BA and La v Secretary, Department of Communities and Justice

[2019] NSWCA 206

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	BA and LA v Secretary, Department of Communities and Justice [2019] NSWCA 206
Hearing dates:	16 August 2019
Decision date:	22 August 2019
Before:	Basten JA; Leeming JA; Payne JA
Decision:	(1)   Dismiss the summons filed on 14 May 2019.  (2)   No order as to the costs of the proceedings in this Court.
Catchwords:	CHILD WELFARE – parental responsibility allocated to Minister – final orders in Children’s Court – appeal to District Court – whether jurisdictional error or error of law on the face of the record of District Court –procedural unfairness – failure to tender evidence – relevant considerations   CIVIL PROCEDURE – parties – supervisory jurisdiction – children as necessary parties – representation – role of representative
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), s 79, 83, 91, 94, 99, 99A; Ch 5, Ch 6 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	D v C [2018] NSWCA 190
Category:	Principal judgment
Parties:	BA (First Applicant) LA (Second Applicant) Secretary, Department of Communities and Justice (First Respondent) EB, AB, AB (Second, Third and Fourth Respondents) District Court of New South Wales (Fifth Respondent)
Representation:	Counsel: Applicants self-represented Mr G Moore (First Respondent) Mr N A Confos (Independent Legal Representative for Second, Third and Fourth Respondents)   Solicitors: Applicants – self-represented Crown Solicitor’s Office (First and Fifth Respondents) David Hewitson & Associates (Second, Third and Fourth Respondents)
File Number(s):	2019/150833
Publication restriction:	There is a non-publication order in respect to the identity of the parents and the children.
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 26 February 2019 Before: Robison DCJ File Number(s): 2017/42145; 2018/177788

Judgment

1. THE COURT: The applicants are a couple who, together, have had four children. (Each also had two children by earlier relationships, who do not live with the couple and whose custody and care is not the subject of the present proceedings.)

2. One of their children is the subject of separate orders made in Victoria and is also not the subject of the present proceedings. The other three children were born in 2014, 2016 and 2017 respectively. The older two were removed from their parents’ care in April 2016; the youngest was removed immediately after birth in 2017. In early February 2017 the Children’s Court made “final orders”, pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act) allocating parental responsibility for the two older children solely to the Minister for Family and Community Services. On 24 May 2018 the Children’s Court made a similar order with respect to the youngest child.

3. The parents appealed from both decisions, pursuant to s 91 of the Care and Protection Act, to the District Court. That appeal was by way of a new hearing and further evidence could be called, and was called, although a large part of the evidence was the documentary record. On 26 February 2019 the appeals were dismissed. Further information having been supplied with respect to contact arrangements, the District Court made final orders on 18 April 2019, confirming the orders made in the Children’s Court with respect to each child. In making those orders, the Court found that there was no realistic possibility of restoration of the children to either parent and determined that the permanent placement was in the best interests of the children.

4. There is no appeal from the District Court orders. However, this Court can exercise a power of review in its supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW). That jurisdiction does not extend to reconsidering the exercise of the appellate jurisdiction conferred on the District Court, but is limited to ensuring that the District Court did not exceed the legal limits of its powers. That means that this Court is confined to the identification of (i) jurisdictional error on the part of the court below, or (ii) error of law on the face of the record, the record including the reasons for judgment given by the District Court.

5. Although the parents had been represented in the District Court proceedings, the document purporting to be a summons filed in this Court on 14 May 2019 was not prepared by a lawyer. The parents represented themselves in this Court at all stages. Neither the summons, nor the submissions filed in support, purported to identify relevant and material legal error. Nor were the applicants able to advance their case (primarily argued by the father) in a coherent and relevant fashion. However, reading the discursive material provided, and with the assistance of submissions prepared for the Secretary, it is appropriate to consider the submissions in accordance with the legal structure set out below.

