GO v Secretary, Department of Family and Community Services

[2017] NSWDC 198

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	GO v Secretary, Department of Family and Community Services [2017] NSWDC 198
Hearing dates:	31 July 2017
Decision date:	04 August 2017
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Grant leave to appeal; uphold the appeal; For orders see [39]
Catchwords:	Joinder of person with genuine concern for the welfare of a child to care proceedings
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998, s 98(3)
Cases Cited:	Bell-Collins v Secretary, Department of Family and Community Services [2015] NSWSC 701 EL v WL and Director of Department of Human Services [2010] NSWDC 248 House v The King (1936) 55 CLR 499
Category:	Procedural and other rulings
Parties:	GO (Plaintiff) Secretary, Department of Family and Community Services (Defendant)
Representation:	Counsel: No appearance (Plaintiff) P Davies (Department of FACS) B Kelly (Independent Legal Representative   Solicitors:
File Number(s):	17/127311
Publication restriction:	Non-Publication of Names of Appellant, Mother and Child

Judgment

1. By Summons filed on 13 April 2017, the appellant seeks leave to appeal a decision of the Children’s Court at Woy Woy on 17 March 2017, refusing an application by her to be joined as a party to proceedings in the Children’s Court.

2. Those proceedings are child protection, or care proceedings in respect of NRJ, the great-granddaughter of the appellant. NRJ was born on 3 August 2016 and assumed into care shortly after her birth. Her mother, TG, was brought up by the appellant from about 3 years of age when she was placed in the appellant’s care. TG has been, and is, legally represented in the Children’s Court proceedings, which are listed for final hearing on 12 and 13 September 2017.

3. The appellant’s application in the Children’s Court was brought pursuant to s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”), which provides as follows:

“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 is to appoint a guardian ad litem for the person under s 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 wellbeing 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.”

4. The appellant’s application in the Children’s Court was opposed by both the Secretary and the Independent Legal Representative of NRJ. However, it was common ground that the appellant was a person who “has a genuine concern for the safety, welfare and wellbeing of the child” NRJ. The learned Children’s Court Magistrate made a finding to that effect.

5. However, the learned Children’s Court Magistrate refused to exercise her discretion to grant leave to the appellant. It is from that refusal that the appellant now seeks leave to appeal. If leave is granted, the appellant seeks orders that the appeal be allowed and that she be joined as a party to the care proceedings.

Grounds of appeal

6. The Summons seeking leave to appeal sets out the following five grounds:

1. The Magistrate erred in fact and law by disallowing the joinder Application on the basis of her determination that the Appellant (GO – the great-grandmother) held the same position as TG (the mother) of the child, NRJ.

2. The Magistrate erred in fact and law, by failing to determine that the Appellant (great-grandmother) had information of significance to the child’s culture that the appellant address at final hearing.

3. The Magistrate erred in fact and law by prematurely finding the Appellant (great-grandmother) was not the best person to advance her case to be the permanent carer of the child “NRJ” which is a matter to be determined at final hearing.

4. The Magistrate erred in fact and law by her determination that the Appellant was “unsuitable” as a permanent carer for the child “NRJ” because of an arthritic condition espoused by an assessor from Continuum Consulting P/L. This assessor is not a qualified medical expert.

5. The Magistrate erred in fact and law in her determination prior to final hearing of this matter, that because the Appellant had known of “TG’s” (the mother) illicit drug taking; the Appellant was unsuitable as a permanent carer for the child, NRJ.

The appeal

7. This appeal was listed for hearing with priority at the District Court sitting at Newcastle on 31 July 2017. It was the first in a running list of matters to be determined by the court at those sittings. When the matter was called over, there was no appearance by or on behalf of the appellant. Subsequently, counsel for the Secretary, informed the court that counsel for the appellant had forwarded an email to the Court Registry on Sunday 30 July 2017 at 9.56pm, urgently seeking to appear by phone link for the call over of the appeal. I directed that counsel be contacted by the registry and that arrangements be made for the appellant to be represented when the matter was called on for hearing at 2pm. A further email was received from counsel for the appellant at 1.17pm on 31 July 2017 advising that she was interstate and unwell, and that she was content for the matter to be decided “on the papers”, meaning the submissions filed on behalf of the parties.

