A v Secretary, Family and Community Services (No 2)

[2019] NSWSC 43

Supreme Court

New South Wales

Medium Neutral Citation:

A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43

Hearing dates:

1 February 2019

Date of orders:

05 February 2019

Decision date:

05 February 2019

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

Summons dismissed.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Parens patriae – Orders sought in relation to proceedings on foot in the Children’s court and restoration supervision and parental responsibility of children – whether orders of prohibition and declaratory relief should be made – whether orders as to day to day care of child should be made – orders refused

 

ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error on the face of the record – Children’s Court has no role in calling or testing evidence – Briginshaw v Briginshaw [1938] HCA 34

 

ADMINISTRATIVE LAW – Judicial review – Grounds of review – Jurisdictional error

 

ADMINISTRATIVE LAW – Judicial review – Grounds of review – Denial of procedural fairness

FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Children and Young Persons (Care and Protection) Act 1998 (NSW) , Div. 2 Pt 2 – Order requiring not the production of documents but their creation

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Director General of Department of Community Services; Re Sophie [2008] NSWCA 250
Re Alistair [2006] NSWSC 411
Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

Category:

Principal judgment

Parties:

A (First Plaintiff)
B (Second Plaintiff)
Secretary, Family and Community Services (First Defendant)
Legal Aid NSW (Second Defendant)
Children’s Court of NSW (Third Defendant)

Representation:

Counsel:
Mr P Singleton (First Defendant)

  Solicitors:
A and B, unrepresented (First and Second Plaintiffs)
Crown Solicitor’s Office (First Defendant)

File Number(s):

2018/299545

Publication restriction:

Nil

Judgment

1. In September 2017, C and D were removed from the care of A and B after C made serious allegations of abuse by B. On 22 September, the Children’s Court ordered under the Children and Young Persons (Care and Protection) Act1998 (NSW) that parental authority in respect of the children be allocated to the Minister, until further order.

2. In December 2017, by consent but without admissions, Blewitt CM found that the children were in need of care and protection and in February 2018, the Secretary sought final orders allocating parental responsibility to the Minister, until each child reached the age of 18. This was the first stage of the two stage process established by the Care Act, when children are removed from the care of their families by the Secretary: Re Alistair [2006] NSWSC 411 at [64] – [65].

3. In April 2018, A and B applied to have Blewitt CM’s findings set aside. Crompton CM dealt with this application as one to have the question of whether the children were in need of care and protection re-opened. In August, after hearing the parties’ evidence and submissions, his Honour concluded that they were.

4. The Secretary then sought to pursue the application for final orders, which has not yet been heard by the Children’s Court.

The relief sought

5. A and B then applied to this Court for relief under the Supreme Court Act 1970 (NSW) and the Court’s parens patriae jurisdiction. The relief sought is:

“2 Pursuant to s 75 of the Supreme Court Act 1970, declaration that the finding by the third defendant of 12 December 2017, that the children, [D], born XX XXXX XXXX ("D") and her half sibling [C] ("C"), born XX XXXXX XX XXXX, are children in need of care and protection, is invalid.

3 Pursuant to s 75 of the Supreme Court Act 1970, declaration that the finding by the third defendant of 23 August 2018, that the children, [D], born XX XXX XXXX ("D") and her half sibling [C] ("C"), born XX XXXXX X XXXX, are children in need of care and protection, is invalid.

4 Pursuant to s 69 of the Supreme Court Act 1970, the third defendant is prohibited from conducting the final hearing of the matter of [D] and [C], case number 2017/286892, until the first stage of the proceeding, commonly referred to as the "establishment hearing", has been conducted and determined according to law.

5 Pursuant to s 69 of the Supreme Court Act 1970, the first defendant is ordered to produce to the third defendant and serve on die parties the following evidence:

(a)   Copy of an authorised transcript of the interview of [C] on 11 September 2017 by the Plainclothes Senior Constables Duncan and Johns form the NSW Police Child Abuse Squad (paragraph [ 1 ] of Section K of the Report in support of Application initiating care proceedings filed in die Children's Court on 20 September 2017);

(b)   Copy of a sworn statement by the caseworkers from Ingleburn CSC Angela Iacono and/or Paula Brayne in relation to the purported interview on 15 September 2017 of "a number of persons" in [C’s School] and the "information provided by the family, school and other parties" The statement(s) to include the particulars of the persons' identities and details of their statements (paragraphs [11] and [16] of Section K of the Report in support of Application initiating care proceedings filed in the Children's Court on 20 September 2017);

(c)   Copy of a sworn statement by [C]’s school counsellor in relation to her notes dated 3 November 2017, in particular in relation to the statement purportedly made to the counsellor by [C]’s "best friend" The statement to include the particulars of the identity of the "best friend" and details of the circumstances under which the "best friend" approached the counsellor.

