JH v Secretary, Department of Communities and Justice

[2021] NSWSC 1539

Supreme Court

New South Wales

Medium Neutral Citation:

JH v Secretary, Department of Communities and Justice [2021] NSWSC 1539

Hearing dates:

11 November 2021

Date of orders:

30 November 2021

Decision date:

30 November 2021

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The proceedings for judicial review are summarily dismissed.

Catchwords:

JURISDICTION – supervisory jurisdiction – challenge to interlocutory establishment decision of Children’s Magistrate – care proceedings – application for summary dismissal of application for review – whether merits review in disguise – whether reasonable cause of action for judicial review pleaded – case for review clearly untenable

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 8, 9, 71, 72, 91, 93, 99, 106A, 247

Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW)

Evidence Act 1995 (NSW) s 140

Supreme Court Act 1970 (NSW) s 69

Uniform Civil Procedure Rules 2005 (NSW) r 13.4

Cases Cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139

Beale v Government Insurance Office of New South Wales (1994) 48 NSWLR 430

Director General Department of Community Services; Re Sophie [2008] NSWCA 250

General Steel Industries Inc v The Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

O’Brien v Bank of Western Australia Limited [2013] NSWCA 71

One Steel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282

Re Alistair [2006] NSWSC 411

Re Dessertaine [2003] NSWSC 972

Re Elizabeth [2007] NSWSC 729

Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 88

Re Tracy (2011) 80 NSWLR 261; [2011] NSWCA 43

SB v Parramatta Children’s Court [2007] NSWSC 1297

Skiwing Pty Ltd v Trust Company of Australia [2006] NSWCA 276

Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:

Nil

Category:

Principal judgment

Parties:

JH (Plaintiff)
Secretary, Department of Communities and Justice (First Defendant)

Representation:

Counsel:
H. Ginges (Solicitor) (Plaintiff/Respondent)
B.J. Dean (First Defendant/Applicant)
M. Yu (Second Defendant)

Solicitors:
Crown Solicitors Office (First Defendant)
Aboriginal Legal Service (Second Defendant)

File Number(s):

2021/186652

Publication restriction:

Relevant parties have been pseudonymised by reference to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

Judgment

1. By Amended Notice of Motion filed on 21 September 2021, the first defendant, the Secretary, Department of Communities and Justice (“the Secretary”), applies for the summary dismissal of these proceedings under Rule 13.4 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. By Summons filed 21 June 2021, when the plaintiff (“JH”) was not legally represented, she sought judicial review of a decision of the Children’s Court on 11 June 2021 under s 72 Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”), referred to as the “establishment finding”, that the Children’s Court is satisfied that each child, the subject of the proceedings, is in need of care and protection. JH is the mother of the children and she named as defendant: the Secretary; Kim Rowley, in her capacity as the independent legal representative appointed under s 99 of the Act to act for her two children; and the father of each child. When the matter was before me for hearing of the motion, the Children’s Court had so far not been named as a defendant. (This has been rectified by the filing of a further Amended Summons as directed by me on 18 November 2021.)

Procedural history

3. Because of the form of the relief sought and the grounds advanced justifying it, a question arose about whether the mother was seeking to invoke the Court’s parens patriae jurisdiction notwithstanding the title of the summons referring to the Court’s supervisory jurisdiction. When the matter came before Button J on 27 July 2021, his Honour transferred the proceedings to the Equity Division because of that question. The matter was case managed for a period in that division until JH obtained legal representation, following which it was made clear that there was no invocation of the parens patriae jurisdiction and that JH was seeking judicial review of the Children’s Court’s decision on administrative law principles as informed by s 69 Supreme Court Act 1970 (NSW). By consent, the matter was re-transferred to this Division on 25 August 2021.

4. By Amended Summons, dated 12 September 2021, JH sought the following relief:

1. That the orders made by Children’s Magistrate Virgo on 11 June 2021 be rescinded;

2. That the Court make a positive finding that the first child, [born xx xxxx 2016] and the second child, [born xx xxxx 2019] (“the children”) were not in need of care pursuant to the provisions of s 71 (1) (d) and (e) or any other provisions of the Children and Young Persons Care and Protection Act 1998 (“the Act”) when they were removed from the plaintiff;

3. A writ of mandamus ordering the first respondent to return the children forthwith to the plaintiff;

4. Costs;

5. Such other orders as the Court deems appropriate.

5. Of the five grounds specified in the Amended Summons, two were directed to the conduct of the Secretary: first, for not following the course of the least intrusive intervention in the life of the children; and secondly, for failing to take sufficient, if any, account of the principles set out in Part 2 of Chapter 2 of the Act as they relate to the first child. Three grounds were directed to errors allegedly made by the Children’s Court: two related to errors of fact made in the face of “insufficient evidence”; and the third was that “the learned magistrate erred in relying upon the provisions of s 106A of the Act in concluding that the children were in need of care and protection”. Section 106A provides that evidence of a previous removal of the care and protection of a child from a person which is not restored is prima facie evidence that a child the subject of the proceedings is in need of care and protection. The “prima facie evidence” is rebuttable by a parent, on the balance of probabilities in accordance with s 106A(3) of the Act.

