ES v The Director-General of the Community Services Directorate
[2016] ACTCA 18
•16 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | ES v The Director-General of the Community Services Directorate |
Citation: | [2016] ACTCA 18 |
Hearing Date: | 31 May 2016 |
DecisionDate: | 16 June 2016 |
Before: | Burns J |
Decision: | The application for leave to appeal out of time is dismissed. |
Catchwords: | FAMILY LAW AND CHILD WELFARE – Child Welfare Other Than Under Family Law Act 1975 And Related Acts – children in care of state – interim orders imposed in the Children’s Court – appeal from those interim orders dismissed – application to appeal out of time – no explanation for delay – no prospects of success on appeal – application dismissed. |
Legislation Cited: | Children and Young People Act 2008 (ACT) ss 433, 435 Court Procedure Rules 2006 (ACT) rr 5332, 5403, 5404, 5405 |
Cases Cited: | Application of DR [2016] NSWSC 53 Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority) [2015] ACTCA 56 Wollongong Corporation v Cowan (1955) 93 CLR 435 |
Parties: | ES (First Applicant) RF (Second Applicant) Director-General of the Community Services Directorate (Respondent) |
Representation: | Counsel Self-represented (First Applicant) Self-represented (Second Applicant) Mr K Archer (Respondent) Mr S Croner (Children’s Representative) |
| Solicitors Self-represented (First Applicant) Self-represented (Second Applicant) ACT Government Solicitor (Respondent) Legal Aid ACT (Children’s Representative) | |
File Number: | ACTCA 16 of 2016 |
Decision under appeal: | Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 3 February 2016 Case Title: ES & Anor v The Director-General of the Community Services Directorate (No 2) Citation: [2016] ACTSC 7 |
BURNS J:
The applicants have made an application to the Court of Appeal for leave to appeal out of time from the orders of Murrell CJ on 3 February 2016: ES & Anor v The Director-General of the Community Services Directorate (No 2) [2016] ACTSC 7. On that date, Murrell CJ dismissed the applicants’ appeal from the interim care and protection orders imposed by the Children’s Court. I will only briefly summarise the proceedings before the Children’s Court, as a comprehensive summary is contained within the judgment of Murrell CJ and it is unnecessary to recite that level of detail for present purposes.
The applicants also filed a Notice of a Human Rights Matter, which I accepted were appropriately served. I note that no party that had been served with that notice sought to intervene in the present proceedings. I will not further refer to this issue, as it has little relevance to the present proceedings.
Chronology of events
The proceedings in the Children’s Court relate to the applicants’ five young children who were removed from their care on 24 September 2015. The Director-General took emergency action pursuant to pt 13.1 of the Children and Young People Act 2008 (ACT) (CYP Act).
On 29 September 2015, the Director-General filed an originating application for final care and protection orders and the Children’s Court made orders under s 433 of the CYP Act for the interim care and protection of the children to continue until 12 November 2015. Also on 29 September 2015, the applicants indicated their intention to contest the interim care and protection orders imposed. The matter was set down for hearing on this issue on 12 November 2015, to provide the applicants with an opportunity to adduce further evidence and make submissions. Following the completion of the hearing in relation to the interim care and protection orders, the Children’s Court ordered that the interim orders should continue on 20 November 2015. On that date, the Children’s Court ordered that the interim orders should continue until 29 January 2016 and adjourned the proceedings in relation to the Director-General’s originating application until that date, with the intention that a date will be fixed for the hearing of that application.
A notice of appeal against the interim orders was filed within time, and an application to put further evidence before the Court was also filed. On 8 January 2016, Penfold J expedited the hearing of the appeal and ordered the applicants to file and serve any evidence on which they sought to rely for the hearing by 22 January 2016. No further evidence was filed. On this date, her Honour also refused to stay the interim care and protection orders imposed by the Children’s Court.
