JL v Secretary, Department of Family and Community Services

[2015] NSWCA 88

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

1 May 2014

Decision date:

13 April 2015

Before:

McColl JA at [1]; Basten JA at [192]; Meagher JA at [233]

Decision:

In Matter No. 2013/64151:
Appeal dismissed.

In Matter No. 2014/73353:
Summons dismissed.

Catchwords:

ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – unsuccessful application for leave to apply to rescind care orders – application to Court of Appeal for relief pursuant to s 69, Supreme Court Act 1970 (NSW) – whether error of law on the face of the record or jurisdictional error established – whether District Court correctly applied provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – procedural fairness – apprehended bias – allegation judge biased in approach to assessing applicant’s case – allegation of denial of procedural fairness

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – international treaty obligations – relevance to exercise of discretion – United Nations Convention on the Rights of the Child

CHILD WELFARE – child welfare – care and protection of children – care and protection orders – whether judge placed excessive or too little weight on applicant’s evidence

Legislation Cited:

Children & Young Persons (Care and Protection) Act 1998 (NSW), ss 79, 81, 90, 91
Child Protection Legislation Amendment Act 2014 (NSW), Sch 1[51]
Civil Procedure Act 2005 (NSW), s 71
Court Suppression & Non-publication Orders Act 2010
District Court Act 1973 (NSW)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), Sch 5
Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156
Boele v Rinbac Pty Ltd [2014] NSWCA 451
Colquhoun v District Court of New South Wales [2014] NSWCA 460
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
DFaCS (NSW) and the Colt Children [2013] NSWChC 5
Hamod v New South Wales [2011] NSWCA 375
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
LXXX v Director-General, Department of Family and Community Services, Lakatos DCJ, (District Court of New South Wales, 2 November 2012, unrep)
Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Re Campbell [2011] NSWSC 761
Re Felicity; FM v Secretary of Department of Family and Community Services (No 3) [2014] NSWCA 226
Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89
Re M (No 5); BM v Director-General of Family and Community Services [2013] NSWCA 253
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re Sarah [2013] NSWCA 379
Re Tracey [2011] NSWCA 43; (2011) 80 NSWLR 261.
S v Department of Community Services [2002] NSWCA 151; (2002) 29 Fam LR
Sue v Hill [1999] HCA 30; (1999) 199 CLR 462
Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170; (2014) 86 NSWLR 674
“V V” v District Court of New South Wales [2013] NSWCA 469

Category:

Principal judgment

Parties:

JL (Applicant)
Secretary, Department of Family and Community Services (First Respondent)
Mr and Mrs RS (Second Respondents)
District Court of New South Wales (Third Respondent)
G, AA, AR (Fourth Respondents)

Representation:

Counsel:
JL Self Represented (Applicant)
L Goodchild (Amicus Curiae)
T Allen (First Respondent)
M Anderson (Second Respondents)
E Lawson (Fourth Respondents)

Solicitors:
JL Self Represented (Applicant)
Crown Solicitor’s Office (First and Third Respondent)
Kathryn Renshall Solicitors(Second Respondents)

File Number(s):

2013/64151; 2014/73352

Publication restriction:

Yes – see [6] of judgment.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

31 January 2013

Before:

Olsson DCJ

File Number(s):

DC 2012/1869

JUDGMENT

1. McCOLL JA: The applicant, JL, appeals against a decision of Olsson DCJ of 31 January 2013 in the District Court refusing to grant her leave to apply to rescind orders of the Children’s Court pursuant to which three of her children were placed in the long-term parental responsibility of the Minister for Community Services: L v Director-General, Department of Family and Community Services & Ors (District Court of New South Wales, 31 January 2013, unrep).

2. JL originally filed a notice of appeal asking that the children be returned to her responsibility. The notice of appeal was not competent as an appeal to the District Court from the Children’s Court does not lead to a “judgment in an action” within the meaning of s 127 of the District Court Act 1973 (NSW): Colquhoun v District Court of New South Wales [2014] NSWCA 460 (at [7]) per Leeming JA (Beazley P and Barrett JA agreeing). It should be dismissed.

3. In due course an amicus curiae, Ms L Goodchild of counsel, was appointed by the Court to assist JL. Ms Goodchild prepared a summons which was filed on 10 March 2014 seeking an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW) quashing the whole of the decision made on 31 January 2013 and an order remitting the matter to the District Court to be heard and determined according to law. The grounds set out in the summons were based on JL’s affidavit filed on 28 February 2013.

4. The Supreme Court’s jurisdiction to grant prerogative relief pursuant to s 69 of the Supreme Court Act in cases concerning the care and protection of children and young persons is preserved by s 247 of the Children & Young Persons (Care and Protection) Act 1998 (NSW) (the “Care Act”): Re M (No 5); BM v Director-General of Family and Community Services [2013] NSWCA 253 (“Re M”) (at [15]) per Sackville AJA (Macfarlan and Ward JJA agreeing). To obtain relief, JL must “establish an error of law on the face of the record of the court below, or jurisdictional error”: Re Felicity; FM v Secretary of Department of Family and Community Services (No 3) [2014] NSWCA 226 (“Re Felicity”) (at [8]) per Basten JA (Ward and Emmett JJA agreeing).

5. JL represented herself but was assisted in some respects by the amicus curiae. The Secretary (formerly Director-General and for the sake of consistency with previous judgments, referred to here as such), Department of Family and Community Services was represented by Mr T Allen of counsel who also appeared before the primary judge. Mr and Mrs RS, the carers of two of JL’s children, were represented by Mr M Anderson of counsel. The children were represented by an Independent Legal Representative (the “ILR”), Ms E Lawson of counsel. She had independent status because JL’s children were under 12 and presumed incapable of giving proper instructions: see s 99, s 99A(2), s 99B and s 99D(b), Care Act.

6. At the commencement of the hearing of the proceedings, the Court gave the following directions:

“(1) Pursuant to s 71 of the Civil Procedure Act 2005, the business of the Court in relation to today’s proceedings be conducted in the absence of the public having regard to the fact that the proceedings concern the guardianship and custody of minors.

(2) Pursuant to s 7 of the Court Suppression & Non-publication Orders Act 2010, that there be no publication or disclosure of information tending to reveal the identity of the children who are respondents to the proceedings.”