Evidence

6. The applicants have, at all stages, been greatly concerned to ensure that each of the courts before whom they have appeared (at least in relation to these proceedings) had before them the growing volume of documentary material relating to them and their children. As will be noted below, one of the grounds of challenge to the proceedings in the District Court was that the primary judge did not have access to all of the documentary material. That attitude continued in this Court; initially, the Secretary prepared and filed six folders of material in the registry. (The real volume was considerably less, because the photocopying was single-sided.) Before the hearing commenced, and perhaps in response to a complaint that there had been selective tendering of material in the District Court, the Secretary provided a further four volumes. On the eve of the hearing, the applicants provided a further four volumes of material.

7. Most of this material was not referred to by any party in the course of submissions. Nor was it considered by this Court, except for the purpose of understanding what was being put before it to rule on its admissibility.

8. As noted above, this Court is not hearing an appeal, whether on a question of law or by way of rehearing. It is exercising an independent original, supervisory jurisdiction. It does so on the basis of an appropriate evidential record. The exercise of this Court’s supervisory jurisdiction will not always be apparent from the summons, when filed by litigants in person. Normally the relevant material will involve the record of the court below, being the document commencing the proceedings and the decision (including the reasons) of the court or tribunal, of which review is sought. Where questions of procedural unfairness are raised, it may be necessary to tender other evidence, including the transcript of the proceedings below.

9. In the present case, there is no purpose to be served in considering in detail the content of the first six volumes filed by the Secretary on 6 August 2019. It is sufficient to say that they contain 92 tabs and cover all of the extensive evidence accepted in the District Court, the transcripts of 11 days of hearing in the District Court, together with the judgment of Robison DCJ of 26 February 2019 and the Court’s orders. That material, which constitutes Tabs 1-88 in the first six volumes may be admitted and marked as Ex 1 in this Court. (The other four tabs contained documents filed in this Court, which did not constitute evidence.)

10. A document filed by the father in this Court on 5 August 2019, headed “Submission” attached a photocopy of an affidavit sworn by both applicants and dated 4 June 2018, being the date on which proceedings with respect to the youngest child were commenced in the District Court. It appears not to have been in any of the other 14 volumes of material. It merely annexed a document signed by the mother which involved “client instructions” obtained after judgment had been given in the Children’s Court on 18 May 2018. It stated that she had been advised as to the outcome of the proceedings, told of her various options and had resolved to “appeal this decision and run it together with the current appeal in relation to the older siblings”. That is indeed what happened. It is of no consequence and need not be admitted. A second document which was included with the affidavit was a certificate given to the father recording his attendance at five sessions of counselling undertaken by CatholicCare. That too was of no immediate relevance and the tender should be rejected.

Procedural unfairness

11. There is a legal concept of procedural fairness which, if contravened, will lead to a constructive failure to exercise jurisdiction and will allow (and generally require) that the decision under review be set aside.

12. There are five complaints identifiable in the applicants’ submissions which potentially fall under this heading and may be characterised as follows:

1. the applicants’ lawyers did not comply with instructions or inform them that there had been a change in the judicial officer appointed to hear the appeals;

2. the judge was invited to consider the appeals on the basis of only four of the seven volumes of documentary material which were available;

3. part of the material which was not provided to the Court could have rebutted the judge’s adverse findings as to the credibility of the parents;

4. a detective who had investigated claims of sexual misconduct on the part of the father was not called as a witness, and

5. a concession by the father’s lawyer that a DVD of a supervised visit does not assist his claims was wrongly made.

It is convenient to deal with each of these matters in turn.

(a)   failure of lawyers to follow instructions

13. The unsigned undated submissions, headed “Summons” filed in this Court on 14 May 2019 noted that the proceedings in the District Court had run for 12 days, during which the applicants were legally represented. The submission continued:

“It was’nt [sic] unfair [sic] that our lawyers did’nt follow our instruction from the beginning and the department of family and community services change the judge during the first day of court our lawyer did’nt confirm us about this.”

14. It may be accepted that this statement was a complaint that (i) the lawyers did not follow instructions, (ii) the Department “changed” the judge assigned to hear the matter, and (iii) the applicants were not informed of the change by their lawyers.

15. The second complaint (with respect to the assignment of the matter to the trial judge) is without substance for a number of reasons.