On 29 January 2016, the hearing of the Director-General’s application in relation to final care and protection orders was fixed by the Children’s Court for 18 March 2016. The Director-General’s originating application sought orders authorising the Director-General to control the children’s contact and residence for a period of two years, and placing the children under the Director-General’s supervision and short-term parental responsibility for the same period.
As I have previously mentioned, on 3 February 2016, Murrell CJ dismissed the applicants’ appeal. The appeal was dismissed on the basis that her Honour was satisfied that the Children’s Court had made no material error. Since her Honour handed down her decision the case management process in the Children’s Court has continued.
On 19 February 2016, the Director-General filed and served an amended originating application seeking interim care and protection orders, and final care and protection orders until each of the children attain the age of 18 years. Since this date, the proceedings have been mentioned in the Children’s Court on a number of occasions and on each of those occasions, those interim care and protection orders were continued with consent. I understand the matter is now to be allocated a date for hearing on 16 June 2016 and the current interim care and protection orders are to continue until 17 June 2016 by consent.
Prior to turning to the principles to be applied when considering an application for leave to appeal out of time, I note that the applicants’ application dated 13 May 2016 refers to two judgments. The other being a judgment of Penfold J on 8 January 2016: ES and Anor v The Director-General of the Community Services Directorate [2016] ACTSC 3 (see [5] above). It seems to me, from considering the applicants’ draft notice of appeal, and hearing the applicants’ oral submissions, that the judgment they seek to appeal from is that of Murrell CJ. I will proceed on that basis. In any event, the issue whether a stay of the interim orders was appropriate was superseded by the decision of Murrell CJ dismissing the appeal from the interim orders.
Leave to appeal out of time
Rule 5405(1)(b) of the Court Procedure Rules 2006 (ACT) (Court Procedure Rules) provides that a notice of appeal must be filed, unless leave has been given, not later than 28 days after the day the order appealed from was made. However, r 5405(2) of the Court Procedure Rules permits the Court to give leave for a notice of appeal to be filed, notwithstanding any delay in commencing the appeal.
The applicants filed an application for leave to appeal out of time from a final judgment, supported by an affidavit of RF sworn on 13 May 2016 and a draft notice of appeal. This purported to satisfy the requirements set out in r 5332 of the Court Procedure Rules. Rule 5332(2) stipulates that a supporting affidavit to such an application should show the following:
(a)the nature of the case;
(b)the questions involved; and
(c)the reasons why leave should be given.
The affidavit of RF fails to comply with all of those requirements, and as such, is of limited assistance.
The principles that a court should apply in considering whether to grant leave to appeal after the expiry of the time to commence that appeal have been well established, and are set out in R v Meyboom (2012) 256 FLR 450 at [48]-[76]. Refshauge J summarised those principles in Concerned Citizens of Canberra Inc v Chief Planning Executive(Planning and Land Authority) [2015] ACTCA 56 at [21]:
1. Time limits are important and must, prima facie, be obeyed.
2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.
3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.
5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension of time.
6. The mere absence of prejudice is not enough to justify the extension of time.
7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.
9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.
10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
Explanation for Delay
The applicants were both self-represented at the hearing of the application before me. They offered no explanation for the delay in commencing the appellate proceedings in the affidavit of RF. They submitted at the hearing of the application that they were both unwell following the judgment of Murrell CJ being handed down, which was the reason for the delay. In support of this proposition ES provided an ex tempore judgment of Lindsay J in the Equity Division of New South Wales on 4 May 2016: Application of DR [2016] NSWSC 553. This judgment concerns ES and his application for an interlocutory injunction in relation to orders imposed on him to pay rent in the Civil and Administrative Appeal Tribunal of New South Wales. The applicant was found to be a person who is “incapable of managing his affairs”, which brought him within the protective jurisdiction of the Supreme Court of New South Wales. ES submitted that this demonstrated his disability and inability to mange his own affairs. There is little weight I can place on this judgment. The reasons given by Lindsay J do not refer to the basis on which this conclusion was reached in any substantive detail and while there is evidence before me relating to ES’ mental condition, which I will later refer to in more detail, it is insufficient for me to make any findings as to the affect it has had on his ability to prosecute the appeal in a timely manner. Further, this judgment suggests that ES is legally incompetent to conduct proceedings. For the reasons that follow concerning the prospects of success of the applicants’ appeal, it becomes unnecessary to consider this issue further.
