CM v Secretary, Department of Communities and Justice

[2021] NSWSC 1442

Supreme Court

New South Wales

Medium Neutral Citation:

CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442

Hearing dates:

3 & 5 November 2021

Date of orders:

9 November 2021

Decision date:

09 November 2021

Jurisdiction:

Equity - Duty List

Before:

Slattery J

Decision:

Application dismissed.

Catchwords:

CHILD WELFARE – Parental responsibility – Order allocating parental responsibility – where the Children’s Court made orders in June 2021 allocating parental responsibility for the child to the Minister until the child turns 18 – where the applicant mother has appealed that decision in the District Court of New South Wales pursuant to Children and Young Persons (Care and Protection) Act 1998 (“Care Act”), s 91 – where a final hearing was set for November 2021 before the District Court, and Olsson SC DCJ appointed a Guardian ad litem for the applicant mother pursuant to Care Act, ss 98(2A) and 101 – where the applicant mother has sought to challenge that decision in the Supreme Court’s parens patriae jurisdiction.

CHILD WELFARE – Jurisdiction – Supreme Court of New South Wales – Parens patriae – where the Court has informed the applicant mother the appropriate forum to challenge Olsson SC DCJ’s appointment of a Guardian ad litem would be the Court of Appeal – where the applicant mother expressed she did not want the case referred to the Court of Appeal – whether there are exceptional circumstances warranting the Court’s exercise of its parens patriae jurisdiction.

CHILD WELFARE –  Care proceedings – Guardian ad litem – whether the Children’s Court may appoint a Guardian ad litem for an applicant parent pursuant to Care Act, ss 98(2A) and 101 where that parent is self-represented and does not wish to be legally represented – observations on the construction of Care Act, ss 98(2A) and 101.

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998, ss 83(7), 90, 91, 98(2A), 101

Supreme Court Act1970, ss 48, 66, 69

Uniform Civil Procedure Rules 2005, r 59.3(2)

Cases Cited:

Chester v Bateson [1920] KB 829

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

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

GR v Secretary, Department of Communities and Justice [2020] NSWSC 739

Re Anna [2001] NSWSC 79

Re Frances and Benny [2005] NSWSC 1207

Re Frieda and Geoffrey (2009) 40 Fam LR 608

Re June (No. 2) [2013] NSWSC 1111

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

Re Victoria (2002) 29 Fam LR 157

R&W Paul Ltd v Wheat Commission (1936) 55 LIL Rep 343

Category:

Procedural rulings

Parties:

Plaintiff: CM (pseudonym)
Defendant: Secretary, Department of Communities and Justice

Representation:

Counsel:
Defendant: M. Anderson

Solicitors:
Plaintiff: in person
Defendant: Karen Smith, Crown Solicitor for NSW

File Number(s):

2021/312267

Publication restriction:

Yes – pseudonym order.

Judgment

1. The plaintiff is the mother of a seven-year-old boy, who was removed from her care in March 2020. After a nine-day hearing in the Children’s Court, on 10 June this year Virgo CM concluded that there was no realistic possibility of restoration of the child to the mother. The mother has appealed against that determination under Children and Young Persons (Care and Protection) Act1998 (“the Care Act”), s 91 and her appeal is fixed for hearing in the District Court of NSW for seven days commencing on 22 November 2021.

2. The appeal is being case managed by her Honour Olsson SC DCJ. It is not clear that her Honour will be hearing the appeal proceedings; there having been some pre-trial directions hearings in the matter before His Honour Judge Robison. On 27 October 2021, Olsson SC DCJ appointed a guardian ad litem (“GAL”) for the mother under the Care Act, s 101 to assist the mother in conducting her appeal.

3. The mother has now applied in the Equity Duty List, joining the Department of Communities and Justice (“the Department”), for an order in this Court’s parens patriae jurisdiction to set aside the appointment of the GAL. The Secretary of the Department was the appropriate defendant and that amendment to the name of the defendant is recorded at the conclusion to these reasons. The matter was argued on 5 November 2021. These reasons determine the mother’s application.

4. The mother has brought proceedings previously to this Court. In CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740, Rees J refused the mother’s application in the parens patriae jurisdiction to have the child returned to her. The mother unsuccessfully appealed from Rees J’s decision: CM v Minister for Families, Communities and Disability Services [2020] NSWCA 347.

