JH v Secretary, Department of Communities and Justice (No 2)

[2023] NSWDC 317

District Court

New South Wales

Medium Neutral Citation:

JH v Secretary, Department of Communities and Justice & Ors (No 2) [2023] NSWDC 317

Hearing dates:

15 August 2023

Date of orders:

17 August 2023

Decision date:

17 August 2023

Jurisdiction:

Civil

Before:

Abadee DCJ (as List Judge)

Decision:

See paragraphs 74 - 75

Catchwords:

FAMILY LAW AND CHILD WELFARE – appeal from decisions of Children’s Court – application for an Assessment Order

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 53, 54, 55, 56, 59, 94

Uniform Civil Procedure Rules 2005 (NSW) r 31.46

Cases Cited:

JH v The Secretary, Department of Communities and Justice & Ors [2023] NSWDC 30

Texts Cited:

Nil

Category:

Principal judgment

Parties:

JH (plaintiff)
The Secretary, Department of Communities and Justice (1st defendant)
PK (2nd defendant)
CB (3rd defendant)

Representation:

Counsel:
Mr B Dean for the first defendant
Ms L Goodsell with Ms Ito as agent for the Independent Legal Representative

Solicitors:
Crown Solicitor’s Office (NSW) for the first defendant
JH (in person)

File Number(s):

2022/00252702

Publication restriction:

Children and Young Persons names anonymised in accordance with s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Parents’ names also anonymised.

REASONS FOR JUDGMENT

Background

1. The applicant (JH) is the mother of BK and CB (unless it is necessary to refer to them separately, ‘the children’). BK is currently 7 years of age and CB is currently 4 years of age. The children were born to different fathers.

2. On 3 March 2021, the children were removed from JH’s care.

3. On 19 August 2022, the Parramatta Children’s Court finally determined that there was no realistic possibility of the restoration of the children to the mother within a reasonable period of time and finally allocated parental responsibility for CB to the Minister until he attained 18 years of age. In the case of BK, the Children’s Court declined to make final orders since it was of the view that permanency planning had not been established, but the Minister continued to have parental responsibility for BK.

4. On 22 November 2022, the Parramatta Children’s Court made final orders allocating parental responsibility for BK to the Minister until he attained the age of 18 years.

5. Previously the Parramatta Children’s Court determined that there was no realistic possibility of the restoration of the children to their respective fathers within a reasonable time.

6. On 25 August 2022, JH filed a Summons seeking to appeal the decision of the Parramatta Children’s Court on 19 August 2022. She amended that summons on 13 December 2022 and sought various orders which included overturning a finding that there was no realistic possibility of the children being restored to her, setting aside the decision that the children remain under the Minister’s care until they turn 18 and returning both of the children to her care immediately.

7. By my decision on 17 February 2023^[1] JH unsuccessfully applied to the Court for a stay of the orders of the Children’s Court pending the appeal.

   1. JH v The Secretary, Department of Communities and Justice & Ors [2023] NSWDC 30

8. On 8 May 2023, the appeal was set down for hearing scheduled to commence on 13 November 2023 with an estimate of 5 days.

Ms Hong’s clinic assessment report

9. On 11 January 2022, Sunny Hong prepared a Children’s Court Clinic Assessment Report (Exhibit 2). This followed an Assessment Order made by Surry Hills Children’s Court on 20 February 2020 under ss 53 and 54 of the Children and Young Persons (Care and Protection) Act 1988 (NSW). Ms Hong’s report identified, in detail:

1. specific reasons why assessment was required (paragraphs 3-11); and

2. the issues to be addressed, as stated in the Assessment Order (paragraph 12).

10. Her report also set out (paragraph 22) the various sources of information she relied upon. This included information supplied by the Department, Ms Holder, the fathers of BK and CB and a process involving a range of clinical interviews or observations, and telephone interviews with JH, the two fathers the children and others. It is apparent on the face of the report that the assessment process took place over a period of approximately two months. In particular, Ms Hong identified that she had at least two interviews with JH (8 November 2021, for three hours; and 29 November 2021, for one hour).

11. Ms Hong’s report ran to 62 pages. There were 215 paragraphs and many sub-paragraphs subsumed within those paragraphs.

12. In the Executive Summary of her report, Ms Hong wrote the following:

“1.2 [JH and the two fathers] have all been involved in tumultuous relationships. This has placed the children in unsafe and poor parenting circumstances, and both children’s development has been delayed and medically neglected for [BK].