16. First, no party has any say in the identity of the judicial officer to hear a case, except in circumstances where an application is made on the basis of bias or a reasonable apprehension of bias. A successful application on this will lead to a particular judge not sitting, but not to a selected alternative judge taking over. Allocation of judicial officers is a matter for the presiding judge responsible for the affected court. No recusal application was made in the present case.

17. Secondly, the alleged “change” in the identity of the presiding judge may be a reference to the fact that an appeal with respect to the elder two children had been listed before a different judge, to commence on 4 June 2018. By then the appeal from the Children’s Court orders with respect to the removal of the youngest child had already been filed. The hearing date was vacated so that both appeals could be heard together. That in fact happened. Judge Robison, who heard the combined appeals, was not the judge who had vacated the earlier hearing date, but nothing turned on that. There was, and could have been, no objection to Robison DCJ presiding over the hearing of the appeals, if he were available to do so. In fact, he himself raised an issue as to his availability when the likely length of the hearing was appreciated, because he was otherwise committed for a week in the course of the proposed hearing dates. However, no objection was taken to him commencing and continuing with the hearing. [1]

    1.    District Court tcpt, 04/02/19, pp 14(15)-(20), 15(20), 16(45)-17(5).

18. Both parents were in court during the discussion of these matters: there was a Serbian interpreter present to assist the father (the mother did not need an interpreter); accordingly, there was no need for them to be informed of any particular aspect of the proceedings up to that point, by their lawyers. The hearing to that point had been procedurally and factually straightforward and uncontroversial. There was no unfairness to any party.

19. The question of not following instructions arose more clearly with respect to the next matter and will be discussed under that heading.

(b)   cherry-picking material by Secretary with agreement of applicants’ lawyers

20. Generally speaking, parties are bound by the conduct of proceedings by their lawyers, where they are legally represented. Both mother and father were legally represented by separate lawyers during the District Court appeals. If there had been an issue in relation to following instructions, as sometimes occurs, a lawyer may seek to be excused from the case. That did not happen. With one possible qualification, there is no indication in the submissions for the applicants as to any specific matter upon which instructions were given but not followed.

21. The possible qualification relates to the tender of only four volumes of material on the appeals. It was suggested that the lawyer for the Secretary did “cherry pick the evidence.”

22. Pursuant to s 91(4) of the Care and Protection Act, the District Court had “all the functions and discretions that the Children’s Court has under this Chapter [5] or Chapter 6.” Relevantly, Ch 6 includes the following provisions:

94   Expedition and adjournments

(1)   All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person.

(2)   For this purpose, the Children’s Court is to set a timetable for each matter taking into account the age and developmental needs of the child or young person.

(3)   The Children’s Court may give such directions as it considers appropriate to ensure that the timetable is kept.

(4)   The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that:

(a)   it is in the best interests of the child or young person to do so, or

(b)   there is some other cogent or substantial reason to do so.

23. Early on the first day of the hearing, the judge made the following statement: [2]

“But I would ask you, please – and I’ve said this many times over the years – that these care appeals need to be dealt with quickly. I appreciate the nature of the appeal and what the Court needs to consider, but I really think – and I [have] said this before many times, particularly when it comes to the Department – that they really have to cull the documents down so the Court can digest them to see what the real issues are, and only tender what is strictly relevant and what is going to be the subject of submissions when I hear all the evidence in this case. Otherwise, it’s just going to delay things.

It’s going [to] have the potential to deflect the Court from the real issues, and the real issue, as we all know, is what is best for the children. So I said this many times. I know there’s been some attempts over the years in appeals I’ve heard, but it’s still a lot of material. I don’t need, for example, every single contact report. I don’t need every single file note or anything that is strictly not really relevant, at the end of the day. Anything that is tendered, I read. It is not going to assist the court in deciding the outcome of this appeal if I’ve got to spend three days reading documents that may ultimately not really have that much weight or relevance.”

2.    Tcpt, pp 17(35)-18(2).

24. Counsel for the Secretary, who was experienced in such matters and had, no doubt, heard the judge make the same statement in the past, undertook a cull of the seven volumes of documents which had been prepared before the hearing and served on the parties.

