In re a Child

[2022] NSWSC 671

Supreme Court

New South Wales

Medium Neutral Citation:

In re a Child [2022] NSWSC 671

Hearing dates:

17 May 2022

Decision date:

24 May 2022

Jurisdiction:

Common Law

Before:

Hammerschlag CJ in Eq

Decision:

Leave to the applicant to appear in person in the proceedings refused

Catchwords:

Family law and child welfare – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 98(3) – application by paternal aunt for leave to appear in person in care proceedings – whether leave should be granted – approach to be taken to applications for the grant of leave – HELD – leave refused

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:

EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226

EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248

Category:

Procedural rulings

Parties:

Applicant / Aunt
Plaintiff / Father
Secretary, Department of Communities and Justice - First Defendant
Second Defendant / Mother
Third Defendant / Child

Representation:

Counsel:
M Anderson - Applicant / Aunt
C Cassimatis - Plaintiff / Father
E Fitzgerald (solicitor) - First Defendant
E Windsor - Second Defendant / Mother
BJ Dean (Direct Legal Representative) - Third Defendant / Child

Solicitors:
Nicole Evans Lawyers - Applicant / Aunt
HepMac Laywers - Plaintiff / Father
Crown Solicitors - First Defendant
Koulouris & Associates - Second Defendant / Mother
Deputy CEO, Legal Aid Commission of NSW - Third Defendant / Child

File Number(s):

2021/230485

JUDGMENT

1. HIS HONOUR:   The child the subject of these proceedings was born in 2008 and will reach the age of 14 years later this year. The plaintiff is her father (the father), the second defendant her mother (the mother). The first defendant is the Secretary, Department of Communities and Justice (the Secretary).

2. The principal proceeding is an appeal lodged on 12 August 2021 under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (the Act) against final orders made on 16 July 2021 by the Children’s Court of New South Wales (Judge P Johnstone, President) allocating different aspects of parental responsibility for the child:

1. for a period of 18 months:

1. to the second defendant, solely, for residence, education and training, and religious and cultural upbringing;

2. to the Minister, solely, for contact; and

3. to the second defendant and the Minister, jointly, for medical and dental treatment.

2. after 18 months, all aspects of parental responsibility to the second defendant until the child turns 18.

3. References below to sections are, unless the context otherwise indicates, to sections of the Act.

4. At the conclusion of argument on this application, I set the appeal down to commence on 17 October 2022 with an estimate of ten days.

5. On 8 April 2022, the child’s paternal aunt (the applicant or the aunt), filed a motion seeking, pursuant to s 98(3), to be ‘joined’ to the proceedings, and, pursuant to s 79, an order that all aspects of parental responsibility be allocated to her until the child is 18 years of age.

6. The Court is presently concerned only with the joinder application. If the application does not succeed, the second part of the motion becomes otiose.

7. Section 98(3) provides:

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.

8. The section has been described as involving a two-step process involving first a determination of whether the applicant has the genuine concern described, and second a decision whether or not to exercise the discretion to grant leave: EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 at [16].

9. I respectfully consider this view to be incorrect and I do not propose to follow it.

10. The section requires the Court to consider only whether leave should be granted, but prescribes that leave cannot be granted unless the Court forms the opinion that the applicant has a genuine concern for the safety, welfare and well-being of the child or young person. It would be an error to consider separately from the overall question whether leave should be granted, whether a genuine concern has been established. The facts and circumstances pertinent to the expressed concern will almost inevitably be relevant to the exercise of the discretion. The overall facts before the Court, including the relationship of the claimant to the child and the nature and gravity of the concern, should be considered as a whole. In the process of determining whether the occasion is appropriate for the grant of leave, the Court should form (or not form) the opinion as to genuine concern.

11. To exercise the discretion in favour of the grant of leave, the Court must actually form an opinion that:

1. the person has a concern, and that concern is one which is for the safety, welfare and well-being of the child; and

2. the concern is genuine, that is:

1. real, meaning not artificial or contrived and not trivial, and

2. honestly held.

