In Re Yasmine & Ors

[2006] NSWSC 983

CITATION:	In Re Yasmine & Ors [2006] NSWSC 983
HEARING DATE(S):	20 September 2006
JUDGMENT DATE :	22 September 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	Summons dismissed
CATCHWORDS:	CHILDREN'S COURT - CARE PROCEEDINGS CONCERNING FOUR INFANTS - APPOINTMENT OF GUARDIAN AD LITEM FOR PARENT OVER OBJECTION - ABSENCE OF JURISDICTIONAL ERROR - NO BREACH OF REQUIREMENT FOR PROCEDURAL FAIRNESS - REMEDY IN RESPECT OF INTERLOCUTORY ORDER AVAILABLE IN CHILDREN'S COURT - COSTS
LEGISLATION CITED:	Children & Young Persons (Care and Protection) Act 1998 Supreme Court Act 1970
CASES CITED:	Re Alistair [2006] NSWSC 411
PARTIES:	In Re Yasmine & Ors
FILE NUMBER(S):	SC 14321/06
COUNSEL:	J. Jobson (Plaintiff) R. Bromwich (Director, DOCS) G. Moore (Guardian) M. Hogg (Mother) S. Ogilvy (Children)
SOLICITORS:	Greenfield Lawyers (Plaintiff) I.V. Knight (Director DOCS) James McCaffrey & Associates (Guardian) Marion Rose & Co (Mother) Stuart Ogilvy (Children) Carmody Crampton (Grandparents)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 22 September 2006

14321/06 - IN RE YASMINE & ORS

JUDGMENT

1 HIS HONOUR: Proceedings were instituted by summons entitled “Summons for Leave to Appeal” filed on 31 August 2006. An Amended Summons of similar title was filed on 14 September 2006. Upon the hearing being called on 20 September, Mr Jobson of counsel announced his appearance for the initiating party, described in those documents as the appellant, but more correctly described as the plaintiff. The litigant is the father of four children and I will refer to him as “D”.

2 In response to enquiry, Mr Jobson specified that what was sought was an order pursuant to s 69 of the Supreme Court Act 1970 that this Court quash an order made on 6 June 2006 by Magistrate Flood appointing a guardian ad litem for D in proceedings currently being heard in the Children’s Court. The proceedings involve the care and protection of his four children who have been allocated pseudonyms in order to protect their identities.

3 The Children’s Court proceedings have been in train for something in the order of eighteen months. A further two weeks has been set aside for resumed hearing scheduled to commence on Monday next 25 September. For that reason the hearing proceeded as a matter of urgency. Whilst not directly applicable, it is clear that there is a legislative desire that delay in determination of the Children’s Court proceedings should be avoided wherever possible: Children and Young Persons (Care and Protection) Act 1998, s 94, (the Care Act). Even absent that indication it is in any event obvious that the interests of children require expeditious determination of such matters.

4 Upon an undertaking on behalf of D to file a Further Amended Summons seeking the specified relief, all interested parties consented to the hearing forthwith of the claim to be made in the anticipated pleading.

5 This is not the first occasion that resort has been had to this Court in respect of the proceedings in the Children’s Court concerning these four infants. In Re Alistair [2006] NSWSC 411, Kirby J included in his judgment which dealt with issues not presently requiring description, a detailed background chronicling what was before the Children’s Court and I would gratefully adopt and refer to it without repeating it. Kirby J delivered his judgment on 12 May 2006 and the hearing in the Children’s Court was resumed on 29 May 2006 and on occasions thereafter.

6 The first witness called on 29 May 2006 was Dr Alex Apler, a specialist psychiatrist. Dr Apler was retained by the Children’s Court Clinic to prepare a psychiatric assessment of the family including the children. This was made pursuant to an order made by the Children’s Court (then sitting at Cootamundra) on 1 August 2005. Consequently a report dated 14 September 2005 and a supplementary report dated 9 October 2005 were admitted into evidence.

7 The role of the Children’s Court Clinic is expressed in the Care Act s 58, in particular, it is independent of the Department of Community Services. Dr Apler was, in a true sense, a court expert and not an expert retained by any party interested in the proceedings.

