AA v Secretary, Department of Family and Community Services

[2016] NSWCA 323

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AA v Secretary, Department of Family and Community Services [2016] NSWCA 323

Hearing dates:

22 November 2016

Decision date:

22 November 2016

Before:

McColl JA at [1] and [25]
Basten JA at [2]

Decision:

(1)   Direct that the practice adopted in the Equity Division and in this Court of referring to the applicants as “AA” and “BB” be continued and direct that, pursuant to the Courts Suppression and Non-publication Orders Act 2010 (NSW), there be no publication of the names or other material identifying the applicants.

 

(2)   Direct that the respondent be named as the Secretary, Department of Family and Community Services.

 

(3)   Dismiss the application for leave to appeal from orders made in the Equity Division on 18 August 2016.

 (4)   Dismiss the notice of motion for issue of subpoena.

Catchwords:

APPEAL – judgment in supervisory jurisdiction – challenge to refusal of relief – limits of supervisory jurisdiction – merit review properly eschewed – discretionary refusal of relief where alternative remedies available – claims for injunctions to prevent future conduct

  CHILD WELFARE – judicial review of decisions of Secretary – judicial review of orders of Children’s Court – whether children of applicants at risk – challenge to formation of opinions – whether process legally flawed

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 30, 34, 44, 91
Courts Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

Category:

Principal judgment

Parties:

AA (First Applicant)
BB (Second Applicant)
Secretary, Department of Family and Community Services (Respondent)

Representation:

Counsel:
Applicants self-represented
Ms M Neville (Respondent)

  Solicitors:
Applicants self-represented
Crown Solicitor (Respondent)

File Number(s):

2016/204993

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2016] NSWSC 842

Date of Decision:

22 June 2016; 18 August 2016

Before:

Slattery J

File Number(s):

2014/305921

Judgment

1. McCOLL JA: I invite Basten JA to deliver the first reasons.

2. BASTEN JA: In October 2014 the applicants, who live together (and now with their two children), commenced proceedings in the Supreme Court seeking orders restraining officers in the respondent Department from taking steps under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”) to remove the first child of the applicants, whose birth was then imminent. On 17 October 2014, Rothman J made an interim order to that effect, which was subsequently extended by Garling J. The applicants’ first child was born on 26 October 2014. Although officers in the Department continued to give consideration to what steps might be taken with respect to the child, the Secretary did not take care and control of the child and on 26 November 2014 the applicants were notified that no further steps would be taken.

3. The concern of department officers as to the potential risk to the child arose from two factors. One concern was based on allegations of sexual misconduct of the father in relation to young children; the other related to the mental health of the mother. In June 2014 arrangements were made for three older children of the mother (their father being her former husband) to be placed with her former husband. The arrangement with respect to the older children involved an assumption by the Secretary of “care responsibility”[1] , their placement being in accordance with orders made by the Family Court in relation to the custody of the children.

   1. See Care Act, s 44.

4. The proceedings (which had been amended on a number of occasions prior to the trial) came on for hearing before Slattery J in the Equity Division on 16 December 2015 and continued over five days up until 1 June 2016. Judgment was delivered on 22 June 2016. [2] After providing an opportunity for the parties to address the form of orders which would be appropriate, on 18 August 2016 Slattery J made orders dismissing the summons, but making no orders as to the costs of the proceedings. The applicants seek leave to appeal from those orders.

   2. AA v Department of Family and Community Services [2016] NSWSC 842 (“AA”).

5. The complaints raised before Slattery J fell into three categories, namely:

1. a challenge to the validity of orders made with respect to the care and responsibility for the older children;

2. challenges to the validity of administrative steps taken within the Department relating to the applicants and their first child, and

3. seeking relief with respect to future conduct by departmental officers.

Procedural issues

6. There are two preliminary procedural issues concerning the parties. First, in the court below the applicants were referred to as AA and BB. The purpose was to maintain their anonymity, as is customary in proceedings involving the welfare of children and young persons. That purpose may be effected pursuant to an order under the Courts Suppression and Non-publication Orders Act 2010 (NSW), that there be no publication of the names or other material identifying the applicants. That order is made under s 7, in accordance with s 8(1)(e), as being necessary in the public interest because the public interest in the non-disclosure of material identifying the applicants significantly outweighs the public interest in open justice. The use of the signifiers AA and BB will be continued.