1.3 Due to [JH’S] mental health and untreated Borderline Personality Disorder with negative interpersonal patterns and emotional dysregulation, parenting of these subject children have been significantly impacted. Her negative interpersonal style has also impacted the relationship with [CB’s father]. There has been domestic violence, causing some physical harm to [JH].

1.4 [PK] does not pose any risk in providing care for [BK]. However, his commitment to other children and his circumstances do not seem to create the best placement for [BK]. Furthermore, the strip of attachment between PK was weak, and [BK’s] long-term placement would be best in his current kinship placement, where he seems to be making gains.

1.5 [CB’s father’s] drug and alcohol use and current bail condition do not provide safe and consistent placement for [CB]. He has also not completed any courses or domestic violence counselling as suggested by the DCJ.”

13. Ms Hong addressed in detail a broad range of topics. This included the applicant’s family history and developmental history, her history of relationships with various men, including the fathers of the children and, in connection with CB’s father, her being subject to domestic violence; her mental health history and diagnosis; drug and alcohol use and the applicant’s understanding of her children’s removal and parenting issues.

14. Ms Hong also made extensive findings about the children’s respective fathers and the issues that they faced.

15. Ms Hong further expressed clinical observations about the applicant with the children, and the fathers with the children.

16. Ms Hong specifically addressed issues referred to her for attention. This included the children’s interactions with the applicant and their respective fathers and the individual characteristics (or ‘special needs’ of the children). She addressed the matters set out in s 54 of the Act. In relation to the applicant, she concluded that the applicant’s capacity to understand and prioritise the children’s needs was “inadequate,” her capacity to meet the challenges posed by a particular child’s needs as “Inadequate and inconsistent” whilst acknowledged that she had previously engaged in treatment thought to impede her parenting capacity.

17. She believed that the applicant’s emotional dysregulation and poor insight into her relatedness had an ongoing impact and impediment upon her parenting. Her understanding of child protection was said to lack insight. In respect to her drug usage, although the applicant acknowledged that she had used Ice, and although she said that she had ceased the use of that drug since the children’s removal, she did submit to a requested urinalysis.

18. On the subject of restoration, Ms Hung was blunt: she believed that “It would be reckless to consider restoration when she had not addressed any of her mental health issues and continues to deny any child protection concerns which precipitated the current court proceeding.”

The application

19. On 13 June 2023 JH applied to this Court, under ss 53, 54 and 55 of the Act, for an Assessment Order.

20. In the section of this form titled ‘Reasons for why assessment is required’ and after reciting some background to the application, summarising the children’s removal from her care (and the circumstance of them not being restored), her history of involvement in relationships characterised by or featuring domestic violence, her earlier diagnosis of a mental disorder; her history of drug use but completion of recent parenting and drug courses, JH described (paragraph 7 of the application) the bases for the assessment in the following way:

“(a)   Assess the mother’s understanding of an insight into the child protection concerns held by DCJ; (the mother is of the view that the children should not have been removed from her care, and her drug use did not impact the children, and she met their needs whilst they were in her care).

(b)   Assess the mother’s emotional and cognitive functioning, including a review of the mental health history and make any recommendations about her current mental health and proposed treatment if required, the mother is of the view that she is not suffering from any mental health issues that would impact upon her parenting capacity.

(c)   Assess whether the mother’s mental health is impacting upon her parenting capacity.

(d)   Assess if the mother’s drug use impacted and is likely to impact upon her parenting capacity.

(e)   Whether the mother has motivations to address any concerns identified by the clinician.

(f)   whether the mother has addressed her history of domestic violence relationships and would be able to recognise the future unsafe relationship.

(g)   Consider if the mother has a suitable support network.

(h)   Assess whether the mother and father’s (sic) could co-parent or facilitate contact if the mother held parental responsibility.”

21. The ‘Terms of the Assessment’ in the application were proposed as follows:

“The mothers capacity to parent the children or young persons

The extent to which any identified issues of concern are impacting upon the mother’s parenting capacity.

The mothers’ (sic) understanding of the child’s developmental, physical, psychological, emotional and educational needs and current and potential ability to meet those needs

The mothers’ (sic) understanding of the child protection concerns which have led to the current court proceedings and their capacity and motivation to address those concerns.’