8 Included in the later report was this observation concerning D:

“3(d) The father’s capacity to provide for the children’s emotional and physical needs is affected by his hypomanic symptoms and him exposing the children to the current court proceedings. The hypomanic symptoms are treatable. The information available indicates that he would be able to care for his children once his hypomanic symptoms are under control, apart from the issue of sexual allegations, which remains unresolved at this time.
3(e) The father does not accept the allegations made by the children as true.”

9 In cross examination by the solicitor then appearing for the mother of the children, (Ms Rose) Dr Apler was taken to portions of his report and gave this evidence:

“ROSE: Q. Yeah, in the paragraph just before that, reading from your report there Dr Apler, it says ‘D presented as neatly dressed man, wearing a shirt and tie. He had a clean appearance. He was not irritable. He had an intense manner. He spoke quickly and was at times difficult to interrupt. His thoughts sometimes strayed to other topics and it was difficult to keep track of the conversation. He tended to dominate the conversation. There was no evidence of depression or psychosis. He maintained his memory but found it difficult to concentrate on topics under discussion’. That’s a summary of his presentation, am I right there?
A. Yes.
Q. And in layman’s terms did that presentation suggest to you that he had a mental illness or not?
A. It did.”

10 The initial report had expressed this opinion:

“D presents with a hypomanic phase of Bipolar Affective Disorder. He has pressured speech, is difficult to interrupt, his thoughts derail, and he has been observed to be intrusive, aggressive and inappropriate. The extent to which he is aware of his symptoms is not clear as he described himself as being in good mental health. My observations and observations of D during access visits indicate that he is impaired by his hypomanic symptoms, which affect his relationships. The hypomanic symptoms may also have adversely affected his business judgment. H’s report of D living beyond his means would be consistent with a hypomanic state. Hospital records demonstrate that his early presentations were consistent with the diagnosis of schizophrenia and drug abuse, while his later presentations were diagnosed as a manic illness, with some features of psychosis. This course of illness is consistent with his current presentation.”

11 The reference to H is to the mother of the children.

12 On 31 May 2006 the Children’s Court was sitting at Burwood. Mr Ogilvy was, and continues to be, the solicitor representing the children. He sought to record an encounter during the luncheon adjournment on that day in response to which D (although represented by Mr Sweet of counsel on that day) addressed the Bench directly and, inter alia, claimed that Mr Ogilvy did not represent the children’s interest but represented “the prosecution”. It appears to be common ground that Mr Ogilvy was at one time a police officer and, of course, the pending charges against D had been preferred by police officers and possibly this may be a factor in his thought processes. Whatever the situation, D made complaints to the magistrate of being “jostled and harassed every time”.

13 The exchange on this occasion is transcribed (Exhibit A, pp 228-229) and has been referred to as “the outburst”. That is a convenient compendious description although I do not intend that it carry any special implications. Dr Apler was present in the courtroom and observed what occurred.

14 Later in the day counsel for D informed the Court that his instructions were to withdraw as long as Mr Ogilvy continued to represent the children. He said, emphasizing his own lack of psychiatric qualifications, that D appeared to be under great stress and had entered his motor vehicle and driven away from the courthouse.

15 These events led his Honour to remark that “s 101 issues” were potentially raised.

16 Section 101 of the Care Act provides:

“(1) The Children’s Court may:
(a) appoint a guardian ad litem for either or both of the parents of a child or young person, or
(b) request the legal representative of a parent or the parents of a child or young person to act as amicus curiae, if it is of the opinion that the parent is, or the parents are, incapable of giving proper instructions to his or her, or their, legal representative.
(2) Circumstances that warrant the appointment of a guardian ad litem or a request for a legal representative to act as amicus curiae may include that the parent of a child or young person has an intellectual disability or is mentally ill.
(3) The functions of a guardian ad litem of a parent of a child or young person are:
(a) to safeguard and represent the interests of the parent, and
(b) to instruct the legal representative of the parent.
(4) A legal representative of a parent for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.”

