Bell-Collins Children v Secretary, Department of Family and Community Services

[2015] NSWSC 701

Supreme Court

New South Wales

Medium Neutral Citation:	Bell-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701
Hearing dates:	2 June 2015
Date of orders:	02 June 2015
Decision date:	02 June 2015
Jurisdiction:	Equity Division - Protective List
Before:	Slattery J
Decision:	Order made to join applicants as parties to participate in the the proceedings on a limited basis.
Catchwords:	FAMILY LAW AND CHILD WELFARE – appeal from decision of Presidential Children’s Court – application by great grandparents for joinder in proceedings – distinction between Children and Young Persons (Care and Protection) Act 1998, ss 87 and 98 – whether applicants had a “genuine concern for the safety, welfare and well-being” of the children – whether Court should exercise its discretion under Children and Young Persons (Care and Protection) Act 1998, s 87(3) to allow applicants to appear in proceedings and cross-examine witnesses – order to join applicants to proceedings made on terms
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998, ss 87, 91(5), 98(3) Children’s Court Act 1987, s 22A Children’s Court Regulation 2014, r 5 Civil Procedure Act 2005, s 86 Uniform Civil Procedure Rules (“UCPR”), r 6.24
Cases Cited:	Beveridge v Dontan Pty Ltd (1990) 23 NSWLR 13 Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC 5 EL & WL v Director-General of the Department of Human Services [2010] NSWDC 248 Re Campbell [2011] NSWSC 761 Re June (No 2) [2013] NSWSC 1111 Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405
Category:	Procedural and other rulings
Parties:	The Mother and the Father First Defendant: Secretary, Department of Family and Community Services Second Defendant: The Minister, Department of Family and Community Services Third Defendant: Independent Legal Representative for the Children
Representation:	Counsel: First and Second Defendant: M.W. Anderson Solicitors: First Plaintiff/children’s father: in person Second Plaintiff/children’s mother: in person Third Defendant: Ms L. Robinson, for the Children
File Number(s):	2014/325110
Publication restriction:	No

EX TEMPORE Judgment

1. These proceedings concern two children now aged two and three who were removed from their parents’ care in July 2013 pursuant to orders made under the Children and Young Persons (Care and Protection) Act 1998 (the “Care Act”) due to serious injuries the children had sustained. Since then the children have been in foster care under the parental responsibility of the Minister. The parents are now in their early twenties. Presently before the Court is a motion by the children’s maternal great grandparents.

Background to the Application

2. Upon the children’s removal the Secretary of the Department of Family and Community Services (“the Secretary”) brought proceedings in the Children’s Court under the Care Act for approval of a permanency planning proposal for the children, upon the assumption there was no realistic possibility of their restoration to their parents. The Secretary proposed to the Children’s Court that the children be placed in long-term out of home care with their current foster carers until they reached the age of 18 and that all aspects of parental responsibility for them be allocated to the Minister.

3. Before the Children’s Court the parents opposed the Secretary’s permanency planning proposal and sought orders for the restoration of the children to them. In the alternative, the parents sought the placement of the children with their great grandparents. The great grandparents also unsuccessfully sought to be joined as parties to the proceedings under Care Act, s 98(3) in the Children’s Court. But instead they were granted an opportunity under Care Act, s 87 to be heard in those proceedings.

4. In June 2014 the matter was heard before Johnstone DCJ, the President of the Children’s Court. The learned Children’s Court President found in his October 2014 decision that under the permanency planning proposal the position of the two children had been appropriately addressed: Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC 5. He made no order for contact between the parents and the children under the Care Act, s 86. He made a final care order that parental responsibility for the children be allocated to the Minister until they reached the age of 18.

5. The parents have appealed from that decision, to this Court, under Care Act, s 91. Johnstone DCJ, the President of the Children’s Court, is a Judge of the District Court. By reason of the Children’s Court Act 1987, s 22A and the Children’s Court Regulation 2014, r 5 an appeal from a “Presidential Children’s Court” must properly be brought to this Court: Re Campbell [2011] NSWSC 761 at [4]. This appeal is a rehearing of the matter with fresh evidence, in which the Supreme Court exercises the power of the Children’s Court. The decision of this Court is taken to be a decision of the Children’s Court.