22. In the section of the application under the heading “Clinician” and where JH indicated that she did not want Sunny Hong appointed as the specific clinician, the applicant wrote:

“Sunny Hong - she was the clinician that facilitated the clinic assessment that was used in the Children’s Court proceedings and I was unhappy with her views, judgement and recommendations.”

23. On 15 June 2023, this application was fixed for hearing to 15 August 2023. At the hearing, the applicant represented herself. Mr Dean of Counsel represented the Secretary. Ms Goodsell of Counsel appeared, as agent, for the ILR.

The evidence on the application

The applicant’s evidence

24. JH relied upon two affidavits, sworn by her on 17 May 2023 (Exhibit A) and 28 July 2023 (Exhibit B).

25. In the first of those affidavits, JH set out at length the procedural background. She also responded to an affidavit prepared for the Secretary which was not in evidence before me in this application. But in her closing oral submissions, JH referred to paragraphs 21-22 of this affidavit. In paragraph 21, she deposed to her current fiancé (SD), who she got engaged with in May 2023 and after entering into a relationship in November 2022; and noted that they were currently on a waitlist to have relationship counselling (Relationships Australia at Penrith). At paragraph 22, she deposed to her intentions of seeing a general practitioner in order to obtain a mental health plan and receive counselling (I note that she purported to state her fiancé’s similar intention, but I indicated that this was hearsay evidence which I would not have regard to). At paragraph 23 (in a paragraph that the Secretary emphasised, for reasons to be explained) she deposed that she and her fiancé “do not currently have any domestic violence in our relationship and I can reassure the court that this will not happen in the future.”

26. In the second affidavit, the applicant replied, in detail to Ms Tyndall’s affidavits of 6 April 2023 and 13 July 2023 (noting that only the latter affidavit was being relied on by the Secretary in the hearing).

27. After submissions were made at the hearing of the application by the Secretary and the Independent Legal Representative (ILR), the applicant was granted leave to re-open her case on the application and tendered some additional documents and, in one instance, referred to evidence of Ms Tyndall, the child protection caseworker who prepared evidence for the Secretary. For ease of identification, these were:

1. a letter from the WHOS (‘We help ourselves’) Penrith hub Service co-ordinator dated 13 April 2021 (Exhibit C). This letter concerned the question of substance abuse (alcohol and drugs);

2. various documents produced in response to a subpoena issued to the Department around 12 July 2021, comprising:

1. an undated list of mental health services that the applicant represented she had engaged with (detailing names and mobile phone numbers);

2. an undated letter of Monique Salmon, in which Ms Salmon commented positively on her observations of seeing JH interact with one of the children (BK) and provided general encouragement to JH;

3. correspondence from the Benevolent Society’s Centre for Women’s, Children and Family Health (4 June 2018, 13 March 2017, 17 February 2017, 22 July 2016, 4 November 2015) and a Senior Social Worker of the Royal Hospital for Women (8 March 2016). Most of this correspondence indicated the length and extent of the applicant’s engagement in counselling.

3. a passage from the affidavit of Ms Tyndall, in her affidavit of 13 July 2023, in which the applicant informed Ms Tyndall that she had been engaging with a psychologist, Ms Veronica Tobin, in Penrith and had attended two visits to that psychologist; and also informed Ms Tyndall that she and her current partner (SD) were scheduled to attend relationship counselling on 12 July 2023.

The Secretary’s evidence

Ms Tyndall’s affidavit

28. The Secretary relied upon Ms Tyndall’s affidavit affirmed on 14 July 2023 (Exhibit 1). I have already referred to part of that affidavit (paragraph 38) emphasised by the applicant.

29. Ms Tyndall relevantly noted that the Department had received information to indicate that the applicant attended the Emergency Department of Nepean Hospital on 31 May 2013 and 1 June 2013. On 31 May, the applicant reported with injuries to her arm. The next day, she was brought in with a laceration to her wrist from a knife wound. About this, the applicant explained she had cut her wrist with a knife when washing dishes: she denied that it was an episode of self-harm. She attended hospital on 2 June for surgical repair.

30. Ms Tyndall reiterated the Department’s concern about possible domestic violence. She pointed out that material produced on a subpoena by Nepean Hospital disclosed ambulance call on 26 February 2023 made by the applicant in relation to complaints of pain to her face, her ribs and body. Although she attended hospital, she refused further care.

31. Ms Tyndall updated the Court on the progress of serial criminal proceedings for which the applicant has been charged over the period from 14 December 2020 to 10 November 2022. The charges range from possession of a prohibited drug, driving a motor vehicle with an illicit drug present in the blood, stalking or intimidation, contravening a restriction in an ADVO and possession and supply of prohibited drugs.