5. Rees J’s judgment conveniently sets out (at [37] and [38]) the relevant authorities that guide the Court in considering applications within its parens patriae jurisdiction whilst there are proceedings on foot in the Children’s Court under the Care Act or on appeal after a primary hearing. These authorities are relevant to the present application and establish that exceptional circumstances are required for this Court to interfere with orders made by judicial officers exercising specialist jurisdiction such as those in the Children’s Court.

6. The mother framed her application to this Court as an “amended draft notice of appeal”. Virgo CM’s detailed decision gives relevant background to her decision that there is no realistic possibility of restoration of the child to the mother within a reasonable time in accordance with Care Act, s 83(7). Virgo CM also found that permanency planning for the child had been appropriately and adequately addressed in accordance with Care Act, s 83(7).

7. The issues before the Court do not call for a detailed setting out of Virgo CM’s reasoning. But a short summary is appropriate. Her Honour found that the mother had significant deficits in her parenting capacity which had not improved since the child was removed from her care. Virgo CM found that the mother did not fully understand her child’s behaviours and diagnoses; a situation that was largely the product of the mother not accepting responsibility for past parenting decisions and practices.

8. Virgo CM found the mother had not acquired insight into her poor parenting, which included evidence that the child had been neglected, inadequately supervised and was subject to inappropriate physical discipline. Virgo CM found that the mother had unrealistic expectations of the child’s abilities, given his age and needs. Virgo CM did not accept the mother’s evidence that documented events leading to the risk of harm reports in respect of the child either did not happen, or the reports identifying the concerns were exaggerated, or that witnesses who made the reports were motivated to make false reports out of a personal vendetta against the mother. Virgo CM found there were too many of such reports outlining similar concerns raised by different reporters to accept the mother’s alternative explanations or denials as credible.

9. Virgo CM also expressed deep concern that the mother did not accept the recommendations and advice of her own treating professionals, Professor Kenny and Dr Harasty, who do not support an immediate restoration, which was sought by the mother. The mother’s own expert supported phased restoration because the child had not been in the mother’s care at the time of Virgo CM’s decision for some 14 months and any restoration had to be taken at a pace with which the child would be able to cope.

10. Virgo CM further found the mother views herself as a victim of injustice which has interfered with her capacity to improve her own parenting skills and that she believes she has been “found guilty” of a criminal offence which is distracting her from focusing upon therapies to hasten the restoration of the child after putting in a Care Act, s 90 application in due course.

11. Virgo CM was unpersuaded by the mother’s claims that she had addressed all the reasons that led to the child being removed from her care. The child has expressed repeated wishes to return home but Virgo CM further found the Court could not safely accede to its wishes taking into account his vulnerability; the child being too young to understand the risk that is posed to him in his mother’s care.

12. A significant evidentiary event since the conclusion of the proceedings before Virgo CM is the obtaining of a recent report from Dr Emily Kwok, on 30 October 2021, in preparation for the appeal hearing due to commence on 22 November. It is expected that her report would be deployed at any such hearing.

13. Dr Kwok’s report presents a considerable degree of hope to the mother for restoration of the child. Dr Kwok reached the view on the basis of her present assessment, her review of available documentation and observation of the interaction between mother and child that she does “not believe there is a risk of harm to [the child] if he is returned to the care of [the mother] in a staged process”.

14. Dr Kwok recommends that restoration begin with sourcing a practitioner who would assist the mother in her interactions with the child, with the frequency of those sessions to be determined by the practitioner and the mother. According to Dr Kwok, the child’s carer has observed that the child is “normal” when returning from visits with his mother and Dr Kwok is of the opinion that “an increase in the frequency of contact visits is unlikely to cause distress for the child”. But Dr Kwok observes “the mother would need to observe positive parenting skills on these visits as she works with her practitioner”. Moreover, Dr Kwok observes that the mother’s attendance at these visits “would also show whether she is able to prioritise her time with [the child]”.

15. Finally Dr Kwok concludes that she would recommend that “full restoration will only occur after the mother demonstrates engagement with her practitioner, demonstrates satisfactory attendance of contact visits, provides a workplan to show that her work hours do not interfere with her supervision of the child, or show that alternate support has been arranged”.

16. On 29 October 2021, Olsson SC DCJ at a pre-appeal hearing, and after hearing evidence from among others a clinician, Dr Jenna Mckenzie, appointed Dr Katherine Johnson as GAL for the mother under Care Act, s 101. The mother has approached the Court to challenge this decision. All the various forms of her notice of appeal that she has put before the Court are framed as a challenge to that decision. At the time of writing these reasons the Court has available a transcript of proceedings before Olsson SC DCJ but not her Honour’s reasons for decision. But as will be seen, it is not necessary for this Court now to examine her Honour’s decision for the reasons given below.