6. The Secretary, the first defendant in these proceedings, submits that the orders made by the Children’s Court in October 2014 were appropriate and should be confirmed by this Court, pursuant to Care Act, s 91(5). The final hearing of the appeal has not taken place. Before the Court now is an interlocutory application preliminary to the hearing of that appeal: the great grandparents seek to be made parties to this appeal under Care Act, s 98(3), so they can advance an alternative case that the children be placed with them.

7. The issues before the Children’s Court related to the sustaining of various injuries by the children. The Court found that those injuries had occurred over a number of months and were of different kinds, including bone fractures, wounds and bruises to both children. The Court found that different explanations had been given by the parents for those injuries at different times. A complicating factor is that the youngest of the two children was born without a thyroid gland. This was not discovered immediately at birth. After a number of weeks the condition was diagnosed and the child was provided with replacement hormone therapy, thyroxine.

8. The parents, and to some extent the great grandparents, contested in the Children’s Court hearing whether some of the youngest child’s injuries may have been contributed to by lack of bone density by reason of his thyroid condition. The medical evidence which the learned Children’s Court President accepted was generally against that conclusion. He concluded firstly, that there was no evidence that the injuries were contributed to by any lack of bone density; and, secondly, that the injuries were more consistent with having been deliberately, rather than accidently caused. In these appeal proceedings the parents seek to challenge many of those conclusions by reference back to the primary evidence before the Children’s Court.

9. Before the Court today the great grandparents by motion filed on 15 April 2015 seek to be made parties to these proceedings either pursuant to Uniform Civil Procedure Rules (“UCPR”), r 6.24, or Care Act, s 98(3).

10. The Court can put to one side the UCPR provisions, because sitting as the Children’s Court, this Court should first have regard to the specialised party joinder procedure set out in the Care Act itself.

11. The great grandparents represented themselves on this application, as did the parents. The Secretary, represented by Mr Anderson of counsel, opposes the joinder of the great grandparents. The independent children’s representative, represented by Ms Robinson, does not oppose their joinder.

The Application for Joinder

12. The Care Act provides for two kinds of possible status for a person who wishes to appear in Care Act proceedings: one under s 87 and the other under s 98. The primary right of appearance to parties in Children’s Court proceedings is granted under s 98 which provides as follows:

“98   Right of appearance

(1)   In any proceedings with respect to a child or young person:

(a)   the child or young person and each person having parental responsibility for the child or young person, and

(b)   the Director-General, and

(c)   the Minister,

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

(2)   However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A)   If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court is to appoint a guardian ad litem for the person under section 100 or 101 (as the case may require).

(3)   In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.”

13. Section 98 appearances are of two kinds. The section grants a right of appearance to limited classes of persons, namely the Director General, the Minister, and the “child or… person having responsibility for the child”: s 98(1). But the section also provides a broader right of appearance with the leave of the Court to a person who “has a genuine concern for the safety, welfare and well-being of the child or young person”: s 98(3). But this additional class of person may only appear “by leave of the Children’s Court”.

14. The right of appearance under both s 98(1) and (3) is one, once granted, to “examine and cross-examine witnesses on matters relevant to the proceedings”. Both provisions to an extent constrain the right of appearance granted “by leave” of the Court. But in s 98(1) the “leave” only governs the appointment of an “agent” as distinct from a legal representative to represent a party. Otherwise s 98(1) confers a right of appearance on the persons who qualify under it. But s 98(3) limits the right to appear, predicating it upon the Court’s leave.

15. The other mode of appearance under the Care Act, and one which the great grandparents took up in this case before the Children’s Court, is under Care Act, s 87. This section affords an “opportunity to be heard” as follows:

“87   Making of orders that have a significant impact on persons

(1)   The Children’s Court must not make an order that has a significant impact on a person who is not a party to proceedings before the Children’s Court unless the person has been given an opportunity to be heard on the matter of significant impact.

(2)   If the impact of the order is on a group of persons, such as a family, not all members of the group are to be given an opportunity to be heard but only a representative of the group approved by the Children’s Court.