6   If the first defendant is unwilling or unable to provide the evidence as sought in the order (5) above, the first defendant is directed to remove from the court files any and all references to the information purportedly gained from the unidentified persons and the statements purportedly made by [C] in her audio recorded interview on 11 September 2017.

7 Pursuant to s 69 of the Supreme Court Act 1970, the first defendant is prohibited from placing [D] and [C], or either of them, in care of a person or persons residing in [a country] until the final determination of the matter, including the outcome of an appeal to the District Court, if such an appeal is initiated.

Parens patriae jurisdiction

8   In the exercise of its parens patriae jurisdiction the Court orders that the first defendant restores the child [D] ("D"), born XX XXXX XXXX, to the day-to-day care of the first plaintiff.

9 Pursuant to s 76 of the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act"):

(a)   [D] is .placed under the supervision of the first defendant until the matter is finally determined in relation to her; or, in the alterative,

(b)   [D] remains under the parental responsibility of the Minister, while in day-to-day care of the first plaintiff, until the matter is finally determined in relation to her.

10 Pursuant to s 73 of the Care Act the first plaintiff gives an undertaking to the Court not to allow [D] to be left unsupervised in care of the second plaintiff until the matter is finally determined in relation to her.

11   Costs.”

6. The grounds advanced are:

“GROUND 1 [Orders (2) and (3)] - error of law on the face of the record

(a)   The third defendant failed to uphold the principle of legality by not allowing the "establishment hearing" to be conducted according to law;

(b)   The third defendant failed to uphold the Briginshaw principle that has been accepted as correct law in the proceedings where serious allegations are made;

(c)   The third defendant failed to ensure that the legal representatives of the parties adduce and test, if required, all relevant evidence at the "establishment heating" This in particular applies to the independent children's lawyer who is mandated by section 99D (b) (vi) - (vii) to do so.

(d)   The third defendant failed to give reasons why it was not required to adduce and test all relevant evidence at the "establishment hearing" according to law.

GROUND 2 [Order (4)] - jurisdictional error

(a)   By the above failures, the third defendant failed to establish the facts according to law that are necessary for the next step in the proceeding, the preparation of the care plan;

(b)   The third defendant failed to establish jurisdiction to proceed to the final hearing

GROUND 3 [Orders (5) - (6)] - denial of procedural fairness

(a)   Denial of the procedural fairness to the plaintiffs by the refusal of the first defendant, with the acquiescence of the third defendant, to provide the evidence as repeatedly requested by the plaintiffs;

(b) Denial of the procedural fairness to the children by the refusal of the first defendant, with the acquiescence of the third defendant, to provide the evidence as repeatedly requested by the plaintiffs, which would have enabled the second defendant to discharge its duties to the law as required by section 99D (2) (vi)-(vii) of the Care Act.

GROUND 4 [Orders (7) - (10)] - safety, welfare and wellbeing of the children

(a)   It is not in the best interest of [D] and is detrimental to her long-term health, development and wellbeing to continue being separated from the first plaintiff;

(b) [D] has been removed from the care of the first plaintiff contrary to the principles of sections 9 and 36 of the Care Act; a less intrusive intervention was and still is available.

(c)   Supervision order is sufficient to provide safety to [D];

(d)   The evidence shows that [C] was being groomed by older males residing in [a country].”

7. There is no issue that appeals from the Children’s Court lie to the District Court, but that this Court’s supervisory jurisdiction over both courts is retained: s 247 Care Act.

8. The Secretary’s case was that it was doubtful that declaratory relief of the kind sought could be made: Sankey v Whitlam (1978) 142 CLR 1 at 23; [1978] HCA 43. Further, that it is only for the purpose of s 69(3) of the Supreme Court Act, when relief in the nature of certiorari is sought, that an error of law on the face of the record may be established by the Children Court’s reasons for decision, on which A and B relied: s 69(4).