Background facts

6. JH is presently aged 32 years. She is the mother of four children. The proceedings concern her two younger children born in 2016 and 2019, respectively. The Secretary became involved in late 2019 after receiving reports of concern relating to the safety, welfare and wellbeing of the two children. On 3 March 2021, the Secretary removed the children from JH’s care on grounds set out in the affidavit of a child protection case worker of 20 July 2021. On 8 March 2021, the Secretary applied to the Children’s Court for orders placing the children in the parental responsibility of the Minister. On 10 March 2021, the Children’s Court made an interim order allocating parental responsibility to the Minister. After a hearing before her Honour Children’s Magistrate Virgo on 7 June 2021, the Children’s Court made the establishment finding impugned by these proceedings. The matter is listed for a final hearing commencing on 21 February 2022 with an estimate of 5 days.

Grounds for summary dismissal

7. The principal ground relied upon by the Secretary under Rule 13.4 UCPR is that the proceedings are an abuse of process in that they are the pursuit of concurrent proceedings for substantially the same relief available, and sought, in the Children’s Court, or alternatively involve unnecessary duplication.

8. The Secretary acknowledged the demanding test for summary dismissal involving a standard approaching certainty that the proceeding is “so clearly untenable that it cannot possibly succeed” among other expressions employed in the leading cases: General Steel Industries Inc v The Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 130; Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [55]. Mr Dean of learned counsel referred to Re Elizabeth [2007] NSWSC 729 at [16] – [18], Palmer J and GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 at [47] where the Court (Basten, Leeming and White JJA) said:

“There is no doubt that applications which invoke the parens patriae jurisdiction of the Supreme Court whilst proceedings are on foot in a Children’s Court pursuant to [the Act] may readily constitute, or become, an abuse of process. Even if not an abuse of process, the maintenance of concurrent proceedings may well, as the primary judge concluded in this case, not be in the best interests of the child. It is entirely proper that a trial judge faced with such proceedings should be alert to these possibilities. It is also entirely proper that the judge be allowed to raise, effectively on his or her own motion, the possibility that the proceedings in the Supreme Court should be terminated. However, in circumstances where the Minister, having full parental responsibility for the child, and the Secretary, having powers under a supervision order, do not initiate steps to have the proceedings dismissed, the judge should proceed with caution…

Secondly, where an application is made by parents, in effect challenging an order depriving them of parental responsibility, and acting without legal representation, the court should exercise caution before summarily dismissing the proceedings…

Thirdly, the nature of the proceedings were such as to give rise to a need for some degree of instruction as to the process which was being put in place. On the one hand, there is a high hurdle to the use of the parens patriae jurisdiction in relation to proceedings which can and have properly been commenced in the Children’s Court. On the other hand, there is a high hurdle to the summary dismissal of proceedings without a hearing on the merits…

Fourthly, and significantly for present purposes, the primary judge himself had to bear in mind the seriousness of the step of summarily dismissing proceedings and the need to address the relevant question, which was whether on the evidence as it might unfold, an arguable case for the intervention of the Court might be established…”

It is notable that these authorities focus on, when proceedings invoke the parens patriae jurisdiction, that the parents may be summarily dismissed in the light of concurrent proceedings in the Children’s Court. Mr Dean of counsel, who appeared for the Secretary, acknowledged this, but submitted that “there is no reason why [this] approach … should not be followed in a case such as the present, in which the plaintiff seeks relief from the Court’s supervisory jurisdiction” (Written Submissions 5 October 2021 [27]).

9. It was also submitted that it was evident on the face of even the Amended Summons that the relief, and the grounds on which it was sought, was apt to ventilate the merits of the proceedings in the Children’s Court, rather than their legal conformity with the mandatory requirements of the Act, and were to that extent inappropriate to the supervisory jurisdiction, as to the parens patriae jurisdiction.. It was submitted that the Children’s Court is the appropriate jurisdiction to undertake the assessment of the merits. Moreover, it was submitted that as an interlocutory decision, the establishment finding could be revisited in the Children’s Court and s 91 of the Act provides an appeal as of right by hearing de novo to the District Court. Mr Dean also argued that none of the five grounds disclosed error of the type amenable to judicial review in the supervisory jurisdiction: the first two grounds complain about the conduct of the Secretary, whose decisions are not under review; and, the three grounds impugning the decision of the learned magistrate “are complaints about the merits of her Honour’s decision… cloaked as complaints about the legalities” (12.5 - .10T).

