El and WL v Director-General of the Department of Human Services

[2010] NSWDC 248

CITATION:	EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248
HEARING DATE(S):	23/07/2010
JUDGMENT DATE:	3 August 2010
JURISDICTION:	Civil
JUDGMENT OF:	Truss DCJ
DECISION:	Leave under s 98(3) of the Children and Young Persons (Care & Protection) Act 1998 refused. Summons dismissed.
CATCHWORDS:	joinder - former carers - jurisdiction - not parties to Children's Court proceedings
LEGISLATION CITED:	Children and Young Persons (Care & Protection) Act 1998
CASES CITED:	HS v Department of Community Services (unreported, District Court of NSW, Blackmore J, 8 April 2009). Re Louise and Belinda [2009] NSWSC 534. S v Department of Community Services (2002) 29 Fam LR 144; [2002] NSWCA 151. Savic v Department of Community Services (unreported, District Court of NSW, Armitage J, 1 April 2005).
PARTIES:	EL (plaintiff/appellant) WL (plaintiff/appellant) Director-General of the Department of Human Services (first defendant/respondent) NH (second defendant/respondent) PO (third defendant/respondent) MO (fourth defendant/respondent)
FILE NUMBER(S):	2010/101376
COUNSEL:	Mr Braine for the plaintiffs. Mr Hunt for the Director-General of the Department of Human Services. Ms Lawson for the father. Ms Graves for the paternal grandmother. Ms Rutkowska as independent legal representative for the children.
SOLICITORS:	Crown Solicitor's Office for the Director-General of the Department of Human Services.

JUDGMENT

The application

1 The plaintiffs are the former carers of two brothers aged three years and nine months and one year and seven months.

2 They are appealing firstly from an order made in the Children’s Court on 26 March 2010 refusing them leave to be joined as parties. They seek an order under s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 that they be granted leave to appear and to be represented in these proceedings. Should such leave be granted they seek that orders made by consent in the Children’s Court on the same day be set aside and that parental responsibility be allocated to them.

3 The orders made in respect of each child included:

- Pursuant to s 79(1)(a)(iii) parental responsibility be allocated to the paternal grandmother until each child attains 18 years of age.
- Pursuant to s 79(1)(a)(ii) parental responsibility in relation to contact be exercised jointly by the Minister and the paternal grandmother until age 18.
- The children be placed under the supervision of the Director-General for 12 months.

4 The present hearing which was in respect of the relief sought in [1] and [2] of the summons (for leave to appear and to be represented) involved two issues:

(i) Whether this Court has jurisdiction to make the orders sought.
(ii) If so, whether leave ought be granted.

5 S 98(3) relevantly provides:

98 Right of appearance
….
(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.

6 It was acknowledged by the parties other than the children’s representative (ILR) that if the Court were to grant the relief sought in [1] and [2] of the summons the plaintiffs would have standing to pursue in this Court the relief sought in [3] to [5] of the summons pursuant to s 91(1).

Jurisdiction

7 The Director-General’s position was that this Court does have jurisdiction to determine the relief sought in [1] and [2] of the summons notwithstanding that the Children’s Court proceedings have been finalised. The legal representatives for the plaintiffs, the paternal grandmother and the father adopted a similar position with regard to jurisdiction. The ILR submitted that the Court did not have jurisdiction.

8 As I understand the ILR’s argument:

(a) She accepted that the District Court may have jurisdiction to hear an appeal from a decision of the Children’s Court to refuse a person to be joined as a party on the basis that the phrase party to the proceedings is construed as referring to a final order from which an appeal lies to the District Court as opposed to an interim order.
(b) However, s 91 bestows the right to appeal to a party to the proceedings. It was submitted that there are no current proceedings in the Children’s Court as the final orders were made with the consent of all parties.
(c) The fact that s 98(3) provides that In any proceedings in respect of the child of indicates that such application can only be made during pending proceedings.

9 S 91, which governs appeals from the Children’s Court to this Court relevantly provides:

91 Appeals
(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.
…
(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.
(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.

10 If the plaintiffs are joined as parties pursuant to s 98(3) there are two forms of relief potentially available to them to seek a review of the determination in the Children’s Court:

(a) Firstly, as parties they would have standing to pursue an application in that court under s 90 to vary or rescind the orders made which disposed of the proceedings. This would be on the basis that the significant change in relevant circumstances which represents the statutory threshold for a grant of s 90 leave would be the fact that they were now parties to the proceedings.
(b) Secondly, the joinder as parties would entitle them to exercise entitlements available as of right to parties to the original proceedings to ventilate their apparent dissatisfaction with the disposition of the proceedings in the Children’s Court by way of appeal pursuant to s 91. This is what they seek in [3] to [5] of the summons.