17. In the application before this Court the mother made many points concerning the history of her struggle to have her child restored to her. But when asked to focus on her present application the essence of her legal argument was that she had a right to represent herself and the appointment of Dr Johnson to be her GAL was invalid as it was not authorised by Care Act, s 101. She said she did not have lawyers and was not intending to engage lawyers because she did not have confidence in lawyers to represent her, because of her experience with the lawyers she had engaged in the past. She said that the appointment of a GAL denied her the right to represent herself. She said that Care Act, s 101 could not be used to deny her right to represent herself.

18. During the hearing of the application the Court had the benefit of hearing from the appointed GAL, Dr Johnson, who was able to make observations for the first time about her role and the proceedings. She did not appear before Olsson SC DCJ. Dr Johnson doubted her capacity to absorb the thousands of pages of material necessary for her to be ready to instruct a lawyer on behalf of the mother and said that she was likely to apply for an adjournment of the hearing on 22 November. When speaking on this subject, Dr Johnson raised an issue as to whether she would indeed be the right person to continue as GAL in the circumstances. She indicated that she was going to raise the question of her continued appointment before Olsson SC DCJ. And she said:

“JOHNSON: I think I would have to confirm, your Honour, that I certainly would not be ready by the 22nd. I think that a GAL ought to be appointed. I'm not sure at this stage whether I would be the appropriate GAL or whether it would be the Court's advantage to have another GAL so [CM] doesn't feel there has been any bias by what has happened. I don't want her to feel that we have to work closely together, and I just want her to feel comfortable that whatever we are doing is in her best interests.”

19. Dr Johnson mentioned a barrister and a few solicitors in whom she thought the mother might have confidence to represent her, but Dr Johnson said that the mother would probably need to engage this barrister on a direct access basis. At the conclusion of her appearance on the application Dr Johnson explained that she wished to explore a few options for the conduct of the proceedings before Olsson SC DCJ, if she were to remain as GAL. On this subject she said the following:

“JOHNSON: Thank you, your Honour. I do just want to say, your Honour, I really do appreciate the concerns of [CM]. I know that she's incredibly tired and she's very exhausted. She's worked extremely hard. I do honestly think she requires the very [b]est representation for her. If I could get Ms Kaiti on board again and possibly Steven Kalantzis, then I think she would have a very good chance of at least maybe even settling this matter for the Department and seeing how we could go ahead. I do appreciate all of this is so she can actually have more contact with her son. She would like ultimately like to have the child back and restored fully. But I think that if we do it as a staged process that has a far better way of resolving than going to Court.”

20. I pointed out to the mother in the course of argument that by reason of Supreme Court Act1970, s 48 any relief which she wished to obtain under the Supreme Court Act, ss 66 or 69 involved a matter which was assigned to the Court of Appeal, because it involved a challenge to the decision of a District Court Judge as a decision-maker. I offered to her to adjourn the proceedings into the Court of Appeal to facilitate her obtaining relief to challenge the decision to appoint a GAL, should she wish to pursue it. Whilst I have parens patriae jurisdiction, the grant of prerogative relief against a District Court Judge is not a matter assigned under Supreme Court Act, s 48 to a single judge in the Equity division.

21. The mother declined the Court’s offer. Her clear response to that idea was that she did not want the matter referred to Court of Appeal, as she thought that that would be likely to interfere with the final hearing proceeding on 22 November, which she strongly wished to go ahead. Whilst referral of the matter to the Court of Appeal may well not have that effect, the mother was ultimately firm that she wanted me to deal with this matter in the parens patriae jurisdiction.

22. For the following reasons this is not an appropriate matter for the Court to engage its parens patriae jurisdiction to examine the plaintiff’s challenge to the appointment of Dr Johnson as GAL for the mother on 29 October 2021. There are no exceptional circumstances which would justify the Court’s intervention in the Children’s Court proceedings.

23. First, the Court’s parens patriae jurisdiction should not be used as an alternative avenue for a hearing before a single judge, for relief in the nature of prerogative relief under Supreme Court Act, s 69 or injunctive relief under Supreme Court Act, s 66 against a District Court Judge, which Supreme Court Act, s 48 assigns to the Court of Appeal. Adjournment of the matter into the Court of Appeal was possible and was offered but it was declined. The parens patriae jurisdiction before a single judge should not be exercised in those circumstances.

