedal and a Tinkerbelle table and chair set. I bought her DVDs (to which we danced together), clothes and books to read to her and plenty of other toys. ... As she grew older she loved having warm showers and I taught her to say shower. She used to play with her toys in the shower.
 The appellant’s affidavit did not make clear how frequently or with what regularity she fulfilled a maternal role to the child. There is a suggestion in the opening sentence “I have been taking care of T ever since she was born” that the appellant had been a full-time carer to the child, or something akin to that. However, subsequent parts of the paragraph (starting with the second sentence where the word “initially” was used) suggest that the appellant provided the care she says she provided only in the early period of the child’s life, and only on those occasions (albeit she said it was “often”) when the parents left the child with her. The occasions may have been once a week, or once a month. The appellant may have looked after the child for an hour or two, or a whole day, or even several days at a time. It is unclear from the appellant’s affidavit whether she lived continuously at her rented unit with the child and the child’s parents from February/March 2009 to July 2011, such that she was present in the child’s home every day, or less regularly. The appellant refers in several parts of her affidavit to being in Palmerston caring for her terminally ill sister. It is unclear whether she was a visiting carer or a live-in carer to her sister, and (if the latter) whether she re-located to Palmerston, and if so for what periods she ceased to live with the child in her unit in the Darwin inner city.
 None of the opposing parties filed affidavit material in response to the appellant’s affidavit.
 Counsel for the appellant raised her concern as to the existence of possibly adverse material at the outset of the hearing of the appellant’s joinder application. The transcript of that part of the proceeding in the Local Court is self explanatory:
HER HONOUR: Okay. Ms MacLaren, why should the court make that order?
MS MACLAREN: Well, your Honour, the preliminary issue, I spoke to the CEO this morning, your Honour, the CEO’s legal representative, and she indicated to me that there were certain allegations that were referred to in the CEO’s application.
HER HONOUR: In the?
MS MACLAREN: In the application made to court by the CEO - - -
HER HONOUR: Yes?
MS MACLAREN: - - - seeking protection orders that would relate to my client. I requested that information in order to be able to get instructions from my client but my learned friend wasn’t – she said that she wouldn’t give it to me because she didn’t think she’d have an ability to do so. Now, I just - - -
HER HONOUR: There’s some material disclosed in the first filed affidavit that relates to your client.
MS MACLAREN: I don’t have a copy, your Honour.
HER HONOUR: Well – no, of course you don’t.
MS MACLAREN: Yes.
HER HONOUR: Because, no, you’re not a party and you’re not entitled to it.
MS MACLAREN: Yes.
HER HONOUR: Well, apart from what is put as to why it shouldn’t be granted, why should it be granted? Because it’s your application.
MS MACLAREN: Yes.
 The hearing of the application then continued and her Honour heard the submissions of counsel for the appellant, counsel for the CEO, counsel for the child (the separate representative) and counsel for the child’s mother.
 Counsel for the CEO submitted that the appellant was not a person with a significant and direct interest in the wellbeing of the child. It was conceded that the appellant “may be a relative who may care about the child”, but it was said that she did not have a direct interest and she did not have a significant interest. It was submitted that if the appellant were to become a party it would prolong the proceedings, causing a waste of court time. It was submitted that this was undesirable because the appellant was “not a person to whom an order is going to be made giving parental responsibility.” It was submitted that, notwithstanding that the child was in need of protection, and had been for some time, the appellant had not notified the relevant department of any problem with the child. A submission was also made that the appellant had been resident at the house of another child who had died whilst she was in care, but her Honour did not accept that submission in the absence of supporting evidence.
 Counsel for the CEO ended her submissions as follows:
“The Department has concerns and this is not a woman that has significant and direct interest of this child, being a paternal auntie who has not, even on her own affidavit, shown a lot of care and protection of this child in the last three years.”
 The child’s separate representative raised a concern that the appellant was seeking to be a party, but had not said whether she wanted the child to be living with her. She submitted:
“I mean, if you want to be a party, then we need to know what her long term application is. … I don’t know what her application is. If she wants to be a carer, like your Honour said, she can make an application to the department to be assessed as a carer and maybe that’s the path that she should be following rather than be involved in these proceedings and further protract them and having an additional party which, in my submission, is not that necessary.”