10. Ms Yu of Counsel who appeared for the father of one of the children named as second defendant in the Amended Summons, supported the Secretary’s submissions. The third defendant and the children’s independent representative took no active part in the proceedings and submitted to the order of the Court.

Plaintiff’s submissions

11. Dr Ginges, solicitor, who appeared for JH, indicated, having heard the argument, that he would accept that prayers 2 and 3 are inappropriate to the supervisory jurisdiction and therefore ought not be pressed. He sought an adjournment to take instructions about that matter.

12. After the adjournment, Dr Ginges confirmed that he had instructions to abandon Grounds 2 and 3 in the Amended Summons. I directed that Dr Ginges file a further Amended Summons within 7 days naming the Children’s Court as a party and deleting the abandoned grounds. I also indicated that prayer 1 should be reconsidered as it needed to be understood as an application for an order in the nature of certiorari, quashing the legal effect of the establishment finding under s 72 of the Act.

13. Dr Ginges argued that the power to order summary dismissal should only be exercised “in extreme situations”. He submitted that it is “a fundamental principle of our law that a person is entitled to exercise an opportunity to have her case heard” (18.35T). He argued that there was no collateral purpose in the commencement of the present proceedings, and they did not involve a waste of the Court’s time. The relief was genuinely sought.

The further Amended Summons

14. By further Amended Summons filed in accordance with my direction on 18 November 2021, the relief sought in the proceedings is recast in the following terms:

1. That the findings and orders made by Children’s Magistrate Virgo at Parramatta on 11 June 2021 be quashed;

2. That writ of certiorari (sic) issue remitting these proceedings to the court below for a redetermination of whether the children were in need of care and [protection] at the time of their removal from the plaintiff; and

3. Costs for such other orders as the Court deems appropriate.

15. The Children’s Court is now named as the second defendant, the children’s independent legal representative as the third defendant and the father of each of the children as the fourth defendant and fifth defendant respectively.

16. The grounds upon which judicial review are sought have been recast in the following terms:

1. The learned magistrate erred in finding pursuant to s 71(1)(d) of the Act that the children were in need of care and protection in that there was insufficient evidence before the court for her to find that their basic physical, psychological and educational needs were not being met;

2. The learned magistrate erred in finding pursuant to s 71(1)(d) of the Act that the children were in need of care and protection in that there was insufficient evidence before the court for her to find that they were suffering or likely to suffer from serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which they were living;

3. The learned magistrate erred in relying upon the provisions of s 106A of the Act in concluding that the children were in need of care and protection;

4. The learned magistrate failed to apply the correct standard of proof in making her decision.

5. The learned magistrate failed to consider a relevant consideration, namely the United Nations Convention on the Rights of the Child 1989;

6. The learned magistrate failed to explain upon which he preferred the version of the evidence offered by the first defendant over that of the plaintiff;

7. The learned magistrate failed to examine sufficiently the circumstances of the removal of the children at the time of their assumption into care in order to ascertain whether reasonable grounds for their removal had been satisfied;

8. The learned magistrate failed to give sufficient, if any, regard to the objects set out in s 8 of the Care Act, and the principles for its administration set out in s 9 of the Act.

These grounds were largely foreseen by Mr Dean in his written submissions as they were advanced by Dr Ginges in his, and in the case of Mr Dean were addressed in written submissions in reply and orally on the hearing before me. I will deal with the argument advanced by Mr Dean as originally cast and in the light of his anticipation of new issues in the balance of these reasons.

Consideration

17. I am not persuaded that the authorities relied upon by the Secretary are apposite in the context of the Court’s supervisory jurisdiction, as opposed to considerations which are particularly pertinent when the proceedings in the Supreme Court involve an exercise of the parens patriae jurisdiction. It goes without saying, that there is an important distinction between the parens patriae jurisdiction and the supervisory jurisdiction. The determination of the merits is integral to the former, but inimical to the latter. As Brennan J (as the Chief Justice then was) said in Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 36:

“… the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory powers, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.”

18. Once it is appreciated that the nature of the jurisdiction invoked by JH is different from the parens patriae jurisdiction, the proceedings in this court cannot involve an abuse of process of the type advanced by the Secretary, for only this court has jurisdiction to review whether a decision of the Children’s Court is within the extent of its powers and the legality of the exercise of those powers. However, the question did arise, as raised in the Secretary’s written submissions in reply, as to whether the grounds stated in the Amended Summons disclosed a reasonable cause of action for judicial review. In my judgment, on their face, they did not. As is now acknowledged by Dr Ginges, even reading prayer 1 is an application for an order in the nature of certiorari, it was clear from prayers 2 and 3 and the grounds articulated in support of the relief sought that JH was seeking to re-ventilate the merits of the decision under review and have them redetermined in her favour. So much is clearly beyond the powers of this Court and I would have acceded to the application for summary judgment without more.