25. There can be no doubt that the judge’s direction that only material documents be provided to the Court and that materiality be addressed with a clear focus on the best interests of the children, rather than peripheral issues, was entirely appropriate.

26. There is no evidence before the Court as to how the cull took place, nor need there be. The decisive consideration is that the applicants had every opportunity to tender further material if there was material omitted by the Secretary which they deemed to be sufficiently important to be placed before the judge. In fact they tendered a dozen additional documents in the course of the hearing. Further, the bulk of the oral testimony came from them. This aspect of the matter provided no basis for a claim of procedural unfairness.

(c)   failure to call evidence to uphold credit of father

(d)   failure to call evidence from detective

27. These two assertions appear to arise from the same material.

28. There was a suggestion in the submissions dated 11 June 2019 that the applicants had wished to call a Detective Olivares, who, it was said, investigated allegations against the father made by a woman (“K”) to whom he was previously married. According to the submission the applicants had provided an “affidavit during Children’s Court and District Court to bring him as witness and is been denied from the them.” At the hearing in this Court the father asserted that he had directed his barrister to subpoena the officer, but that was not done. Why that might be is a matter of speculation. There is no evidence before this Court which would demonstrate that, had Mr Olivares been called, it would have materially affected the outcome. In any event, the conduct of a case by counsel requires independent professional judgment into which an appeal court would only inquire in unusual circumstances; there was no basis which would warrant such an inquiry in this case.

(e)   concession that DVD of a supervised visit does not assist claims

29. There was a DVD recording of a contact visit with the two older children. The DVD was tendered by the father, then appearing in person, in proceedings before the Children’s Court in January 2017 with respect to the two older children. Evidence was given by the author of a number of contact reports who worked for CatholicCare. He was asked: [3]

“Q. Do you remember the incident when I took her some lollies, I gave one to my wife, one for myself and one to my daughter, you jumped off the seat, you grabbed my daughter to get the lolly out of her hand and you actually hurt her hand, she screamed. Do you remember that incident?

A. It did not happen like that.

There was further cross-examination, leading to denials following which the father sought to play a video in court. The exchange ended with the magistrate stating: [4]

“… The video’s in evidence, the Court can draw its own conclusions as to what is on the video. You put it to this witness that he’s done something, he said ‘No’[;] you can make a submission to me about that at the end. You put that to him so you’ve made your position clear.”

3.    Tcpt, 24/01/17, p 50(40).

4.    Tcpt, p 53(21).

30. On 5 September 2016 an affidavit was filed in the Children’s Court in the proceedings before the magistrate with respect to the two older children. It annexed a letter addressed “Dear Main Judge” to which the District Court judge referred in the course of the hearing on 18 February 2019. [5] He noted that the letter contained a request that the judge “watch DVD recording about accident happened on visitation from 5th August 2016.” The judge then asked about the DVD, but counsel for the father expressed ignorance as to its contents and existence. He agreed to make inquiries of his client. He sought permission to do so as the father was under cross-examination. [6] When the matter came back before the Court the following day, the judge asked what was happening with the DVD. [7] Counsel informed the Court that, according to the father, the DVD was provided to the Children’s Court and not returned to him at the end of the proceedings. He said there was a “second copy of the DVD” which had been sent to Macedonia “because of the European Court process in Macedonia.” [8]

    5.    Tcpt, 18/02/19, p 247(25).

    6.    Tcpt, 20/02/19, p 393.

    7.    Tcpt, 21/02/19, p 399(25).

    8.    Tcpt, p 399(30)-(37).

30. The copy of the DVD which had been tendered by the father in the District Court was then discovered. Counsel for the father, having located the DVD, said “we are not relying on it.” [9] Counsel for the Secretary then noted that the magistrate had apparently viewed it and said, “I do not accept that it shows conduct by the contact worker that was inappropriate.” [10] Counsel for the Secretary invited the Court to watch the video.