 The submission of the child’s separate representative did not take into account or refer to the contents of par 16 and par 17 of the appellant’s affidavit in support of her application, which are reproduced below:
(16) I am fully capable of caring for T. We both have a very close and loving relationship and I know that she will be suffering from the pangs of separation. I have spoken to NTFC staff but they have not taken me seriously and have been high handed in their dealings with me. They have refused to provide me with details of T and have refused to allow her any contact with me. I know that T will be emotionally suffering without me as I as an adult am quite upset and distressed by the separation. I love T very dearly and have cared for her as my own.
(17) I would be able to care for T and give her a happy home. I will ensure that she gets a sound education and has a happy and safe life.
 Further, in par 3 of her affidavit, the appellant had deposed to having been in receipt of a pension since her redundancy and that she had sufficient money to take care of herself and the child.
 Moreover, counsel for the appellant had informed the court that, if the appellant were made a party, she would be able to provide the court with information as to why short term parental responsibility for the child should be given to her, the appellant, rather than to the CEO.
 The child’s separate representative thus did not provide the Chief Magistrate with accurate analysis of, or submissions in relation to the evidence of the appellant or in response to the submissions earlier made on behalf of the appellant by her counsel. It did not appear that the child’s separate representative had investigated or made enquiries in relation to the appellant’s application or the appellant’s evidence in support.
 The child’s separate representative expressed concerns that during the time the appellant looked after TM, she did not make “notifications to the Department”. In this respect she repeated the submission already made by counsel for the CEO.
 Counsel for the child’s mother suggested to the court in his submissions that “the most appropriate course for [the appellant] is to place herself forward as a carer option”, and said that that was essentially what the appellant was seeking.
 Counsel for the appellant briefly replied to the submissions of other counsel, making the point that the absence of notifications had not been raised prior to the hearing and informing her Honour that she did not have instructions in relation to that. Counsel’s point was valid, given that (1) an order had been made by the court the previous year that the respondents file affidavit material, and (2) none of the respondents had filed affidavit material responding to the affidavit sworn by the appellant.
 The Chief Magistrate then declined the application, giving reasons ex tempore, extracted below:
“This is an application by the paternal aunt of the child who is the subject of these proceedings to be joined. The court, pursuant to s 125(2)(d) is to join a person if it considers that that person has a direct and significant interest in the well-being of the child.
The applicant essentially says that she’s had significant involvement in the raising of this child prior to her coming out to court and essentially, that’s what her affidavit is about. It does not, in particular say, “If I were to be joined as a party I would be bringing an application for parental responsibility,” or what it is that she proposes to do if she were joined as a party, and it would be incumbent on her to provide that information.
It is not correct that the information she provides is not contradicted by information provided by the department because although they have not – the department has not specifically filed an affidavit in response to that application, there is certainly contradictory information to the information provided [by] the aunt, in particular, in paragraph 21 of the first affidavit filed and as to the quality of the care she provided in paragraph 41 of that same affidavit.
Now, there are two possible ways of considering the material before the court as far as the application is concerned, either that the paternal aunt did have a significant involvement in the care of this child prior to her coming into care, in which case, I would be very concerned that she has not, even on her own application, ever raised any concerns about the quality of the care provided to the child, and bearing in mind the child’s significant delays which have been observed and if she played a significant part in her care, one would have thought that that would have been something that the aunt would have, in some way, either addressed or attended to or brought to the attention of the department. And it certainly is not consistent with the idea that under her care she is safe.
Alternatively, she has actually played quite a minimal role in the child’s upbringing and that would be consistent with paragraph 21 of the initiating affidavit, in which case, it seems it’s really not clear what her motivation is in relation to the matter. If it is that she wishes to be considered as a carer, it appears that she has not put herself forth nor has she been nominated by the parents as someone that they would wish to be cared for, even under a placement with the department.
She’s in fact never been nominated as someone prior to her own self-nomination. It’s not known what she would do; it’s been submitted that she would provide valuable information. Well if she’s had valuable information, I don’t know why it hasn’t been provided to date. It very well may be information that she thinks is important. It seems to me that what is behind a lot of this and can be inferred from her affidavit is in fact that there is a great deal of conflict between herself and the parents and that she wishes to point out that the parents are not very good parents or why the court shouldn’t believe them or matters of that kind.
That’s the sort of material that the authority that has the statutory mandate for providing that to the court is most expert at. We have no idea what is [proposed] if she were to be joined and I have very real concerns about her real interests in the well-being of the child as opposed to simply intermeddle in the matter and I decline to make the application to join her to the proceedings.” [italic emphasis added]
 I briefly return to consider the first ground of appeal, that the Chief Magistrate failed to determine the essential issue whether the appellant had a direct and significant interest in the wellbeing of the child. It is clear
from the italicised part-sentence immediately above that her Honour was not satisfied on the balance of probabilities as to the appellant’s direct and significant interest. For that reason, the first ground is not made out. In deciding the first ground as I have, I do not exclude the possibility that her Honour’s decision-making was undermined by the procedural irregularities identified under the second and third grounds. I now turn to consider those grounds.