19. However, as Macfarlan JA said in O’Brien v Bank of Western Australia Limited [2013] NSWCA 71 at [3] (Beazley P agreeing), “on a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded”: Spencer at [23]. JH’s abandonment of 2 and 3 and the additional grounds set out in her written submissions need to be considered. So much was accepted by the Secretary and is addressed in Mr Dean’s written submissions in reply.

20. I am of the view as Mr Dean argued that the grounds specified in the Amended Summons are quintessentially questions of fact “cloaked” as questions of law. I am satisfied that the grounds served to reinforce the incontrovertible impression created by the prayers for relief that JH was seeking merits-based review in this Court.

21. However, given the abandonment of prayers 2 and 3, the reformulation of the relief sought and the propounding of the new grounds set out in the further Amended Summons, the question arises whether there is a reasonable cause of action for judicial review now “pleaded” not amenable to the secretary’s application for summary judgment.

Principles applicable

22. What I have referred to as the “establishment finding” made under ss 71 and 72 of the Act, in the circumstance of the separate determination of the first of two stages adopted here, is an interlocutory order from which no appeal lies: s 91(1) of the Act. However, s 247 of the Care Act provides: “Nothing in this Act limits the jurisdiction of the Supreme Court”. I accept Dr Ginges’ submission that there is no attempt to limit either the exercise of this Court’s constitutional supervisory jurisdiction or its parens patriae jurisdiction.

23. Although JH seeks judicial review of an interlocutory or interim finding, it is a decision which is amenable to an order in the nature of certiorari falling into the second category of decision referred to by Brennan CJ, Gaudron, and Gummow JJ in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 at 159:

“Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue:

(1) …

(2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently “determines” or is connected with that decision.”

Their Honours went on to say:

“In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision.” (159 – 160)

24. As Kirby J discussed in Re Alistair [2006] NSWSC 411 at [64] – [70], when it is necessary for a care application to be determined by the Children’s Court:

“… there begins a two-stage process. Both aspects, it should be emphasised, may be dealt with in the same hearing. There is what is termed ‘the establishment phase’. It is followed by what is sometimes termed ‘the welfare phase’ (citations omitted).

The establishment phase involves a determination of the need for care and protection, such as to warrant the intervention of the Court. It is a threshold issue.”

As his Honour went on to explain, s 71 sets out the grounds for the making of a care order then s 72 defines the determination which must be made. It is only after the establishment finding has been made, whether in a separate hearing or not that the Children’s Court can give consideration to final orders which will safeguard the child. The threshold or establishment phase bears that necessary relationship with the final determination to fall into the second category described in the plurality judgment in Hot Holdings v Creasy.

25. Section 71(1) of the Act makes the following provision:

“The Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young if it is satisfied that the child or young person is in need of care and protection for any reason, including, without limitation, any of the following:

….”

There is then set out what is now an inclusive, rather than the previous exclusive, list of reasons which may be taken to be sufficient for the Children’s Court state of satisfaction. Paragraphs (d) and (e) are in the following terms:

“(d)  subject to subsection (2), the child’s 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 or primary care-givers,

(e)  the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living”.

26. Bearing in mind that the requisite state of satisfaction on the part of the Children’s Court may be formed for any reason not limited to paragraphs (a) to (h). The provisions of s 106A need to be borne in mind, subject to s 71(1A). I have set it out in full:

“(1)  The Children’s Court must admit in proceedings before it any evidence adduced that a parent or primary care-giver of a child or young person the subject of a care application—

(a)  is a person—

(i)  from whose care and protection a child or young person was previously removed by a court under this Act or the Children (Care and Protection) Act 1987, or by a court of another jurisdiction under an Act of that jurisdiction, and

(ii)  to whose care and protection the child or young person has not been restored, or

(b)  is a person who has been named or otherwise identified by the coroner or a police officer (whether by use of the term “person of interest” or otherwise) as a person who may have been involved in causing a reviewable death of a child or young person.

(2)  Evidence adduced under subsection (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection.

(3)  A parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2) by satisfying the Children’s Court that, on the balance of probabilities—

(a)  the circumstances that gave rise to the previous removal of the child or young person concerned no longer exist, or

(b)  the parent or primary care-giver concerned was not involved in causing the relevant reviewable death of the child or young person,

as the case may require.

(4) This section has effect despite section 93 and despite anything to the contrary in the Evidence Act 1995.

(5) In this section, reviewable death of a child or young person means a death of a child or young person that is reviewable by the Ombudsman under Part 6 of the Community Services (Complaints, Reviews and Monitoring) Act 1993.”