9. Certiorari is a process by which the Court supervises the acts of an inferior court, not by an appellate procedure enabling either a general review of the order or decision or a substitution of the order or decision which the Court thinks should have been made, but where error on the face of the record is established, by quashing the impugned order or decision: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58.

10. Such relief was not here sought, but even in such a case, this Court cannot resolve any factual issues unresolved in the court below: Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 at [12].

The relief sought must be refused

11. For reasons which I will explain, I am satisfied that no basis has been established on the evidence for granting any of the relief sought by A and B.

12. The evidence which they relied on was not conceded to be relevant to all of the orders which they sought, other than in relation to the parens patriae application. In some respects the evidence they relied on was not strictly admissible, affidavits and a statement prepared by a former solicitor, Mr Potkonyak, for example, including hearsay and submissions. But it was all received without objection, on the basis that it would be given weight in relation to the matters to which it was relevant, A and B, who were unrepresented, being anxious to ensure that the entirety of what they wished to rely on, was before the Court to consider.

13. The documents they relied on included transcripts of some of the proceedings in the Children’s Court and the reasons given in August 2018 by Crompton CM for his findings, but A and B did not, however, rely on either the transcript of the proceedings before Crompton CM, or the documents which the parties then relied on to advance their case.

14. That made it difficult for A and B to succeed in establishing a basis for complaints which they advanced and the relief which they sought, being granted.

15. In her October 2018 affidavit A:

1. Gave a detailed account of her background, that of B and the children and of C’s behaviour while in their care; of C’s interactions with B; how they came to learn of C’s disclosures about B’s alleged inappropriate behaviour; and how they were dealt with by police and FACS caseworkers, with the result that both children were removed from their care, when D was aged only 8 weeks and still being breastfed, eventually to live with A’s cousin and his wife, despite C’s retractions of her allegations.

2. Explained various legal advice they had pursued and advice they had also received from a non-lawyer, that there had been flaws in the evidence relied on by the Secretary in the Children’s Court and that neither of the establishment hearings before Blewitt CM and Crompton CM had been conducted according to law.

3. Outlined her contact with the children since their removal and some of the problems she had experienced as a result.

4. Explained her concern that a care plan proposed that C be sent to [a country] to live in the care of her parents, to allow her to rebuild her relationship with her natural father, with whom she had not had contact since 2014, thus separating her from D, as well as from her and B;

5. Outlined her views about C’s repetition of allegations she had made about B;

6. Explained why she did not believe C’s allegations; and

7. Explained her attitude to the proposed care plans and how she and B proposed to deal with the C, if she was restored to their care.

16. Despite the objections of A and B, on 14 December 2018, Harrison J made orders in relation to C travelling to [a country]: B v Secretary, Family and Corrective Services [2018] NSWSC 1925.

17. A further affidavit A swore on 28 January 2019 dealt with this, as well as developments in the proceedings in the Children’s Court, where a final hearing has been listed in early March. It, however, is expected to be adjourned, so that the final hearing can come before the President of the Children’s Court. There is to be another directions hearing in early February.

18. Having considered all of the material relied on, I am still satisfied that none of the orders which A and B seek may be made. Their unchallenged concerns, particularly in relation to the removal of D from their care and what has happened since C retracted her allegations, which A believes are untrue and which B denies, with the result that some 17 months after the children’s removal there has been no resolution of the Secretary’s application, may be accepted as being genuinely held.

19. On the evidence there is, however, no basis for this Court to intervene in the proceedings on foot in the Children’s Court, or for the Court exercising its parens patriae jurisdiction, notwithstanding those concerns.

20. Given the statutory scheme under which the proceedings in the Children’s Court are being conducted, which importantly have as their paramount concern the children and their relationship with their family and what the evidence establishes has occurred in those proceedings, I am satisfied that the parties must rather direct their energies to the prompt finalisation of those proceedings.

Ground 1 – error of law on the face of the record

21. This ground was advanced by reference to alleged failures in the conduct of the two establishment hearings. But nothing advanced established error on the face of the record.