Factual Background

7. JL is the biological mother of five children, GA (born on 29 May 1999), GI (born on 21 October 2003), AR (born on 26 July 2005), AA (born on 26 January 2007) and Henry (also known as “J” or “JL”) (born on 22 September 2010).

8. These proceedings concern GI, AR and AA. JL also appealed to the District Court seeking to challenge orders of the Children’s Court placing Henry under the parental responsibility of the Minister until he attained 18 years of age. She was unsuccessful: LXXX v Director-General, Department of Family and Community Services, Lakatos DCJ (District Court of New South Wales, 2 November 2012, unrep) (“Re Henry DC”). At the time of the hearing before the primary judge on 14 January 2013, JL had filed an appeal dated 26 November 2012 from Re Henry DC, in due course supplanted by a summons seeking prerogative relief filed on 10 March 2014. The two proceedings were listed for hearing on consecutive days. Judgment in Re Henry [2015] NSWCA 89 (Re Henry CA) is being given contemporaneously with this judgment.

9. GA (the eldest child) was adopted by carers on 2 March 2012, and is not the subject of any claim for relief in either case.

10. Pseudonyms are used for the children both because of the order the Court made as set out in [6] above and because s 105 of the Care Act prohibits the publication of names and identifying information of a child or young person with respect to whom proceedings before the Children’s Court are brought. Pseudonyms are used for JL and for Mr and Mrs RS because a reference to the name of a child or young person in s 105 includes a reference to any information, picture or other material that identifies the child or young person, or is likely to lead to the identification of the child or young person: s 105(4), Care Act.

11. Some uncontroversial facts are extracted from Re Henry DC if not otherwise referred to in the primary judgment or uncontroversially referred to in submissions.

12. GI, AR and AA have the same father, GK, who died in August 2008: Re Henry DC (at [5]).

13. On 4 March 2009 JL voluntarily entered into a temporary care agreement (s 151, Care Act) with the Director-General in relation to GA, GI, AR and AA (Re Henry DC (at [5])), who were then taken into care: primary judgment (at [3]). On 9 May 2009 the temporary care agreement was extended for three months: s 152(2), Care Act.

14. On 31 August 2009 the Director-General commenced care proceedings at Bidura Children’s Court in respect of the four children. On 3 September 2009 pursuant to s 69 of the Care Act, an interim care order was made placing AR and AA in the parental responsibility of the Minister, pending final orders, until the age of 18 years: primary judgment (at [5]). Interim care orders were presumably made at that time in relation to GA and GI although no party identified such orders in the papers before this Court.

15. On 21 December 2009 following a hearing at which JL contested the issue as to the children being in need of care and protection (s 71 and s 72, Care Act), Magistrate Baptie found that the children were in need of care and protection pursuant to s 72 of the Care Act: primary judgment (at [7]). Her Honour continued the interim care order allocating parental responsibility for the four children to the Minister.

16. On 22 December 2009 an assessment order was made pursuant to s 53 and s 54 of the Care Act appointing Ms Greta Goldberg, a clinical psychologist and Children’s Court Clinician, to assess, in substance, JL’s capacity to carry out her parental responsibility for the children. The report she prepared was released to the parties on 25 March 2010: primary judgment (at [8]). That report was before the primary judge.

17. Henry was conceived while his father, RN, a 26-year old Indian student, was in Australia on a two-year study visa. In early October 2010 RN signed a letter indicating that he did not wish to have any responsibility for Henry: Re Henry DC (at [7] and [8]).

18. Two days after his birth Henry was taken into care by the Director-General, purportedly in exercise of the power to do so conferred by s 43(1) of the Care Act. That action was based upon JL’s incapacity to care for her other children, the subject of the December 2009 order, and upon concerns about her mental health: Re Henry DC (at ([7]).

19. On 27 September 2010 care proceedings were initiated in respect of Henry in the Children’s Court. On 30 September 2010 an interim care order was made in relation to him, allocating parental responsibility to the Minister: Re Henry DC (at [8]).

20. On 15 November 2010 his Honour Judge Marien, the President of the Children’s Court, made final care orders allocating parental responsibility for all aspects (other than contact) to carers in respect of AR and AA until each child attains the age of 18 years. On the same day his Honour made final orders allocating parental responsibility to the Minister in respect of GI until she attained the age of 18 years. The Director-General informed the Court that his Honour’s judgment was before the primary judge.

21. Marien P’s final care orders were made following a concession by JL, who was then legally represented, that there was no realistic possibility of the children being restored to her care as at that date. In making the orders, his Honour said:

“I note that the concession of JL, the mother of the children, that there is no realistic possibility of restoration with respect to the children [GI, AR and AA] and having noted that, I formally make the finding that there is no realistic possibility of restoration, being my own assessment on the evidence, of those three children to their mother’s care, and only those three children. I have previously today of course made the same finding in relation to GI.

…

In relation to the children [AA] and [AR], I agree with the assessment of the Director-General, there is no realistic possibility of restoration of the children to the care of their mother. I am satisfied the permanency planning has been appropriately and adequately addressed. I take into account the objects and principles of the Act, in particular s 9(2)(c) of the Act in relation to being the least intrusive intervention principle. I am satisfied the making of these orders are [sic] in the best interests of those children. Accordingly, I make the orders as set out in the minute of care order dated today 15 November 2010 and signed by me and placed with the papers and I note that those are made by consent of all the parties.

In relation to [GI], again I agree with the assessment of the Director-General, [that there is] no realistic possibility of restoration of [GI] to her mother’s care. I am satisfied permanency planning has been appropriately and adequately addressed. I take into account the least intrusive intervention principle set out in s 9(2)(c) of the Act. I am satisfied the making of these orders are in the best interests of the [sic] [GI]. Accordingly, I make the orders as set out in the minute of care order dated today, signed by me and placed with the papers.

In relation to all children I have had regard to the notations to each of the minute of care orders that are before me.”

22. On the same day Marien P adjourned the proceedings concerning Henry: Transcript, Dept of Human Services, Community Services v A, AA, GI, GA and Henry, 15 November 2010 (at 23).

23. On 31 May 2012 JL brought an application pursuant to s 90 of the Care Act seeking leave to rescind the final care orders made by Marien P in respect of AA, AR and GI.