    9.    Tcpt, p 400(30).

    10.    Tcpt, p 400(50).

31. After the judge had inquired whether other counsel took a position, the following exchange took place between Mr Moore (for the Secretary) and Mr Braine (for the father): [11]

“MOORE: Sorry, unless Mr Braine concedes that I can – that the magistrate has accurately described the DVD with her conclusion that it did not show the conduct of the caseworker that was inappropriate.

BRAINE: I was not proposing to tender or rely on the DVD. It might be of some historical assistance as to findings of fact by the magistrate as to whether it shows or doesn’t show something. I anticipate that what would result from the DVD would require the evidence to be reopened in chief and cross-examination reopened in chief [sic].”

11.    Tcpt, p 401(15).

33. After further discussion, in the course of which the judge indicated that if he did not see the DVD he would have to defer to the magistrate’s view about it, Mr Braine sought a few minutes to “update” his instructions. After the morning tea adjournment, Mr Braine said: [12]

“I’ll just wait for my client if I may. Your Honour, I’ve updated my instructions. My client makes the concession that the magistrate’s observation and finding that the DVD does not show, or did not show what [the father] had contended is correct. So in relation to that finding of fact by the magistrate, it’s not disputed.”

12.    Tcpt, p 405(25).

34. The submissions imply that the concession was wrongly made by counsel appearing for the father. It may be observed that the process with respect to the DVD was entirely fair and clearly involved the father. The concession was a somewhat peripheral challenge to the conduct of the caseworker at a contact visit. There was no material before this Court to base any challenge to the appropriateness of the concession, or the manner in which the issue was dealt with in the District Court.

35. The applicants’ submissions with respect to this issue are rejected.

Basis of determination in District Court

36. The other matters raised in the applicants’ submissions all concerned, in one way or another, challenges to the matters taken into account, or not taken into account, by the judge in the District Court. It is convenient to consider first the factors which were said to be wrongly taken into account, namely:

1. allegations of sexual assault against the father;

2. allegations of domestic violence against the father, and

3. claims of misconduct or impropriety against the father, leading to adverse findings on credibility, including the alteration of a passport application.

(a)   sexual assault allegations

37. The written submissions assumed that the allegations of sexual assault were taken into account by the judge in assessing the credibility of the father. On the other hand, it appears to be accepted further that the judge found there was “no risk of sexual abuse by the father”.

38. The latter point is correct: the judge referred to the allegations as relating to a daughter of the mother, born in February 2004, who was in the care of the applicants between 2011 and 2012. The judge noted the evidence of Ms McElroy, a case worker in the Department, who gave evidence on the appeals, that she believed there was a risk of sexual harm, accepting, however, that the allegations “were not substantiated, but they were multiple.” [13]

    13.    Judgment, pp 20-21.

39. These matters were put to Dr Banks, whose opinions in a number of respects the judge accepted. With respect to risk of sexual abuse, the judge stated:

“Importantly here, Dr Banks does not see that as a concern and when one considers the period of time which has elapsed and the fact that yes, allegations were made – but untested allegations – I’m inclined to the view that Dr Banks has, that that is not a risk factor in the circumstances before me. I make no determination whatsoever when it comes to whether those allegations have been made out on the evidence. It is really not necessary for the Court to do so, and indeed, I would go so far as to say it would not be appropriate for the Court to do so in these circumstances.”

40. There was no suggestion that the judge, contrary to that statement, in fact took the allegations into account, either in assessing the best interests of the children, or in considering the father’s credibility.

41. This somewhat muted challenge should be rejected.

(b)   domestic violence allegations against the father

42. The implication from the father’s written submission was that the focus on domestic violence was misguided because that material was irrelevant. That proposition appears to have been based on the underlying assumptions that (i) it involved conduct well in the past, including conduct with other female partners, and (ii) the current state of the applicants’ relationship was stable and positive and hence not conducive to domestic violence.

43. It was correct to say that there was a focus on the question of domestic violence. However, it was apparent that the evidence disclosed concerns which were broader than domestic violence towards partners. The violence itself was understood to be a function of the father’s personality, including his lack of insight into the causes of his behaviour and a willingness to blame others for conduct which, objectively, was his responsibility. These factors affected the assessment of his parenting skills as a father.