In relation to RF, there is simply no evidence before me that suggests she was suffering from any illness between the time when Murrell CJ’s judgment was handed down and the bringing of the present application, which rendered her incapable of appealing within the 28 day time limit.
The applicants further submitted that they were unable to receive sealed copies of the orders of Murrell CJ until 9 May 2016. On the court file the sealed order is dated 5 February 2016. I reject this proposition, and in any event this was not essential to the filing of a notice of appeal: see r 5403 of the Court Procedure Rules.
The applicants also submitted that they were unaware of the judgment of Murrell CJ as it was handed down via email. ES conceded that he was aware of the judgment, after I brought to his attention during the hearing, a letter which he had sent to the Supreme Court Registry dated 5 February 2016, which confirmed he had in fact received the judgment. RF maintained that she had never received a copy of the decision. This is not a credible assertion.
I am not satisfied that there is a reasonable explanation for the delay. I will go on to consider whether the appeal has any prospects of success to justify the granting of leave.
Prospects of Success: The applicants’ evidence
The applicants’ application does not disclose any error in law or fact of Murrell CJ, or any basis for which I should grant their application for leave to appeal out of time. They seek orders that “all interim orders [be] set aside/revoked/stayed”. As I understand the submissions put to me by the applicants, the affidavit of RF sworn on 13 May 2016 and the draft notice of appeal, the applicants seek to put fresh evidence before the Court of Appeal. This is not specifically particularised. They say, as I understand it, that if I were to grant leave, they would seek to conduct the appeal on the ground of fresh evidence. It is appropriate, having regard to the applicants being self-represented, that I consider whether there is any merit in this ground of appeal.
In RF’s affidavit she deposes that:
I have complied with court orders made against me by the A.C.T. Children’s Court in order to be mentally assessed involuntary for my capacity to care for my five children and now I have obtained a medical psychiatric report made by Dr Ben Teoh dated 10 April 2016, that quotes on page 5.
“[RF] is not suffering from a psychiatric illness. She is able to care for her children”.
The affidavit contains two annexures. One is a psychiatric report dated 10 April 2016 by Dr Teoh in relation to ES, the first applicant. The other is a psychiatric report dated 10 April 2016 by Dr Teoh in relation to RF, the second applicant.
To summarise, Dr Teoh considered that ES was unable to care for his children, as he is dependent on RF to manage his daily activities and he has not been able to manage his affairs. In coming to this conclusion, Dr Teoh placed reliance on the brain damage with frontal lobe impairment that ES suffers from, in addition to ES’ history of psychotic illnesses and substance abuse. Dr Teoh noted that as the condition has become chronic, it is unlikely to improve.
In relation to RF, Dr Teoh was of the opinion that she was not suffering from a mental illness, according to the DSM V Diagnostic Criteria. He formed this conclusion after conducting a mental state examination, where he observed that she was preoccupied with the unfair treatment and persecution by the Police and the Care and Protection Agency in the ACT, she was agitated and angry when discussing how her children were taken away, that her cognitive functions were intact and there was no evidence of auditory hallucinations or psychotic symptoms. Dr Teoh considered that she has personality traits with paranoid features, as characterised by her ongoing claim of being unfairly treated and persecuted. He also considered that she is able to care for her children and provide for their emotional and intellectual needs. However, that she will need professional and psychological support, as she has been stressed by her home environment, and that her condition can improve with treatment.
Both of these reports are clearly relevant to the Children’s Court proceedings which are currently on foot. However, none of this evidence was placed before Murrell CJ, or the Children’s Court, in making the interim care and protection orders on 20 November 2015.