24. Second, in the present circumstances the Court’s exercise of parens patriae jurisdiction lacks utility. The matter is to return to Olsson SC DCJ today for further directions. It is clear from what Dr Johnson has said that Olsson SC DCJ will be asked to reconsider Dr Johnson’s appointment. In those circumstances there seems little point in the Court considering the validity of her appointment, especially when Olsson SC DCJ can re-examine the question with the benefit of Dr Kwok’s report and up-to-date input from Dr Johnson in the context of the medical evidence with which Olsson SC DCJ is already familiar. In these circumstances there is no advantage to the child, to the mother or to the administration of justice in this Court examining Dr Johnson’s appointment in its parens patriae jurisdiction.

25. Third, there are clear short-term advantages in Olsson SC DCJ first examining the various options that are potentially worthy of exploration. For this Court now to examine the question of the validity of Dr Johnson’s appointment may deprive Olsson SC DCJ of that opportunity. For these reasons the Court will dismiss the mother’s application.

26. During her application the mother raised with the Court the issue of her capability to conduct proceedings herself. I indicated to her that I would not second-guess what Olsson SC DCJ had decided. I can only speak to what I observed before me. In the kind of application she was conducting before the Supreme Court, the mother exhibited many of the disadvantages commonly seen in litigants in person. She may perhaps have been better represented by a lawyer, but she was able to present her case to this Court, especially after the Court exhorted her to focus upon the issues. The conduct of a more complex hearing over seven days is a potentially different question.

27. For the reasons given, the question of the appointment of a GAL for the mother will be likely to be considered again in this matter, so it may perhaps assist if the Court were briefly to make some observations about the operation of Care Act, s 101, a provision on which there is little authority. The Court is conscious in doing so that it has not heard full argument about the section.

28. Care Act, ss 98 and 101 are related provisions. Care Act, s 98 governs rights of appearance with respect to a child or young person in the Children’s Court:

“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 Secretary, 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 may 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.”

29. Care Act, s 101 permits the appointment of a GAL or amicus curiae in the following circumstances, as defined:

“101 Guardian ad litem and amicus curiae—parents of child or young person

(1) The Children’s Court may—

(a) appoint a guardian ad litem for either or both of the parents of a child or young person, or

(b) request the legal representative of a parent or the parents of a child or young person to act as amicus curiae,

if it is of the opinion that the parent is, or the parents are, incapable of giving proper instructions to his or her, or their, legal representative.

(2) Circumstances that warrant the appointment of a guardian ad litem or a request for a legal representative to act as amicus curiae may include that the parent of a child or young person has an intellectual disability or is mentally ill.

(3) The functions of a guardian ad litem of a parent of a child or young person are—

(a) to safeguard and represent the interests of the parent, and

(b) to instruct the legal representative of the parent.

(4) A legal representative of a parent for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.”

30. In a case such as the present, the use of s 101 appears to be a two-step process. A person, such as the mother, is determined to be someone “not capable of adequately representing herself” within Care Act, s 98(2A), and then if it is found that if the person is “incapable of giving proper instructions” to their legal representative within Care Act, s 101, then an appointment of a GAL can be made. A critical concept in this legislation is that of capability. Before appointing a GAL under s 101, a Court must often first go through the gateway of s 98 and make a judgment about whether the person is “capable of adequately representing…herself”. Then the Court must make a separate judgment about whether the person is “incapable of giving proper instructions” to his or her legal representative.

31. A judgment under s 101 of capability to give proper instructions may perhaps be made in the most advantageous circumstances where there is actually a legal representative to whom an attempt has been made to give legal instructions, although the judgment can be made without the prior appointment of a legal representative.

32. The legislation is undoubtedly written in the context of the well-established common law principle of a citizen’s right to unimpeded access to the Courts, which can only be taken away by express enactment: see for example: Chester v Bateson [1920]) KB 829, R&W Paul Ltd v Wheat Commission (1936) 55 LIL Rep 343; (1937) AC 139. With this common law in mind, Care Act, s 101 is clearly expressed in terms of whether a person is “incapable” of giving proper instructions to a legal representative rather than whether it is more convenient for the person to give such instructions through a GAL.

Conclusions and Orders

33. For these reasons, the Court will dismiss the plaintiff’s application. The Court will not make an order for costs unless it is asked to do so.

34. For these reasons, the Court orders that:

1. The first defendant be known as the “Secretary, Department of Communities and Justice”;

2. The plaintiff’s application is dismissed; and

3. If any party wishes to make a costs application they should do so within seven days.

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Decision last updated: 10 November 2021