(3)   The opportunity to be heard afforded by this section does not give the person who is heard the status or rights of a party to the proceedings.”

16. Section 87 draws a distinction between the “opportunity to be heard on the matter of significant impact” under subsections (1) and (3) and the different “status or rights of a party in proceedings” under subsection (3).

17. Once a grant of leave is given under s 98(3), it brings with it a right to examine and cross-examine witnesses, which “the opportunity to be heard” under s 87 does not. Although cross-examination may still be permitted under s 87 depending on the circumstances. This reflects the flexible requirements of procedural fairness at general law, which may but which do not necessarily, confer on a party the right to examine and cross-examine witnesses in a given case: see Beveridge v Dontan Pty Ltd (1990) 23 NSWLR 13 and Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 at [29]. McDougall J explained this distinction in the context of Care Act, s 87 in Re June (No 2) [2013] NSWSC 1111 at [186] – [190]:

“[186]   The second point to note is that the opportunity to be heard is not the opportunity to participate in the proceedings either as a party as of right (s 98(1)) or as someone given leave (s 98(3)). Thus, it does not follow that the opportunity to be heard includes the right to examine or cross-examine witnesses, at least generally.

[187]   However, if the question of significant impact is one that is the subject of evidence, and if there are direct conflicts in that evidence, then, in a particular case, the opportunity to be heard may extend to permitting cross-examination on that particular point.

[188] Section 87 is silent as to whether the exercise of the opportunity to be heard must be made by the affected person personally, or whether that person may have legal representation. In the ordinary way, it might be thought that the person affected would put his or her case personally. However, there will, no doubt, be cases where for one reason or another it is appropriate (and perhaps very desirable) for that person to have the benefit of legal assistance. It seems to me that this question is one to be considered on a case by case basis. The Court would be entitled to consider, among other things, the complexity of the issue, what is involved in that particular case in giving an appropriate opportunity to be heard, the impact on the duration of the hearing and, in addition, the matters to which I refer in the next paragraph.

[189] In considering the content of the statutory opportunity to be heard given by s 87, it is necessary to bear in mind the requirements of s 93, as to the general nature of proceedings before the Children’s Court. It is also necessary to bear in mind at all times the paramount principle set out in s 9(1). The content of the statutory right given by s 87 cannot override that paramount principle.

[190]   Finally, as Dixon J pointed out in Secretary, Department of Human Services v Children’s Court of Victoria and Ors [2012] VSC 422 at [13] (omitting citations):

It is well established that the content of the common law requirements of natural justice and procedural fairness may vary, requiring adjustment according to the circumstances of the particular case. What may constitute an opportunity to be heard may be informed by the conduct of the parties prior to or during a hearing. An evaluation of the realities and not the legalities of the situation is required when dealing with the question of what fairness demands in the circumstances.”

18. A grant of s 98 full party status will often have more potential to lengthen the proceedings than allowing a person to be heard under s 87.

The Great Grandparents’ Case for Joinder

19. The great grandparents put their application to become parties under s 98(3) on three main bases.

20. Firstly, the great grandparents wished to ask questions of a number of the medical experts about the hypothyroidism of the younger child to ensure that the correct questions are asked. They were of the view that the parents’ legal representatives before the Children’s Court did not ask those experts the right questions to establish the potential relationship between the injuries of the younger child and the younger child’s thyroid condition. Moreover, the great grandparents’ submission was that some of the disadvantages the younger child has suffered has been due to his thyroid condition.

21. The great grandparents’ second argument was that they had been the subject of adverse, but wrong, assessments by experts and case officers as to their suitability and fitness as potential carers for the children under an alternative placement of the children with them. They said that they wished to cross-examine the expert assessors and case workers, in relation to those assessments about their suitability, with a view to showing that placement with them would be in the best interests of the children if the children could not be under the parents’ care.