32. She also referred to criminal history, including current proceedings, involving the applicant’s fiancé. He had previously been sentenced to personal violence offences and armed robbery in the last 10 years and before that, had a criminal history as a juvenile. It is reported that he has borderline personality disorder and self-diagnosed himself with depression.

33. On 12 July 2023, the applicant reported to Ms Tyndall that she was pregnant, with her current fiancé being the father.

34. Ms Tyndall stated the Department’s concern about the utility of the Court ordering an assessment in circumstances where the Department was of the view that she had not adduced evidence of significant change or progress warranting a further assessment since Ms Hong’s assessment 18 months ago. The Department is concerned about her parenting capacity that extended beyond the concerns it held at the time the proceedings were before the Children’s Court.

35. As indicated, the applicant took issue with virtually all of what Ms Tyndall identified in the former’s affidavit in reply. Thus:

• her hospital attendance in late May was not the result of domestic violence;

• in relation to her criminal history, she has “turned over a new leaf”;

• her partner’s criminal history or background was irrelevant to her application;

• she stated her belief that Ms Hong did not assess her accurately.

Suspected incident of domestic violence

36. Counsel for the secretary tendered a file note of meetings between Ms Tyndall and Ms Ciric (a caseworker) on 15 March 2023 (Exhibit 4). The note recorded the observation that JH had a black eye following an incident occurring on 26 February 2023. Initially, when in the presence of her fiancé, JH attributed this to an accident from playing a game of cricket, but ultimately, when JH conferred with the caseworkers alone, she cried and disclosed that her fiancé was responsible. When the fiancé re-entered the room, the fiancé (after initially blaming a fall) admitted that he had inflicted the injury.

37. Counsel for the Secretary noted that evidence of this incident was not disclosed in JH’s affidavit of 17 May 2023.

Concern of mental health and drug use

38. As part of Exhibit 4, Counsel for the secretary relied upon a file note of a telephone conversation between Senior Constable Tricot and Ms Tyndall on 30 March 2023, relating to the applicant. The police officer expressed a concern about her protection under an AVO relating to her fiancé. But at the conclusion of the note, there is a record of the officer’s concern for her mental health given the circumstances of: (a) the applicant’s statement that her fiancé was the “Ex Police Commissioner for Victoria” and (b) the fiancé’s statement in Court that the applicant managed her mental health with ice.

Clinic Assessment Report

39. Ms Hong’s report was not the first of its kind to assess JH. Counsel for the secretary relied upon a previous clinic assessment report prepared by Jillian Murray, a mental health accredited social worker, dated 28 June 2016 (Exhibit 3).

40. In Ms Murray’s report, she noted that concerns had arisen about the applicant’s care of children since August 2014 and more specifically, her concern about the impact on the applicant’s mental health on her ability to parent the children. In 2015, the applicant had disclosed her relationship to BK, a man known to have perpetrated domestic violence against female partners and whom the applicant had put forward as a person who should have contact with two other children of the applicant.

Admission in the Children’s Court proceeding

41. Counsel for the Secretary referred to an exchange in the Children’s Court proceeding on 15 August 2022 when the applicant was cross-examined by the lawyer for CB’s father. In the exchange, the applicant admitted that the issues relating to her mental health, domestic violence, and multiple relationships with partners had been issues affecting the applicant for at least 10 years.

Submissions

42. The parties’ submissions were entirely oral.

43. In her submissions in chief, the applicant merely submitted that the basis for the application was that she did not believe that she had received a fair assessment by Ms Hong.

44. Counsel for the Secretary made five points in opposition to the application:

1. The applicant was recently the subject of an assessment 18 months’ before and the applicant had not indicated any material change in the intervening period;

2. The applicant did not establish why, in the light of that earlier assessment, she should have a ‘second bite of the cherry.’ In reality, not much had changed in the last 10 years – a matter she admitted when she was in the Children’s Court in August 2022. There were episodes in February 2023 giving rise to the applicant continuing to be subject to domestic violence – which the applicant concealed in her supporting affidavit – and a report by her fiancé about her resort to ice to cope with her mental health concerns, also in March 2023;

3. The applicant’s prospects of success at the hearing scheduled for November 2023 are not good;

4. The applicant was subject to an adverse credit finding by the Magistrate of the Children’s Court. This was significant in the sense that any new assessment report would, in order to have probative effect, substantially depend upon accurate and honest reporting to the clinician. The adverse credit finding indicated that the Court could not be confident that such a report would be obtained;

5. The proximity of the hearing of this application to the currently scheduled hearing indicated that it was probable, and perhaps even inevitable, that if the assessment was to proceed, the hearing of the appeal would have to be vacated. This was highly undesirable in the context of the objects of the Act (s 94).