24. In her application for leave to rescind the final care orders JL identified the significant changes in relevant circumstances since the orders were made as being her engagement in “the past few months” every two weeks with a psychiatrist, Dr Ahmed, a medical report from a Dr Bereny, apparently a treating doctor of the four children at the time of their removal stating she was a “capable and attentive mother to all four children”, a report from a Dr Allnut in March 2011 indicating “a [sic, “I”] only endured [a] one-off episode” (an apparent reference to what JL asserted was a “drug-induced psychosis”, which occurred after she said her drink was “spiked”), the completion of parenting and assertiveness seminars, a medical report from another psychiatrist, Dr Jacobs, ruling out post-natal depression or any mental illness as at October 2010, and the fact that contact supervision reports “shine with a mother that is brilliant, capable, unconditionally loving”.

25. The application was heard by Children’s Court Magistrate Hogg on 21 August 2012. His Honour refused to grant leave and dismissed the application.

26. On 22 August 2012 JL filed a summons in the District Court seeking to challenge Magistrate Hogg’s decision. The primary judge treated this summons as an appeal pursuant to s 91 of the Care Act: primary judgment (at [12] – [13]).

Legislative framework

27. The general legislative framework is set out in Re Henry CA and need not be repeated, save to the extent specific to the particular features of JL’s application.

28. Section 90 of the Care Act pursuant to which JL’s application was made relevantly provides:

90 Rescission and variation of care orders

(1) An application for the rescission or variation of a care order may be made with the leave of the Children’s Court.

…

(2) The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.

(2A) Before granting leave to vary or rescind the care order, the Children’s Court must take the following matters into consideration:

(a) the nature of the application, and

(b) the age of the child or young person, and

(c) the length of time for which the child or young person has been in the care of the present carer, and

(d) the plans for the child, and

(e) whether the applicant has an arguable case, and

(f) matters concerning the care and protection of the child or young person that are identified in:

(i) a report under section 82, or

(ii) a report that has been prepared in relation to a review directed by the Children’s Guardian under section 85A or in accordance with section 150.

(3) An application may be made by:

(a) the Director-General, or

(b1) the child or young person, or

(c) a person having parental responsibility for the child or young person, or

(d) a person from whom parental responsibility for the child or young person has been removed, or

(e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person.

…

(5) If:

(a) an application for variation of a care order is made or opposed by the Director-General, and

(b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children’s Court,

the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order.

(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration:

(a) the age of the child or young person,

(b) the wishes of the child or young person and the weight to be given to those wishes,

(c) the length of time the child or young person has been in the care of the present caregivers,

(d) the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,

(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

(7) If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so:

(a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and

(b) if it rescinds such an order-it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.

(8) On the making of an order under subsection (7), the Children’s Court must cause notice of the order to be served on the Director-General.

29. Section 82 enables the Children’s Court when making, relevantly, a care order allocating parental responsibility for a child to a person (including the Minister) other than a parent, to order a party to the proceedings to prepare a written report concerning the suitability of the arrangements for the care and protection of the child. The report is required to include an assessment of progress in implementing the care plan, including progress towards the achievement of a permanent placement: s 82(2)(b).

30. A party to proceedings who is dissatisfied with an order of the Children’s Court (other than an interim order) may appeal to the District Court against the order pursuant to s 91. Such an appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made may be given on the appeal: s 91(2). In addition to any functions and discretions that the District Court has apart from s 91, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under Chapter 5 or Chapter 6: s 91(4). The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly: s 91(6). The provisions of Chapter 6, which deal with Children’s Court procedure, apply to and in respect of the hearing of an appeal under s 91 in the same way as they apply to and in respect of the hearing of a care application under Chapter 6: s 91(8).

31. The effect of these provisions is that s 91 “makes it clear that an appeal … from the Children’s Court to the District Court is by way of a new hearing and that the District Court has all the functions and discretions at the disposal of the Children’s Court under Chapters 5 and 6 of the Act”: “V V” v District Court of New South Wales [2013] NSWCA 469 (“V V”) (at [23]) per Barrett JA (Ward and Leeming JJA agreeing).

Primary judgment

32. After setting out the background, the primary judge set out the objects and principles of the Care Act and the legal principles relating to s 90(1). She noted (at [24]), referring to Re Campbell [2011] NSWSC 761 (at [38]), Slattery J’s statement that “[t]he legislative policy behind the requirement for leave in s 90(1) is ‘to reduce uncertainty and anxiety for children in care when applicants (often birth parents) apply for variation of court orders, when they have little prospect of succeeding”.

33. Her Honour next noted (at [25]), that the effect of s 90(2A) and s 90(6) of the Care Act was that the court must determine whether JL had an arguable case for the making of an order to rescind or vary the care order, an exercise which required the court to “look ahead” at relevant s 90(6) considerations: Re Campbell (at [39]).

34. Her Honour next noted (at [26]) that in order to succeed, JL had to satisfy the court that there had been “a significant change in relevant circumstances since the care order was last made or varied”. That meant, she said, “a change … of sufficient significance to justify the court’s consideration of an application for rescission or variation of the existing order”, referring to S v Department of Community Services [2002] NSWCA 151; (2002) 29 Fam LR 144 (at [39]) per Davies AJA (Heydon and Hodgson JJA agreeing). It did not involve establishing that if leave was granted, the applicant would be entitled to the order sought, merely that there was a change of sufficient significance to justify consideration of the rescission/variation application: primary judgment (at [26] – [28]). However, even if that step was satisfied, her Honour noted, the court retained a general discretion whether or not to grant leave, such discretion to be exercised in accordance with s 90(2A): primary judgment (at [31]). The most frequently analysed consideration was whether the applicant had ‘an arguable case’, “one that is reasonably capable of being argued in the sense that it [is] an argument which has some prospect of success”: primary judgment (at [32] – [33]).

35. The primary judge took as the starting point for her consideration the orders made by Marien P on 15 November 2010: primary judgment (at [30]).

36. As JL’s application was for orders rescinding, rather than varying, the care orders, her Honour observed (at [36]) that if the court granted leave to proceed, the Children’s Court would be required to consider whether there was a realistic possibility of the children being restored to her.