12. There has been some discussion in the authorities whether the “test” for a genuine concern is subjective, objective or a combination of both: see EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248 at [32]-[33]; EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 at [73]. I do not consider that there is a fixed “test” for the presence or not of a genuine concern, and I do not consider it productive to analyse the requirements for genuine concern by dividing aspects of it into subjectivity, objectivity, or both. Whether a relevant factor involves subjectivity, objectivity or both will depend on the particular factor in the particular circumstances of the case.

13. The Court had the benefit of written and oral submissions. Counsel for the applicant provided the Court with a helpful document dealing with the relevant principles that apply to care proceedings.

14. Should leave be given?

15. For the reasons which follow, I have concluded that it should be refused. To grant it would not serve the welfare and well-being of the child. Indeed, I think that to grant it would be inimical to her interests.

16. An application under the section must be disposed of having regard to the objects and principles of the Act set out in Chapter 2 Part 1. Critical is s 9(1), which provides:

This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

17. Section 94(1) provides:

All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person.

18. The grant of leave is opposed by the Secretary, the mother, and the child herself through her Direct Legal Representative (DLR).

19. Neither the Secretary nor the DLR sought to put in issue that the aunt is a person who has a genuine concern for the safety, welfare and well-being of the child within the meaning of s 98(3). The mother puts it in issue.

20. At the commencement of the hearing of the application, the father’s avowed position was that he neither consented to nor opposed the application. However, it soon became apparent, as might have been expected, that he is not neutral. By the end of the application, he actively consented to it. My understanding is that his position on the appeal will be that if he is not allocated parental responsibility for the child, it should be allocated to the aunt.

21. The aunt’s evidence was by way of an affidavit sworn 8 April 2022.

22. It became plain during argument that the aunt is in the father’s camp. The mother was one of the aunt’s bridesmaids when she (the aunt) married in 2006. From 2009, after an apprehended domestic violence order had been issued against the father (which was apparently later withdrawn), the aunt began to distance herself from the mother and their friendship deteriorated.

23. The aunt has had no direct contact with the child since the end of 2019, before the child’s admission to hospital for what was subsequently diagnosed as anorexia nervosa, and there is now no line of communication between her or her family and the mother or the child. She records that she has been informed by the father that the child does not wish to see her (the aunt’s) family, but she says she cannot determine whether the child has genuinely declined the opportunity to spend time with her family, or whether another person (inferentially the mother) was speaking on the child’s behalf.

24. The aunt is an Australian citizen, and presently resides in Hong Kong with her husband and two children aged 11 and 14. She says that they plan to relocate to the lower north shore of Sydney in July this year.

25. She says that she has not had access to the material filed in the proceedings, in particular all of the concerns of the Department of Communities and Justice, and cannot at this stage say whether or not she supports the restoration of the child to the care of the parents. She says she would like to read and consider all of the material.

26. She says that in event that the parents are not considered by the Court to be suitable full-time carers for the child, she believes that her and her husband can provide a loving, safe, comfortable and supportive family life for the child. She says, based on the limited information available to them, that both her and her husband have significant concerns about the child’s mental health, welfare, safety and development.

27. The father’s position (ultimately in support of the joinder) is that there is material to which the aunt will, as a party, have access, which he considers may have the propensity to cause her significant concern about the safety, welfare and well-being of the child, and which she, as a party, may seek to put before the Court. He puts that coming from her, these concerns may be given greater weight than they otherwise might be given if he raised them because, he thinks, going on past history, his motives in doing so will be asserted to be an intention on his part to damn the mother rather than to serve the interests of the child.

28. The Secretary’s position is that the child is safe, stable and secure in her current placement with the mother. The Secretary draws attention to the report of her treating doctor that she is making progress in her treatment for anorexia nervosa. The Secretary expresses concern about delay to the hearing of the appeal which might be caused if the application is granted.

29. The Secretary submits that the aunt has limited prospects of success in an application that parental responsibility of the child be allocated to her, especially since the child has never lived with her, has not had face to face contact with the aunt since October 2019, and has expressed the wish to live with her mother.

