Grace and Rita - [2002] NSWSC 1

No judgment structure available for this case.

CITATION: GRACE AND RITA [2002] NSWSC 1

FILE NUMBER(S): SC 13233 of 2001

HEARING DATE(S): 12 November 2001

JUDGMENT DATE: 9 January 2002

PARTIES :

Plaintiff: Director-General Department of Community Services
First Defendant: Children's Court of New South Wales
Second Defendant: AP
Third Defendant: AW
Fourth Defendant Children's Representative

JUDGMENT OF: Hulme J at 1

LOWER COURT
JURISDICTION : Campbelltown Children's Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : T Lucas

COUNSEL : Plaintiff: P Lakatos

SOLICITORS: Plaintiff: IV Knight
Defendant S Hennings, Marsdens Law Group
Defendant L Goodwin Dougherty & Smith

DECISION: See paragraph 28

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
No: 13233 of 2001

Wednesday 9 January 2002
Re GRACE AND RITA

1 On 26 September 2001, the children of the second and third Defendants were removed from the care of their parents pursuant to Section 43 of the Children and Young Persons (Care and Protection) Act 1998.

2 On 27 September 2001 officers of the Department of Community Services attempted to file at the Campbelltown Children’s Court an application pursuant to the provisions of Sections 45 and 61 of the Act. The Registrar declined to accept the application on the basis of a general policy that unless an application was to be heard on the list day, such application would not be accepted.

3 On 28 September 2001 the Department lodged the application in relation to the children and it came before Mr T Lucas sitting as the Children’s Court of New South Wales.

4 His Worship determined that the application could be seen as an attempt by the Department to circumvent the requirements of an application under Part 1 of Chapter 5 of the Act. He made orders that the matter be adjourned until 3 October and that parental responsibility of the children be granted to the Minister.

5 On 2 October 2001 a further application was filed and dealt with on 3 October.

6 The substance of the application filed on 28 September was in these terms:-

FINAL ORDERS

The grounds on which it is alleged that the child/young person is in need of care and protection are
(a) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated;
(b) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological arm as a consequence of the domestic environment in which he or she is living;

Interim Orders
In addition to the final orders sought, I make application for the following interim orders:
**S.69 Interim Care Order
The Department respectfully requests that Tori and Taylisha be placed in the Director General’s care during the interim period

**S.54 Assessment of person’s capacity for parental responsibility
The Department further requests that an adjournment of 8 weeks be granted in order for parental capacity assessments to be completed.

7 The application dealt with on 3 October was in identical terms save that it contained an additional ground, viz.-

“the child or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents

8 The magistrate held that the application was not a valid one but an abuse of process. However he held that the matter was one where it was appropriate for an emergency care and protection order for a period of 14 days. He so ordered.

9 I was informed that another care application involving the children the subject of these proceedings is being processed but the proceedings in this Court have been brought by the Director General of the Department of Community Services to challenge the view of the Act taken by the registrar and the magistrate. Before me there was representation on behalf of the Director General, the children involved and their mother. In the summons, the orders sought were:-

10 Order 1 was consented to and made during the hearing.

11 So far as is relevant to the issues I have to decide, the Children and Young Persons (Care and Protection) Act provides:-

Part 1 Emergency protection and assessment

Division 1 Emergency removal

Prompt application to Children’s Court for care orde

Division 2 Emergency care and protection orders

Emergency care and protection orders

Division 4 Who has care responsibility?

