Melville v CEO Dept Health and Families  NTCA 8
PARTIES: Melville, Lyn
Chief Executive Officer, Department of Health and Families
KM, TM, KMM and MM
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO: AP 1 of 2011 (21004286)
DELIVERED: 7 October 2011
HEARING DATES: 15 August 2011
JUDGMENT OF: RILEY CJ, KELLY & BLOKLAND JJ
APPEALED FROM: SOUTHWOOD J
Appeal from Southwood J
Child welfare – judicial review – Care and Protection of Children Act – appeal from decision of Supreme Court that the Chief Executive Officer of the Department of Health and Families has power to place children in his care with interstate carers – best interests of the children – appeal dismissed
Care and Protection of Children Act 2007, s 10, s 22, s 22(1), s 22(2), s 67, s 70, s 71, s 72, s 77, s 78, s 78(1)(b), s 123(1)(d), s 128, s 155, s 155(a), s 160, s 320, Part 2.1 Division 8, Part 2.2, Part 2.4 Division 2
Community Welfare Act, s 43(5)(d)
Self Government Act 1978 (Cth), s 6
B v T  1 Qd R 33; Kumagai Gumi v SCT (1999) 161 ALR; Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1
Appellant: M Abbott QC with J Truman
Respondent: S Brownhill
Children’s Representative: M Grove
Appellant: North Australian Aboriginal Justice Agency Ltd
Respondent: Solicitor for the Northern Territory
Children’s Representative: Ward Keller
Judgment category classification: B
Judgment ID Number: Kel 11019
Number of pages: 21
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
Melville v CEO Dept Health and Families  NTCA 8
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF HEALTH AND FAMILIES
KM, TM, KMM and MM
CORAM: RILEY CJ, KELLY & BLOKLAND JJ
REASONS FOR JUDGMENT
(Delivered 7 October 2011)
 The appellant is the biological mother of four children who have each been declared "in need of care" under the provisions of the Care and Protection of Children Act 2007 by order of the Local Court made on 22 December 2008.
 Prior to the making of the declaration the children had been the subject of a number of Temporary Custody Agreements under the Community Welfare Act between January 1998 and March 2000. On 17 March 2000 they were each declared "in need of care" under the Community Welfare Act and the sole rights and guardianship in respect of each child were transferred to the Minister for three months. Those orders were extended on two occasions. On 6 December 2000 a sole guardianship order for a period of two years was made in relation to the children in favour of the Minister. On 20 December 2002 each child was again declared "in need of care" under the Community Welfare Act and the sole rights and guardianship in respect of each child were transferred to the Minister until the child attained the age of 18 years.
 The Community Welfare Act was repealed and replaced by the Care and Protection of Children Act 2007 (“the Act”) with effect from 8 December 2008. The transitional provisions provided that the guardianship order previously made in favour of the Minister became a protection order under the new Act “specifying a long-term parental responsibility direction” and placing the child in the care of the Chief Executive Officer of the Department administering the Act.
 The four children were placed with their present carers (“the carers”) commencing at different times. The first child was placed with the carers in 2007, the second in June 2008, the third in October 2008 and the fourth in June 2009. The fourth child had been living with the carers on an increasing basis between December 2008 and the time the children were formally reunited on 22 June 2009. The four children have been together in the placement with the carers since 22 June 2009. The carers sought assessment by the relevant Department to become the primary carers for the children and, on 17 March 2009, they were registered as primary carers for the children. They were reassessed by Departmental staff on 18 March 2010 and, at the time of the hearing in the Court below, continued to be the approved primary carers for the children.
 On 22 December 2008 the Local Court declared that each of the children remained "a child in need of care" and directed that the CEO be granted long-term parental responsibility for each of the children until they reached the age of 18 years.
 In 2009 the carers advised the Department that they would like to move to Queensland. The desire to move arose in the context of the forthcoming high profile Coronial Inquest into the tragic death of the sister of the children which the carers reported had caused the family "turmoil". Thereafter an exhaustive investigation and assessment process was undertaken to determine whether the children should remain in the permanent care of the carers when they moved to Queensland or whether some other arrangement was appropriate. As part of that process a psychological assessment was made by Dr Boswell who concluded that the children felt safe with the carers, did not feel safe with their own family and wished to move interstate with the carers. Dr Boswell emphasised the need for stability in the children's placement and advised that the maintenance of the existing stable and therapeutic care placement for each child was advisable.