The provision is relevant because the evidence before the learned magistrate established that JH’s elder two children had been previously removed by Court order and had not been restored to her care and protection. Proof of those facts was prima facie evidence that the children, the subject of the application that the learned Magistrate was dealing with, that is JH’s younger two children, were “in need of care and protection”. That prima facie evidence is rebutted if JH satisfied the Children’s Court on the balance of probabilities of either of the matters specified in s 106A(3). However by dint of s 71(1A), s 106A cannot support a separate reason for making a s 71(1) finding, unless that reason is pleaded in the initiating application, which it was not here: see Exhibit A; cf, SB v Parramatta Children’s Court [2007] NSWSC 1297 [49]-[52] (Price J).

27. Under s 72 of the Act the Children’s Court’s satisfaction that the child or young person is in need of care and protection is a precondition to the making of a care order if only upon satisfaction of the conditions set out in paragraphs (a) and (b) of s 72(1). The learned magistrate did not make a care order. Arrangements for the care of the children were the subject of the previous interim order. The making of a care order in accordance with the analysis of Kirby J in Re Alistair happens during the “welfare phase” rather than the “establishment phase”.

The decision of the learned magistrate

28. As I have stated, the matter was heard by her Honour Virgo CM on 7 June 2021 and decided on 11 June 2021. Each party was represented, as were the children by an independent legal representative. As her Honour observed (at [2]), the matter proceeded on the filed affidavits and submissions “by agreement between the parties”. Each of the legal representatives made oral submissions and her Honour reserved for a short time for consideration. Her Honour was satisfied that the statutory condition expressed in s 72 of the Act, that the children were in need of care and protection, as amplified by s 72(1)(a) and (b), was established (at [8]). Her Honour emphasised that her decision “is a preliminary finding not a final determination of the facts” (at [9]). Her Honour observed that each father “consented”, without admission, to the finding and the independent legal representative for the children supported the position of the Secretary that the children were in need of care and protection. JH sought a dismissal of the application and the restoration of the children unconditionally forthwith.

29. Her Honour fully summarised the arguments advanced on behalf of JH (at [20]) and set out the applicable legal principles, as she understood them to be: [21] – [31]. It’s perhaps relevant to record the following (at [30]):

“In Re: Alistair the Court held that a court does not have to undertake an extensive and exhaustive investigation of each of the allegations mounted to see whether there is a proper basis for the proceedings to be before the Court and for those proceedings to be established. That it is a low threshold is also demonstrated by the Supreme Court decision in Re: Dessertain [2003] NSWSC 972 and also by the dicta of Kirby J in Re: Alistair both of which confirm and provide support for the contention that the Court can make a finding on the basis of a without admissions concession by the parents, without requiring full evidence and cross-examination of witnesses.”

30. Her Honour also referred to the “s 106A matters” ([32] – [36]), importantly her Honour said, by reference to Price J’s decision in SB (at [34]):

“… evidence adduced under s 106A(1) is prima facie evidence which, if not rebutted, may satisfy the Children’s Court that a child is in need of care and protection under one of the grounds in s 71(1). However, s 106A does not provide a ground in itself for a finding that a child is in need of care and protection. The Children’s Court is still required to be satisfied of one of the grounds in s 71 before making the determination required by s 72.”

31. Her Honour observed that her findings must be derived from evidence which is “satisfactory in the probative sense” to avoid decision-making that is capricious, arbitrary and without foundation (at [36]). Her Honour considered thoroughly and in detail the arguments and material put forward on behalf of JH (at [37] – [48]) and evaluated that material (at [49] – [54]). Given the limited nature of the present application, it is unnecessary for me to summarise her Honour’s reasons in that regard. As I have said, and I repeat, they were detailed, thorough and engaged fully with what had been put to her.

32. In essence, her Honour was satisfied that while JH may have taken the initial steps to address her drug use, it could not be said that they had been addressed, I infer, in the sense of having been overcome. She also found that JH did not engage appropriately with DCJ case workers, but rather stood on her rights, and on one occasion had ordered them to leave her home under threat of calling the police. The children had been left at home on previous occasions, as disclosed by the children, while JH was visiting neighbours and JH’s mental health continued to be a concern, having regard to her diagnosis of borderline personality disorder. She had refused to engage with DCJ case workers in relation to that issue. JH denied that she had any current health concerns and she refused to consent to her mental health history being provided to any DCJ appointed psychiatrist.