37. JL pointed to the following circumstances she said had “changed significantly” since November 2010 when the final care orders were made:

1. An improved financial position (primary judgment (at [38] ff));

2. An improved mental and emotional situation (primary judgment (at [45] ff));

3. Parenting capacity (primary judgment (at [51] ff));

4. Improved education in the area of parenting and nutrition and health (primary judgment (at [64])).

38. In relation to her financial position, JL contended that the significant change was that she had got rid of debt and gained skills in order to obtain employment: primary judgment (at [41]). The primary judge set out the facts that, at the time the children were taken into care in 2009, JL owned a two bedroom unit which she had since sold, used part of the proceeds to pay outstanding debts and retained $50,000. At the time of the hearing, she said she was living in a studio apartment. She said that if her children were restored she would rent a house “somewhere that was affordable”: primary judgment (at [39]).

39. She said that “the significant change [was] that she has got rid of debt and gained skills in order to obtain gainful employment”: primary judgment (at [41]).

40. At the time of the hearing, JL was 42 years of age. She was not working but was studying full time for a fitness instructor’s certificate. The evidence before the primary judge indicated that since leaving school JL had worked in childcare, albeit without any TAFE or equivalent childcare certificate. She had undertaken some courses in massage therapy but could not work in that field due to a physical limitation. She was undertaking the fitness instructor’s course with a view to securing employment: primary judgment (at [39] – [40]).

41. The primary judge said (at [42]):

“The plaintiff offered no evidence as to the preparation of a budget or any realistic appraisal of how she might obtain rental premises sufficient for three children in the private housing market. She led no evidence as to her actual weekly income, and for matter [sic, “for that matter”], did not produce any proof of the $50,000.00 that she said was in the bank. Mr Allen, counsel for the Department, noted in the course of his submissions, that Ms L had told the Children’s Court Magistrate at one point during the hearing that she had had ‘half a million dollars’ in the bank after she sold her unit. At another point she told Magistrate Hogg that she had $80,000.00 in the bank and said ‘with all that money in the bank ... how can I fail?’”

42. The primary judge noted that, whilst poverty was not a barrier to parents having custody of their children, JL:

“[43] … was vague about how she could afford to support herself and the children and gave me the impression that she had not thought about it, and was unrealistic in her expectation that somehow she would manage … [Her] inability to address or plan her financial affairs was illustrative of what appeared to be her general inability to address any pragmatic aspects of parenting.”

43. The primary judge concluded (at [44]) that she was not satisfied there had been a significant change in JL’s circumstances in this respect to warrant a review of the care orders.

44. Her Honour then turned to JL’s submission that there had been a significant change in her mental and emotional situation in the following respects:

“[45] … She said that she had resolved her grief over the death of the children’s father and had benefited from psychotherapy with Dr Ahmed regarding the grief of losing her mother, and also the loss of her children to the Department. She said that she had made endless visits to psychologists and psychiatrists and had completed ‘endless parenting courses’. She said the Department kept sending her to different people which was very traumatic and that it kept raising concerns about her mental health.”

45. Her Honour noted (at [46]) that, although JL devoted a considerable part of her submissions to attempting to prove that she did not have a mental illness, it was not part of the Department’s case that she suffered from such a condition. Rather, the Children’s Court clinician, Ms Goldberg, recorded in her report of 18 March 2010, that “the Department received risk of harm reports on a fairly regular basis from about August 2007 until March 2009 when the children were removed” and that “concerns were raised about [JL’s] mental health, it seems, because of the very poor and dirty condition of the premises in which she and the children were living”. However, her Honour noted that JL had been assessed by a number of psychiatrists, all of whom said “there is insufficient evidence to support any diagnosis of a discernible mental illness.” Her Honour added that the fact of having such a condition would not of itself preclude JL from having custody of the children.

46. The primary judge was prepared to accept (at [47]) that JL’s grief over the loss of her husband had undergone some resolution in the period from 2009 to the hearing so that to that extent there had been a change of circumstances. However, her Honour observed (at [48]) that the period under consideration was from November 2010 when the final care orders were made. Secondly, JL’s evidence in relation to this issue was “unsupported by any information from her treating doctor and psychiatrist as to the advancements or improvements that she had made in response to those losses”.

47. Her Honour then said:

“[49] She often referred to the fact of her therapy sessions with Dr Ahmed, but she did not arrange for him to give evidence, nor prepare a report for the court as to her progress in therapy sessions. She sought to place considerable weight on a comment by him that he was ‘baffled by her case’ as proof that the care orders were inappropriate. However, in the absence of evidence as to the information with which Dr Ahmed had been provided, it is not possible to safely draw that conclusion.

[50] To the extent that it is necessary to do so, I find that Ms L does not presently have a mental illness. On the evidence, it is highly unlikely that she had a mental illness in 2010 (when the care orders were made). Accordingly, in this regard there is no significant change in circumstances.”

48. The primary judge then turned to the issue of JL’s ability to undertake appropriate parental duties. As will be apparent, JL’s submissions in this respect seemed to range from an assertion that there was nothing wrong with her parenting capacity, but also to assert that circumstances which had been of concern in this respect had changed.

49. The primary judge identified (at [51]) the fundamental problem with JL’s application as being that from 2009 to date:

“[51]…[S]he vehemently denies that there was anything wrong with her parenting skills, or indeed anything wrong with the children and the household when the children were taken into care, and her position has not changed.”

50. The primary judge recorded that JL told the court “she did not know why the children were removed in the first place and said that she was forced to agree to a temporary care order”: primary judgment (at [52]). Her “evidence in submissions focused on disproving the suggestion that she had a mental illness and attempted to demonstrate that she was ‘a brilliant’ mother”, a task JL approached by reference to various doctor’s reports: primary judgment (at [53] – [54])

51. The primary judge dealt with the reports on which JL relied. The first was a report of Dr Peter Campbell, a paediatrician, dated 17 July 2012. He said he had “only seen [the children] in the first instance at birth and the first six weeks and therefore have no insight into further standard of her care [sic]”. He was not concerned about JL’s care for her children “in the newborn phase”: primary judgment (at [54]). Another, Dr Bereny, “saw JL and the children for multiple consultations between late 2006 and late 2008” and recalled JL as “being a competent and caring mother in caring for 4 young children during this time”: primary judgment (at [55]).

52. The primary judge said (at [56]) that JL “did not seem to be able to address the fact that these reports were very limited in their scope and pre-dated the time at which the children were taken into care and following.” Her Honour observed that neither doctor had apparently seen the children since 2008 when they were very young, and JL’s husband was still alive. She added that “[JL] did not address the obvious discrepancy between those reports and the reports of and to the Department … in 2009 except to say, literally, that the latter were ‘lies’”.