17 Accordingly Dr Apler was asked (Mr Dalla was appearing for the Department of Community Services):

“DALLA: Q. Doctor, following the resumption of the Court at 2 pm this afternoon you were seated in the witness box --
HIS HONOUR: No, back of the court, body of the court.
DALLA: Q. Sorry, in the body of the court and witnessed an episode of behaviour by the father D?
A. Yes.
Q. Are you able to offer an opinion in relation to that outburst by D?
HIS HONOUR: Well if it’s an opinion you can offer regarding his possible mental state during the outburst.
WITNESS: Yes.
DALLA: Q. And that opinion is?
A. Well that D presented in a fairly agitated, irritable and inappropriate manner and becoming quite aggressive and I had some concerns about what he had to say in that as I understood Mr Ogilvy was reporting to the Bench some events that took place in the coffee shop earlier that day and he was describing sitting at a coffee table and overhearing a conversation D was having on a mobile phone and he described D talking in a loud manner and referring to Mr Ogilvy as someone who is biased and not representing the children’s interests. I will assume for the moment that Mr Ogilvy’s reporting is accurate and if that is so I was quite struck by D’s response to that reporting, which was that he perceived that reporting to be an example of Mr Ogilvy’s – and I don’t remember the precise words he used at that point – but I think he said something to the effect of it being an example of persecutory behaviour on the part of Mr Ogilvy and ‘harassment’ I think was the word he used. He perceived Mr Ogilvy’s reporting to be an example of harassment and an example of Mr Ogilvy failing to represent the children’s interests. Now I’m not able to say whether what Mr Ogilvy was doing is within the rules of the court. I presume Mr Ogilvy was following the court procedure and was therefore seen as behaving in a reasonable an appropriate way by making that report, but if that is so then perhaps D’s response to that may be seen as quite inappropriate and an example of him perceiving something as persecutory. It would be consistent with him manifesting perhaps a persecutory delusion.
Q. In essence he would be in a psychotic state do you think?
A. Yes, that would be consistent with a psychotic state and might well represent a mixture of both manic but also psychotic and paranoid delusions, paranoid symptoms.
Q. Now in those circumstances do you feel that he is capable of properly instructing a legal representative?
A. No.
Q. And of being able to give proper instructions to his legal representative, do you feel that he would be capable of doing that? Do you understand what I am saying --
A. Yeah, I understand, I understand. I’m thinking about it. No.
Q. And you were present in court when Mr Sweet read out some instructions that he had received?
A. Yes.
Q. Do you think those instructions were given whilst D was in a capable state of mind?
A. No.”

18 Dr Apler was also questioned by Mr Carmody (on behalf of the paternal grandparents):

“CARMODY: Q. Dr Apler, do you feel confident in expressing an opinion as to D’s ability to give instructions that he did give when you weren’t there to observe and hear those instructions?
HIS HONOUR: Being actually verbally given to his legal representatives.
WITNESS: Yes, taking into account his continuing mental state over a period of time, what I witnessed today I’m confident to say did not arise at that moment and I’m quite confident in saying that an abnormal mental state would have been present for a considerable length of time and it is likely to have been present at the very least at all times today.”

19 It was pointed out by Mr Jobson that the transcript records a formal application for appointment of a guardian ad litem for D made by Mr Ogilvy but I note that this occurred after the matters that I have referred to above and it is plain that the question of possible appointment was well within the contemplation of the Court as a course that may need to be taken and I do not perceive that anything turns upon Mr Ogilvy’s statement. It was well within the power of the Court to consider the issue, whether an application was made by Mr Ogilvy, by anybody else or by the magistrate on his own motion.

20 However, in response Mr Sweet for D contended that his Honour should not make an order (under s 101 concerning D) on Dr Apler’s evidence but stated that he did not oppose “anyone independent”. I interpolate that there is no basis for categorizing Dr Apler as other than independent, particularly having regard to his retainer, not by a party, but by the Children’s Court Clinic. Nevertheless after some discussion his Honour said this:

“I’ll just make this order. To enable the Court to decide whether to exercise the powers conferred by section 101 of the Children and Young Persons (Care and Procedure) Act 1998 and in particular, whether pursuant to section 101(2) of the Act ‘Circumstances….warrant the appointment of a guardian ad litem’ because the father in these proceedings, D is found to have a mental illness that prevents or is likely to prevent him from properly instructing his legal representatives concerning the purpose of the litigation, that is, the safety, welfare and wellbeing of the subject children of these proceedings; the Court orders an independent psychiatric assessment of the father, D by Dr Pickering on 13/06/06 at 10 am.
That’s the order I make.”