45. On the contingency that the application was acceded to, Counsel for the secretary identified other matters that would need to be addressed.

46. The ILR adopted the Secretary’s submissions. In addition, the ILR’s Counsel submitted that:

1. Contrary to the application, the children should not be subject to further assessment. Both of them, in diverse ways, had ‘special needs’ and should not be subjected to additional stresses.

2. Counsel’s experience was that, following the first point, it would be difficult for an assessor to assess the applicant’s parenting capacity without assessing the children.

3. There was doubt about the effectiveness of another Assessment beyond the question of the applicant’s honesty raised by Counsel for the Secretary. The circumstance of the applicant being unrepresented was problematic in facilitating a concise statement of the Terms for any assessment. (It was suggested that she had prior representation to assist with the Terms for Ms Hong’s Assessment). Inevitably, there would be delay in framing Terms that could be agreed to go before the Assessor, if indeed agreement could be reached at all. A contrast was posited with the succinct statement of the terms of Ms Hong’s assessment.

4. There was doubt about the necessity of the order. The matters set out in paragraph 7 of the Application indicated that what the Applicant sought was unnecessary: she was really seeking an update. But the update she was seeking was that of an expert’s assessment. The applicant was not precluded from preparing evidence other than from an expert and indeed the proposed short minutes prepared by the Secretary for case management envisaged the applicant having the opportunity to provide (lay) updated evidence.

5. Counsel endorsed, specifically, the Secretary’s point that Ms Hong had prepared a comprehensive Assessment. As a matter of statutory purpose, the Court would not lightly subject the children to further intrusive inquiries.

47. In submissions in reply, the applicant indicated, more than once, that she did not disagree with the position and submissions advanced for the ILR. But she did take issue with the position of the Secretary. She referred to the evidence, summarised earlier, about her and her fiancé’s measures to obtain relationship counselling and their own independent counselling for their respective issues. She maintained that there were no domestic violence issues between them.

48. She referred to her efforts to engage mental health services and her demonstrable involvement with the Centre for Women’s Children’s and Family Health services over the years.

49. These matters were not referred to in the applicant’s written submissions in chief and Counsel for the Secretary took the opportunity extended to him to reply to the matters. He submitted that the matters that the applicant referred to essentially proved the Secretary’s point that the Court could not be satisfied that much had changed; which might warrant a new Assessment. Further, if the Court was inclined to find that the applicant had made any new attempts to assist herself, it was too early to assess the efficacy of those attempts.

Consideration

Relevant statutory provisions

50. For present purposes, the Court, before whom there is an extant appeal, is being asked to step into the shoes of the Children’s Court when making an assessment order.

51. Section 53(1)(b) empowers the Court to order the assessment of a child.

52. Section 54(1) empowers the Court to appoint a person to assess the capacity of a person with parental responsibility, or who is seeking parental responsibility, for a child or young person to carry out that responsibility.

53. There is no question about the applicant’s standing to make this application (s 55(1)(b) of the Act).

54. Section 56(1) sets out a list of mandatory (although not exhaustive) considerations for the Court when deciding whether to make an assessment order:

“(a) whether the proposed assessment is likely to provide relevant information that is unlikely to be obtained elsewhere,

(b) whether any distress the assessment is likely to cause the child or young person will be outweighed by the value of the information that might be obtained,

(c) any distress already caused to the child or young person by any previous assessment undertaken for the same or another purpose,

(d) any other matter the Children's Court considers relevant.

55. Section 56(2) provides that when making an assessment order, the Court must ensure that a child is not subject to “unnecessary assessment”.

56. Section 54(3) indicates that the provisions for the assessment of a person’s parenting capacity applies in the same way as it applies to the assessment of a child.

57. An assessment report is a report which is produced to the Court. It is not tendered by either party (s 59). The provision confirms the evident intent that it is prepared by an expert who has duties to the Court; not to the parties who are affected by an assessment.