22. It was not suggested that there was any error in either the Secretary’s application, or the orders which have been made by the Children’s Court. It was the conduct of the hearing and the reasons given for the findings that the children required care and protection, what Blewitt CM said in the proceedings before him and the reasons Crompton CM gave for his findings, to which this ground was advanced.

23. A and B contended that at both hearings, there was no application of the rule of law or, the rules of natural justice and that the law purportedly applied, was applied in a vacuum. They also contended that the Briginshaw principle applied to the serious allegations which C had made, but had not been observed.

24. The case so advanced did not establish the alleged error.

Blewitt CM’s findings

25. A declaration that Blewitt CM’s 12 December 2017 finding was invalid, may not be made.

26. What Blewitt CM then found by consent was reconsidered by Crompton CM, on the application which A and B later made. Still they contend that the proceedings were not conducted according to law.

27. Under this statutory scheme, however, it cannot be doubted that it is open to parties to proceedings before the Children’s Court to resolve issues which arise by agreement and to then ask the Court to make findings and orders which reflect what has been agreed.

28. This accords with the objects of the Care Act, which is specified in s 8 to be:

“(a)    that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1)   recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b)    that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c)    that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.”

29. It also accords with the requirement that the Care Act 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: s 9(1). Other principles specified in s 9(2) to be applied during legal and administrative processes, are also concerned with the position of children and young people and their family. Provision is also made to ensure that children and young people are able to participate in decisions which concern them: s 10.

30. As in this case, applications can come before the Children’s Court after children have been removed from the care of their parents, the Secretary or police having statutory powers of emergency removal of children, when a statutory opinion is formed that a child or young person is at immediate risk of serious harm and that the making of an apprehended violence order would not be sufficient to protect the child or young person. There is also provision made for the Secretary then to assume their care responsibility: s 44.

31. In such cases the Secretary must make prompt application to the Children’s Court, for care and protection orders, amongst other orders: s 45. In such cases there is a duty imposed on the Secretary to give specified notices, including to parents: s 51.

32. How the Secretary’s care applications are then dealt with by the Children’s Court is regulated by Part 2. Both interim and final orders may be made: s 62. Information which the Secretary must provide to the Court is specified in s 64. The circumstances in which care orders may be made are those specified in ss 71 and 72.

29. Section 71(1)(b) expressly contemplates that parents may acknowledge that “the child or young person is in need of care and protection”. Such an acknowledgement provides a statutory basis for the making of a care order.

30. In this case before Blewitt CM, on legal advice, A and B agreed that there should be a finding, without admission, that the children were in need of care and protection.

31. As discussed in Re Alistair at [78] – [79], it is not inconsistent with the principle in s 9(1), the safety, welfare and well-being of children being paramount, that the Court act on parent’s consent a finding about the need of care and protection, to move to the second phase of the statutory process, in which the Children’s Court will consider whether final orders should be made.

32. At that stage the matters in respect of which A and B so made no admissions, would have remained to be determined. Thus, at final hearing, a different view might have been taken about C and D’s need for care and protection, on the evidence led at that hearing: Re Alistair at [81] – [82].

33. The Secretary is also obliged to present a care plan to the Children’s Court, before any final orders as to care and protection or parental responsibility are made, which must deal with the matters specified in s 78. The orders which the Court can then make as to parental responsibility are dealt with in s 79 and as to guardianship, in s 79A.

34. In the context of this statutory scheme, that parties such as A and B later regret the course they have taken at an establishment hearing in consenting without admission to the making of a finding that children have a need for care and protection, is thus not a basis for making the orders now sought, namely, of outlawing what is said to be an entrenched practice in the Children’s Court, of interim findings made by consent, but without admissions.

35. In the result it cannot be concluded that the hearing before Blewitt CM was not conducted according to law, even though his Honour observed when informed of the concession which A and B made, after having read the documents and submissions on which the parties proposed to rely at the hearing, that it seemed “inevitable” that the Court would have reached the conclusion that C and D were in need of care and protection, had their concession not been made.

Crompton CM’s findings

40. Nor does the evidence establish that the hearing before Crompton CM was not conducted according to law, or the rules of natural justice.

41. While the transcript of that hearing and the evidence which was then led were not put before this Court, the case which A and B here advanced did not suggest that they were given no opportunity to lead evidence and make submissions. It was the conclusions which his Honour reached and the reasons which he gave, with which they take issue.