22. The great grandparents’ third possible argument really emerged from the submissions of the independent children’s representative. This was that given the great grandparents’ special contact with the parents and the children, they may wish to cross-examine the parents about how the injuries to the children had occurred. This would give the great grandparents the opportunity to bring forward new evidence that may point more directly to any parental acts contributing to the children’s injuries. This last proposition was put to the great grandparents in the course of their presenting their application. But it became clear from their response in argument that the great grandparents did not wish to put any questions by way of cross-examination of the parents with a view to establishing that the injuries may have been deliberately caused. So although this basis for the great grandparents’ appearance is theoretically available, they do not wish to pursue it. I need not consider it any further.

23. The parents also put submissions. Those submissions were primarily directed to supporting the great grandparents’ submissions. Although they pointed to some other factual material. But the general thrust of their submissions was very much the same as those of the great grandparents.

24. The independent children’s representative put submissions: firstly, as previously indicated, that the great grandparents may wish to cross-examine the parents from their own direct knowledge of what had happened to the children; but, secondly, that the great grandparents may indeed wish to ask questions of experts about their own suitability for an alternative placement for the children.

25. The independent children’s representative did not support the contention that the great grandparents should be permitted to cross-examine generally in relation to medical issues about how the injuries were caused.

The Secretary’s Submissions

26. The Secretary opposed the joinder of the great grandparents on a number of grounds. The Secretary first raised the threshold point that the great grandparents had not demonstrated that they had made out the s 98 requirements that they were “persons who had a genuine concern for the safety and well-being of the child or young person”.

27. But the Children’s Court was prepared to accept that the great grandparents had that genuine concern in this case. In my view on the materials before this Court nothing has substantially changed since then, to alter that conclusion.

28. There is a question as to whether or not the assessment of “genuine concern” under s 98(3) is an objective or subjective assessment. There is certainly authority that says it should be objectively assessed: EL & WL v Director-General of the Department of Human Services [2010] NSWDC 248 per Truss DCJ. But I do not have to decide this question. In my view, taking into account the findings of the learned President, together with the materials before me, the approach which the great grandparents have taken in this Court in the course of argument and my observations of them, I am prepared to assess that they have such a genuine concern both subjectively and objectively as required by Care Act, s 98(3). The great grandparents therefore pass this threshold, however it is defined.

29. The Secretary’s submissions then turned to the matters to which the Court should have regard in exercising its discretion under s 98(3). The Secretary advanced a number of matters: delay, the applicants’ likely prospects of success, and matters of public policy.

30. But delay was the central issue. The Secretary argued that the case had limited prospects of success and if other parties were added who would be permitted to put questions, make submissions and advance evidence on all issues in the proceedings, this would be likely to add considerably to the length of time that the proceedings would take and delay the hearing. The great grandparents’ limited prospects of success and the public policy advantages of efficient hearings were said to be additional related factors.

26. This is a powerful submission. This is so not only for the ordinary reasons, which would move a court bound by Civil Procedure Act, s 56 to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. But the submission also responds to the objectives of the Care Act, s 9(2)(c), that any consideration of “the paramount concern to protect [these two children] from harm and promote [their] development”, will usually involve giving priority to bringing proceedings to finality as quickly as possible. Anything which is likely to unduly delay these proceedings is an important relevant s 98(3) consideration. If the great grandparents were given rights generally to adduce evidence, put submissions and cross-examine on all issues in the proceedings, including the several medical experts who have given evidence about the children’s injuries, then there would in my view be significant capacity for delay in the finalisation of this appeal.

Consideration

32. On the other hand, having reviewed the evidence, the Court can see that the great grandparents’ are the best persons to advance the case as to their own personal suitability as alternative carers for the children in the children’s best interests, if the parents cannot care for them. More than any other person at the Bar table, they are best fitted to propound a case that they have been wrongly assessed as unsuitable as an alternative placement for the children. It seems to me that in this case, if the great grandparents can be afforded the opportunity to address that question without any delay to the proceedings, then there is good reason to do so.

33. Why should the great grandparents have leave under s 98(3), rather than be granted an opportunity to be heard under s 87(1)? One of the differences in focus between s 87(1) and s 98(3) is marked out by the differing thresholds that must be passed in order to enliven each section. In s 87(1) the threshold is one to ensure that non-parties who may suffer adverse impacts from Care Act orders will receive procedural fairness before such orders are made. The focus is on “impact on a person”.

