A v Department of Family and Community Services.

[2015] NSWDC 147

District Court

New South Wales

Medium Neutral Citation:	A v Department of Family and Community Services. [2015] NSWDC 147
Date of orders:	14 July 2015
Decision date:	14 July 2015
Jurisdiction:	Civil
Before:	Colefax SC DCJ
Decision:	Appeal dismissed as an abuse of process.
Catchwords:	Appeal to the District Court an abuse of process where appellant fails to fully co-operate in Children’s Court proceedings and is seeking to review consent orders in the absence of “fresh evidence”; approach to evidence to be adduced in care appeals.
Legislation Cited:	Cited: Children and Young Persons (Care and Protection) Act 1998 NSW ss 8, 9, 91 (1), (2) and (3) and Uniform Civil Procedure Rule 2005 r 13.4 (1).
Cases Cited:	Metropolitan Bank v Pooley (1885) 10 App Cas 210; Rogers v The Queen (1994) 181 CLR 251; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256.
Category:	Procedural and other rulings
Parties:	Appellant: MA (mother) Respondent 1: Secretary of DFCS Respondent 2: FA (father of AA and EA) Respondent 3:FP (father of DP) 3 Respondent 4: Independent legal representative for the 3 Children
Representation:	Appellant (Mother) in person Ms Wong (1st Respondent Secretary of DFCS) No appearance (2nd Respondent) Ms Belovic (3rd Respondent) Ms Harrod (4th Respondent)
File Number(s):	2015/147658

Judgment

1. On 7 April 2015 the Children's Court (by consent) made orders to the effect that there was no realistic possibility of the children, the subject of applications before that Court, being restored to either the mother or their respective father, and care plans previously lodged with the Children's Court were the subject of orders.

2. By summons filed 18 May 2015, the mother of the three children seeks to appeal all of the orders made on 7 April 2015.

3. Presently before the Court is a show cause hearing (see below) and a notice of motion filed on behalf of the third respondent who is the father of the child, DP. There is no appearance today by the second respondent, the father of the other two children - nor, the independent legal representative of all three children; nor, significantly, is there an appearance by the appellant. I am satisfied, however, that each of the non appearing parties is aware at least of the show cause hearing.

4. The matter has now been in this Court on three occasions.

5. It first came before the Court on 16 June 2015 when there was an appearance by the appellant. The matter was before the Court again on 30 June when there was no appearance by the appellant at either 10 o'clock or 11.00 am. On that occasion, I was informed by Ms Belovic (who appears for the third respondent) and uncontradicted by the legal representative of the Secretary, that there had been sporadic appearances by the mother in the Children's Court. Given her non appearance that day, a show cause hearing for today was fixed.

6. In the interval, Ms Belovic has filed a notice of motion seeking to have the appeal struck out because it was not filed within time. The summons was, in fact, filed on 18 May 2015 and was, consequently, approximately two weeks out of time. Standing on its own, and absent any other consideration, that notice of motion may have had difficult prospects of success. But because of the matters to which I shall now refer, its prospects have altered.

7. Care proceedings are governed by the provisions of the Children and Young Persons (Care and Protection) Act. Section 8 of the Act sets out the objects of that legislation. Section 9 sets out the principles for the administration of the Act. Subsection 9 (1) provides that:

"This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well being of the child or young person are paramount."

8. Consistent with that objective and principle, parties to proceedings in care proceedings (both in the Children's Court and in this Court) have an implicit obligation to participate fully and cooperatively to give effect to that object and principle.

9. The Act provides a right of appeal (or perhaps it might more correctly be described as a mechanism for appeal) to this Court from the Children's Court. Section 91(1) of the Act provides that:

"A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order." [Emphasis added.] 

Subsection (2) provides that:

"An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal."

Subsection (3) provides that:

"Without limiting subs (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings."

10. I earlier emphasised the words in subs (1) "in accordance with the rules of the District Court." Those rules include r 13.4.1:

"If in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

...

(c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be dismissed generally or in relation to that claim."

11. I shall return to that rule shortly.

12. I also noted the flexibility in relation to evidence on appeals which s 91 of the Act provides. That section is to be understood in accordance with and informed by the relevant practice note in the District Court. The District Court practice note makes it clear that, prima facie, appeals to this Court are to be conducted "on the papers" - subject to updating information.

13. In my opinion any party who wishes to adduce fresh evidence on an appeal, other than updating material, should provide an explanation as to why such evidence had not been led in the Children's Court. Absent such an explanation, that material should be excluded. This is because, as I have said, parties to Children's Court proceedings have a responsibility and obligation to participate fully and cooperatively to give effect to the purposes of the legislation. A party is not to be permitted to deliberately withhold material or evidence, or to deliberately fail to participate in the Children's Court, and then seek to obtain a forensic advantage on appeal by raising matters which could (and should) have been dealt with in the Children's Court. Such an approach would not facilitate the purposes of the legislation.

