D.C. v Director General, Department of Family and Community Services
[2011] NSWDC 191
•05 December 2011
District Court
New South Wales
Medium Neutral Citation: D.C. v. Director General, Department of Family and Community Services & Ors [2011] NSWDC 191 Hearing dates: 21 November 2011 Decision date: 05 December 2011 Before: Colefax SC DCJ Decision: 1). Pursuant to UCPR 13.4 the Summons filed 12 August 2011 is dismissed.
2). No order as to costs to the intent that each party bears its own costs.
Catchwords: Summary dismissal - No reasonable cause of action Legislation Cited: Children and Young Persons (Care and Protection) Act Cases Cited: Re Alistair [2006] NSWSC 411; GA v The Director General, Department of Humans Services & Ors [2011] NSWDC 57; S v The Department of Community Services [2002] NSWCA 151 Category: Procedural and other rulings Parties: The Father (Plaintiff); Director General, Department of Family and Community Services (First Defendant); The Mother (Second Defendant); Independent Legal Representative for the Child (Third Defendant) Representation: Mr. Anderson of counsel for the first defendant; Plaintiff in person; No appearances by the second and third defendants.
File Number(s): 2011/260534
Judgment
On 12 August 2011 the plaintiff filed a Summons seeking to appeal a decision of the Children's Court made on 15 July 2011.
On 1 November 2011 the Director General of the Department of Family and Community Services filed a Notice of Motion seeking: first, a declaration that the court had no jurisdiction in respect of the subject matter of the proceedings in the Children's Court until "final orders" were made; and secondly, an order that the Summons be dismissed as an abuse of process.
The Director General's application is supported by the second defendant (the mother of the child) and the third defendant (the independent legal representative of the child). The application is opposed by the plaintiff.
Background:
The child who is the subject of these proceedings is 4 years old.
On 29 December 2010, and pursuant to section 233 of the Children and Young Persons (Care and Protection) Act ("the Act") the child was removed into care. Consequently, and pursuant to section 49 of the Act the Director-General assumed care responsibility for the child.
On 5 January 2011 the Parramatta Children's Court made an interim order pursuant to section 69 of the Act placing the child under the parental responsibility of the Minister for Family and Community Services until further order.
On 15 March 2011 the Port Kembla Children's Court continued the interim order previously made concerning the allocation of parental responsibility to the Minister and further, amongst other things, fixed the matter for an establishment hearing on 6 July 2011. An establishment hearing is the first stage in a care application. The purpose of that hearing is to determine whether a child is in need of care and protection such as to warrant the intervention of the court. If the court determines that question in the affirmative, it then proceeds to the second stage during which it considers what final orders ought to be made to safeguard the child consistent with the statutory objects and principles underpinning the administration of the Act. This second stage is variously called "the welfare stage", "the placement phase" or "the disposition phase". See generally Re Alistair [2006] NSWSC 411; GA v The Director General, Department of Human Services & Ors [2011] NSWDC 57.
On 6 July 2011 the establishment hearing commenced. It was adjourned part-heard to 1 August 2011.
Also on 6 July 2011 the plaintiff filed an application in the Children's Court purportedly pursuant to section 90 of the Care and Protection Act . In general terms, that section of the Act (which is, in part, set out below) permits an application for the rescission or variation of a care order to be made by a variety of persons, of which the plaintiff is one - with the leave of the Children's Court. The Children's Court may grant leave for such an application to be made if there has been a significant change in any relevant circumstances since the care order was made or last varied. The plaintiff asserted in his application that there were changed circumstances within the meaning of section 90(2) of the Act which warranted the granting of leave by the Children's Court to him to seek to have a care order varied. The variations sought in that application were for the plaintiff to have overnight access to the child each Wednesday and every second weekend (becoming every weekend after 8 weeks).
On 15 July 2011 the plaintiff's application was determined in the following way:
"Following submissions, leave refused for Section 90 application". (See the affidavit of Jason Kent sworn 28 October 2011, annexure G.)
The reasons for that order are not in evidence on the present Notice of Motion.
On 1 August 2011 the establishment phase of the care application hearing concluded with the Children's Court finding, amongst other things, that the child was in need of care and protection. The interim order allocating parental responsibility to the Minister was continued.
The care application therefore has not concluded. The placement phase has yet to be undertaken. At the time of the hearing of the Notice of Motion the matter was next to be before the Children's Court on 25 November 2011 for the determination of an assessment order application. Presumably once that issue is resolved the placement phase will commence.
In considering the Notice of Motion, it is important to bear in mind that by his Summons, the plaintiff does not seek to appeal against the finding of the Children's Court at the conclusion of the establishment phase on 1 August 2011 that the child was in need of care and protection (as was the case in GA v The Director General).
Rather, the plaintiff's appeal relates to the decision of the Children's Court made on 15 July 2011 to refuse leave to make an application to vary a care order so as to permit him to have overnight and weekend access to the child.
Consideration:
Section 90 of the Act in part relevantly provides as follows:
"(1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court.
...
(2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.
(2A) Before granting leave to vary or rescind the care order, the Children's Court must take the following matters into consideration:
(a) the nature of the application, and
(b) the age of the child or young person, and
(c) the length of time for which the child or young person has been in the care of the present carer, and
(d) the plans for the child, and
(e) whether the applicant has an arguable case, and
(f) matters concerning the care and protection of the child or young person that are identified in:
(i) a report under section 82, or
(ii) a report that has been prepared in relation to a review directed by the Children's Guardian under the section 85A or in accordance with section 150
..."
A "care order" is defined in sections 3 and 60 of the Act as being:
"... an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under the section 86."
Moreover section 62 of the Act provides:
"A care order may be made as an interim order or a final order, except as provided by this Part."
Section 90(1) in its terms is therefore not expressly limited to a final care order.
However, by having regard to subsection 90(2A(f)) it must necessarily be implied that a care order to which section 90 refers must be a final care order.
Accordingly, the Children's Court had no jurisdiction to entertain the purported section 90 application made by the plaintiff on 6 July 2011 as no final care order had been made; and its order to dismiss the application (regardless of the stated reasons) was undoubtedly correct.
The decision by the Children's Court however to dismiss the purported section 90 application was not an interim order. It is properly to be regarded as an interlocutory order (albeit one which brings an end to the particular application) from which there is an appeal to this court via section 91 of the Act as S v The Department of Community Services [2002] NSWCA 151 establishes. For this reason I decline to make the declaration sought by the Director General in the Notice of Motion.
However, because the Children's Court was undoubtedly correct in the order which it made on 15 July 2011, the appeal to this court has no prospects of success because it, in the circumstances, it discloses no reasonable cause of action and therefore should be dismissed.
Orders:
I therefore make the following orders:
(1) Pursuant to UCPR 13.4 the Summons filed 12 August 2011 is dismissed.
(2) No order as to costs to the intent that each party bears its own costs.
Decision last updated: 05 December 2011
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