49 Care of child or young person pending care proceedings

Division 6 Examination and assessment orders

53 Making of assessment orders

Part 2 Care applications

60 Definitions

Care application

Care order

Care proceedings

61 Applications for care orders

62 Interim and final orders

63 Evidence of prior alternative action

67 Children’s Court order not limited by terms of care application

69 Interim care orders

12 The precise basis for the magistrate’s conclusion that the applications before him were invalid and an abuse of process does not appear clearly. However the transcript of proceedings on 3 October reveals that His Worship was concerned that:-

13 When his Worship indicated his concern that the application did not specify any particular final order sought, the legal representative appearing for the Director General indicated he sought leave to amend to add a final order. According to the transcript, he did not develop this application and immediately afterwards his Worship delivered some reasons for judgment in which he remarked that the procedure followed by the Director-General was an abuse of process and the application not valid. His Worship did not advert to the amendment application. Then the parties further addressed. The representative of the mother submitted that as there was no valid application, there was no valid basis for the children being held and they should be returned to the mother. The lawyer representing the children expressed concern at that possibility and submitted that s15 of the Children’s Court Act enabled the court to make any order it saw as necessary and that an emergency care and protection order was appropriate. Counsel appearing for the Department of Community Services joined in that application, not renewing his application to amend or reminding the Magistrate of it.

14 Section 15 of the Children’s Court Act, 1987 provides:-

“The court may in relation to all matters in respect of which it has jurisdiction, make such orders, including interlocutory orders, as it thinks appropriate.”

15 A convenient first question is whether, when s45(1)(c) refers to applying for “any other care order”, the section intends to refer to care applications dealt with in Part 2 of Chapter 5 or some application for a care order not attended with the same limitations and restrictions. In that an emergency care and protection order, even if extended, is limited to a period of 28 days, the Act clearly contemplates that such orders will be followed by further proceedings. The nature of examination and assessment orders leads the same direction. Those further proceedings may, of course be pursuant to additional prayers in the application seeking an emergency care and protection order or an examination and assessment order but they may also be entirely new or pursuant to a grant of leave to amend the initial application. For s45 expressly contemplates that only one of the types of orders to which it refers may be sought in an application under the section.

16 And if an emergency care and protection order or an examination and assessment order may be sought in an application under s45 without any prayer for final relief (insofar as any relief under the Act may be final), there is no reason apparent in s45(1) why the third type of relief contemplated by the section, “any other care order” should not equally be of a preliminary or interim nature rather than one where, in circumstances likely to be attended by haste and an incomplete state of knowledge, the Director-General has to specify the particular order finally to be sought.

17 On the other hand, sub-section 4 does provide an indication of what is intended. It provides that some of the sections in Part 2 shall apply to an application for an emergency care and protection order. There is no comparable provision relating to an application for “any other care order”. One of the sections mentioned in sub-section 4 is section 64, a section directed to ensuring that parents are notified of applications. A second is s67, providing that the Children’s Court is not to be limited by the terms of a care application to the orders the court may make. It is inconceivable that Parliament intended that these provisions should apply to care applications generally and to applications for emergency care and protection orders yet not to care applications brought under s45(1). The fact that sub-section 4 is limited to applications for emergency care and protection orders thus indicates that Parliament thought or intended that applications under s45(1) for “any other care order” were governed in any event by the terms of Part 2 of the Division. Thus in my view, an application for a care order, even if brought in the circumstances contemplated by s45, is still an application under s61.

18 Further support for this view is afforded by the circumstance that, if the view of the Director General is correct and the act permits the bringing of interim care orders without more, the concept of emergency care and protection orders is otiose as is the stipulation in Section 46(1) that satisfaction that a child or young person is at risk of serious harm is the touch stone by which applications for emergency care and protection orders are to be judged.

19 My attention was drawn to passages from the Minister’s Second Reading speech when the current legislation was introduced into Parliament and to extracts from a report of the “Review of the Children (Care and Protection) Act 1987: Recommendations for Law Reform”. The latter document contained the passage:-

Comment: Unnecessary litigation may well be avoided if the parents are clear from the beginning what orders the Department is seeking and the grounds of that application… .

The Act should allow for the orders sought to be varied … but only with leave of the Court.”

20 In her second reading speech the Minister said:-

“This bill proposes that where a child or young person has been removed the matter must be immediately brought before the court, that is, no later than the next sitting day. The court will then be able to make a range of interim orders which will allow for a full assessment of the circumstances. It will allow the Plaintiff to gather reports and evidence, and for the Plaintiff to decide if a care application is needed and what Final Orders will be sought.”