7. Secondly, the applicants brought proceedings against the “Department of Family and Community Services”. The Department is not a juristic entity. The appropriate respondent should be the Secretary of the Department and the Court will direct that the title of the proceedings be amended, by consent, to identify the respondent as the Secretary, Department of Family and Community Services. It will not be necessary for the applicants to file fresh documents in the matter.

Care of older children

8. In accordance with parenting orders made in the Family Court, the older children were to live with their father. However, the Secretary exercised the power to assume care responsibility for the children, without taking the step of removing them from the premises in which they lived. That power is conferred by s 44 of the Care Act. There was an issue raised below as to whether it was necessary for the Secretary to carry out a risk assessment before assuming care responsibility under s 44. The judge rejected the applicants’ submission that such a legal precondition arose. [3] There is no sound reason proffered to doubt that conclusion. The judge was also satisfied that there were grounds for the reasonable suspicion required by the section and the evaluative judgment required was open to the Secretary. In any event, three days later the Secretary made a care application to the Children’s Court which, on 1 July 2014 made emergency care and protection orders with respect to the older children.

   3. AA at [127].

9. Powers to make interim and final care orders and for rescinding and varying care orders are conferred on the Children’s Court. There is also a right of appeal granted to a party dissatisfied with such an order, such appeal being taken to the District Court. That appeal is by way of a new hearing and fresh or other evidence can be given on the appeal. [4] That was not the procedure adopted by the applicants in the present case. Rather, they sought to challenge the legal validity of the assumption by the Secretary of care responsibility for the older children, by way of proceedings for judicial review on administrative law grounds.

   4. Care Act, s 91.

10. There is no reason to doubt the correctness of the legal analysis by the primary judge in dealing with the grounds of challenge to the order made by the Secretary. [5] However, even had there been, leave would have been refused to challenge that aspect of the judgment because orders were made by the Children’s Court on 1 July 2014 which superseded the s 44 order made by the Secretary.

    5.    AA at [115]-[135].

11. Separately, the applicants challenged the validity of the orders made in the Children’s Court. The primary judge rejected the challenges, several of which were factual and unavailable in the proceedings before him, in terms which do not reveal error. [6] The judge also stated that such relief would be declined on discretionary grounds in circumstances where there was a statutory scheme for merit review of the decision of the Children’s Court by way of appeal to the District Court, and the applicants had taken no steps to appeal. [7] That aspect of the statutory regime also militates against any grant of leave to challenge the rejection of the grounds raised before the primary judge.

    6.    AA at [141]-[148].

    7. AA at [149].

Challenge to administrative steps taken by Department officers

12. The second category of complaints raised by the applicants concerned statements made by departmental officers or contained on department files concerning the applicants and their children.

13. Various inquiries and investigations were carried out by officers within the Department incidental to the exercise of statutory powers conferred by the Care Act with respect to the care and protection of children and young persons. In particular, reference was made to the obligation and powers conferred on the Secretary under s 30 of the Care Act.

14. The primary judge noted that there was reference in the evidence to the mother having “mental health issues”, based on assessments made by departmental officers without medical qualifications. The opinions formed may have been erroneous and, as the applicants apparently asserted, defamatory. However, as the judge noted, the legal remedies available to the applicants are to be found in the law of defamation and, for correction of inaccurate personal records in government files, under the Privacy and Personal Information Protection Act 1998 (NSW).

15. The primary judge assumed that remedies were available in the Supreme Court by way of declaration or injunction but rejected, on discretionary grounds, the grant of relief on that basis because of the alternative courses available to the applicants. [8] It cannot be said that the reasons for taking that course were erroneous. However, for a grant of leave to appeal, it would be necessary for the applicants to establish not only that the refusal on discretionary grounds was erroneous, but that the Court had power to make orders correcting statements on departmental files and that such orders were warranted in the present case. These matters would have raised large difficulties for the applicants, were the refusal of relief not otherwise justified. However, because the judge was clearly entitled to refuse relief on discretionary grounds [9] it is not necessary to explore these issues further.