53. Her Honour then said:

“[57] In all of her answers and responses and submissions Ms L sought to explain that the fact of the children being taken into care was a result of malice on the part of the Police who attended her home on a number of occasions, neighbours who did not like noisy children, Dr KP, who had been the family’s former general practitioner, and Ms Sarah Morris, who was a caseworker from the Department.

[58] The plaintiff demonstrated that rather than accept personal responsibility for the situation in which she finds herself, she attributed responsibility to virtually anyone else. During the course of the hearing she blamed not only the people mentioned above, but also a babysitter and her eldest daughter.”

54. The primary judge illustrated the proposition in [58] by referring (at [59]) to JL’s “somewhat extraordinary submission that another significant change in circumstance was that the eldest child, GA is no longer in the family.” Her Honour also referred (at [60]) to a submission made by Ms Muggenthaler, the Independent Legal Representative (s 99, Care Act), referring to an independent risk of harm report from a babysitter who apparently worked for JL, who stated, by comparison with impoverished and disadvantaged communities with which she had experience that:

“[60] … [JL’s] home was extreme. The caller stated that there was rubbish throughout the home, on the floor and on the walls. The caller stated that there was no furniture whatsoever. The caller stated that there was a broken TV on the floor. The caller stated that there were mattresses on the floor that did not really have sheets. The caller stated that the house and mattresses stunk, maybe like urine. The caller stated that there was water dripping in the kitchen and bathroom. The caller stated that the home was extremely dirty.”

55. Her Honour recorded (at [61]) that JL’s response was to assert that the person who made the risk of harm report was not in court to give evidence and had not produced any photographs but, even if it was the case, she had employed the babysitter to help, which included cleaning. She also complained that the “babysitter had a grudge against her because she kept taking her car parking spot”: primary judgment (at [62]).

56. The primary judge concluded (at [63]) in this respect that she could not find there had been a change in circumstances as JL did “not acknowledge that there were any issues in 2010 that required her attention and response” insofar as her ability to undertake parental duties was concerned.

57. The next matter the primary judge addressed was JL’s assertion that her education and health had undergone a significant change. JL relied upon the fact that she said she had undertaken a number of parenting courses and gained a lot of insight including the importance of positive reinforcement, equal attention and the need to respect children and had also learnt a lot about nutrition, all of which she had tried to apply in contact visits: primary judgment (at [64]).

58. The primary judge found (at [65]) that the evidence from the Department and caseworkers was positive about JL’s behaviour and involvement at contact visits. (This appears to have been a reference to Ms Fairfax’s affidavit of 23 July 2012.) Her Honour also observed (at [65]) that “in the absence of any acknowledgement at all that there were defects in her parenting skills that led to the removal of the children in 2009, it is difficult to see how the attendance at the parenting courses represents a significant change in circumstances.” In any event, the primary judge recorded, “there was no evidence about the content of the courses, nor – critically – her level of participation and engagement.”

59. The primary judge concluded (at [66]) that despite having been directed to the limited grounds of a s 90 appeal, a fundamental difficulty with JL’s approach was that she “gave evidence and made submissions as if it were a review of the decision to place the children in care”. While her Honour recognised that was not “necessarily inconsistent with” a change in circumstances case, the difficulty confronting JL was “that she did not believe that there had been anything wrong with her parenting skills or the development of the children that would have warranted the involvement of the Department in the first place, and that consequently there was no reason to change anything”.

60. Her Honour did not doubt JL loved her children very much. However, she concluded that JL:

“[68] … has serious deficiencies in her skills as a parent. Those deficiencies are capable – so far as I can see on the evidence – of being addressed, but only if she acknowledges them and the need for her to engage meaningfully with health and allied professionals in order to address them.”

61. Her Honour recorded [at [69]) that Mr Allen, who appeared for the Director-General, had submitted that Dr Goldberg “had observed that [JL] had unrealistic expectations that her children would be returned to her and unrealistic perceptions about her parenting skills which had been assessed as poor.” She also recorded (at [70]) that Dr Goldberg had said “the bonds between the mother and children were ambivalent, shallow and insecure and that [JL] was unable to meet the children’s needs particularly, emotionally and psychologically [and] [t]his inability … caused significant emotional and developmental impact upon the children” and (at [71]) that JL “did not address any of these issues”.

62. The primary judge added (at [72]) that there was no report from Dr Ahmed that “indicates either that he has been given the relevant material to read or that he has conducted structured and appropriate therapy designed to address those issues.” Absent such a report, her Honour concluded, it was not possible “to find that there has been a change in circumstances – significant or otherwise – since the date of the orders with respect to the mother’s emotional and psychological state.”

63. The primary judge then turned to the factors in s 90(2A). It is unnecessary to set out explicitly each of her Honour’s findings. However, relevantly, the primary judge noted the nature of the application, the age of the children, the length of time they had been in the care of their present carers and the Director-General’s plans for them: primary judgment (at [73(a)] – [73(d)]).

64. Her Honour described JL’s plans for the children as “vague and poorly considered”: primary judgment (at [73](d)). Her Honour then said:

“[73(e)] Ms L made it clear that she was not interested in a variation of the care order and if leave were granted she would seek only their rescission. In my view, on the current evidence, she would not have an arguable case for rescission of the care order. I am mindful of the principle that the case does not have to be proved, but that it must be arguable in the sense of having reasonable prospects that it might succeed. The evidence does not satisfy me that Ms L has any real understanding or insight into her circumstances, or those of the children when they went into care, nor does she seem to acknowledge the very real impact – psychologically, emotionally and developmentally – on the children of her parenting ability. Each child has required additional assistance in order to achieve developmental milestones. For example, when taken into care the three children were not fully toilet trained, they did not attend pre-school or school, they had no set routine such as bed time and GI, who was then 5, could not use cutlery and ate using her hands. At least two of the children required speech therapy. Ms L not only failed to acknowledge any of these matters: she denied them and denounced the people who testified as to the facts as liars motivated by (inter alia) malice.”

65. The primary judge set out (at [73(f)]) the contents of s 82 reports concerning the suitability of the arrangements in place concerning the parental responsibility with the foster families for AR, AA and GI, all of which were positive.

