CM v Minister for Families, Communities and Disability Services

[2020] NSWCA 347

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

CM v Minister for Families, Communities and Disability Services [2020] NSWCA 347

Hearing dates:

14 December 2020

Date of orders:

21 December 2020

Decision date:

21 December 2020

Before:

Macfarlan JA; McCallum JA

Decision:

(1) Dismiss the application for leave to appeal.

(2) Dismiss the amended notice of motion dated 12 November 2020.

(3) Order the applicant to pay the respondents’ costs.

Catchwords:

APPEALS — Leave to appeal — parens patriae jurisdiction — where Secretary of the Department of Communities and Justice had assumed care responsibility for applicant’s child — care proceedings part-heard in the Children’s Court —finding by primary judge that the applicant had not established exceptional circumstances to justify interfering with orders made by Children’s Court — whether applicant established any issue of principle, question of general public importance or injustice such as to warrant a grant of leave to appeal

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 44, 45, 69, 71, 105

Supreme Court Act 1970 (NSW), s 101(2)(r)

Cases Cited:

CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740

Re M (No 4) – BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Category:

Principal judgment

Parties:

CM (a pseudonym) (Applicant)
Minister for Families, Communities and Disability Services (First Respondent)
Secretary, Department of Communities and Justice (Second Respondent)
The Child’s Lawyer (Third Respondent / Independent Legal Representative)

Representation:

Counsel:
CM (self-represented)
M Anderson (First and Second Respondent)
E Stolier (Third Respondent)

Solicitors:
Crown Solicitor’s Office (First and Second Respondent)

File Number(s):

2020/319447

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

New South Wales Supreme Court

Jurisdiction:

Equity

Citation:

[2020] NSWSC 1740

Date of Decision:

5 November 2020

Before:

Rees J

File Number(s):

2020/301470

Judgment

1. THE COURT: The applicant in these proceedings is the mother of a child in respect of whom care proceedings have been commenced in the Children’s Court. The applicant’s name has accordingly been anonymised in order to preserve the anonymity of the child, as required by s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

2. The child is not presently in the mother’s care. On 3 March 2020, the Secretary of the Department of Communities and Justice assumed the care responsibility of the child under s 44(1) of the Children and Young Persons (Care and Protection) Act. The Secretary then commenced care proceedings in the Children’s Court, as required by s 45 of the Act. As the child was conceived by IVF using donor egg and sperm, no father is named in the proceedings. The Secretary seeks orders allocating parental responsibility for the child to the Secretary until the child is 18. The proceedings are currently part-heard in the Children’s Court and are listed for four further days of hearing commencing on 15 February 2021.

3. In the meantime, the mother has repeatedly sought orders in various courts to have the child returned to her care, most recently including commencing proceedings in the Equity Division of the Court invoking the Court’s parens patriae jurisdiction.

4. The parens patriae application was heard by Rees J on 5 November 2020: CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740. Her Honour also heard a notice of motion filed by the applicant seeking an order lifting “suppression imposed on this case” (evidently a reference to the statutory prohibition on identification of the child) and an interim order returning the child to the care of the mother that day. The mother’s application was supported by evidence from a psychologist, Professor Dianna Kenny, who has worked intensively with the mother since the child was taken from her care to improve her parenting skills. Professor Kenny was permitted to assist the mother at the hearing as a “McKenzie friend”. She argued that the mother had vastly improved and was highly critical of the Department’s decision to place the child with “a strange carer”.

5. In a careful and thorough judgment delivered orally at the conclusion of the hearing, Rees J dismissed both applications: at [48]. Her Honour acknowledged Professor Kenny’s submission that removing a child from his mother at such a tender age was likely to be traumatic and damaging but also noted that the caseworker’s evidence established significant circumstances warranting removal and that the issue did not appear to be whether those circumstances existed but rather whether they had been remedied. Her Honour referred to the well-established principle that exceptional circumstances are required for the Court to interfere with orders made by judicial officers exercising specialist jurisdiction such as those in the Children’s Court: 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]. Her Honour was not satisfied that a basis had been established for intervening in the present case.