 On 31 December 2009 the CEO filed four applications in the Local Court seeking orders that the protection order in respect of each child be transferred to the State of Queensland. The applications were to be heard on 21 January 2010.
 The father of the children did not oppose the children moving interstate with the carers. However the appellant opposed the children moving to Queensland. In December 2009, through her solicitor, the appellant sought access to the children. For some years prior to December 2009 her contact with the children had been intermittent and she had frequently missed access appointments. This was the first occasion upon which she had sought access since 8 January 2008 when she had last had access to the children.
 On 23 December 2009 the appellant’s solicitor advised the CEO that the appellant did not consent to the children being placed interstate. On 5 January 2010 the solicitor sought an undertaking that the children would not be removed in the absence of a court order and advised that an injunction would be sought unless an appropriate undertaking was provided. The appellant then sought injunctions in the Local Court and, on 7 January 2010, the Court refused to grant those injunctions and dismissed the applications.
 On 8 January 2010 the delegate of the CEO signed a memorandum approving the children travelling to Queensland with the carers. The memorandum referred to a "permanent relocation". The family left for Queensland on the same day. On 11 January 2010 the CEO discontinued the proceedings in which the CEO had previously sought orders transferring the protection orders of each of the children to Queensland.
 Whilst the move to Queensland was anticipated to be a permanent relocation, the CEO decided to defer the making of an application to transfer the children's child protection orders to Queensland for a time in order to ensure that the relocation was successful, the children had settled into the new location and that they continued to benefit from the placement with the carers. The evidence before the Court below indicated that if an interstate placement breaks down it is most likely to do so in the first months of relocation. It was said to be "normal" to offer case management and support for newly relocated children and their carers interstate until formal transfer arrangements progressed to a stage where case management could be transferred to the receiving State. At this point the formal transfer proceedings would then "usually" be lodged.
 Since the children moved to Queensland with the carers the CEO has, through departmental officers, maintained supervision of the children. This has been through regular telephone contact, arranging appointments for necessary medical and psychological treatment and conferring with the children's school teachers, sporting coaches and counsellors. The relevant officer travelled to Queensland in February 2010 to see the children and speak with them individually and also to meet their service providers. Arrangements were made for the school teachers to provide the officer with monthly updates regarding the children's appearance, health, behaviour and achievements. The officer observed the living arrangements for the children and, subsequently, identified a suitable child psychologist to work with the children and the carers. In April 2010 the officer again travelled to Queensland to continue monitoring the adjustment of the children to their new environment. The officer made arrangements for periods of respite for the carers and, on one occasion, at the request of the children, respite carers known to the children travelled to Queensland from Darwin for that purpose.
 Following the departure of the children the appellant applied to the Supreme Court seeking declarations to the effect that the CEO had no power to remove the children from the Northern Territory in the absence of an order of the Local Court. She sought a declaration that the decision to move the children was unlawful. On 20 December 2010 the application of the appellant was dismissed. The appellant appeals from the whole of the judgment.
The grounds of appeal
 The grounds of appeal argued by the appellant were numerous but, in general terms, raised the following issues:
(a) whether s 22 of the Act permitted the CEO (or his delegate) to allow the "permanent relocation" of the children to Queensland without first obtaining a transfer of the child protection orders under the provisions of Part 2.4, Division 2 of the Act; and
(b) if so, whether the delegate of the CEO was empowered to make that decision.
Decision at First Instance
 At first instance Southwood J made the following determination in relation to the first question.
“ In my opinion, in the light of the extensive nature of the powers referred to in s 22 of the Act and the comments in the authorities referred to above, the defendant does have power to place children in his care with carers who are residing interstate. He may exercise that power provided it is in the best interests of the child and provided he and the Department have the capacity to fulfil all of the responsibilities referred to in s 22 of the Act. In this case the decision to permit the children to relocate interstate with their primary carers was in their best interests and the defendant and the Department have been fulfilling their responsibilities in respect of the children.