30. The DLR opposes the application. He argues that:

1. the aunt is not in a unique position to bring relevant evidence and is unlikely to add anything substantive by way of evidence or submissions that will not otherwise be available via one of the existing participating parties;

2. her participation as a party is likely to cause at least some delay to the resolution of the proceedings, contrary to s 94(1);

3. the application is late, and no explanation has been advanced for the delay;

4. she does not have an arguable case for the final orders she may seek, namely that parental responsibility be allocated to her until the child turns 18; and

5. the position she wishes to take in the proceedings is unclear.

31. The DLR relies on what is said to be the following views expressed by the child (to the DLR): that she does not feel close to the aunt or her family and does not feel that they know her well; she does not wish to leave her mother’s care or have contact with her father or her paternal family; she does not wish to change schools; she does not wish to change her treating medical teams; she is sick of speaking with new and different professionals about her health and her legal matter and strongly wants the Court proceedings to finalise; and repeated interviews and assessments are the primary source of stress in her life.

32. The mother opposes the application on grounds which substantially cover those articulated by the Secretary and the DLR.

33. Despite the position (or non-position) taken by the Secretary and the DLR on the issue, I feel no actual persuasion that the aunt has the genuine concern which the exercise of the discretion in her favour requires the Court to feel. I have no difficulty in concluding that she has a sentimental attachment to the child and would like to restore a relationship with her, but this does not equate to having the genuine concern the section has in mind. The section requires more than sentiment. In my opinion, a significant ingredient of her position is her desire to assist her brother in his dispute with the mother, with whom she has a strained relationship. Even if I were to have held the opinion that she has a genuine concern as to the safety, welfare and well-being of the child in the manner in which the Act requires her to have it, the avowed seriousness of her concern is significantly tempered by the fact that she is in her brother’s camp.

34. Added to this, original orders were made on 16 July 2021, that is almost ten months ago to the day, after nine days of hearing. The aunt did not at that time seek leave to be heard and has not explained why not or what has changed, particularly in the interests of the child, to cause her to want to intervene now. The appeal was lodged on 12 August 2021. The motion before the Court was filed on 8 April 2022, eight months later. The aunt has provided no explanation for the delay.

35. I do not find the father’s position on this application to be persuasive.

36. I do not consider that material will be treated any differently by the Court based on who draws it to the attention of the Court. The aunt is in the father’s camp anyway. The appeal is by way of a hearing de novo and the Court does not come to it with any predilection for or against any contestant. The overriding position remains that the safety, welfare and well-being of the child is paramount.

37. I also do not find the aunt’s position to be persuasive. I do not think that the Court’s discretion should be exercised to serve her purpose of giving her access to material to give her an opportunity to make a decision whether to exercise (or not exercise) an option, or on the contingency that she may put herself forward in the event that the parents are not considered by the Court to be suitable full-time carers for the child.

38. If the Court determines that neither parent is a suitable full-time carer for the child, procedures exist for the determination of who (including the aunt) is. For this, she does not need to be a party to the proceedings. She also does not need to be party to be called as a witness in them.

39. I record that to have granted the aunt leave would not have delayed the hearing. It has now been fixed. But her joinder would involve active participation by another person and would add an additional layer of complexity to the proceedings, which would add risk of extending their life and increasing the stress on the child. I do not consider it to be in the interests of the child that another potential combatant be permitted to enter the fray as a party to these proceedings. This in itself will have the propensity to increase stress on the child. These potential additional stresses do not bring with them any discernible upside.

40. I make it clear that in reaching the conclusion that leave should be refused I have not found it necessary to make any assessment (preliminary or otherwise) of any party’s prospects of succeeding in any outcome they now, or in future might, seek. The Court has no present view of the probabilities of any outcome, including one where the aunt is ultimately allocated parental responsibility.

41. The applicant’s motion filed 8 April 2022 is dismissed.

Decision last updated: 26 May 2022