21 The question of power to make such an order was raised. Obviously if an issue concerning the need for a guardian ad litem arises in the Children’s Court it would need appropriate material and the conventional restraints upon the calling of evidence by a judge presiding in adversary litigation may not restrict a body vested with the special responsibilities of the Children’s Court but there is no need to explore this matter further. In fact, the proposed assessment on 13 June did not take place.

22 On 5 June 2006 cross examination of Dr Apler was continued by Mr Sweet. The testimony included:

“Q. What I would like to know from you doctor is what is it that in your opinion so prevents him from properly instructing his legal advisers?
A. What prevents him from instructing his advisers is the possibility of him labouring under persecutory delusions with respect to the child representative in this matter and him giving advice on the basis of those delusions and also the fact that his mental state, his emotional state, his irritability together with his persecutory beliefs affects his judgment in terms of what he will actually instruct. It is difficult for me to be more precise than that and indicate in the precise manner in which his instructions would be affected but generally speaking I would expect his capacity to instruct to be affected.
Q. Such that he couldn’t properly instruct is what you said earlier?
A. I am sorry can you repeat that.
Q. Such that he would not properly be able to instruct his lawyers in your view?
A. Yes.
Q. By reason of delusions about a persecutory complex for want of a better word, set of words?
A. His delusions are relevant because that might form an unreasonable basis for his instructions, his judgment, his perception of the case, his irritability and his capacity to follow the case, follow the evidence, consider the issues and give reasonable instructions on that basis would be affected.”

23 As the transcript shows, “the issue”, that is whether a guardian should be appointed for D, was discussed at some length and it was an apparently fair comment that “we have been waxing and waning on this very issue now for nearly a week” (Exhibit A - p 474) and it is significant that during that period (on 2 June 2006) Dr Morice, a psychiatrist whose reports had been obtained and tendered on behalf of D, was called and cross examined. D was not deprived of the opportunity and in fact availed himself of such opportunity to call evidence seeking to dissuade the Court from acting on the opinion of Dr Apler. That the magistrate preferred the opinions of Dr Apler to the extent that they differed from Dr Morice is a judgment not amenable to review by this Court.

24 I note that on 6 June 2006 Mr Ogilvy is recorded as expressly applying to his Honour to “set aside the order in relation to Dr Pickering conducting the assessment on 13 June” but I do not regard that circumstance as being of any more consequence than the fact of his earlier application.

25 I recognize that, when he came to rule on the issue, his Honour referred to Mr Ogilvy’s “application” but, as I have already intimated, it can scarcely be determinative of whether relief should be granted within the confines of s 69 of the Supreme Court Act, that the representative of any particular interested party raised the issue.

26 The ruling of the learned magistrate was delivered ex tempore and it is lengthy and, if I may comment, thorough. It is not necessary to summarize all the aspects which he canvassed and it suffices to observe that he approached the opinions, particularly of Drs Apler and Morice, in the light of detail of the considerable psychiatric history of D. It is not suggested that I am vested with authority to review the merits of Magistrate Flood’s decision but I am moved to observe that I detect no defect in his conclusion. There was ample evidence to support his findings that D had “a chronic and severe mental illness which may fluctuate” and which was “likely to persist for some time”. The transcript extends for some hundreds of pages. The foregoing extracts are merely samples. What is clear is the existence of abundant sources for his Honour’s conclusion.

27 It is beyond argument that the Care Act vested his Honour with explicit power to make an order appointing a guardian ad litem. The argument on behalf of D essentially complained that procedural fairness was denied in depriving D of the opportunity to have an examination by Dr Pickering and a consequent report before the Court. That unfairness was compounded, as it were, by the implied vacating of the earlier order that such an examination and assessment should take place.