58. I note also the statutory objects of the Act, including, in particular, section 8(a) and also the principles for the administration of the Act in s 9.

59. Further, I have regard to ss 94(1) and (4) of the Act which provisions, respectively, encourage expedition in legal proceedings and the avoidance of adjournment applications to the maximum extent possible. Indeed s 94(4) is expressed in peremptory terms: an adjournment can only be granted if the Court is of the opinion that: (a) it is in the best interests of the child(ren), or (b) there is some other cogent or substantial reason for it.

Analysis

60. I will address, initially, the mandatory considerations in s 56. Considering her argument, it is plainly the case that the applicant is dissatisfied with Ms Hong’s conclusions and apprehends their effect upon this Court’s consideration of her appeal against the Children’s Court’s orders. But although she expressed dissatisfaction with Ms Hong, she did not articulate why the expert’s conclusions or views were inaccurate or wrong. It is also plain, with reference to her application (in paragraph 7), that the applicant is seeking the expert opinion of another mental health professional (as distinct from some other expert, such as a social worker, like Ms Murray).

61. One difficulty with the applicant’s argument is that the Secretary points to other events since Ms Hong’s report was prepared which, although the applicant also takes issue with them, point to the conclusion that nothing has materially changed so that there is an obvious prospect that any expert mental health professional ordered to undertake a new assessment would reach materially the same conclusions as Ms Hong; or at least opinions no more favourable to the applicant.

62. I cannot discount the possibility that a new assessment from a different mental health professional, based upon the factual developments since Ms Hong reported might reach materially different conclusions. In this narrow sense, a new assessment might provide ‘relevant information’ for the purposes of s 56(1)(a) that would be unlikely to be obtained from anywhere else. But for a dispute of this kind, it would be necessary for an applicant in this applicant’s position to persuade the Court that the new matters are such as to give rise, not just to a possibility, but a strong probability, that a different expert to Ms Hong would likely reach materially different conclusions. I am not so satisfied. Influential to me in reaching that conclusion is the prima facie comprehensive and diligent report that Ms Hong prepared and the very thorough process involving many clinical and other reviews of the applicant, the children’s fathers and the children themselves. It is not without significance that other than a generalised complaint, the applicant did not clearly identify in her application what views of Ms Hong she disagreed with (for being ‘inaccurate’) and swhy she says that they are wrong. The complaint she verbally articulated at this hearing that the report was ‘unfair’ was inadequate for this purpose.

63. The above reasoning is not to be taken to reflect any prediction about what weight, if any, the Judge hearing this appeal will give to Ms Hong’s report when considering the reasoning of the Children’s Court in making the orders that the applicant impugns. Like all expert reports in civil proceedings, the weight that might be accorded to reports can be affected by facts occurring subsequent to the expert’s report. So not only did the applicant fail to articulate the suggested inadequacy of Ms Hong’s report on the basis of the factual material the expert had available to her; she also failed to articulate how the subsequent factual developments could affect the weight to be given to Ms Hong’s report.

64. As to the matters in s 56(1)(b) and (c), there is significant force in the submissions of the ILR that the current application envisages an assessment of the children and that this would place a significant burden upon the children; especially where they have already been subject to a relatively recent assessment. Implicit in the ILR’s submission is an argument that the (predicted) value of any new assessment will not outweigh the distress to the children. Even if (which she did not do) the applicant proposed, as a fallback position, that the assessment be limited to her own parental capacity, that would be artificial and unrealistic without an assessment also of the children.

65. Both of these submissions were not answered by the applicant and were probably unanswerable in any event. I cannot say that a further assessment of the children, which I accept is integral to a new parental capacity assessment, would not be ‘unnecessary.’ For the same reasons indicated before, on the evidence before me, I am not persuaded that the likely value of a new assessment will outweigh the anticipated distress to the children which the ILR foreshadows. A related submission made by the Secretary was that it would also be appropriate for a report to be prepared into the fathers’ respective parenting capacity. The applicant argued that her fiancé would need to be involved but did not touch upon the involvement of the fathers.