42. At that hearing A and B were not represented. His Honour’s reasons disclose that they were then offered the assistance of a duty solicitor, which they declined.

43. His Honour said that he had applied Re Alistair to conclude that Blewitt CM’s finding of need of care could be re-examined and then heard the application A and B pressed, that no finding that the children were in need of care and protection, should be made.

44. His Honour noted the information provided by an affidavit sworn by a case worker who had day to day responsibility for the children, included:

“1.   Session notes prepared by [C]’s school counsellor from the latter part of 2017 which contain evidence of her initial disclosures of sexual assault by Mr [D], and later retractions of those disclosures on two occasions (Annexure C).

2.   A transcript of the interview with [C] by JIRT on 11 September 2017 during which the disclosures were made which ultimately fled to the removal of the children and the commence the [sic] of the care proceedings (Annexure D).

3.   Handwritten notes of two interviews by FACS caseworkers on 11 September 2017 (Annexures E and F)

4.   A letter from a self-described "child advocate" dated 6 November 2017 which purports to advocate a retraction of the allegations made by [C] against [B] on [C]’s behalf (Annexure G).”

45. Crompton CM noted the Secretary’s submissions about a Risk of Significant Harm report which had disclosed C’s allegations of multiple incidents of sexual assault by B, reported to A and to police and that A did not believe these allegations, which had been referred for investigation to the Liverpool Joint investigations Response Team, which had interviewed C. A later confirmed to a caseworker that she did not believe the allegations, which she believed C had fabricated, but she then agreed to a safety plan which would involve B not attending the family home when C was present and A supervising D at all times while in his company. A safety plan stipulating that he was not to reside at the same residence as the children was also formulated, but A would not agree to comply with it, with the eventual result the removal of both children from her care.

46. Crompton CM also noted the denials of the child’s allegations in B’s affidavit and his beliefs that she was at risk of sexual harm from people online. His Honour also noted that in her affidavit A attested to her beliefs about C’s involvement in sexually inappropriate behaviour with persons other than B and online and that she did not believe the allegations C had made against B. Her belief that the children had been unlawfully removed and should be restored to her care, were also noted.

47. After reference to the requirements of the statutory scheme and the paramount concern there specified to be the safety, welfare and wellbeing of children and the test of unacceptable risk of harm to the child, his Honour returned to the affidavit evidence about the disclosures of multiple incidents of sexual harm perpetrated by B from mid-2016 which C had made, including at school, as well as the retractions which she had made to a school counsellor, in October and November 2017.

48. Crompton CM nevertheless concluded that the evidence raised serious concerns about the safety and wellbeing of the children. A’s unwillingness to comply with a safety plan and her statements that the C’s disclosures were untruthful, led him to conclude that her ability to act protectively in relation to the children to be doubtful. There was, however, no finding that B had abused C. It was the nature and circumstances in which the allegations were made and repeated and the lack of protectiveness on A’s part, which led his Honour to the conclusion that on the balance of probabilities, both children were in need of care and protection for the purpose of s 72(1).

49. The criticisms A and B advanced about his Honour’s reasons thus cannot be accepted. As observed in Re Alistair at [77] “In a busy Children's Court, where the Act encourages informality (s 93), extensive reasons are not required.” Contrary to the case A and B advanced, his Honour was thus not obliged to undertake a detailed comparison of the allegations which C, a young child, had made to those to whom she made her reports at various times, or to give an account of that comparison in his reasons.

50. In his reasons, his Honour gave a clear explanation, by reference to the evidence, why he concluded that the children were in need of care and protection, despite C’s retractions of the allegations she had made.

51. Given the way they advanced their case in these proceedings, A and B did not establish that there was no evidentiary basis for his Honour’s conclusions. In any event, there is no appeal from the decision of the Children’s Court, either at this stage of the proceedings, or to this Court. Nor does the relief which A and B have sought in this Court, permit a review of the correctness of his Honour’s conclusions.

The hearing was conducted according to law

52. The proceedings were not adversarial, but had to be determined by the Children’s Court on the evidence which the parties led, in circumstances where the rules of evidence did not apply, unless the Court determined otherwise. The standard of proof remained proof on the balance of probabilities: s 93. The evidence which A and B led did not establish what evidence was received in the Children’s Court, or whether it was challenged or tested.

