Es v Director-General of the Community Services Directorate (No 2)
[2016] ACTCA 61
•28 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | ES (No 2) v Director-General of the Community Services Directorate |
Citation: | [2016] ACTCA 61 |
Hearing Date: | 28 October 2016 |
DecisionDate: | 28 October 2016 |
Before: | Murrell CJ |
Decision: | Applications dismissed. |
Catchwords: | FAMILY LAW AND CHILD WELFARE – APPEAL AGAINST INTERLOCUTORY ORDERS – Stay – supervision order – appeal from single judge of the Supreme Court – short period before final determination – application dismissed |
Cases Cited: | ES v The Director-General of the Community Services Directorate [2016] ACTCA 18 |
Parties: | ES (Applicant) Director-General of the Community Services Directorate (FirstRespondent) RF (Second Respondent) |
Representation: | Counsel Self-represented (Applicant) Ms A Saunderson (First Respondent) Ms K James (Second Respondent) Mr J Haddock (Children’s Representative) |
| Solicitors Self-represented (Applicant) ACT Government Solicitor (First Respondent) Barker and Barker (Second Respondent) ACT Legal Aid (Children’s Representative)) | |
File Number: | ACTCA 55 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 20 October 2016 Case Title: Director-General of the Community Services Directorate v ES Court File Number: SCA 50 of 2016 |
MURRELL CJ:
ES makes an urgent application for an order staying the orders made by Burns J on 20 October 2016 in relation to her youngest child, who was born in June 2016, and expediting an appeal against the orders of his Honour.
ES and her husband, RF, are the parents of six children. The five older children were removed from their parents on an interim basis in September 2015. Since then, the children have been in the care of their grandparents in Sydney. In 2015, the Childrens Court made an order in relation to the interim care of the children. A final determination regarding the care of the five older children is fixed in the Childrens Court commencing on 6 December 2016, i.e. in approximately six weeks' time.
In May 2016 Burns J heard an application by ES and her husband, RF, for leave to appeal out of time from the decision in relation to the interim care of the five older children. On 16 June 2016, his Honour refused the application: ES v The Director-General of the Community Services Directorate [2016] ACTCA 18 and leaving the five older children in the care of their grandparents.
In relation to the youngest child, who was born in June 2016, in July 2016 the Childrens Court dismissed an application for interim care and protection orders by the Director-General of the Community Services Directorate (the Director-General) and fixed the final hearing of the application for care and protection orders to commence on 6 December 2016, to be heard concurrently with the final determination for care and protection orders relating to the five older children.
The Director-General appealed against the Childrens Court order dismissing the application for interim orders concerning the youngest child. On 20 October 2016, the appeal was heard by Burns J. His Honour allowed the Director-General's appeal on the basis that the Childrens Court had applied an incorrect statutory test to the determination of whether an interim order should be made.
His Honour set aside the Childrens Court order and remitted the matter to the Childrens Court for hearing before a differently constituted court. Pending final determination by the Childrens Court, his Honour made a supervision order which had the effect that the youngest child would remain with ES, but would be supervised by the Director-General. As part of the order, ES and RF were to discuss the wellbeing of the child with the Director-General and facilitate officers of the Director-General gaining access to their household for the purpose of exercising supervision. The matter that was remitted has not been fixed for determination in the Childrens Court, and the Director-General has not urged that it should be fixed, given the imminent hearing of the final application.
I am advised by counsel for the Director-General that today there are two applications listed before the Childrens Court:
(a)An application for an assessment order that ES and RF attend for a psychiatric assessment. This is an interlocutory application made in connection with the application for final orders that is to be determined in December 2016. ES states that she has not received notice of the application.
(b)An application by RF for the appointment of a litigation guardian to assist him in relation to the final hearing in December 2016 in the Childrens Court.
On 25 October 2016, ES lodged an appeal to the Court of Appeal against the decision of Burns J made on 20 October concerning the interim care and protection orders, alleging bias flowing from his Honour's determination of the earlier proceeding concerning the older children, lack of procedural fairness in denying her a right to a full hearing, and failure to give adequate reasons.
I understand that ES feels aggrieved by the litigation process of the past 12–18 months and by the conduct of the Director-General in connection with the proceedings and generally.
Without expressing any view about the merits of the appeal against the orders of Burns J, or about the propriety of the Director-General's conduct, I am of the firm view that there is no utility to this Court granting a stay of Burns J's order or expediting the appeal for the following reasons:
(a)The Court has no capacity to entertain an appeal prior to 6 December 2016 when the final hearing will occur in the Childrens Court.
(b)All issues will be fully ventilated, considered and finally determined by the Childrens Court in less than six weeks' time. The Childrens Court is the most appropriate body and the body that has the time set aside and the capacity to fully consider all relevant matters.
(c)The youngest child remains in the immediate care of ES, where she has been for all of her very short life, and the five older children remain in the immediate care of their grandparents, where they have resided for the past 13 months. The Court would need very strong and persuasive reasons to alter the situation, given that the appropriateness of these placements and all other relevant issues will very soon be considered by the Childrens Court.
The applications are dismissed.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 14 November 2016 |
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