6. The applicant seeks leave to appeal against that decision. The requirement for leave arises under s 101(2)(r) of the Supreme Court Act 1970 (NSW). By amended notice of motion dated 12 November 2020, the applicant also seeks an interim order from this Court that the child be returned to her temporarily pending the resolution of the care proceedings in the Children’s Court.

7. The principles to be applied in an application for leave to appeal are well-established. The respondents referred to the convenient summary of those principles in the judgment of Gleeson JA in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] (Macfarlan and Payne JJA agreeing), as follows:

“Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.” (citations omitted)

8. The applicant is not legally represented. Her proposed grounds of appeal do not identify any ground of appeal falling within those principles or otherwise warranting a grant of leave. The applicant relied on an amended summary of argument which did not correlate with the proposed grounds of appeal. Nothing in that document identifies a basis on which this Court would grant leave to appeal.

9. The proposed grounds of appeal and the matters raised in the amended summary of argument fall broadly into four categories.

10. First, a number of the applicant’s grounds and arguments seek to revisit factual findings that have been made in the Children's Court. The Children’s Court’s jurisdiction in care proceedings is contained in s 71 of the Children and Young Persons (Care and Protection) Act. That section authorises the Children’s Court to make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason, including any one of the reasons listed in the section. The usual procedure in the Children’s Court is to determine the issue of jurisdiction separately, before (if jurisdiction is established) turning to consider what final care orders should be made. For that purpose, the Court holds what is commonly referred to as an “establishment” hearing at which the Court decides whether it is satisfied that the child is in need of care and protection.

11. A contested establishment hearing was conducted on 8 April 2020 by Duncombe CCM, one of the most experienced Children’s Court Magistrates in the State. Her Honour made a finding on the grounds stated in subs 71(1)(c), (d), and (e) of the Children and Young Persons (Care and Protection) Act, which relevantly provide:

The Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following—

(c)   the child or young person has been, or is likely to be, physically… abused or ill-treated,

(d)   subject to subsection (2), the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,

(e)   the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living

12. Duncombe CCM also made an interim order under s 69 of the Act vesting parental responsibility in the Secretary until further order.

13. Much of the mother’s argument in this Court proceeded on a misconception as to the nature of the establishment hearing. The mother appears to be under the misapprehension that, by the establishment finding, she has been found guilty of a criminal offence. However, properly understood, the finding concerns the child, not the mother. The critical finding is that the child is in need of care and protection. In any event, the present application is concerned with the correctness of the decision of Rees J, not the findings of the Children’s Court. The decision of Rees J not to intervene with the orders of the Children’s Court was an orthodox application of the well-established principle referred to above.

14. Secondly, a number of the applicant’s grounds and arguments rehearse the issues that will be determined in the final hearing in the Children’s Court. Again, as correctly noted by the primary judge, this Court will not ordinarily exercise its parens patriae jurisdiction in circumstances where such proceedings are pending in the Children’s Court.

15. Thirdly, the applicant makes allegations of misconduct against employees of the Department of Communities and Justice. That is also an issue which, if relevant to the determination of the appropriate care orders concerning the child, should be ventilated in the Children’s Court.

16. Finally, some of the applicant’s grounds of appeal and submissions in the amended summary of argument make personal attacks on the primary judge. Those attacks are without foundation and tend to reveal the applicant’s inexperience with the usual processes of the legal system. For example, one of the proposed grounds of appeal is framed as follows:

“[Rees J] claimed the Children’s Court is expert in this area. It is quite serious a matter for concern from someone who has such opinion about a magistrate court.”

17. The proposed ground is misconceived. It is well established that the Children’s Court is properly regarded as a court that has expertise in care proceedings.

18. The applicant has not established that there is any doubt as to the correctness of the decision of the primary judge such as to warrant a grant of leave. It follows that there is no basis for granting the relief sought in the amended notice of motion.

19. For those reasons, we make the following orders:

1. Dismiss the application for leave to appeal.

2. Dismiss the amended notice of motion dated 12 November 2020.

3. Order the applicant to pay the respondents’ costs.

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Decision last updated: 21 December 2020