 The purpose of Ch 2, Pt 2.4 of the Act is to enable protection orders to be transferred in circumstances where the defendant is unable to carry out the responsibilities imposed on him under s 22 of the Act and where it is in the best interests of the children who are residing interstate to have the full protection of the interstate legislation. The provisions of Ch 2, Pt 2.4 of the Act do not restrict the rights and powers the defendant may exercise under s 22 of the Act. Section 22 of the Act is not expressed to be subject to Ch 2, Pt 2.4 of the Act. Section 22 of the Act puts the defendant in the same position as a parent who has parental responsibility over a child. A parent clearly has the power to place a child with an interstate relative or friend for the purposes of the care and advancement of the child.”
 The appellant appeals against this decision contending that the CEO had no power to allow the children to reside interstate “permanently”.
The appellant’s contentions
(a) Supposed abrogation of responsibility for daily care and control
 In the present case the guardianship order made under the Community Welfare Act evolved into a protection order specifying a long-term parental responsibility direction made under the Care and Protection of Children Act. Such an order is made by the Local Court exercising its family matters jurisdiction and gives parental responsibility for a child to a specified person for a specified period that exceeds two years and ends before the child turns 18 years of age. Section 22 of the Act then provides:
Parental responsibility for child
(1) A person has parental responsibility for a child if the person is entitled to exercise all the powers and rights, and has all the responsibilities, for the child that would ordinarily be vested in the parents of the child.
(2) Without limiting subsection (1), a person who has parental responsibility for a child:
(a) has daily care and control of the child; and
(b) is entitled to exercise all the powers and rights, and has all the responsibilities, in relation to the long-term care and development of the child.
 It is apparent from the terms of the section that, upon the making of the orders, the CEO was granted very wide powers, rights and responsibilities in relation to the care and protection of each of the children. Those powers, rights and responsibilities include all the powers and rights which would ordinarily be vested in the parents of the child. The CEO assumes responsibility for the daily care and control of the child and also all of the responsibilities in relation to the long term care and development of the child. When a protection order is in place the CEO is required to "prepare and implement" a care plan for the child which includes "decisions about the placement arrangement for the child". The CEO is entitled to modify the care plan at any time considered appropriate and, in so doing, must have regard to the wishes of the child where the CEO considers those wishes to be reasonable and appropriate in the circumstances. The CEO is required to enter into a placement arrangement for the child which may include placement with a parent, a family member or "an individual approved by the CEO". The CEO is empowered to enter into "any other arrangement for placing the child that the CEO considers appropriate in the circumstances".
 The appellant contends that the CEO had no power to permit the children to move to Queensland with their carers on a permanent basis. The essence of the appellant’s argument is that s 22 of the Act confers on the CEO a responsibility for the daily care and control of the child; that this includes all of the powers of authorised officers set out in Division 8, as these authorised officers act as the agents of the CEO; and that these powers cannot be exercised out of the jurisdiction. The effect of this, the appellant contends, is that by allowing the child to move out of the jurisdiction, the CEO has abrogated his responsibility to exercise daily care and control of the child. Mr Abbott QC for the appellant placed emphasis in this respect on the aspect of control, submitting that the powers under Division 8 were a necessary aspect of the exercise of control.
 The appellant concedes that it would be lawful for the CEO to allow the children to travel interstate with carers on a temporary basis, for example for a family holiday or for the purpose of obtaining medical care, although, on the appellant’s argument, during such periods of absence there would likewise be no capacity for authorised officers to exercise the powers set out in Division 8 for the purpose of exercising control over the child on the CEO’s behalf. Nor, on the appellant’s argument, would there be any power
to compel the return of the child to the Territory if the carers refused to do so.
 The appellant’s argument depends upon the acceptance of two propositions: first, that the coercive powers given to authorised officers in the case of children under the care of the CEO cannot be exercised outside the Territory, and secondly, that the effect of that is that the CEO cannot exercise “care and control” of a child who is the subject of a protection order when the child is outside the Territory.