11 Of those alternatives, the Director-General and the plaintiffs contended that if leave were granted, having the District Court determine the balance of the summons pursuant to s 91 is more expeditious and more likely to result in the finalisation of litigation and for those reasons is more consonant with the objects and principles of the Act including, in particular, the paramountcy principle embodied in s 9(1).

12 The ILR submitted that if leave to appear were granted it would be futile because the plaintiffs’ only entitlement would then be to seek leave under s 90 in which case the test could not be satisfied because they had applied to be joined before final orders were made and leave was refused. In my view, this argument circuitously supports the submissions of the plaintiffs and of the Director-General.

13 Counsel for the plaintiffs and for the Director-General referred the Court to S v Department of Community Services (2002) 29 Fam LR 144; [2002] NSWCA 151. Whilst not directly on point because this appeal concerned the question of leave under s 90 it was submitted that this authority supports a construction of s 91 consistent with permitting an appeal from a decision refusing leave to a party to be joined.

14 Davies AJA, with whom Heydon and Hodgson JJA agreed, said:

52 Section 91(1) uses the term “order”, not the defined expression “care order”. It also encompasses interlocutory orders. Otherwise, the exclusion of “interim order” would be unnecessary. The section does not use the term “final order”.

53 Plainly, in s91(1) of the 1998 Act , the term “order” encompasses an order of the Children’s Court refusing an application for a care order or for rescission or variation of a care order. Its terms are not limited to dissatisfaction with the making of a positive order. Prima facie, therefore, the term “order” in s91 should be read as referring to all orders of the Children’s Court in proceedings made under Part 2 of the 1998 Act . Prima facie, therefore, the subsection encompasses an order of the Children’s Court made with respect to an application for leave to make application for the rescission or variation of a care order.

…

55 In my opinion, there is no adequate basis for giving the term “order” in s91(1) of the 1998 Act other than its ordinary meaning. That meaning encompasses a decision of the Children’s Court refusing leave to apply for rescission or variation of a care order, cf. Supreme Court Act 1970, s101(1)(g).

15 It was submitted on behalf of the plaintiffs, and the Court accepts, that the reasoning as to what constitutes an order for the purposes of granting leave under s 90 also applies to a decision to refuse leave under s 98(3).

16 It was submitted on behalf of the Director-General that there does not appear to be any authority of a superior court directly on point in relation to the jurisdiction of the District Court to consider by way of s 91 appeal, a decision to grant or not grant a party leave to be joined pursuant to s 98(3) of the Act. The Court was, however, referred to two decisions in which District Court judges have held there was jurisdiction in a s 91 appeal to determine whether a grant of leave under s 98(3) ought be made. Both those decisions were made in the context of care proceedings which remained on foot in the Children’s Court at the same time as the respective appeals pursuant to s 91 of the Act were agitated in this Court (Armitage DCJ in Savic v Department of Community Services, 1 April 2005 and Blackmore DCJ in HS v Department of Community Services, 8 April 2009).

17 For these reasons, the Court considers that there is no reason why, in terms of principle, the jurisdiction of the District Court to hear a s 91 appeal in relation to a refusal to grant leave pursuant to s 98(3) should be unavailable in circumstances in which the principal care proceedings have, in fact, been finalised. The Court, therefore, concludes that it does have jurisdiction to entertain the application made in [1] and [2] of the summons.

Whether leave ought be granted

Background

18 The evidence before the Court was recent affidavits of the plaintiffs and of the paternal grandmother. The evidence in the Children’s Court was not formally before the Court although the Court was asked to note a number of factual matters.

19 The child M born in October 2006 lived with his mother until she went to prison in about August 2008. He was then placed with members of her family until he was removed at the end of 2008 and placed with the plaintiffs.

20 The child A was born drug addicted in December 2008. He was placed with the plaintiffs immediately upon his discharge from Westmead Hospital in late December 2008/early January 2009 and remained in their care until 26 March 2010. The Court accepts that he is a child with special needs who presented a challenge for the plaintiffs.

21 It is undisputed that both children were in the continuous care of the plaintiffs from December 2008 until they were removed on the evening of 26 March 2010 when the consent orders were made. There has been no contact since. The Court is unaware of any criticisms of the quality of care provided by the plaintiffs.