As I have already noted, I will, nonetheless, consider the merits of a ground of appeal on the basis of fresh evidence.
I do not accept that such evidence could not have been obtained by the applicants if they had exercised reasonable diligence prior to the appeal hearing before Murrell CJ: Wollongong Corporation v Cowan (1955) 93 CLR 435. Indeed, a timeline for the applicants to file any evidence which they sought to rely upon was provided for by Penfold J. The applicants did not seek to take advantage of this opportunity, and it was noted by Penfold J that after she pronounced that order the applicants made it clear to her Honour that they had no intention of providing any further evidence to be considered at the appeal hearing. It cannot be said that they were not aware of this opportunity.
Furthermore, I am not satisfied that if these reports were before Murrell CJ it would have been likely to produce a different result: Wollongong Corporation v Cowan (1955) 93 CLR 435. Her Honour referred to the background of the care and protection orders, particularly the circumstances which led the Director-General to take emergency action to remove the children from the applicants. Her Honour also considered the reasons provided by the Children’s Court and the evidence before that Court. The reports provided by the applicants do not rectify the concerns of the Children’s Court, those of her Honour, and provide little assistance in determining whether the multitude of issues that led to the applicants’ children being taken away have been addressed. Her Honour considered that given the uncontested material before the Court, the Court was entitled to exercise its discretion in the manner in which it did and was of the view that it would be difficult to see how the Court could have taken a different approach.
I am not satisfied that I should grant the applicants’ leave to appeal on the grounds that there is some fresh evidence which will be adduced before the Court of Appeal for the reasons I have given above. There is no basis for a finding that this appeal ground has any prospects of success.
I digress here to note two matters. The first is that during the hearing of the applicants’ application, RF submitted that the applicants’ property had been renovated and sought to tender photographic evidence of that property in the application. This was a course which I did not entertain, as it was irrelevant to the present proceedings. Similarly, the applicants attempted to put forth a transcript from the Children’s Court proceedings on 29 September, which was apparently unavailable to the Chief Justice on the hearing of the appeal.
The other matter is that the appropriate course for the applicants would be to seek the revocation or amendment of the interim orders in the Children’s Court based on the evidence the applicants are seeking to rely on in the appeal: see s 435 of the CYP Act.
I will now turn to whether there is any other reason I should exercise my discretion to grant the applicants leave to appeal.
Prospects of success: further consideration
As I have already mentioned, the applicants do not suggest that the decision of Murrell CJ was in any way affected by an error in fact or law. The affidavit does not comply with r 5332(2) in that it does not state the nature of the case, the questions involved or why leave should be granted. The grounds which are articulated in the applicants draft notice of appeal are of little assistance so that the basis of the applicants’ appeal remains unclear. There is no merit in any appeal.
I accept the respondent’s submission that the decision which the appeal relates no longer has any operative effect. The affidavit of Ashleigh Rose Tilbrook sworn on 30 May 2016 contains an interim care and protection order dated 5 May 2016, which clearly states that by consent of the parties the interim care and protection orders are to continue to 17 June 2016 at 4 pm. Any interference with the original decision of the Children’s Court on 20 November 2015 would not result in the children being returned to the applicants. I accept that on this basis the appeal is futile.
I accept the respondent’s submission that any grant of leave is likely to fragment the ongoing proceedings in the Children’s Court and would lead to the unnecessary interruption of those proceedings: Myers v Medical Practitioners’ Board of Victoria [2007] VSCA 163 at [34].
Finally, I am satisfied that there is no injustice to the applicants in refusing leave to appeal the decision: Gallo v Dawson (1990) 93 ALR 13 479 at 480. I accept that the merits of the applicants’ claims will be determined in the hearing of the final care and protection orders in the Children’s Court and that they will have a right of appeal from that decision if they are aggrieved by any decision that Court makes.
Order
I dismiss the applicants’ application for leave to appeal out of time.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 16 June 2016 |
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