 There is no need for this court to decide to what extent all or any of the powers in Division 8 might lawfully be exercised out of the jurisdiction as no such issue has arisen in the present case. Suffice it to say that the CEO’s power to authorise the placement of a child interstate does not depend upon the availability of the full suite of powers under Division 8. The CEO has all of the powers and responsibilities for a child in his care under a protection order as a natural parent would have; a natural parent has none of the coercive powers under Division 8, but this does not limit either the parent’s powers or the parent’s responsibilities in making appropriate arrangements for the care and control of the child. So it is with the CEO.
(b) The supposed need for a prior transfer order
 The appellant contends that, on their proper construction, the provisions of Part 2.4 of the Act, which provide that the transfer of protection orders to another State, requires a transfer order to be made before the CEO can permit a child for whom he has parental responsibility under a protection order to reside permanently interstate. If one were to accept that proposition, it is difficult to see why, as a matter of logic, the same reasoning ought not to apply to the situation where the CEO allows the child to leave the jurisdiction and go to another State on a “temporary” basis, although the appellant contends that that is not the case.
 In any event such a contention is contrary to the express wording of the provisions in Part 2.4. Section 155 (a), in Part 2.4, specifically provides that the CEO may transfer a home order to a participating State if “the child to whom the order relates is residing or is about to reside in the State”. Section 160 contains a similar provision in the case where the CEO is applying to the Court for an order transferring a home order to a participating State. Both sections clearly contemplate that a home order may be transferred to a participating State after the child has left the jurisdiction and is residing interstate.
 Counsel for the appellant contends that these provisions in Part 2.4 should be seen as applying only to cases where the CEO has lawfully permitted the child to leave the jurisdiction temporarily or where the child has been taken out of the jurisdiction by a natural parent, for example where there is a limited type of protection order in place which enables the child to reside with the natural parent. He pointed out that the natural parent with whom the child is residing has every right to take the child out of the jurisdiction.
 There is nothing in Part 2.4 of the Act or indeed in the Act as a whole that would require ss 155 and 160 to be construed so as to apply only in those limited circumstances. Indeed the opposite is the case. Where a protection order is made under s 128 of the Act giving long term parental responsibility for the child to the CEO (as is the case with these children) s 22 makes it clear that the person who is given parental responsibility for the child has all the responsibilities and is entitled to exercise all the powers and rights in relation to the child that would ordinarily be vested in the parent. As Southwood J pointed out in paragraph 88 of his reasons for decision, “A parent clearly has the power to place a child with an interstate relative or friend for the purposes of the care and advancement of the child”. There is nothing in the Act to suggest that the CEO’s powers are more limited than those of a parent to place the child with a relative, friend or other carer interstate where that is in the best interests of the child.
 An essential plank in the appellant’s argument is to distinguish between the power to allow a child to reside interstate on a temporary basis (which the appellant concedes the CEO may do) and the power to allow a child to reside interstate “permanently” (which the appellant says is unlawful). We do not agree that such a sharp distinction can be made.
 Nothing is ever truly “permanent” when it comes to children. Children grow and circumstances change. A protection order lasts only until a child reaches the age of 18. All of this emphasises the need for flexibility.
 The submissions of the appellant were to the effect that the decision made by the CEO or his delegate in this case was to "permanently relocate" the children to the State of Queensland. Whilst the recommendation accepted by the delegate was that the children should be permitted to travel to Queensland and noted that "this is a permanent relocation to Queensland" it does not follow that the children had, at the time of the proceedings, been permanently relocated to Queensland. The evidence of the delegate, which was unchallenged, was to the effect that there is a common practice when contemplating the transfer of a child in the care of the CEO from the Northern Territory to another jurisdiction. In relation to such a child there would often be concerns as to how well the child will settle into the new location and whether the child will continue to benefit from the placement with the carers in that location. It was noted that, if an interstate placement is to break down, it is most likely to do so in the first months of relocation. In those circumstances the delegate said:
It is normal for NTFC to offer case management and support for newly relocated children and their carers interstate. This continues until formal transfer arrangements progress to a stage where case management can be transferred to the receiving State. It is usually only after this occurs that the formal transfer proceedings will be lodged in the sending jurisdiction’s Court.