    8. AA at [199].

    9.    AA at [200]-[205].

Further conduct

16. In addition to relief sought with respect to past events, the applicants sought declaratory relief as to the future.

17. In circumstances where relief is not to be granted with respect to past conduct, it is unsurprising that declaratory and injunctive relief would be refused with respect to things which may or may not happen in the future. The statutory powers conferred on the Secretary under the Care Act are designed for the protection of children and young persons who may be at risk of physical or mental harm. Steps to be taken in the future will depend upon the exercise of statutory powers by the responsible officers in the light of future information and events. It is only where the court is satisfied an officer is proposing to exercise a statutory power in a particular case for an unlawful purpose that the court would even consider such relief. Neither the factual nor the legal premise was made good in the present case and it is unsurprising that the primary judge refused such relief. There is no basis for granting leave to appeal against that aspect of the judgment below.

Direction as to disciplinary proceedings

18. The primary judge also rejected submissions by the applicants that the Court should direct that disciplinary action be taken against individual officers. There were many answers available to these claims. The basic one was that the Court lacked jurisdiction to discipline government sector employees or to order others to do so. [10] In addition, the primary judge was not satisfied that any disciplinary action was warranted. It might be added, that no officer was a party to the proceedings and thus it would have been manifestly improper for the Court to make such an order, even had the power existed.

    10. AA at [225].

Other relief - damages

19. The applicants sought damages before the Court below. As the primary judge correctly pointed out, damages would not have been a remedy available to the applicants, on the basis of the invalidity of administrative action, even had the factual findings supported a conclusion of invalidity. [11] Given that there was no cause of action pleaded which could found an order for damages, it is not necessary to say anything further about that claim, nor the additional claim for exemplary damages which the primary judge also correctly dismissed. [12]

    11. AA at [212].

    12.    AA at [214]-[220].

Costs

20. As is commonly the case in this jurisdiction, unsuccessful applications under the Care Act rarely give rise to orders for costs against unsuccessful applicants. That was so in the present case. However, there is less justification for such reticence in this Court where the reasons for the lack of success at first instance have been clearly explained by the primary judge (as occurred here) and where the proposed grounds of appeal are without substance. Nevertheless, as the Secretary has not sought costs, no order will be made in this Court.

Application to issue subpoena

21. It is necessary finally to deal with a motion filed in this Court by the applicants requesting the issue of a subpoena addressed to the Secretary of the Department, seeking production of documents concerning (a) delegations under which officers in the Department acted under the Care Act and, (b) policy documents relating to decision-making, particularly under ss 34 and 44 of the Care Act.

22. With respect to the issue of delegation, the primary judge expressly noted:[13]

“But one aspect of the proceedings was not complicated. The plaintiffs at no stage challenged the authority of Departmental officers to make relevant administrative decisions under delegation from the Secretary of the Department. The decisions under challenge were made by different officers. None of their delegations to make those decisions was in question. The plaintiffs and the defendant put submissions on the basis that Departmental officers were valid delegates of the Secretary of the Department to make the questioned decisions.”

13. AA at [108].

23. In oral argument, the applicants accepted that the subpoena could only be considered if leave were granted. It is by no means clear that the grant of leave would assist the applicants. Material which could have been sought and obtained prior to trial (and was not) will not properly form the basis of an appeal or an application for leave to appeal. In any event, given that leave to appeal is to be refused, the notice of motion seeking the issue of a subpoena must, it is agreed, be dismissed.

Orders

24. Accordingly, the Court should make the following orders:

1. Direct that the practice adopted in the Equity Division and in this Court of referring to the applicants as “AA” and “BB” be continued and direct that, pursuant to the Courts Suppression and Non-publication Orders Act 2010 (NSW), there be no publication of the names or other material identifying the applicants.

2. Direct that the respondent be named as the Secretary, Department of Family and Community Services.

3. Dismiss the application for leave to appeal from orders made in the Equity Division on 18 August 2016.

4. Dismiss the notice of motion for issue of subpoena.

25. McCOLL JA: I agree with the reasons and orders proposed by Basten JA. The orders his Honour proposed are therefore the orders of the Court.

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Endnotes

Decision last updated: 23 November 2016