 As to the second and third grounds of appeal, it is apparent that the Chief Magistrate had regard to material contained in par 21 and par 41 of “the first affidavit” filed by the CEO. Her Honour made it clear, expressly or impliedly, that the information contained in those two paragraphs was “contradictory information” to the information provided by the appellant, including as to the quality of care provided. I infer that such “contradictory information” was adverse to the appellant’s case.
 It is also clear that the learned Chief Magistrate was aware of what (I must assume) were developmental delays on the part of TM; hence her Honour’s use of the words: “… bearing in mind the child’s significant delays which have been observed”. Her Honour took those developmental delays into account against the appellant by concluding either that she was aware and did not respond appropriately; or, if she were not aware, that she lacked relevant insight.
 The appellant did not mention the child’s developmental delays in her affidavit and so it must be assumed that the reference to “the child’s significant delays” came from a source other than the appellant, probably from one of the affidavits filed by the CEO. The information may have come from an expert report filed by the CEO in the proceedings. Whatever the source, the appellant did not have access to the material.
 In my opinion, the appellant was denied natural justice by the Chief Magistrate. The appellant did not have access to the any of the “contradictory material” referred to in her Honour’s reasons for decision. Indeed, her counsel was informed at an earlier stage that she was not entitled to it. Nor did the appellant have access to any affidavit material, paediatric or other reports in which the existence of developmental delays (and possibly the reasons for such delays) was mentioned. The appellant thus suffered significant procedural unfairness.
 Even if there were confidential parts of the affidavits (or other evidence), relating to the identity of informants or otherwise, the substance of all material adverse to the appellant’s case that she had a “direct and significant interest in the well-being of the child” should have been disclosed to her, and she should have been given a fair opportunity to be heard in response.
 I allow the appeal on the second and third grounds.
 In the circumstances as I have found them, the appellant’s application should be reheard, by another magistrate. The appellant should be given access to, or made aware of the substance of all evidence which in any way contradicts her claim that she has a "direct and significant interest in the well-being" of TM. She should be given the opportunity to respond to such evidence by filing affidavit evidence in reply and/or by giving evidence.
 The appellant may wish to add to or clarify her affidavit evidence in light of the comments made by me at par  above.
 Mr Lawrence SC submitted that it would be unfair to the appellant to order that her application be reheard because none of the opposing parties filed affidavit evidence in response to the appellant’s application and affidavit in support, notwithstanding orders made by the Chief Magistrate on 10 November 2011 and 24 November 2011. Mr Lawrence argued that this Court should make an order, in effect a declaratory order, that the appellant is a party in the Local Court proceedings. There is some force in Mr Lawrence’s submission as to unfairness to the appellant, but in matters relating to the care and protection of children, the best interests of the child must be the paramount concern. This means that the appellant’s claim that she has a direct and significant interest in the well-being of TM must be properly examined and tested, in the interests of TM. It is not simply a matter of doing justice to the appellant.
 I direct that the parties submit draft orders for settling.
 I will hear from the parties before I decide the question of the costs of this appeal.
 s 88 Care and Protection of Children Act 2007.
 See the discussion in Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 335-337, per Mason CJ; see also Director-General of Social Service v Chaney (1980) 47 FLR 80 at 100; 31 ALR 571 at 593, per Deane J.
 See Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at  - .
 Affidavit of the appellant sworn 9 November 2011, par 4, par 12 and par 13.
 Transcript 23/1/2012, pp 3 – 4.
 Transcript 23/1/2012, p 6.8.
 Transcript 23/1/2012, p 6.9; 7.2.
 Transcript 23/1/2012, page 4.8. At the time the joinder application was heard, the CEO was pursuing a 12-month protection order. Shortly after the joinder was refused, counsel for the CEO informed the Court: “Depending on the results and some further assessments and the paediatric assessments, it may well be that we will be seeking an order for parental responsibility until the age of 18.” The CEO ultimately asked for, and on 19 March 2012 obtained, a protection order giving parental responsibility for the child to the CEO until the child turned 18.
 Transcript 23/1/2012, page 7.7.
 see s 10(1) Care and Protection of Children Act 2007.