21 In the reference to “a range of interim orders which will allow for a full assessment of the circumstances”, these last remarks perhaps give some support for the view that no final orders need be specified at the time application is made after a child’s removal. In paragraphs 45(1) (a) and (b), the act clearly does not fulfil the aim of the authors of the report that the parents of a child should know from the outset what orders will be sought. However, because in my view the wording of the act itself is clear, I find these references of no assistance.

22 The fact that the applications in this case sought care orders (other than those the subject of s45(1)(a) and (b)) yet failed to specify any final orders thus amounted to a breach of the terms of s61(2). Although there may be argument that the terms of s61 should be regarded as directory, the inclusion of the word “must” in s61 leads to the view that compliance with the section is mandatory.

23 The third of the matters referred to above which seemed to be of, or to lead to, concern on the part of the magistrate is obviously correct. However, the matter needs no further attention than given to it above.

24 The fourth of the matters which concerned his Worship has nothing to do with the validity of any application. If, as seemed common ground, the 8 week estimate of the time it takes for there to be an assessment by the Children’s Court clinic (as s58 contemplates will generally occur) is correct, the Director General may have to rely more than he would have wished on being given liberty to amend any application and on interim orders being granted at the end of the 28 day period provided for by s46. Presumably the problem is that the resources necessary to achieve early definition of the final order sought, are not available but, be that as it may, the Children’s Court has to deal with the situation as it is presented.

25 In the light of these remarks, I return to the summons in this Court. Order 1, as I have said, has been made. The parties considered that order 7 was unnecessary. Counsel appearing for the Director General pressed for each of orders 2 to 6. Counsel appearing for the mother and children opposed that and submitted that I should affirm the decisions of the magistrate.

26 It follows from what I have said that I am not persuaded that the magistrate’s reservations concerning the application brought before him were incorrect. Indeed, if I understand correctly his Worship’s view, I agree with him. Accordingly no orders in terms of prayers 2, 3 and 6 of the summons will be made.

27 Nor am I disposed to make orders in accordance with prayers 4 and 5. So far as prayer 4 is concerned, I am not satisfied that his Worship failed to hear the application to amend although he clearly did not deal with it. It is not apparent whether this was merely an oversight but in any event the approach then taken by Counsel for the Director General would seem to indicate he was content to proceed to other matters. In these circumstances I am not satisfied there was any error of law on the part of the Magistrate. But in any event, the fact that there is another application on foot would indicate that any application to amend the Applications with which I am concerned is academic. There is thus no occasion for making order 5.

28 It follows that, apart from the first prayer, the other orders sought in the Summons should be refused. They were the substantial matters. Accordingly my formal order is that, except in relation to prayer 1, the Summons is dismissed, with costs.

**********

Last Modified: 01/10/2002

Actions

Download as PDF Download as Word Document

Citations

Grace And RITA [2002] NSWSC 1

Most Recent Citation

Re Jayden [2006] NSWSC 1428

Cases Citing This Decision

2

Re Rosie (No 2) [2022] NSWSC 1750

Re Jayden [2006] NSWSC 1428

Cases Cited

0

Statutory Material Cited

0

LOWER COURT JURISDICTION :	Campbelltown Children's Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	T Lucas

CITATION:	GRACE AND RITA [2002] NSWSC 1
FILE NUMBER(S):	SC 13233 of 2001
HEARING DATE(S):	12 November 2001
JUDGMENT DATE:	9 January 2002
PARTIES :	Plaintiff: Director-General Department of Community Services First Defendant: Children's Court of New South Wales Second Defendant: AP Third Defendant: AW Fourth Defendant Children's Representative
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Plaintiff: P Lakatos
SOLICITORS:	Plaintiff: IV Knight Defendant S Hennings, Marsdens Law Group Defendant L Goodwin Dougherty & Smith
DECISION:	See paragraph 28