8. I declined to make an order that the matter proceed on the basis of the written submissions only. Notwithstanding that it was the appellant’s obligation to prepare the tender bundle, Counsel for the Secretary tendered all relevant documentation, including the transcript of the Children’s Court application and the learned Children’s Court Magistrate’s reasons delivered on 17 March 2017. I then heard short submissions from counsel for the Secretary, and counsel for the Independent Legal Representative of NRJ, who adopted the Secretary’s submissions.

9. Also relevant is that, after refusing the appellant’s joinder application, the learned Children’s Court Magistrate made an order pursuant to s 87 of the Care Act, giving the appellant an opportunity to be heard on a matter of significant impact, namely, placement of the child NRJ. However, s 87(3) provides that such opportunity to be heard as afforded by s 87 does not give to the appellant the status or rights of a party to the proceedings.

Submissions on behalf of the appellant

10. It was submitted on behalf of the appellant that she met all the requirements pursuant to the Care Act to be joined as a party to the child protection proceedings. It was further submitted that the Children’s Court Magistrate failed to afford the appellant procedural fairness.

11. It was further submitted that it was in the best interests of the child that the appellant be joined as a party, and the appellant’s application was supported by TG’s legal representative. An interim order had been made on 9 August 2016, allocating parental responsibility to the Minister, as TG was then 17 years of age, and had made admissions as to the use of illicit drugs during the pregnancy, placing the unborn child in danger. The father of the child has not engaged in the proceedings, but had informed the Secretary that he wished the child to be placed with the appellant.

12. The submissions outlined that the appellant was the only blood relative who had consistent contact with the Department and regular contact with the child since her birth. The reason the appellant sought to be joined as a party to the proceedings was to answer criticisms and allegations the Department had put before the Court “pertaining to her, personally, to her reputation, to alleged criminality involving supplying illicit drugs to TG, to her capacity and suitability to be the permanent carer for her great-granddaughter NRJ”.

13. It was submitted, for reasons outlined below, that the Independent Legal Representative had led the Children’s Court Magistrate into error by confusing the appellant’s interlocutory joinder application with the ultimate issue in the proceedings, namely, permanent placement, which is to be determined at the final hearing in September 2017.

14. The appellant distilled the Children’s Court Magistrate’s reasons for refusing leave as follows:

“(1) Both mother and grandmother are arguing the same position;

(2) To have two parties arguing the same issue would lengthen the hearing unnecessarily;

(3) The independent report from Continuum Consulting does not recommend that NRJ be placed with the appellant in a long term placement – I accept that there is little likelihood of success or the appellant as permanent carer of NRJ;

(4) Criticism by the appellant that FACS did nothing about helping to get the mother into rehab or detox.

(5) There was no evidence before the court of when the mother may be released from gaol; and nothing but an assertion by the mother that she would engage in rehabilitation.”

15. The appellant submitted that the learned Children’s Court Magistrate had erred in fact and law in dismissing the joinder application, and had not given proper consideration to relevant matters. Her discretion had therefore miscarried in that she had mistaken critical facts and had failed to take into account significant considerations, and further, that she had erred in law by not appropriately applying the principles of procedural fairness or natural justice.

16. The appellant submitted that the learned Magistrate erred in both law and fact in finding that the appellant and TG held the same position in the proceedings. At the time of the joinder application, TG was bail refused and in custody on drug supply charges. It was submitted that there had been a significant change in circumstances for TG and that was evidenced when she was unable to meaningfully participate in the proceedings by audio visual link from the gaol. It was therefore submitted that TG had a very limited capacity to advocate her position.

17. The second error of the learned Magistrate was submitted to be the finding that the appellant was not the best person to advance her case as carer for the child. It was submitted that her Honour failed to adequately apply relevant principles of the Care Act, natural justice, and procedural fairness in arriving at her decision.