28 The argument needed to be advanced in those terms because, as was acknowledged by D’s counsel, no application was made for the order of what would amount to an additional assessment by Dr Pickering to remain in force. What his opinion would be if such an examination were to take place remains entirely speculative.

29 A second aspect of D’s complaint related to his Honour’s observations concerning the question of adjournment to which he turned even in the absence of explicit application. He referred to the statutory restraint, the terms of which are:

“94. (4) The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that:
(a) it is in the best interests of the child or young person to do so, or
(b) there is some other cogent or substantial reason to do so.”

30 In the context he expressly turned to a submission that (proceeding to appoint a guardian relying simply on the material then before the Court) there may be potential for denial of natural justice. He concluded that there were not substantial and cogent reasons to adjourn the hearing.

31 D points to no omission by the magistrate to take relevant matters into account nor to giving account to irrelevant matters. I am unpersuaded of error but, even if that conclusion were to be erroneous, the hypothetical error would be made within jurisdiction and the limited relief which might be obtained pursuant to s 69 of the Supreme Court Act could not be granted.

32 The order appointing the guardian ad litem was plainly interlocutory in nature. Should material subsequently come before the Court demonstrating that D has become capable of giving instructions the magistrate can discharge the guardian ad litem from his appointment. Counsel for D observed that there is no express statutory facility for such discharge but in my view there can be no doubt that the power to appoint vested by s 101 of the Care Act carries with it concomitant power to terminate such appointment. It was said by counsel that this was the practice engaged when appropriate in the Children’s Court and that practice is clearly correct. Frequently, I was informed, it has been the guardian who has drawn to the attention of the Court evidence that the subject of the appointment is no longer in need of guardianship.

33 The availability of potential termination of guardianship by the Children’s Court itself is a strong contraindication to the exercise of discretion by this Court to intervene. Although in my view no cause for intervention has been shown I would record that if I came to consider the question of discretion I would exercise it against granting relief by reason of the obvious availability of adequate remedy in the Children’s Court.

34 As I noted at the outset, the summons was defective in form. The original summons (filed 31 August 2006) described the appellant (sic) by name and “opponents” as the Department of Community Services and the presiding magistrate (by name).

35 The amended summons (filed 14 September 2006) described the appellant (sic) as “the father” and nominated six “opponents” as, in sequence, the Director Department of Community Services; the Children’s Court of NSW; “Gaurdian (sic) Ad Litem”; “the mother”; “the children” and “the grandparents”.

36 An undertaking to file a submitting appearance by the Children’s Court of NSW in the usual form was given.

37 Mr Bromwich of counsel appeared for the Director, Department of Community Services and substantially conducted the case as contradictor of D’s claims. Mr Moore of counsel appeared for the appointed guardian and stated that his client’s position was essentially neutral. Mr Hogg of counsel appeared for the mother and adopted the submissions made by Mr Bromwich. Mr Ogilvy, as I have said, appeared for the children. He also adopted the submissions by Mr Bromwich. No appearance was announced on behalf of the grandparents.

38 All of Messrs Bromwich, Moore, Hogg and Ogilvy sought an order for costs on behalf of their respective clients in the event that D’s summons was dismissed. The proceedings as originally instituted were, it was correctly submitted by Mr Bromwich, wholly misconceived. I have recounted how the matter was heard on an undertaking to file appropriate process and the reasons for urgency. It is obvious, however, that the burden of costs will be markedly increased by the multiplicity of parties. On the one hand it was D’s action which brought them all to Court and on the other, they were content to simply support the contradictory argument presented on behalf of the Director. The exception to that is the Guardian Ad Litem whose position, it was submitted on behalf of D, could have been appropriately met by filing a submitting appearance.

39 I have considered limiting the costs payable by D but it is possible that any order might lead to incurring of further costs to resolve any dispute as to sharing or distribution. I have set out the foregoing for what assistance it might provide to any costs assessor.

40 Unless it is made to appear that some other order should be made, costs are to follow the event (UCPR Pt 42 r 1). No cause has been shown to depart from the requirements of the rule.

41 The summons is dismissed. The plaintiff is ordered to pay the costs incurred in relation to the summons by the Director, Department of Community Services; by the Guardian Ad Litem; by the mother and by the children.

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