53. A and B were critical of the decision which his Honour reached, because he did not conclude that C’s allegations had been made up and because he did not make reference to the details of her accounts. Their views do not, however, establish that the hearing was not conducted according to law.

54. His Honour’s reasons reveal that he considered, as he was obliged to, the evidence which the parties led in order to determine whether the Secretary had met the onus imposed to establish, on the balance of probabilities, that the children required care and protection. He also gave reasons for the conclusion which he reached, as he was obliged to do.

55. Mere dissatisfaction with the findings so made, is not a basis upon which it can be concluded that the hearing was not conducted according to law.

56. The hearing on the question of whether any final orders should be made is apparently now to come before the President of the Children’s Court. On that question it will be open to A and B to seek to persuade the Court to come to a different view to that which Crompton CM reached, on all the evidence then led, as to whether the children still require care and protection: Re Alistair at [82].

The Children’s Court has no role in calling or testing evidence

57. Contrary to the case which A and B advanced, the legislative scheme does not impose any obligation on the Children’s Court to ensure that the parties lead all “relevant” evidence in proceedings before it.

58. The proceedings were not adversarial and had to be conducted with as little formality and legal technicality and form as the circumstances of the case permitted: s 93(2).

59. It is a matter for the parties to determine what evidence they each lead, what they challenge and what evidence they seek to test, subject to the admissibility of the evidence, which is regulated by ss 106 and 106A. Those sections expressly contemplate the parties adducing evidence of statements and information made or given to a police officer by a child and evidence being led about the circumstances in which a child was removed from a parent’s care.

60. Section 107 regulates the cross-examination of witnesses, which is subject to the Children’s Magistrate’s supervision. Part 2 of the Care Act regulates the attendance of witnesses and the production of documents.

61. It was not suggested that these requirements were not adhered to in the proceedings before Crompton CM. What evidence was led was only revealed by his Honour’s reasons. How if at all, any of the evidence led was sought to be tested at the hearing, which the transcript of the proceedings would have revealed, is not known.

62. A and B relied on s 99D, which provides:

“99D    Role of a legal representative

Without limiting the role of a legal representative for a child or young person in proceedings before the Children’s Court:

(a)    the role of a direct legal representative includes the following:

(i)    ensuring that the views of the child or young person are placed before the Children’s Court,

(ii)    ensuring that all relevant evidence is adduced and, where necessary, tested,

(iii)    acting on the instructions of the child or young person, and

(b)    the role of an independent legal representative includes the following:

(i)    if a guardian ad litem has been appointed for the child or young person—acting on the instructions of the guardian ad litem,

(ii)    interviewing the child or young person after becoming the independent legal representative,

(iii)    explaining to the child or young person the role of an independent legal representative,

(iv)    presenting direct evidence to the Children’s Court about the child or young person and matters relevant to his or her safety, welfare and well-being,

(v)    presenting evidence of the child’s or young person’s wishes (and in doing so the independent legal representative is not bound by the child’s or young person’s instructions),

(vi)    ensuring that all relevant evidence is adduced and, where necessary, tested,

(vii)    cross-examining the parties and their witnesses,

(viii)    making applications and submissions to the Children’s Court for orders (whether final or interim) considered appropriate in the interests of the child or young person,

(ix)    lodging an appeal against an order of the Children’s Court if considered appropriate.”

63. They were critical of the way in which the children’s legal representative performed these functions, but there is no basis on which their views can be examined, in the absence of the transcript of the hearing and the evidence received by Crompton CM. Nor do their views establish a basis for the conclusion that, in the circumstances, the Children’s Court failed in some necessary supervision of the functions imposed by s 99D.

64. The burden of proof at the hearing of the question of whether the children required care and protection fell on the Secretary. A, B and the children were all entitled to be heard on that question.

65. What has been put before this Court does not establish either the case which was advanced for the children, let alone that some different case should have been advanced, if the obligations imposed by s 99D were to be met.