33. Her Honour applied s 106A on the basis that JH’s mental health and use of illicit substances were a significant concern, leading to the removal of her older children from her care. The learned magistrate adjudged that those concerns continued and were relevant to questions of care and protection in respect of the subject children. In her Honour’s view JH had not rebutted the “presumption in s 106A in this regard” (at [55]). However, her Honour stressed that she had not “assessed establishment merely on the basis of the presumption outlined in s 106A not having been rebutted” (at [56]). Her Honour rejected JH’s argument that s 71(1A) precluded the Children’s Court from acceding to the Secretary’s application, because she had addressed the grounds set out in s 71(1)(d) and (e). Her Honour found that those grounds had been addressed and they were the grounds upon which she made the establishment finding. She also pointed out in a manner which is not now material, that the argument about the meaning of s 71(1A) advanced on behalf of JH misconstrued the subsection (at [58] – [59]).

Disposition

34. I turn then to the question of whether the grounds propounded in what I have referred to as the further Amended Summons are untenable in the way necessary for the Secretary to succeed on an application for summary dismissal. The grounds are fully set out above (at [16]).

Grounds 1 and 2

35. I accept Mr Dean’s argument that grounds 1 and 2 are questions of fact cloaked as questions of law. They in substance attack the learned magistrate’s findings in respect of the s 71(1)(d) and (e) grounds. But they do so by asserting “that there was insufficient evidence” to support the finding. It is well established, in Australian administrative law anyway, that the complete absence of probative evidence to support an ultimate finding of fact required to be made by a court to grant the relief sought is an error of law which may constitute either, depending on the circumstances, jurisdictional error or error on the face of the record. In shorthand, this is said to be a “no evidence” ground. To say there is “no sufficient evidence” is different. Such a ground acknowledges that there is evidence but that the nature and quality of it is such that it should not have been accepted as persuasive, so that the finding of ultimate fact based upon it is wrong: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33; Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156 – 157; Skiwing Pty Ltd v Trust Company of Australia [2006] NSWCA 276 at [52] – [53]. I am satisfied that these grounds are untenable.

Ground 3

36. Ground 3 asserts error by the magistrate relying upon the provisions of 106A of the Act. I am satisfied this ground is untenable. Her Honour’s findings were squarely based upon her satisfaction that the reasons identified in s 71(1)(d) and (e) were established. In accordance with the judgment of Price J in SB, her Honour limited the use made of s 106A in the manner I have described. Her Honour did not treat s 106A as providing a separate ground for finding the need for care and protection was established (see SB at [49] – [52]). Her Honour merely relied upon the prima facie evidence established by application of s 106A as being relevant to her findings in relation to s 71(1)(d) and (e). She considered the submissions made on behalf of JH carefully and made primary findings of fact in relation to them before deciding that JH had not rebutted the “presumption”. Her Honour’s use of the word “presumption” is simply shorthand for “prima facie evidence”.

37. In some ways the approach her Honour took to s 106A by reference to SB was perhaps somewhat favourable to JH. Since SB was decided, s 71 has been amended by Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW), which for the purposes of the amendment of s 71 commenced on 24 January 2010. The amendment makes clear that the reasons or grounds appearing at the foot of subsection (1) of s 71 are not exclusive, but merely inclusive, and the establishment finding can be made for “any reason”. Although the approach her Honour took may have been unduly restrictive having regard to the current form of s 71, given the enactment of s 71(1A), and the consideration that the Secretary did not rely upon s 106A as a separate ground in the initiating application (Exhibit B), her Honour’s restrictive view had no practical consequence. It was not material. And in any event any legal error involved favoured JH.

Ground 4

38. Ground 4 is that the learned magistrate failed to apply the correct standard of proof in making her decision. Dr Ginges relied upon Director General Department of Community Services; Re Sophie [2008] NSWCA 250. As I have said, Dr Ginges also referred to Briginshaw v Briginshaw and, by implication, s 140(2)(c) of the Evidence Act 1995 (NSW). Section 140(2)(c) has the effect that when determining whether an essential matter has been proved on the balance of probabilities, a court takes into account “the gravity of the matter alleged”. It may be accepted for the purpose of the present argument that a finding that children are in need of care and protection, which may be the first stage in leading to their removal from the care of their mother, is a grave matter.

39. Her Honour’s reference (at [30], referred to [29] above) to “a low threshold test” at first blush gives rise to concern whether the correct standard of proof has been observed for making the establishment finding. Section 93(4) provides that “in any proceedings before the Children’s Court, the standard of proof is proof on the balance of probabilities” (my emphasis). And the onus lies upon the Secretary. Re Sophie was a case where the ground relied upon by the Secretary was that that the child had been sexually abused by her father: s 71(1)(c). The Secretary successfully sought judicial review of the orders made by a District Court judge on appeal under s 91 of the Act where his Honour appeared to have applied the criminal standard of proof of beyond reasonable doubt. Sackville AJA, with whom the other members of the Court agreed said at [67]:

“The primary judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act. It was not appropriate to find that [the Secretary] had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was ‘highly improbable’.”