18. The third error was the learned Magistrate’s finding that the appellant must have been aware of TG’s drug taking whilst TG resided with her. It was submitted that her Honour failed to consider the appellant’s actions once she discovered TG’s drug usage, and did not contribute “much probative value” to evidence that the appellant informed FACS of TG’s drug usage before NRJ was born.

19. Finally, it was submitted that the learned Magistrate was in error in finding that the appellant was unsuitable as carer due to her medical condition, as that assessment was made by an unnamed assessor from Continuum Consulting who was not a qualified medical expert.

20. The impact of each of the four errors was fleshed out in the appellant’s submission and are referred to below. It was further submitted that potentially lengthening the care proceedings by joining the appellant to the proceedings does not usurp principles of natural justice. For that reason, the learned Magistrate erred in not giving due consideration that in the final hearing the birth mother will be the sole blood relative of the child represented. It was submitted that the learned Magistrate had not given due considerations to the best interests of the child, as the appellant brought to the proceedings a depth of perspective and position that varied from the birth mother, which would assist in fully informing the court for the determination of final orders pertaining to the care and responsibility of the child. Further, her Honour took into account irrelevant considerations, for example, TG’s ongoing desire to enter into rehabilitation and that led to error in the learned Magistrate finding that the appellant should not be “joined for this reason as it is too vague and unlikely”.

Respondent’s submissions

21. Learned counsel for the respondent Secretary set out the objects of the Care Act as contained in s 8, and the principles to be applied as set out in s 9 of the Act. Section 98(3) provided a mechanism for a party to seek leave to be joined to the proceedings. It involved a two-step process in which first, the applicant was required to demonstrate “a genuine interest in the safety, welfare and wellbeing” of the subject child, and secondly, the court had to determine whether it would exercise its discretion to grant leave. It was submitted that that discretion should be exercised, having regard to all of the circumstances of a particular case, including delay, the applicant’s likely prospects if joined, together with matters of public policy, relying on EL v WL and Director of Department of Human Services [2010] NSWDC 248. It is clear that the child’s welfare is the paramount consideration and the ultimate determination of the court must invole the least intrusive intervention in the life of the child.

22. The Secretary submitted that the appellant and TG are advancing the same case, in that TG was now living with the appellant. TG’s position is that she should have the care of the child, and the appellant’s position is that together, the mother and the child can provide for that care.

23. In respect to the contention that the learned Magistrate did not apply procedural fairness in finding that the appellant was not the best person to advance her case as carer for the child, relying on Bell-Collins v Secretary, Department of Family and Community Services [2015] NSWSC 701, the Secretary submitted that as the appellant had been granted leave under s 87 to cross-examine in relation to findings made about her in the Continuum Consulting assessment report. She will have an active role in the hearing and therefore the submissions relating to procedural fairness do not apply.

24. It was further submitted that the learned Magistrate was not wrong in her finding that the appellant must have been aware of TG’s drug taking whilst TG resided with her, and there was no error involved in the learned Magistrate’s reasoning in so finding.

25. Finally, in respect of the alleged error that the learned Magistrate took into account an opinion of a non-expert assessor as to the physical deficits suffered by the appellant, it was submitted that the appellant’s own evidence had canvassed the impact on her of surgery on her physical condition and ability to care for a growing child.

26. Finally, it was submitted that the appellant had demonstrated no error and therefore the appeal should be dismissed.

27. In oral submissions, Counsel for the Secretary emphasised that the appellant had an order made in her favour pursuant to s 87(3) of the Act, that the matter was listed for hearing on 12 and 13 September 2017, and that the mother, TG, was represented, that she was no longer incarcerated and that she had finished her rehabilitation. Further, the appellant had the services of counsel who had been involved in the Children’s Court proceedings and was aware of all relevant documents.

28. Counsel for the Independent Legal Representative, in oral submissions, supported the Secretary’s position. Ultimately, the Continuum report had assessed the appellant as unsuitable to be a permanent carer, and it was submitted that the mother TG had to establish her suitability as carer whilst the appellant should take on her role as grandmother. The ILR adopted the same approach it had before the learned Magistrate.