22 The orders entered by the Magistrate on 26 March 2010 include two notations, the second of which [8] reads:

8. It is the intention of the Minister to facilitate contact between the children and [the plaintiffs], the details of which will be determined after consultation with the Children’s Court clinician.

23 The Court was asked to note that this is not a matter which was noted by consent but was rather a notation by the Magistrate.

24 The plaintiffs say that they had been identified by the Director-General to the Children’s Court as the proposed long-term carers in a care and permanency plan filed with the Court. In February 2009 there had been a placement assessment conducted by a psychologist, not in accordance with the Act, in which the plaintiffs participated as well as family members. The recommendation was that if the children came into long-term care that they remain in the care of the plaintiffs.

25 In January 2010 there was an assessment by the court clinician in which the plaintiffs did not participate. The Court was informed that the clinician’s recommendations included that the children be placed with the paternal grandmother so long as she abided by certain undertakings and that the Court not delay making final long-term orders. It was following this report that there was a change in the Director-General’s attitude.

26 The Court was informed that the clinician’s report was relied upon by Magistrate although, of course, the opinions were not tested by cross-examination given that all parties adopted a similar position and leave to appear to the plaintiffs was refused.

27 The father has two other children aged five and seven years who have been in the care of the paternal grandmother for about five years.

28 Consideration of the question of leave under s 98(3) involves two issues:

(a) Whether the plaintiffs have a genuine concern for the safety, welfare and wellbeing of the children; and
(b) Whether the Court ought exercise its discretion to grant leave.

(a) Genuine concern

29 It was stated on behalf of the plaintiffs, and the Court accepts, that the Magistrate found that they had the relevant genuine concern but dismissed their application to be joined under the second limb s 98(3).

30 Both the Director-General and the father conceded that prima facie they do have a genuine concern. The paternal grandmother and the ILR submitted that there was a lack of objective evidence as to genuineness or any substantiated facts, merely some hearsay evidence. However, it is difficult to identify what objective evidence as to their concerns the plaintiffs could be expected to provide given that they have never been a party to the proceedings and are therefore not privy to any of the evidence in the Children’s Court.

31 The ILR submitted that the fact that the plaintiffs assert that they were told various things by departmental officers in breach of the confidentiality provisions under the Act should not of itself establish that they satisfy the test for genuine concern.

32 It was also submitted by the ILR that genuine concern can only be established on the basis of informed and proper knowledge as to the circumstances of the children and proposed care arrangements and that the concept of genuine concern dictates an objective test. It was further submitted that the basis of genuine concern should be met by having regard to the facts and circumstances and not by matters such as unsubstantiated allegations or possibly mistaken statements of facts as provided to the carers nor by an allegation that the plaintiffs were promised to become long-term carers for the children.

33 The Court accepts that the ultimate question is, as formulated by the plaintiffs’ counsel, namely, that the Court is required to assess objectively whether the plaintiffs have a genuine, subjective concern. On the evidence available, the Court is satisfied that they do.

(b) Exercise of the Court’s discretion

34 It is clear from the authorities that whether leave to appear ought be granted must be decided having regard to all of the circumstances of the particular case. During the course of submissions, matters relevant to the exercise of the Court’s discretion identified by the parties included delay, the plaintiffs’ likely prospects if joined and matters of public policy. All of these matters need to be considered in the context of the principles and objectives of the Act, for example:

- The children’s welfare is the paramount consideration (s 9(1)).
- The course to be followed must be the least intrusive intervention in the lives of the children (s 9(2)(c)).
- S 9(2)(e) requires that if a child is placed in out-of-home care the necessary arrangements should be made in a timely manner recognising the child’s circumstances and that the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement .
- Finally, s 9(2)(f) provides that if a child is placed in out-of-home care, the child is entitled to a safe, nurturing, stable and secure environment and that unless it is contrary to his or her best interests this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

35 The Director-General adopted a neutral position as to whether or not leave ought be granted.

36 In her written submissions the ILR referred the Court in some detail to the framework of the legislation ([9] to [19]). She submitted that the Act needs to be read as a whole and consistently with the spirit of its principles and objects. On this basis it was submitted that it could not have been the intention of the legislation that authorised foster carers be entitled to be joined in proceedings.