 This approach prudently allows the prospects for success of a transfer to be assessed before an application is made to transfer a protected order related to the child to another jurisdiction. In the event that the relocation appears to be successful then an application for transfer of the protection order will usually be commenced. If the interstate placement breaks down for whatever reason then, presumably, the child would be returned to the Northern Territory and no application for transfer of the protection order would be made.
 In the present case the evidence before the Supreme Court was that the children had relocated to Queensland and the CEO had maintained supervision of the children in the manner described above. Once the CEO was satisfied that the arrangements for the children in Queensland were satisfactory it was intended that an application would be made to transfer the children's protection orders to the State of Queensland. At the time of the hearing that point had not been reached. The decision to permanently relocate the children had not been made and would not be made until the CEO was so satisfied.
 In submissions to this Court it was revealed that no application to seek the transfer of the protection orders to Queensland had yet been made and that no final decision to make such an application had been taken. No further evidence was introduced and we proceed on the basis of the evidence placed before the Court below.
 The memorandum which approved the children travelling to Queensland with their carers had described this as a "permanent relocation" must be understood in light of the advice that it would be subject to the CEO being satisfied that the transfer would be successful in terms discussed in the evidence of the delegate. At the time of the hearing no final decision had been made.
 The arrangements put in place by the delegate of the CEO were eminently sensible, and clearly in the best interests of the children, as found by the trial judge. An interpretation of the Act which removed this flexibility and required the CEO to either remove the children from the carers or make a decision in advance to transfer the order to Queensland without taking time to monitor the situation, would be contrary to the objects of the legislation which require the best interests of the children to be the paramount consideration.
(c) Supposed intention that there be no interstate operation of protection orders under the Act
 The appellant contends that the Act does not contemplate any extra-territorial operation of an order conferring parental powers and responsibilities for a child. However it was not explained how this could be reconciled with the concession that the CEO would have the power to permit carers authorised by the CEO to take a child who is the subject of a protection order out of the jurisdiction on a temporary basis.
 It is far from clear that construing the Act so as not to limit the CEO’s powers to authorise the placement of children with carers interstate would amount to giving the Act extra-territorial application. However, to the extent that this would involve any interstate operation of the Act, the Act clearly contemplates so doing.
 The Territory has power to pass laws having extra-territorial operation. There is a presumption against construing a statute in such a way that gives it extra-territorial operation. However, that presumption is rebuttable. In construing a statute and determining whether or not it has extra-territorial application the Court must look at the Act as a whole, its context, and the objects and purposes of the Act. In particular, the presumption should be taken to be rebutted where the application of the presumption against extra-territorial operation would run counter to the purpose of the legislative scheme.
 Here the object of the legislative scheme is the promotion of the wellbeing of children, and the paramount concern in decisions involving a child must be the best interests of the child. The Act expressly contemplates, in ss 155 and 160, that a child under a protection order for whom the CEO has parental responsibility may be residing outside the Territory.
 As counsel for the respondent has pointed out, if a child in the CEO’s care could only be cared for lawfully interstate after a transfer of the protection orders under Part 2.4, this would run counter to the overall objectives of the legislation and thwart the protective purposes of the Act. It would render unlawful the very sensible arrangement that has been entered into in the present case, and which is the normal procedure adopted by the Department, namely that where it is intended for children to be placed permanently interstate they are placed there for a trial period first and the situation is monitored to ensure that the arrangement is a beneficial one to the child before any application is made for a transfer of the protection order to the relevant interstate authorities. There is nothing in the Act which suggests a legislative intention to limit the powers of the CEO to make beneficial arrangements for the care and control of children under a protection order, to making such arrangements solely within the Territory.
 In ordinary circumstances there is no geographical limitation upon a parent in exercising responsibilities for a child. If the parent considers it appropriate, and there is no other supervening restriction on his or her power (such as a Court order), the parent may place the child with another person in another jurisdiction. There is nothing in the wording of s 22 of the Act, or in Part 2.2 of the Act (which deals with children in the care of the CEO), to suggest that the power of the CEO to exercise parental responsibility for a child is in any way geographically confined. The CEO has “all the powers and rights, and has all the responsibilities, for the child that would ordinarily be vested in the parents of the child".