Sackville JA held, with the agreement of the other members of the Court, that the judge had applied a standard of proof higher than the balance of probabilities and that this amounted to an error of law apparent on the face of the record. I interpolate that given the approach of the District Court judge the error was clearly material, an essential precondition to the entitlement to relief in the nature of certiorari: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34.

40. Moreover, her Honour, in my respectful opinion, erred in suggesting that Re Dessertaine [2003] NSWSC 972 (Greg James J) or Re Alistair “demonstrate” that a low threshold is involved. In particular in Re Alistair, Kirby J said (at [101]):

“At the establishment stage, the issue is whether the grounds have been established, as a matter of probability, such as to warrant a finding that the child was in need of care and protection. Relevantly, it concerned whether, as a matter of probability, in the case of each child, [a s 71 ground] had been established…” (My emphasis)

41. Clearly the other provisions of s 93, including the avoidance of “an adversarial manner”, the adjuration to conduct the proceedings “with as little formality and technicality and form as the circumstances of the case will permit”, and the general eschewer of the rules of evidence do not derogate from this. In particular s 93(5) stipulates:

“Without limiting subsection (4), any requirement under this Act that the Children’s Court be satisfied as to a particular matter is a requirement that the Children’s Court be satisfied on the balance of probabilities.”

This, with respect, is not “a low threshold test”.

42. As Re Sophie illustrates, the adoption and application of an erroneous standard of proof, either more or less stringent, than the balance of probabilities may very well involve a material error of law. But it does not necessarily follow that the mere misstatement of the relevant standard itself constitutes a material error of law. The question must relate to the practical effect, if any, of the misstatement. As I have tried to indicate in my summary of her Honour’s reasons, the learned magistrate approached her task with a great deal of care as befits the solemnity of the exercise by the Children’s Court of its statutory powers. Her Honour fully engaged with the evidence that had been placed before her and with the competing contentions of the Secretary on the one hand, and JH on the other. If one considers the context in which the observation about “a low threshold test” was made, it is clear that her Honour was well aware that “the threshold test of establishment” (at [27]) was “to provide a safeguard” … “against arbitrary intervention by public authorities”. I have already emphasised that (at [36]) her Honour said that “in making any finding, I must draw from filed material that is in my assessment satisfactory in the probative sense”. This statement was drawn from the judgment of McColl JA in Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [148], in turn drawing upon the judgment of Allsop P (as his Honour then was) in One Steel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [2].

42. The learned magistrate then went on, as I have said, to assess the evidence and the submissions in the matter. Her Honour remained conscious that she was not called upon, at the establishment phase, to make orders finally dispositive of the matter, which of course is relevant to the application of the flexible balance of probabilities standard, as opposed to the stringent standard of beyond reasonable doubt.

43. While I have borne firmly in mind the heavy burden falling upon the Secretary in a summary dismissal application, I am able to say with a conviction approaching certainty that her Honour’s reference to “a low threshold test” was a mere slip. A consideration of the whole of her reasons in context, read fairly, amply demonstrates that the learned magistrate appropriately applied the applicable standard of proof mandated by s 93(4) of the Act.

Ground 5

45. Ground 5 is that the learned magistrate failed to consider “a relevant consideration, namely the United Nations Convention on the Rights of the Child, (1989)” (“UNCROC”). For administrative law purposes a consideration is only relevant if the statute either expressly or by implication having regard to its “subject matter, scope and purpose” makes it mandatory for the decision-maker to take the matter into consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [39] – [40] (Mason J). As Dr Ginges argued, and Mr Dean accepts, that Re Tracey (2011) 80 NSWLR 261; [2011] NSWCA 43 is authority for the proposition that the articles contained in the UNCROC are “capable of being relevant to the exercise” of a discretion or decision under the Act. They are not mandatory considerations in the administrative law sense as discussed by Mason J in Peko-Wallsend; Re Henry; JL v Secretary Department of Community Services [2015] NSWCA 89 at [266] (Basten JA). Moreover, there was no material before me to suggest that any specific article had been drawn to her Honour’s attention for her consideration. Had it been otherwise, a positive statement by the magistrate that the matter was irrelevant may have given rise to “jurisdictional error”: Re Henry at [265]. But that is not this case. I am satisfied that it was not incumbent upon her Honour, in the sense of being mandatory, to have regard to UNCROC. Moreover, the failure to address a matter not expressly put to a court or a tribunal but rarely can amount to jurisdictional error. I am satisfied to the requisite degree of certainty that this ground is untenable.