37 The role of an authorised foster carer is to provide care including residence to the child pending proceedings before the Children’s Court usually on a short-term basis. However, in some circumstances if the authorised carers are recognised and accepted they can become long-term foster carers for the child upon the Children’s Court proceedings being finalised. An authorised carer who has had continuous care of a child for not less than two years can apply for sole parental responsibility for a child under s 149. It is clear that the legislation, for example s 79, makes provision for the allocation of parental responsibility to persons other than the Minister or a parent provided that the necessary criteria are satisfied.

38 Given the finding made with the consent of the parents that there was no realistic possibility of restoration of the children to the care of the parents, the plaintiffs say that the least intrusive intervention in the life of the children would be a continuation of the placement with them, especially in relation to A who it may be assumed has formed an attachment with them as at 26 March 2010, they being the only carers that he had known in his short life.

39 The plaintiffs’ counsel submitted, and the Court accepts, that they seek orders which are neither trivial nor insubstantial. They seek the long-term care responsibility for the children until they attain the age of 18 years and do not seek party status to simply reply to allegations, seek access to documents or to attend conferences concerning the children’s welfare. Whilst these matters may be consequential upon being granted party status, more importantly, it was submitted that they seek orders which they believe will contribute to the stability of the children and protect them.

40 The plaintiffs clearly put in issue the Director-General’s altered position as to the care of the children and they are the only parties who do so. For that reason it is submitted that they bring a separate and independent perspective/point of view to the enquiry and that the Court will therefore be invited to consider the comparative merits of two options only for the children’s future care.

41 Counsel for the plaintiffs referred the Court to Re Louise and Belinda [2009] NSWSC 534 where Justice Forster stated:

53 While in an ideal world, it may well be best for a child to be cared for by his or her natural parents, in my opinion, that submission states the role of section 9(d) too broadly. As I see it, section 9(d) is not intended to promote either living with natural parents or living with carers. Absent considerations to the contrary, it promotes stability, absence of change and the maintenance of the status quo .

54 In my opinion, the section is ambulatory. In the case of a care application made under section 60 of the Act, it has the effect of requiring the court to be reluctant to remove a child from its natural parents unless there is a compelling reason to do so. On the other hand, where an application is made not under section 60, but under section 90, for the rescission or variation of a care order, the sub-section has a different effect. In that case, the least intrusive form of intervention would normally mean not interfering with existing care arrangements. Needless to say, the force of the requirement imposed by section 9(d) will vary from case to case, and a court will undoubtedly have regard inter alia to the strength of the respective bonds that a child may have with his or her natural parents and his or her foster carers.

42 It was submitted that the force of the requirement imposed by s 9(d) may vary from case to case and the Court will undoubtedly have regard, inter alia, to the strength of the respective bonds which a child may have with his or her natural parents, or his or her foster parents.

43 On the limited evidence available the Court does not consider that it could be said that the plaintiffs’ case as to the relief sought in [3], [4] and [5] of the summons is without merit. However, that is not to say that their prospects ought be regarded as sufficient to warrant the granting of leave. Obviously, the Court has difficulty making any effective evaluation of their prospects without considering the evidence before the Children’s Court which was not tested.

44 The plaintiffs are seeking to challenge orders allocating parental responsibility to a family member, their paternal grandmother, who has been their carer for the last four months and with whom two half siblings also reside, and with the consent of the father. They face what I consider to be a significant hurdle ultimately to persuade the Court that this is not in the children’s best interests.

45 It is abundantly clear that if leave is granted this will result in a delay in the final decision as to permanent placement and that this is a critical issue given the ages of the children. Whilst obviously the Court has the capacity to make the necessary procedural orders and to expedite a hearing, the process may not be so simple. For example, the Court could be expected to have regard to the opinions of the court clinician.

46 Further, in my view, there is considerable force in the submission that if leave is granted it is inevitable that the clinician would be requested to conduct an assessment of the plaintiffs and possibly also a reassessment of the paternal grandmother given that the children have now been in her care for four months. Several of the parties also referred to the current lengthy delays in obtaining assessments. Whilst this ought not be determinative, having regard to s 9(e), I consider this to be an important factor.

47 Whilst it was submitted on behalf of the ILR that reopening the case would increase considerably the costs of the proceedings, given the ages of the children and the paramountcy principle, I do not consider this to be a relevant factor in this case.

48 With regard to all of these matters and in particular to the ages of the children and the principles to which the Court has referred, in the exercise of its discretion the Court concludes that leave under s 98(3) ought be refused.

49 The Court therefore dismisses the plaintiffs’ summons.

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