Determination

29. I am satisfied, as was held by the learned Magistrate, that the appellant has a genuine concern for the safety, welfare and wellbeing of the child NRJ, the subject of care proceedings to be determined on 12 and 13 September 2017. The question to be determined therefore is whether the court should exercise its discretion by leave to allow the appellant to “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”.

30. Joinder, pursuant to s 98(3) of the Care Act, goes much further than the opportunity to be heard afforded by s 87(3), which does not extend to a right to examine and cross-examine witnesses – see Bell-Collins v Secretary, FACS, supra at [17].

31. I accept the appellant’s submissions that I am bound by the High Court’s decision in House v The King (1936) 55 CLR 499, and that to set aside the learned Magistrate’s order I must be satisfied that there has been an error in her exercise of discretion, resulting in an unreasonable or plainly unjust decision.

32. I have carefully read all of the evidence in the proceedings, the transcript of the application below, and the learned Magistrate’s reasoning. I have also carefully considered the submissions, both written and oral, made on behalf of the parties.

33. I have concluded that the learned Magistrate was in error in finding that the appellant and the child’s mother, TG, held the same position in the care proceedings. Whilst their interests are aligned, it was an error for the learned Magistrate to find that they held the same position with respect to the child, the subject of the proceedings. The Children’s Court that ultimately determines the matter will have to have regard to all of the circumstances that effect TG’s ability to care for her child, and part of that consideration will involve a determination of the appellant’s ability to either assist in or take over the care of the child.

34. This was the central plank of the learned Magistrate’s determination to refuse to exercise her discretion to the appellant who was otherwise entitled, pursuant to s 98(3) of the Care Act.

35. Whilst I am not persuaded that the learned Magistrate denied the appellant natural justice by way of procedural unfairness on the application, the appellant should be given the opportunity to advance her own case as an alternative carer for the child in accordance with Bell Collins v Secretary, Department of Family and Community Services, supra. The appellant had been actively present as an alternative carer for the child throughout the proceeding, and to that extent, her interests diverged from those of the mother TG. She is the best person to advance the case of her own personal suitability as an alternative carer.

36. It is unnecessary for me to find further error to warrant a conclusion that the appeal should be successful. However, as a party to the proceedings, the appellant will be in a far better position to challenge the findings made that affected her, based on the Continuum report. That report, dated 11 October 2016, was under the hand of Tracey Crawcour, who was not medically qualified. The report was entitled “Relative/Kinship Carer Assessment” and was in the nature of a Children’s Court clinician’s report as to the suitability of the various familial members to care for the subject child. The applicant for the assessment was the appellant GO, who was interviewed for the purpose of the assessment, which set out in some detail the author’s findings on assessment, the nature of abuse and neglect suffered by the child and other relevant matters, including the ability of GO to “work with Community Services”. The report also detailed the considerable difficulties suffered by TG, which led to NRJ being taken into care.

29. The author concluded that GO be authorised to care for the child NRJ on a short-term or respite basis in the event of restoration to the mother TG. It was not suggested that GO take on the responsibility of a long-term placement, if the child entered long-term care, but that she maintain the role of a grandmother through contact with the child. In arriving at those conclusions, the author had taken into account that the appellant had informed the Department of TG’s drug usage before NRJ was born. These are clearly matters that will be relevant in the final hearing, and were not given appropriate weight in the conclusion of the learned Magistrate in refusing to exercise her discretion to join the appellant as a party to the proceedings.

30. For all of the above reasons, I find that the appeal should succeed, and the court will exercise its discretion to join the appellant as a party to the proceedings in the Children’s Court. The grant of leave will be on terms. Leave will only be granted for the purpose of the appellant to cross-examine and adduce evidence about her own suitability as an alternative carer of NRJ.

Orders

39. I therefore make the following orders:

1. I grant leave to appeal from the decision of the Children’s Court made on 17 March 2017.

2. The appeal is allowed.

3. The appellant, GO, be joined as a party to the care proceedings in the Children’s Court titled in the matter of NRJ v The Secretary, Department of Family and Community Services, on the terms set out in [38] above.

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Amendments

09 August 2017 - Front page - Decision - uuphold changed to "uphold"

Decision last updated: 09 August 2017