66. Crompton CM explained in his reasons why it was that he was satisfied that the burden which fell on the Secretary had been met, despite C’s withdrawal of her allegations at one point. His Honour had before him affidavit evidence from both A and B about what they believed to have been C’s inappropriate sexual activities while in their care with persons other than B. In the result, while reaching no conclusions about B’s conduct, his Honour was left with the concerns he explained about the children’s welfare, which led him to the conclusion that the Secretary had met the statutory onus and that the application for final orders for the care of the children had to be heard.

67. On the limited material here in evidence, no error in the way in which the proceedings were conducted, has been established.

68. There was also a complaint that Crompton CM had not given reasons why the Children’s Court did not adduce and test all relevant evidence at the hearing. There was no obligation to give such reasons, because no such obligations fell on the Court.

Briginshaw

69. Reliance was also placed on Briginshaw v Briginshaw 1938) 60 CLR 336; [1938] HCA 34, which is concerned with the assessment of evidence in the way Dixon J discussed at 362:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences."

70. This approach is now reflected in s 140 of the Evidence Act1995 (NSW). While the rules of evidence do not usually apply to proceedings in the Children’s Court, the Secretary accepted that in the case of serious allegations such as those which C had made, they should nevertheless be assessed in the way there discussed in Briginshaw.

71. His Honour’s reasons do not establish that he did not so approach his consideration of the evidence about C’s allegations. What he concluded was that the evidence raised serious concerns about the safety and wellbeing of the children. In reaching that conclusion he had regard to the evidence not only of C’s allegations and that of the caseworker as to the circumstances in which they were made and withdrawn, but also of A’s statements that C’s disclosures were untruthful; her unwillingness to comply with a safety plan for the children; B’s denials; and the views which he and A shared that C had been sexually abused by others. All of this evidence led his Honour to conclude that A’s ability to act protectively in relation to the children to be doubtful.

72. That does not establish that in assessing the evidence about C’s allegations, his Honour did not take into account the seriousness of the allegations; the likelihood of what she had described; and the gravity of the consequences which flowed from the allegations.

Ground 2 – jurisdictional error

73. Jurisdictional error was also not established by any of the matters advanced in relation to ground 1, as A and B also contended in relation to Ground 2.

74. The Secretary is obliged to prepare a care plan for the children, which must be presented to the Court, before final orders are made: s 78. That plan must make provision for the matters specified in s 78(2), such as allocation of parental responsibility, placement, contact, and services to be provided to the child. This plan must as far as possible be made by agreement with the parents: s 78(3).

75. But the terms of a care plan or any permanency planning, is not made dependent upon any reasons given for an earlier finding that a child requires care and protection, in the initial phase of the statutory process. Further, the parties are free at the final hearing to lead evidence relevant to the making of final orders, given what is proposed in the care plan and in relation to permanency planning.

76. An assessment must also be made under s 83 of whether there is a realistic possibility of the child or young person being restored to his or her parents, having regard to his or her circumstances and the evidence, if any, about whether the parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care. The duties imposed upon the Children’s Court at this second stage of the proceedings include what is imposed by s 83(7), which provides:

“(7)    The Children’s Court must not make a final care order unless it expressly finds:

(a)    that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b)    that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:

(i)    the circumstances of the child or young person, and

(ii)    the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

(7A)   For the purposes of subsection (7) (a), the permanency plan need not provide details as to the exact placement in the long term of the child or young person to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so the Court, prior to final orders being made, can have a reasonably clear plan as to the child’s or young person’s needs and how those needs are going to be met.”

77. In this case, care plans have been prepared by the Secretary for C and D which must thus now be considered by the Children’s Court, before a final order is made: s 80.

78. The evidence about the provision of the care plans thus also provides no basis upon which it could be concluded that the Children’s Court has fallen into jurisdictional error, or would not adhere to the statutory obligations imposed upon it, at the final hearing.

Ground 3 – denial of procedural fairness

79. The care plans propose that C live in [a country] in the care of A’s parents and D with foster carers in Australia.

80. A and B contend that those plans violate the statutory principles of permanency planning and least intrusive interference: s 36, and the concept that removal of a child is a step of last resort.

81. Their cases in relation to the proposed care plans have not yet been heard by the Children’s Court, the court given the statutory role of determining what lies in issue in the proceedings brought by the Secretary, after C and D’s removal from the care of A and B, at the final stage of the statutory process.