14. These general statements, of course, must give way in a particular case to the specific circumstances of that case. There may be in such cases an acceptable explanation as to why a party did not fully participate; or why a party seeks to appeal a decision which was made by consent. In the latter context, it may be, for example, that a party's legal representative consented to orders without instructions, although such a situation would be unusual to say the least. There is nothing before me in the present case that suggests that the appellant makes any such allegation.

15. I have had the advantage of reading the transcript of the proceedings in the Children's Court.

16. On 24 February 2015 the parties were before his Honour, Magistrate Feather. Mr Attia appeared, admittedly as amicus curiae, for the mother. In the course of that hearing, the Children's Court Magistrate was informed, and was not contradicted by the representative for the mother, that she had missed three contact meetings with the children since the proceedings were commenced. The Court was also informed that, in relation to the time table which the Court had imposed, the mother had failed to have any meaningful contact with Mr Attia for the purpose of complying with the directions concerning evidence.

17. The learned magistrate noted that the proceedings had initially come before the Court on 15 December 2014 and that it had been before the Court on a number of occasions, namely 17 December 2014 and 10 February 2015. His Honour, on that last occasion, was satisfied that the children were in need of protection. Interim orders were continued, and his Honour made careful and specific directions for a timetable for evidence concerning a proposed care plan. That phase of the proceedings was adjourned in that Court to 7 April 2015.

18. On 7 April 2015 the proceedings came before his Honour, Magistrate Murphy. As I have indicated in other judgments, it is not unusual but common, for different Children's Court magistrates to deal with different stages of the same care proceedings.

19. On 7 April 2015 Mr Attia again appeared (amicus) for the mother. His Honour acknowledged that the mother had not complied, yet again, with timetables made by the Court. Mr Attia sought a further adjournment, which was ultimately refused. The Children's Court magistrate took into account the fact that there had been three directions not complied with by the mother, and that she had not engaged with Community Services. He took into account that there were 31 risk of harm reports between 2005 and 2014. His Honour took into account that the fathers of the respective children were continuing to incur private legal costs by the unnecessary directions hearings – I say “unnecessary” because they were not complied with by the mother.

20. It is significant to note that on 7 April 2015 Mr Attia, on instructions, informed the Children's Court Magistrate that the mother conceded that there was no realistic possibility of a restoration of the children to her care, and she agreed to the Court making a finding to that fact. What she wished to be heard on were the questions of placement and contact. The learned magistrate stood the matter down in the list, and, after lunch, having noted the many opportunities the mother had been given to participate, his Honour made orders in accordance with the care plan proposed by the Secretary.

21. In the appeal which has been filed by the mother, she now seeks to set aside all of the orders made by the Children's Court including the order based on her concession there was no realistic possibility of the restoration of the children to her care.

22. There is a well established line of authority that there is inherent in any court of justice a power to prevent a misuse of its procedures in a way which would bring the administration of justice into disrepute.

23. In Metropolitan Bank v Pooley (1885) 10 App Cas 210, Lord Blackburn observed that a power existed to enable a court to protect itself from abuse of its processes thereby safeguarding the administration of justice. His Lordship also observed that the purpose may transcend the interest of any particular party to the litigation.

24. In Rogers v The Queen (1994) 181 CLR 251, at p 286, McHugh J said:

"Many, perhaps the majority of, cases of abuse of process arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process."

25. In Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 in the joint judgment of Gleeson CJ, and Gummow, Hayne, Crennan JJ, it was noted that the doctrine of abuse of process "is insusceptible of a formulation comprising closed categories. Developments continue."

26. In my opinion, in circumstances where the mother failed to fully cooperate with the processes of the Children's Court in the circumstances I have described and, in particular, by seeking to invoke the appellate jurisdiction of this Court to review some orders which were made by consent, and by failing to appear before this Court on a number of occasions as she did in the Children's Court, I am satisfied that, in both filing the summons and by her conduct in not prosecuting it, the mother has engaged in an abuse of process of the Court within the meaning of r 13.4.1 of the Uniform Civil Procedure Rules.

27. For that reason alone the appeal is therefore dismissed.

28. Because of the reasons I have given concerning the abuse of process, I also grant the relief sought in the notice of motion filed by the third respondent for whom Ms Belovic appears.

29. I also, therefore, make orders in accordance with prayers 1 and 2 of the notice of motion.

30. I direct that a copy of these remarks be transcribed and be placed on Caselaw.

Decision last updated: 07 August 2015