44. His denials of many aspects of the complaints against him led the magistrate in the Children’s Court proceedings in relation to the older children to conclude that “the father did not present as a reliable or credible witness.” She continued: [14]

“I deal now with the issues of domestic violence. Also raised in evidence were allegations of domestic violence said to have been perpetrated by the father against three previous partners including the mother. The father’s criminal record disclosed that as far back as 2003 there was an apprehended violence order in existence for his then partner …. This was breached on multiple occasions. Material produced by Victorian police disclosed a lengthy history of violence alleged by the father’s next partner…. It is of note that the reports of violence by [her] were made not only to police but to others such as the nurse at the hospital where [his second] child was born. The issues were of sufficient concern that in February 2010 an interagency meeting was held to link the family in with inter alia a family violence support worker…. The serious allegations made by [the second partner] were of physical violence, emotional violence and controlling and isolating behaviour….

The father in evidence rejected these allegations and maintains he was the victim of violence at K’s hand and that she was violent with the children. I note this behaviour is inconsistent with K purportedly leaving [Victoria] and fleeing to New South Wales to remove herself from the father. Further, I note that apprehended violence orders were also taken out for the protection of K, orders that were also breached by the father. Most recently in relation to the mother concerns were raised in evidence regarding allegations of domestic violence. On 9 November 2011 family members of the mother expressed concern to DHS regarding the controlling behaviour of the father towards the mother….

Police were required to attend the home of the parents in 2012 on multiple occasions following arguments between the mother and the father including an allegation that the father pushed the mother over…. The father denied physical violence towards to the mother and the mother resiled from earlier reports to police in her evidence in court. I note that the circumstances surrounding the mother’s initial complaint to police do not give rise to concerns that it was fabricated. … Controlling behaviour was observed on a number of occasions in contact visits, including demeaning the mother and taking over her interaction with the children.

On the totality of the evidence I am satisfied on the balance of probabilities the father has engaged in domestic violence across a number of relationships. Significantly for these proceedings there is a lack of awareness and insight regarding his behaviour. The Department provided for his attendance at programs designed to address this behaviour however his lack of acknowledgment of his conduct meant that he could not attend.”

14.    Children’s Court Judgment, 09/02/17, p 9(48).

45. The applicants needed to overturn the findings of fact summarised in these passages, which were undoubtedly open on the evidence, being findings made by the Children’s Court in one matter under appeal, and were consistent with the findings made in persuasive detail by the federal magistrate in relation to the child of K referred to above. In a lengthy decision, the federal magistrate concluded that it was not in the children’s best interest to reside with the father or spend unsupervised time with him.

46. It is not possible to consider that this material was other than relevant and important in assessing the best interests of the three children the subject of the present proceeding.

47. These findings of the federal magistrate were upheld by the judge, resulting from observations and assessments made by Dr Banks in November 2017. Dr Banks concluded: [15]

“[The father] displayed a lack of insight and rigidity in his thinking and actions. His responses indicated an unwillingness to self-examine his role in any difficult situations and when confronted by difficulty he has a propensity to behave erratically. He presented and responded as being emotionally excitable and intensely zealous with a tendency to exhibit hot headedness.”

15.    Judgment, 26/02/19, p 25.

48. The judge described the assessment by Dr Banks as “entirely appropriate and indeed correct”. [16] The judge also noted evidence of Dr Robinson that domestic violence in the home had directly affected the responses of the children.

    16.    Ibid.

49. The judge also noted that there was “an element of force, emotion, and to some degree aggression displayed in [the father’s] affidavit.” [17]

    17.    Judgment, pp 37-38.

(c)   alteration of passport application

50. Although the written submissions referred to a “finding” that the father had “altered a passport application”, the finding was little more than an observation which arose in the course of considering the father’s credibility. Immediately following reference to his denials of violence towards to the mother, the judge made an important finding that “[h]e has been violent towards women despite his denials.” [18] The judge continued:

“There is also some other matters of concern, which have been referred to in the submissions, and that is the suggestion that he may have altered a passport application; that worries me. There is also his concession about the DVD which was not played in this Court given his concession through his counsel …. That is a matter of credit as well when it comes to his allegations of things.”