66. I now turn to other discretionary considerations. The first relates to the lack of specificity regarding the applicant’s complaint about Ms Hong’s report. In my view, an order under ss 53 or 54 of the Act is analogous to the Court’s exercise of a power in civil proceedings generally to appoint an expert under r 31.46 of the Uniform Civil Procedure Rules 2005 (NSW). Where a party is dissatisfied with the expert’s report and seeks the appointment of a different expert, in my view, it is not enough to persuade the Court considering such further appointment that the applicant is dissatisfied, or subjectively disagrees with the original expert’s report. There should be at least an articulation of what is wrong with the original report. That might be procedural or substantive. At the point when a new appointment is considered it is unnecessary for a Court to determine whether the articulated criticism is merited. But the articulated criticism at least needs to be reasoned. All that the applicant has done in this case is to say, in effect, that she is unhappy with the conclusions in Ms Hong’s report because she thinks they are inaccurate.

67. Alternatively, an applicant might argue that a report has lost currency because of new developments. This is effectively the course that this applicant has taken. It would be an unusual case, however, that a report prepared only 18 months ago will have lost currency in the present context. As the Secretary’s Counsel pointed out, the issues bedevilling this applicant have affected her for the better part of a decade. On a question of prejudice (should this application be rejected) to the applicant, she is not deprived of the opportunity to persuade the Judge on appeal from the Children’s Court’s decisions that new factual developments have arisen which diminish the weight that should be accorded to Ms Hong’s report; even if, as is apparent, such submission is likely to be contested by the Secretary. Prima facie, it is doubtful, that with the ingrained nature of the applicant’s issues, Ms Hong’s opinions would alter in material respects even if she was apprised (only) of the more recent factual developments that the applicant refers to in relation to her engagement with counselling or the nature of her relationship with her fiancé; but it is unnecessary and inappropriate to now express any final view on that.

68. There are powerful logistical reasons which militate against the application. The first is the proximity of a proposed process for an assessment with the scheduled hearing. There is plainly a real possibility, indeed probability, that the process for an assessment will practically mandate vacation of the hearing date for November. There is also force in the submission of the ILR that, if this application for an assessment order was acceded to, the likelihood would be that the applicant would herself be involved in discussions that usually occur between legal representatives as to closer delineation of terms for the new expert. That will be a less efficient process than if the applicant was represented. There will then need to be factored in the capacity of the new expert not only to absorb information of others, but also for the expert to put in place processes for a thorough review; which in turn would also depend upon the availability and convenience of persons the new expert may wish to interview or observe.

69. At the very least, the process will occasion significant disruption to the parties’ pre-hearing preparation of that hearing.

70. This is all inherently antithetical to the importance of appeals of this particular kind being heard expeditiously identified in s 94(1) of the Act. Whilst in exceptional cases, this Court may sanction such vacation, in the absence of proof that this was in the children’s best interests (a proposition which the applicant did not advance and which the ILR at any rate contested) the Court would need a cogent and substantial reason to do so.

71. The applicant did not dispute the likely consequence that the hearing would need to be vacated if a new Assessment order were made. Nor did she argue why that prospect would be justified with reference to the considerations in s 94(4)(a) or (b) of the Act.

72. For an appeal of an agreed estimate of 5 days, I would add that from my inquiries within the Court, if the current date was vacated, the next date (for a hearing with this estimate) would be 12 February 2024 or (if that date was unsuitable) 6 May 2024. Although I do not criticise any of the parties to the appeal for what has occurred in this proceeding to date, it would be inapposite and incompatible with the object of expedition referred to in s 94(1) that the hearing of an appeal from orders made in the Children’s Court in the second half of 2022 would be delayed until February 2024 (at the earliest).

73. I am not persuaded to order assessments under ss 53 or 54 of the Act.

74. The applicant’s Application dated 13 June 2023 is dismissed.

75. Prior to argument on the application, the Secretary supplied the Court with proposed directions. Subject to hearing from the parties, I propose the following case-management directions:

1. Confirm the scheduled date for the commencement of the hearing of the appeal for 13 November 2023 with an estimate of 5 days.

2. Leave is granted to the First Defendant to issue updated subpoenas.

3. The Plaintiff is to serve any updating evidence by 9 October 2023.

4. The defendants are to serve any updating evidence (or evidence in response) by 23 October 2023.

5. The First Defendant is to deliver the Court book to chambers by 5 November 2023 containing documents upon which the parties have agreed (after consultation).

6. To the extent that the parties disagree upon the contents of the Court Book, they should prepare their own separate bundles of documents that they wish to rely upon by 7 November 2023.

7. If other parties object to another party’s proposed tender of separate bundles, they should convey its or their objections to the tendering party by 9 November 2023.

76. I will now hear from the parties on those proposed directions.

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Endnote

Decision last updated: 17 August 2023