66. Her Honour found (at [74]) that there had been no significant change in relevant circumstances since the date on which the care orders were made, and (at [75]) that “each of the children is in a stable, caring and appropriate long term placement [which] in the case of AR and AA … has been for most of their lives and must therefore be of critical importance to their sense of security and attachment.” Accordingly, her Honour concluded (at [76]) that “on the present material” JL did not have an arguable case for rescission of the care orders.

67. The primary judge therefore refused the grant of leave and dismissed the appeal.

Grounds for relief

68. JL’s summons raises the following grounds for relief as cross-referenced to her affidavit on which they were based.

“1. Olsson J failed to apply or properly apply the principles under section 8 of the Children and Young Persons (Care and Protection) Act 1998 in considering the best interest and the well-being of the children involved (Applicant’s affidavit filed 28 February 2013 at para 67-69 and herein referred to as ‘AA para’).

Olsson J failed to give sufficient weight to the following:

2. The report produced by the Children’s Court Clinician Ms Greta Goldberg dated 23 February 2011. The report expressed the opinion that restoration of the applicant’s youngest child was a viable option if adequate support was provided. Thus providing evidence that there is a realistic possibility of restoration and that the applicant is a capable mother. (AA para 45, 49).

3. The report produced by the Children’s Court Clinician Ms Greta Goldberg 22 August 2012 that stated the applicant has actively made positive changes to her housing, employment and social situation. (AA para 43).

4. The positive evidence adduced by the mother that she was taking parenting classes, has undertake[n] a Certificate 3 in Childcare and is employed as a childcare worker. (AA para 63-64, 66)”

Olsson J placed too much weight on the following:

5. The report prepared by the Children’s Court Clinician Ms Greta Goldberg dated 18 March 2010. At the time of the hearing the report was three years old and failed to identify and consider the recent positive changes the applicant has made. These changes include attending parenting class [sic, as in original], seeking medical assistance from a psychologist and gaining full time employment as a childcare worker. (AA para 42)

6. The medical report from Dr Bereney stating that he observed the applicant to be an attentive mother. (AA para 80)

7. The medical report from Dr Peter Campbell that raises no concerns for the children and that the applicant cared for the children very well. (AA para 81)

Olsson J failed to have any regard to the following:

8. The affidavit of Elizabeth Fairfax dated 23 July 2012 that observed the positive behaviour of the applicant with her children. (AA para 52-53)

9. The contact supervision reports made during the applicants’ visits with her children. These reports state that the applicant is a capable mother who understands how to provide for her children. (AA para 52-53).”

69. In addition to the grounds the amicus curiae formulated in the summons, JL made a variety of allegations of bias and denial of procedural fairness on the part of the primary judge the details of which are set out below in explaining her submissions.

JL’s Submissions

70. JL’s submissions were voluminous and found in many documents with varying degrees of repetition. As is perhaps understandable given that she is self-represented (and, in any event, was not the author of the summons) her submissions were not structured so as to address the specific grounds raised in the summons, nor to identify whether she contended any particular complaint identified an error of law on the face of the record or jurisdictional error.

71. The substance of her complaints can be gleaned from the summons, her affidavit filed on 28 February 2013 in support of her notice of appeal, her oral submissions and the matters advanced by the amicus curiae to the extent they were not inconsistent with her submissions. In addition I have considered a matter the Director-General addressed concerning JL’s attempt to rely upon evidence from Dr Ahmed as it went to JL’s denial of procedural fairness complaint.

72. The first group of JL’s submissions concern her complaints of bias and want of procedural fairness.

73. JL’s basic submission was that the primary judge denied her a fair trial as her Honour “failed to follow correct procedure and showed bias towards the Department … many of her decisions were based upon logically probative material [sic, as in original] rather than ‘evidence’ basically Judge Olsson failed to act fairly”. She contended that her Honour showed bias “toward the Department … in unfair procedural practice, and “by rejecting my proven success and runs on the board and my chance of restoration”. She contended that she had put forward evidence that restoration was a realistic possibility, that “a coherent programme had commenced” with a “care plan drafted by the Department”.

74. JL submitted that the primary judge was biased and/or denied her procedural fairness in rejecting, or alternatively failing to give sufficient weight to, the 22 August 2012 report of Ms Goldberg. She argued that that report was much more positive about her parenting capacity and considered restoration of Henry a realistic possibility, thus providing evidence that there was a realistic possibility of restoration of the older children and that she was a capable mother. She contended that the report prompted the Department to draw up a care plan for the restoration of Henry to her care and to hold a meeting with her to discuss both the restoration and care plans. She submitted that the preparation of that care plan was “the major change” yet the primary judge had not referred to it. She complained that the care plan had not been produced, despite being subpoenaed. She contended this was “evidence” that the trial was unfair. She also complained that the report of Ms Goldberg to which the primary judge did refer was three years out of date and referred to GA who was no longer involved in the proceedings and did not consider the “positive changes” she had made. JL also submitted that the primary judge had failed to consider that AR was being subjected to medical treatment with which she did not agree as evidence of the primary judge’s bias towards the Director-General.

75. In her 28 February 2013 affidavit, JL referred to paragraph [49] of the primary judgment (see [47] above). She contended that on the first day of the hearing she had asked to have the opportunity to contact Dr Ahmed to give evidence, but that the primary judge had said she “doubted he would have time at such late notice”. She argued this constituted a denial of procedural fairness, particularly in circumstances where she contended her Honour gave the Director-General leave the same day to subpoena Dr Ahmed’s records.

76. Secondly, JL submitted that the primary judge erred in basing her decision on past reports and material which did not take into account the circumstances at the time of the application. She relied, as a major change of circumstances, on the facts that as GA had been adopted, she had one less child to look after and, too, that AR, AA and GI were four years older than when removed.

77. Thirdly, JL submitted that the primary judge failed to take into account positive accounts of her behaviour given by doctors and caseworkers, including reports of her behaviour during contact visits. She submitted the primary judge failed to analyse the medical evidence, and substituted her own opinion of JL’s parenting capacity rather than accepting the evidence of Dr Campbell and Dr Bereny. She also complained the primary judge failed to take into account a report by a caseworker, Ms Elizabeth Fairfax, recommending restoration.

78. Fourthly, JL submitted that the primary judge failed to take into account or gave insufficient weight to the fact that she had undertaken numerous self-improvement courses, including parenting courses and a certificate in childcare. She asserted her Honour’s omissions in this respect included the fact that she had worked in child care centres for four years.