 Further, as the trial Judge pointed out, the powers and rights that the CEO receives when granted parental responsibility are not subject to the provisions of the Care and Protection of Children Act 2007 dealing with the transfer of child protection orders as between participating States. Whilst the CEO may apply to transfer a protection order to another State so that a child may be protected under the order when moving from one jurisdiction to another, by following the procedures set out in Part 2.4 of the Act, there is no suggestion that the CEO cannot otherwise lawfully permit a child under a protection order to live in another jurisdiction. It may be thought necessary to transfer a child protection order to another State if, for example, the CEO considered it appropriate for an officer of the State to exercise powers and responsibilities under a child protection order for the child. However the CEO may elect not to proceed in that way if, in all the circumstances of a particular matter, it is not necessary for an interstate officer to be involved. In the present case the powers and responsibilities under the protection orders relating to the children were, at the time of the hearing, being exercised from the Northern Territory. Should the CEO determine that the child protection order be transferred to Queensland then appropriate steps can be taken under Part 2.4 of the Act. However, if and when that is to occur is a matter for the CEO as the person with full parental responsibility for the children.
(d) Supposed lack of power in the delegate
 The appellant contended that, even if the CEO had the power to make the decision in question, that power had not been delegated to the person making the actual decision. The power to make the decision is said to arise under s 22 of the Act, and there has been no delegation of the CEO’s powers under s 22.
 That contention can be disposed of very simply. The power to place the children with carers who reside interstate does not, as contended by the appellant, arise under s 22 of the Act. Section 22 simply defines what is meant by parental responsibility for a child. Subsection (1) provides that a person has parental responsibility for a child if the person is entitled to exercise all the powers and rights, and has all the responsibilities, for the child that would ordinarily be vested in the parents of the child. Subsection (2) provides the obverse, namely that a person who has parental responsibility for a child has daily care and control of the child and is entitled to exercise all of those powers and rights and has all of those responsibilities.
 The entitlement to exercise those rights must come from elsewhere. In this case, the entitlement to exercise parental rights and powers (and the duty to carry out those responsibilities) came from the orders of the Local Court made on 22 December 2008, the Local Court declaring that each of the children remained "a child in need of care" and directing that the CEO be granted long-term parental responsibility for each of the children until they reached the age of 18 years. The specific rights and responsibilities being exercised in the placement of the children with the carers and permitting their relocation to Queensland with the carers, come from ss 70, 71, 72, 77 and 78 of the Act. The instrument of delegation confers on the delegate the ability to exercise the CEO’s powers under all of these sections.
 For these reasons the appeal should be dismissed.
 S 43(5)(d) of the Community Welfare Act.
 S 320 of the Care and Protection of Children Act 2007.
 S 67 of the Care and Protection of Children Act 2007.
 The use of the term "a child in need of care" rather than "a child in need of protection" as used throughout the new Act was a consequence of the transitional provisions of the Act.
 LM v CEO Dept Health & Families  NTSC 73.
 S 320 of the Care and Protection of Children Act 2007.
 S 123(1)(d) of the Care and Protection of Children Act 2007.
 S 70 Care and Protection of Children Act 2007.
 S 71 Care and Protection of Children Act 2007.
 S 72 Care and Protection of Children Act 2007.
 Ss 77 and 78 Care and Protection of Children Act 2007.
 S 78(1)(b) Care and Protection of Children Act 2007.
 For this reason, counsel for the appellant, Mr Abbott QC, accepted that, if his arguments were accepted, the relief sought in paragraph 4 of the Originating Motion was not available. If the power of the CEO stopped at the border then he would not have the power to return the children to the Territory.
 Para .
 There has been no appeal against any of the trial judge’s findings of fact.
 S 6 Self Government Act 1978 (Cth); Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1 at 9-14.
 Kumagai Gumi v SCT (1999) 161 ALR 699 at 707 and B v T  1 Qd R 33 at 36.
 S 10 Care and Protection of Children Act 2007.