79. The evidence simply does not establish that A and B have been denied procedural fairness in relation to the care plan, which the Children’s Court has yet to consider, or in the conduct of the proceedings. Their dissatisfaction with the children’s removal, the time that has since elapsed and the case which they wish to advance about the restoration of the children to their care, which is yet to be heard, does not establish any denial of procedural fairness in the Children’s Court.

Ground 4 – the safety welfare and wellbeing of the children

83. This ground relates to the understandable concern which A and B have about D’s welfare, after her removal from their care when she was aged only 8 weeks and what is proposed under the care plans, which would result in her separation from her sister. They also contend that the evidence establishes that C was being groomed by older males in [a country], when it is proposed that she will live, about which they are also concerned.

84. The circumstances are undoubtedly very distressing for A and B. They contend that they are contrary to the requirements of ss 9 and 36 of the Care Act, but under the statutory scheme, the matters they rely on are for the Children’s Court to hear and determine at the final hearing.

85. Given that they have not put before this Court the evidence which was before the Children’s Court, upon which the question of whether the children were in need of care and protection was determined by Crompton CM, that there was not been proper consideration given what the welfare and wellbeing of the children required, was simply not established.

Subpoenas

86. There is no basis upon which this Court could make the orders sought in relation to the subpoena of documents.

87. On the evidence it appears that some documents which A and B sought in the Children’s Court proceedings have been supplied to them and that the Secretary has made enquiries as to the existence of others. The issuing of subpoenas is provided for in Division 3 of Part 2 of the Care Act, which also regulates matters such as time for service and conduct money. Limits on obligations so imposed are specified in s 109F.

88. It is open to A and B to use these processes in the Children’s Court proceedings, but, what they now seek seems to be not the production of the identified documents, but their creation.

89. Orders that police produce transcripts, or that identified people make sworn statements are not orders which could be made under the Care Act, nor should they be made by this Court, in the circumstances which have here arisen.

90. Given the provisions of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) which apply to these proceedings and regulate the issuing of subpoenas by this Court, that the Court has the power to make the orders sought is not apparent. Even if it exists, the evidence simply does not establish that it should be exercised.

Removal of documents from the Children’s court files

91. Nor, can I see any basis upon which it could be concluded that the Court has power to direct removal of the documents identified in proposed order 6, from the Children’s Court file.

92. Not only does the Care Act expressly contemplate that statements which would seem to fall within the class of documents which A and B seek to have removed from the file would be put before the Children’s Court, as I earlier discussed, but it is a matter for the Children’s Court to regulate the administrative processes by which materials are filed in proceedings brought before it and if appropriate, to order their removal from the files it maintains, in respect of such proceedings.

93. On the case advanced, no basis for making the order sought has been established.

Placing the children in the care of persons in [a country] pending final determination of the matter

94. Harrison J has already made orders which permitted C to be taken to [a country].

95. Nothing advanced at the hearing before me provided any basis for making any further order about this matter.

The parens patriae jurisdiction

96. While there is no issue as to the Court’s power to make orders in its parens patriae jurisdiction in relation to the day-to-day care of D, the orders sought are orders for the Children’s Court to consider and determine at the impending final hearing.

97. That Court also has power at any time to rescind or vary the care order which applies to D on the application of A or B, if there is any significant change in her relevant circumstances: s 90.

98. On the evidence I have discussed, I am satisfied that the Court’s power to exercise its parens patriae jurisdiction may not be exercised in this case, despite the undoubted concern which A and B have for D’s welfare. Further, I consider that any delay in the proceedings in the consideration of the children’s circumstances by the Children’s Court, would not be in the interests of either child.

99. As discussed by Ward JA, as she then was, in Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97 at [22], “exceptional circumstances are required for this Court to interfere with orders that have been made by judicial officers exercising specialist jurisdiction such as those in the Children's Court”.

100. Such circumstances are not established when the only errors alleged against such judicial officers were that “he, or she, in the exercise of discretion failed to give due weight to a number of factual circumstances, or disproportionate weight to others, or where there is an error of fact that did not go to the fundamentals of the case”: at [23].

101. This is such a case. There is in this case simply no evidence which would warrant the grant of the relief sought.

Orders

102. For the reasons given, I order that the summons be dismissed.

103. I will hear the parties on costs, if they wish to be heard.

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Decision last updated: 04 April 2019