79. Fifthly, JL contended that the primary judge failed to consider, or properly apply, the object in s 8 of the Care Act to consider the best interests and wellbeing of the children involved, and, too, s 9(2)(c) set out above (at [27]). She repeated the statements she had made to the primary judge that the care orders should never have been made.

80. Sixthly, JL submitted that the primary judge failed to take into consideration s 90(6)(b) of the Care Act requiring the wishes of the child to be taken into consideration before an order is made to rescind or vary a care order. She contended that the primary judge ignored the fact that in an unsupervised visit to which she had deposed in an affidavit before her Honour, AA had asked that he and AR be placed back in her care until they reached 18 years of age.

81. Seventhly, JL submitted that the primary judge failed to take into account Arts 9 (“States Parties shall ensure that a child shall not be separated from his or her parents against their will”), 12 (“States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”) and 13 (“[t]he child shall have the right to freedom of expression”) of the United Nations Convention on the Rights of the Child 1989 (“CROC”).

82. Finally, JL submitted that the primary judge failed to have regard to a number of matters, none of which appear to be matters relevant to the issue before her Honour including inadequate responses to subpoenas, the circumstances in which GA was adopted, and s 79(3) of the Care Act (“Order (other than guardianship order) allocating parental responsibility”). It is unnecessary to deal with these matters.

Amicus Curiae’s submissions

83. The submissions of the amicus curiae set out the relevant background to the proceedings and the applicable legislative provisions and legal principles. It is unnecessary to repeat these submissions as they appear earlier in these reasons by way of factual background or relevant statutory materials or, to the extent that they are inconsistent with what appears in those sections, can be taken not to have been accepted. This is particularly so insofar as the amicus curiae drew the Court’s attention to the “unacceptable risk” test as articulated in DFaCS (NSW) and the Colt Children [2013] NSWChC 5 at [168], [265], [318]. The Director-General took issue with this judgment insofar as it appeared to suggest such a test was the sine qua non of every decision under the Care Act. No oral submissions were addressed to this issue and it is unnecessary to express a concluded view about it.

Director-General’s submissions

84. The Director-General submitted first that the grounds set out in JL’s summons did not disclose an error of law on the face of the record amenable to relief in the nature of certiorari. Secondly, that the primary judge had properly given detailed consideration to the matters JL had advanced as constituting changed circumstances, had made relevant findings and had concluded that JL had not established a significant change of circumstances warranting review of the care orders.

85. Secondly, the Director-General submitted that for the purpose of considering the ambit of the relief JL could seek, it was necessary to identify the “record”. The Director-General contended that JL’s affidavit referred to as “AA” in the summons, did not form part of the “record”.

86. Thirdly, the Director-General submitted that grounds 2 to 9 in the summons did not identify errors of law on the face of the record amenable to relief in the nature of certiorari, but rather constituted an impermissible attempt to reargue the facts.

87. In further response to grounds 2 and 3, the Director-General submitted that the primary judge had correctly rejected Ms Goldberg’s 2012 report. Alternatively, the Director-General submitted that even if Ms Goldberg’s report ought to have been admitted, the Court would not remit the matter for further consideration as it could not have made a difference having regard to the evidence Ms Goldberg gave before Lakatos DCJ in the Re Henry proceedings. In that evidence, Ms Goldberg had said that restoration of Henry was not a realistic possibility as JL had not engaged in, and had resisted, necessary therapy and was not able to meet Henry’s needs, especially if the elder children were also restored.

88. Fourthly, the Director-General submitted that the primary judge’s findings of facts were relevant to the issues her Honour was required to determine, were open to her in law, and were a proper basis for her Honour to reject JL’s application for leave under s 90(2) of the Care Act.

89. Fifthly, the Director-General submitted that JL did not seek to rely upon the CROC before the primary judge, and further, that the CROC is not a mandatory consideration failure to refer to which grounds an application for judicial review, referring to Re Tracey [2011] NSWCA 13; (2011) 80 NSWLR 261.

90. Sixthly, the Director-General submitted that JL’s complaint that the primary judge should have considered AR’s request to live with her (referred to in JL’s affidavit of 25 July 2012) was misconceived as the considerations in s 90(6) were only mandatory once leave has been granted and the application for rescission is being determined.

91. The Director-General accepted that it was open to the primary judge to consider the matters to which s 90(6) refers in determining whether an applicant has an arguable case. However the Director-General submitted that as the primary judge found JL had failed to establish a sufficient change of circumstances, the issue of an arguable case did not arise. The Director-General also submitted that had the primary judge given JL leave to apply to rescind the care orders, evidence which went beyond JL’s evidence of AR’s wishes would have been tendered.

92. The Director-General accepted that for the purpose of considering JL’s complaint of denial of procedural fairness or bias, the Court could have regard to the transcript of the proceedings before the primary judge. However, he contended that JL had not identified any passage of the transcript which could support a complaint of bias. Rather, the Director-General submitted JL’s allegation of bias was no more than a complaint that the primary judge did not find the facts for which she contended and that did not amount to bias.

93. Insofar as JL complained she was denied procedural fairness because she was not permitted to call evidence from Dr Ahmed, the Director-General submitted that email correspondence about his willingness to give evidence was tendered (exhibits A and B) and was adverse to JL. Further, the Director-General pointed to a passage in the transcript in which the primary judge invited JL to tender reports from Dr Ahmed: transcript, 14 January 2013 at 23.30 – 24.10. It appears JL did not place any more material from Dr Ahmed before her Honour.

94. The Director-General submitted that otherwise, JL’s submissions filed on 2 March 2014, 18 February 2014 and 10 March 2014 were voluminous, repetitive, irrelevant to the relief sought, irrelevant to the issues before her Honour, referred to matters her Honour had no jurisdiction to determine and, again, amounted to an attempt to reargue factual allegations.

95. Insofar as JL sought to complain in those submissions that she was “conned” by her lawyers into agreeing to the orders made by Marien P or was incompetently represented, the Director-General submitted that issue was irrelevant to the leave application the primary judge was considering, referred to a consent judgment which had not been challenged on appeal, and was inconsistent with JL’s submissions in Re Henry (which were apparently) before her Honour in which JL asserted that her consent to that order demonstrated her insight.

96. Finally, the Director-General observed that insofar as JL sought to complain about aspects of GA’s adoption, those matters were irrelevant to the issues in these proceedings and had been the subject of determination in this Court in Re Sarah [2013] NSWCA 379.