34. But the threshold for s 98(3) is more child-centred. The s 98(3) right is only available to a person who in the Court’s opinion “has a genuine concern for the safety, welfare and well-being of the child”. It is perhaps because the s 98(3) threshold is more altruistic than that under s 87, that the Care Act afford a wider scope to participate to those who receive a grant of s 98(3) leave. Persons meriting s 98(3) leave will sometimes be, as the great grandparents are in this case, people who can by their participation fill an evidentiary gap in the proceedings that it may be in the best interests of the child to see filled in the proceedings. In my view that is the case here.

35. The core part of the great grandparents’ case refers to their fitness as carers as an alternative to the parents. I would be prepared to permit them to advance such a case and to test by cross-examination the evidence against their suitability. But that does not mean they should have leave to advance a case in general support of the parents’ application to have the care of the children restored to the parents. The parents can do that. Nor does it permit the great grandparents to advance a case to challenge the medical evidence as to causation of injuries or any of the other general issues in the proceedings. The parents can also do that. I am prepared to grant leave under s 98(3). But the grant of leave will be on terms. The leave will only be granted for the purposes of the great grandparents being able to cross-examine and adduce evidence about their own suitability as alternative carers for the children.

36. The trial judge will be able to draw and maintain this borderline. The great grandparents should not be surprised, if from time to time when they are conducting the proceedings, they are told that they have gone beyond that limit and that they must stop.

37. I see no real basis for the great grandparents being permitted to put questions to the various medical experts about any medical subject. The great grandparents have neither adduced nor sought to adduce any evidence to contradict the evidence of the doctors, who have already given evidence in the proceedings about the likely causes of the injuries to the children. Moreover, one of the doctors who gave evidence before the Children’s Court is a doctor who the parents initially retained as a medical expert and who gave evidence that ultimately the judge relied on to draw the conclusion that he did. Without the active assistance of the great grandparents as parties, the parents themselves will be in a sound position to challenge that medical evidence, if they are minded to do so. I see no reason why two parties should be permitted to pursue the same issue. It is not an issue of immediate concern to the great grandparents’ case about their own suitability as alternative carers.

38. For these reasons, the Court makes the following orders and directions:

Pursuant to Children and Young Persons (Care and Protection) Act 1998, s 98(3) leave is granted to the great grandparents being joined as a party to the proceedings subject to the following limitations to their right to appear:

1.   file evidence;

2.   make submissions as it relates to placement of the children in the event that the Court finds there is no realistic possibility of restoration to the care of their parents;

3.   sit in Court during the hearing as support persons for the parents;

4.   see all evidence filed; and

5.   cross-examine only in relation to the question of their suitability as potential carers for the children with this right being limited to cross examination of:

a.   Mr Jeffery Patterson, author of the Assessments Australia Report, dated 12 September 2013.

b.   Any other person who has conducted an assessment of the great grandparents’ fitness to care for the children with such report being relied on by any party to the proceedings.

c.   The caseworker or casework manager but limited to the question of the great grandparents’ fitness to care for the children.

AND IT IS NOTED

A.   The parties are under no obligation to serve documents filed in these proceedings on the great grandparents save for evidence that directly relates to their fitness to care for the children.

B.   That should the great grandparents file any evidence in accordance with order 1 they are obliged to serve any evidence upon all parties who have filed an appearance.

C.   That for the purpose of Order 4 above, the parents are permitted to show the great grandparents any documents served upon them in the course of these proceedings.

D.   This grant of leave does not include a right to cross examine on any other subject, including but not limited to the medical evidence.

6.   Direct the independent children’s representative to issue any subpoena that the independent legal representative is minded to issue to Dr Vicki Burnelkis by Thursday 4 June 2015, to be made returnable before the Registrar on 12 June 2015.

7.   Adjourn these proceedings to the Registrar’s list at 9.00am on Friday, 19 June 2015 with a view on that day to the proceedings being listed for hearing.

8.   Grant leave to the plaintiff to make returnable on 19 June 2015 any motion to adduce expert medical evidence in these proceedings, noting that such motion should be supported by evidence of a medical expert having been retained for that purpose.

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Decision last updated: 04 June 2015