A v Department of Family and Community Services [No.2]

[2015] NSWDC 148

District Court

New South Wales

Medium Neutral Citation:	A v Department of Family and Community Services [No.2]. [2015] NSWDC 148
Date of orders:	14 July 2015
Decision date:	14 July 2015
Jurisdiction:	Civil
Before:	Colefax SC DCJ
Decision:	Application to adjourn proceedings pending decision by Legal Aid Review Committee refused. Limitation on evidence to be relied on in care appeals.
Catchwords:	Care appeals: “Special circumstances” for refusing a stay; approach to evidence on appeals from the Children’s Court.
Legislation Cited:	Legal Aid Commission Act 1979 s55 and 57; Practice Note DC (Civil) No 5; Children and Young Persons (Care and Protection) Act 1998.
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 Repsondent)
File Number(s):	2015/147658

Judgment

1. Earlier today I delivered a judgment in which I did two things. First, I found that the appellant had not shown cause why the appeal should not be struck out as an abuse of process. Secondly, and for related reasons, I granted orders to Ms Belovic, who appears for the third respondent, on a notice of motion.

2. After I delivered a reasonably lengthy judgment on that topic, there were belated "appearances" by the appellant and Ms Harrod, the fourth respondent. Neither of those parties had appeared at 9.30am when the show cause matter was listed for hearing. I do note, however, some confusion concerning the time on the return date of the notice of motion - but not the show cause hearing. There continues to be no appearance by the second respondent. It is tolerably clear, however, that both Ms Harrod and the appellant were either in or about this building at the proper time.

3. I, therefore, set aside the orders dismissing the appeal as an abuse of process and I set aside for, the time being, the orders on the notice of motion.

4. The mother has sought an adjournment of today's directions hearing on the basis that she has been refused legal aid and she has made an appeal to the Legal Aid Review Committee.

5. The Children’s Court decision under appeal was made on 7 April 2015. The summons, being the appeal, was filed on 18 May 2015. The application for legal aid in connection with the appeal was received by the Legal Aid Commission (“the Commission”) on 20 May 2015. It may be inferred, therefore, that the application for legal aid on the appeal was made on the day that the summons was filed. No real explanation is offered by the mother for the delay in either filing the summons or seeking legal aid for the appeal.

6. On 16 June 2015 the Commission wrote to the mother informing her that her application for aid on the appeal had been refused because the application did not satisfy the merits test. The mother has filed an appeal against that refusal.

7. Section 57 of the Legal Aid Commission Act provides that such an appeal operates as a stay of the proceedings in respect of which the application is made. However, the section also provides that that stay does not come into force if there are “special circumstances”.

8. Practice Note DC (Civil) No 5, which is concerned with Children and Young Persons (Care and Protection) Act appeals, provides inter alia, as follows:

"The Court aims that the appeal will be listed for trial within 3 months of filing. Appeals will be granted priority on the trial date allocated."

9. My own experience of the legal aid appeal process is that appeals to that committee can take from six weeks to six months. Given the priority which this Court gives to care appeals, I regard that as a “special circumstance” within the meaning of s 57 of the Legal Aid Commission Act, and, consequently, there will be no stay of these proceedings whilst that appeal is determined.

10. For that reason, I refuse the application for the adjournment today of the mother because the only basis for the application was for that appeal to be determined.

11. Practice Note DC (Civil) No 5 also provides that at the first directions hearing following the filing of the notice of appeal, the Court is to make directions for the expeditious preparation of documentation for the appeal.

12. Ordinarily, an appeal to this Court follows a contested hearing in the Children's Court, and, ordinarily, subject to any application to adduce further evidence, the appeal would be determined on the transcript of evidence in the Children's Court, the exhibits, and any updating material only.

13. As I indicated in my earlier judgment today, my practice in relation to care appeals is that any other evidence which may be characterised as “fresh evidence”, but not being updating material, would only be allowed on an appeal if the party seeking to rely on that could provide an adequate explanation as to why it was not adduced in the Children's Court.

14. By parity of reasoning, where there are consent orders made in the Children's Court, absent some persuasive reason, a party seeking to appeal against orders made by consent should only be allowed to rely on fresh evidence, not being updating material, where there is a satisfactory explanation.

15. In the circumstances of the present case, I am not satisfied that the mother has provided a satisfactory explanation for appealing against the consent orders made in the Children's Court or for not complying with the directions of that Court concerning evidence for the care plan.

16. In the result, therefore, the appeal in this Court will be heard - but only on the basis of the material which was unchallenged before the Children's Court and with leave being granted to the mother to file updating material only in support of her appeal.

17. I direct the first respondent to prepare a tender bundle of relevant documents which were before the Children's Court at the time it made its decisions on 24 February and 7 April 2015. Such tender bundle to be prepared on or before 4pm, 11 August 2015.

18. I direct the appellant mother to serve all updating material (that is, material which strictly concerns changes in her circumstances after 7 April 2015) also by 4pm, 11 August 2015.

19. I direct the respondents to serve on the appellant, and each other, any material in answer to the appellant's material, or their own updating material, by 4pm, 25 August 2015.

20. I direct that the proceedings be listed for mention on Wednesday 9 September 2015 at 9.30am before Olsson SC DCJ, in her Honour’s capacity as the care appeals list Judge in the John Maddison Tower (or, if her Honour is not then sitting in that Registry, then before the Judge conducting the care appeals list) for the purpose of allocating a hearing date for the appeal in that complex.

21. I direct that there are to be no extensions of this timetable except in the most exceptional circumstances.

22. I note that a failure by the Legal Aid Review Committee to determine the legal aid appeal is not such an exceptional circumstance.

23. Earlier today, I made orders in accordance with the notice of motion filed by the third respondent. It follows from the directions that I have just made, that I have now declined to dismiss the summons for being filed out of time. As I have indicated, the delay, although unexplained, is for a relatively short period of time.

24. Nevertheless, the mother has sought an indulgence from the Court, and notwithstanding the non adversarial nature these proceedings are supposed to follow, it is appropriate that she be ordered to pay the costs of the third respondent for that indulgence.

25. I have not overlooked and, indeed, I am acutely conscious of the fact that Ms Belovic's client at least, and possibly the second respondent, have paid significant legal costs in the course of the Children's Court proceedings and already to date in this Court.

26. It is appropriate, therefore, that the appellant be ordered to pay the third respondent's costs of today.

27. The independent legal representative of the children, Ms Harrod, has also asked for the costs of today to be paid. I also think it is appropriate, in the circumstances, for that order to be made.

28. However as I have said to Ms Belovic earlier, and I repeat to her now, (and to Ms Harrod for the first time,) whether there is any practical utility in going to the extent of seeking a costs assessment against a person who may have no capacity to pay it, would be a matter for them to weigh up in their professional judgment.

29. I direct that a copy of this judgment also be transcribed.

30. I direct the Registry to send copies of today’s two judgments to the parties as well as being placed on the Court file.

Decision last updated: 07 August 2015