18.    Judgment, p 49.

51. This passage in the reasons (delivered ex tempore following the conclusion of the hearing) was not well expressed. However, by identifying a matter which concerned the judge, it may be inferred that he had accepted findings that the father had indeed altered a passport application. On the other hand, that rather understated the matter. The issue arose in proceedings between the father and his former partner, K. K is referred to in the judgment of the Federal Magistrates Court as “the mother”. The issue related to a passport application for their child, who may be called V. The issue was described in the following terms:

“The mother deposed in her trial affidavit to holding a passport for [V] issued on 10 March 2009 and valid until 10 March 2014.

The mother deposed in such affidavit to receiving telephone calls in July of 2010 from the Department of Foreign Affairs and the Australian Passport Office inquiring whether she had signed an application for a passport for [V] to which she replied in the negative.

In September 2010 the mother was shown, by her solicitor a copy of part of an application for a passport for [V] purporting to bear her signature. The mother denied that it was her signature and said she had not signed any application for a passport for [V] in between January 2010 and date of swearing her affidavit, 27 January 2012….

The mother deposed to having no need to apply for a passport given that she held a passport for [V]….

In his affidavit sworn and filed 1 October 2010 the father deposes to the matter concerning the passport and denies the application was forged.”

52. After detailing many changes in story as to the execution of the passport application and its lodgement, the federal magistrate made the following findings:

“Consequently, I accept the mother’s uncontradicted evidence that she did not sign the passport application and that her signature was forged by an unknown person.

I find on the balance of probabilities that the father did not make any attempt to require [his sister-in-law who had supposedly witnessed the mother’s signature] to attend Court to give evidence for the reason that he was aware her evidence in relation to the passport matter was unlikely to support his case. It is clear from the mother’s evidence, which I accept, that [the sister-in-law] was readily contactable and not willing to come to Court.

This issue raises a serious issue as to the father’s credit in these proceedings.”

53. Following this approach, there was evidence of the father saying to the mother, “better you come back because I don’t want to kill you.” He denied making the statement and denied various acts of domestic violence. The federal magistrate concluded:

“The evidence establishes that the father has committed acts of domestic violence including assault, intentional damage to and destruction of property, coercive and controlling behaviour and derogatory taunts against at least two female partners.”

54. The limited credibility finding as to the passport application was reflected in the statement by the judge in the present matter. It was remarkably generous to the father.

55. On 16 March 2018 the father arranged for the lodgement of a petition with the Office of the High Commissioner for Human Rights in Geneva. The judge described the document as “bizarre” and said that it contained allegations about the federal magistrate which were “totally outrageous” and did the father no credit whatsoever. The judge then stated: [19]

“I ask myself how far can I rely on this man’s evidence given that history of bizarre allegations, baseless allegations, his behaviour generally, his propensity to violence? All of those matters weigh heavily upon me when I consider not what is best for him, but what is best for the children.”

19.    Judgment, p 49.

56. There was no error in any of these findings.

Failure to consider material supporting return of children

57. Reading the submissions generously, they appear to contain complaints that the judge failed to take into account (i) the wish of the children to be returned to their parents; (ii) the capacity of the parents to provide a stable home, having completed various programs and no longer being subject to domestic violence concerns; (iii) the potential risks within the carers’ family and (iv) the fact that there were no longer any concerns with respect to sexual abuse.

58. Each of the first three matters were undoubtedly relevant considerations; they were expressly identified by the judge in considering the appeals, with the possible exception of risks to the children in the family of the carers, that not having been presented as a significant issue on the appeal. However, it is one thing to consider a factor, it is another to be satisfied that a particular conclusion is warranted. The jurisdiction of this Court allows a complaint that a mandatory consideration has not been addressed, but not dissatisfaction with the outcome of actual consideration.