Ground 6

46. To the extent to which Ground 6 raises a reasons ground, I accept that failure to discharge the judicial obligation to provide adequate reasons for her Honour’s decision would have been a ground that raises either jurisdictional error, or error of law on the face of the record: Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480; [2013] HCA 43. In my judgment there is no doubt that the actual reasons provided by the learned magistrate were more than sufficient to explain the actual path of reasoning, and in detail, to enable this court to determine whether or not the making of the establishment finding does or does not involve any error of law. Moreover, I accept the submission of Mr Dean that the reasons provided by her Honour met the standard explained by Meagher JA in Beale v Government Insurance Office of New South Wales (1994) 48 NSWLR 430 at 443 – 4. As his Honour pointed out, first, “no mechanical formula” is involved, but a judge should refer to, not all of the evidence, but to the relevant evidence; secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached; and thirdly, the reasons should explain how disputed factual contentions were resolved and how the law applied to the facts found. I have no doubt that her Honour’s reasons reach this standard. With respect, Dr Ginges did not identify any issue left unresolved. Her Honour spent quite some “time” explaining why she preferred “the evidence offered by the first defendant over that of [JH]”. There can be no complaint that the matter was dealt with “on the papers”, this procedure was agreed to by each party, and each party was legally represented. The ground is untenable.

Ground 7

47. Ground 7 seems to involve another aspect of the duty to give reasons. The complaint is that the learned magistrate “failed to examine sufficiently the circumstances of the removal of the children”. The issue for the learned magistrate was whether the children were in need of care and protection for the reasons expressed in s 71(1)(d) or (e). Her Honour set out her conclusions at the outset of her judgment (at [8]). Those conclusions included a conclusion that the intervention of the Secretary “continues to be entirely justified at least until a workable plan for the children’s future, safety, welfare and well-being can be worked out … in consultation with the parents”. The balance of her Honour’s reasons explained why she came to that conclusion by summarising the relevant law and examining in detail, the competing evidence and expressing her conclusions. Her Honour found that s 71(1)(d) was satisfied (at [43]), that s 71(1)(e) was satisfied (at [46]) and that her conclusions in this regard were bolstered by the s 106A “presumption” at [56]. Each of these conclusions was more than adequately explained by reference to the material she was asked to consider and the arguments of the parties in relation to it. This ground is untenable.

Ground 8

48. The final ground is that the learned magistrate failed to give sufficient or any regard to ss 8 and 9 of the Act. In written submissions, Dr Ginges referred specifically to s 9(2)(c) and (d) requiring the “least intrusive intervention” and the “special protection and assistance from the State” to preserve the child’s name, identity, language, cultural and religious ties. It was not clear that these matters had been drawn specifically to the attention of the learned magistrate, but to the extent to which they were, Dr Ginges, with respect, did not develop any potentially practical ramification of these matters in the decision-making process required of the magistrate. I accept Mr Dean’s submission that it is not necessary for a children’s magistrate to refer expressly to these provisions in the exercise of the care jurisdiction. The learned magistrate’s exercise of judicial power did not require her Honour, in a formulaic way, to set these matters out. There was no particular issue identified which may have required the magistrate to expressly remind herself of these basic matters. There is nothing on the face of her Honour’s reasons suggesting that she had overlooked them. And nothing she decided seemed inherently inconsistent with them. It may be of some relevance that one of the children is of indigenous heritage on the paternal side. And his father consented, as I have said, to the establishment finding being made. In my judgment this ground is not capable of being sustained.

Conclusion

49. It follows from these reasons that I have accepted that the grounds for review are untenable and that the summons for judicial review and its stated grounds reveal no reasonable cause of action. It may be an unusual step to determine an application for judicial review under s 69 Supreme Court Act by way of summary dismissal. However, just as such a procedure is available in the parens patriae jurisdiction, so too is it available in the supervisory jurisdiction in an appropriate case.

50. Although not applicable to an application for summary dismissal, the court has a residual discretion in matters where certiorari is applied for: Hossain v Minister for Immigration at [73] – [74] (Edelman J). On a full hearing of JH’s summons, the discretion may well have been in play given the “interim” nature of the decision in the Children’s Court, the imminence of the final hearing on 5 February 2022 and the availability of a full right of appeal on the merits to the District Court under s 91 of the Act. An order in the nature of certiorari would not have delivered to JH the result she so earnestly desires of the restoration of her children under s 72 of the Act. Rather, the legal effect of the establishment finding would have been set aside, and the matter remitted to the Children’s Court for re-determination according to law. While the establishment phase and the welfare phase may be decided in a single hearing, a successful result for JH entailed the very real prospect that the final determination of the care proceedings would have been not insignificantly delayed. In my judgment that is a matter which may have engaged the exercise of the residual discretion.

51. During that argument the Secretary made it clear that in the event of a successful outcome no order for costs was sought against JH.

52. For the reasons given my order is:

1. The proceedings for judicial review are summarily dismissed.

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Decision last updated: 30 November 2021