59. So far as the fourth matter is concerned, as already noted, the judge did not consider that complaints of sexual abuse provided a basis for the continuation of orders for care in favour of the Minister. The removal of a negative factor, however, did not provide a necessary or sufficient ground for accepting the affirmative claims.

60. There was, understandably, no evidence as to the wishes of the children, the children being aged between five years and two years.

61. So far as the capacity of the parents to provide a stable home was concerned, that was undoubtedly the heart of the issue before the District Court. The matters referred to above were only some of the considerations which led the judge to conclude that the parenting skills of the mother and, in particular, the father, together with the latter’s propensity for unpredictable and violent behaviour, required the continuation of the orders made in the Children’s Court. The judge was not satisfied that there were reasonable prospects that these considerations would change in the next 24 months, being the standard required to be applied by s 83(1) and (8A).

Conclusions

62. There was no basis in the material to which this Court’s attention was drawn, and in particular relevant passages in the judgment of the primary judge, to conclude that there was any jurisdictional error in the proceedings in the District Court, nor that there was any error of law on the face of the record of the District Court, including the judge’s reasons. It follows that the summons for judicial review must be dismissed. The Secretary does not seek costs and there should be no order as to costs.

Role of independent legal representative

63. It is appropriate to note, as this Court has recently at the hearing of another matter, that there is no necessary reason for the “independent legal representative” to appear in proceedings for judicial review. The appointment of an independent legal representative is made by the Children’s Court, if it appears to that Court that the child or young person needs to be represented in proceedings before it. The legal representative is described as an “independent legal representative” if the child or young person is not capable of giving proper instructions. [20] The District Court, which has all the powers of the Children’s Court, may also make such an appointment.

    20. Care and Protection Act, s 99 and s 99A.

64. In this Court, proceedings by way of judicial review will not usually involve any aspect of the merits of the case, nor an independent assessment by this Court of the best interests of the child or children. While it may be necessary to join the children as parties, if that course is taken a tutor should be appointed. In this case the order “appointing” the independent legal representative was no doubt seen as an alternative to appointing a tutor. The risk in using a statutory title not applicable in this jurisdiction is that attention will not be paid to the appropriate role to be played by the representative.

65. In most cases the children will properly be submitting parties. The present case is a good example. The only question was whether the orders of the District Court were affected by jurisdictional error or error of law on the face of the record and the Secretary was actively opposing all aspects of the relief sought by the plaintiffs.

66. There may be cases where representative appearing for a child or children will be appropriate, even in the exercise of this Court’s supervisory jurisdiction. One example is where interlocutory relief is sought pending the exercise of that jurisdiction (for example, if the District Court on appeal overturns orders of the Children’s Court). Such an application may, unlike most hearings in this Court’s supervisory jurisdiction, involve contested questions of fact as to the best interests of the child. In D v C [21] the Court was assisted by submissions on behalf of the child.

    21. [2018] NSWCA 190.

63. Allowing an independent legal representative to play an active role in this Court is often to permit duplication of the submissions by one or other party. In this case, once the independent legal representative filed submissions supporting the orders made in the District Court, it became apparent that two unrepresented parents were to be confronted by not one, but two legally represented parties opposing their claims. Unless there is reason to permit such an unbalanced contest, the better course is to refuse leave to the independent legal representative to be heard.

64. There are practical considerations which support this conclusion. One is that, as the Court is well aware, publicly available legal resources, which are required to support the independent legal representative, are stretched thinly. Secondly, the independent legal representative may have particular expertise in child welfare proceedings, but that generally appears not to translate into judicial review proceedings. The written submissions of the independent legal representative were of no significant assistance in the present case.

65. The practice of making directions on application by the independent legal representative appointed in the court below, should be approached with care. Nor should a direction for the filing of written submissions be taken as permission to appear and present oral argument. The appropriateness of each step will be addressed on a case by case basis.

Orders

70. The Court makes the following orders:

1. Dismiss the summons filed on 14 May 2019.

2. No order as to the costs of the proceedings in this Court.

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Endnotes

Decision last updated: 22 August 2019