The carers’ submissions

97. Mr & Mrs RS, the carers of AA and AR, submitted that the grounds on which JL seeks relief do not support a case warranting prerogative relief but, rather, have the appearance of grounds of appeal. They argued that the grounds set out in JL’s summons either refer to irrelevant considerations to which the primary judge did not need to have regard, were matters which were specifically considered by her Honour or do not allege an error of law on the face of the record.

98. Insofar as ground 2 complains that the primary judge failed to have regard to Ms Goldberg’s report of 23 February 2011, the carers submitted that was not a relevant consideration as that report referred to Henry, a child not the subject of the application before her Honour and, in any event, it did not form part of the record.

99. Grounds 3 and 4, the carers submitted, referred to matters which were specifically considered by the primary judge (at [38] – [44]). As to grounds 5 – 7, the carers submitted they did not disclose error of law on the face of the record. They contended that a report from Ms Goldberg around the time the final care orders were made was a relevant consideration when the primary judge was considering whether there had been a significant change in the relevant circumstances and, pursuant to s 59 of the Care Act, constituted a report to the court, rather than being evidence tendered by a party. They argued that the primary judge referred to the evidence of Drs Bereny and Campbell (at [54] and [55]), that there was no error of law disclosed in her treatment of that evidence and that her Honour’s findings were open on that evidence. As to grounds 8 and 9, the carers submitted that contrary to those grounds, the primary judge referred (at [65]) to Ms Fairfax’s evidence.

100. The carers also submitted that the primary judge considered all the applicable statutory provisions and legal principles she was obliged to, and made all necessary findings.

101. The carers emphasised that the proceedings before the primary judge concerned only the leave requirement in s 90 of the Care Act and that, had JL demonstrated a case for the grant of leave, the matter would have been remitted to the Children’s Court for determination of JL’s application to rescind the final care orders pursuant to s 90(7).

13. Judgment at [64].

216. The primary judge took these factors into account, but was not persuaded that attendance at parenting courses represented a significant change in circumstances particularly where there was “no evidence about the content of the courses nor, – critically – her level of participation and engagement.”[14]

     14. Judgment at [65].

217. It cannot be said that the primary judge did not take into account the material put forward by the applicant in this regard. It is true, however, that she gave it little weight and was not satisfied that it demonstrated a significant change in circumstances. That finding was undoubtedly open to the judge and no error of law is demonstrated in the making of that finding.

(b)   procedural unfairness

218. In addition to reliance upon the manner in which the primary judge dealt with matters of evidence in her reasons, the applicant identified two other steps which were said to have constituted a denial of procedural fairness. The first concerned the remark of the trial judge that the applicant did not arrange for her treating therapist, Dr Ahmed, to attend to give evidence. [15] In a document attached to an affidavit in this Court, [16] the applicant noted that she requested an opportunity to call Dr Ahmed on the first day of the hearing. She continued:

“… I was not given the opportunity to contact the doctor on the other hand judge Olsson immediately granted the opportunity requested of opposition Barrister Allen to Subpoena all emails and file notes of Ahmed that first day of court. I was told that they contacted ahmeds secretary and requesting the faxing to be done immediately. By the next day. The next day it failed to arrive with no follow up by Judge Olsson. Thus unfairly I missed out on the opportunity discussed in court day 1 that the December 2012 formal medico-legal report was an email sent to me by Dr ah med that I said in court would be included in the fax material”.

15. Judgment at [49].

16.    Affidavit filed 28 February 2013 at par 79.

219. The transcript reveals that the hearing commenced with a brief outline of the application by Mr Allen, appearing for the Secretary, together with the tender of documents. The applicant then outlined her case, the primary judge retiring to read the material over lunchtime. When the hearing resumed Mr Allen said he was not calling any witnesses. The following exchange took place: [17]

     17.    Tcpt, 14/01/13, p 30-33.

“APPELLANT: I wasn’t aware, sorry, your Honour. I’m unrepresented and a bit disadvantaged, in a way, though I wasn’t aware that I could have a witness at this point of time. I thought at this point of time it wouldn’t have been appropriate.

HER HONOUR: What do you mean ‘at this point in time’? Usually there would not be but I was just merely asking.

APPELLANT: Oh yeah, that’s what I thought. So, um--

HER HONOUR: Now is your opportunity to make whatever submissions you want to make.

APPELLANT: Oh okay, my submissions?

HER HONOUR: Mm.

APPELLANT: I was going to say is there a chance that I could have an extension to maybe wait for [RS] to come back if he wants to be joined at and also, from my point of view, ask witnesses, like my brothers or Dr [Ahmed] when he gets back from his holiday?

HER HONOUR: No.

APPELLANT: To come in?

HER HONOUR: No.

APPELLANT: That’s not an option?

HER HONOUR: No. This matter was fixed, you might remember, at the end of last year I specially fixed it for this week in January, when most of the legal profession are still on holidays because it was so important to you. So, we gave it some priority so that it would be able to be dealt with in these two days. So, if you needed material from Dr Ahmed you should have arranged that last year when I made directions for the filing and serving of evidence.

ALLEN: Sorry to interrupt but there’s something I have neglected to do by way of housekeeping.

HER HONOUR: Go on.

ALLEN: I have a subpoena here to be issued at short notice to Dr Ahmed. My solicitor has contacted him, he’s been able to produce by facsimile to your associate on service of the subpoena. I seek that that subpoena be issued.

HER HONOUR: What’s he going to produce? I mean what sort--

ALLEN: It’s to produce his file notes in relation to counselling the mother. …Details of treatment plans and clinical notes, diagnostic tests. His file. It’s about thirty pages.

…

ALLEN: He produced in the other proceedings but I can’t use that in these proceedings.

HER HONOUR: Oh, I see, righto. Yes, all right, well, has anybody got anything to say against that?

RENSHALL: No, your Honour.

MUGGENTHALER: No, your Honour.

HER HONOUR: Miss [L]? No? All right, I’ll give you leave to file and – well, I give you the leave that you need with respect to the subpoena for short service.

ALLEN: Thank you, your Honour.

APPELLANT: Your Honour, can he – he can’t – can he come in then? If he’s going to be doing that, can he come in as well then?

HER HONOUR: Well--

APPELLANT: Or over the phone or something?

HER HONOUR: You’ll have to talk to him about that, I’m not going to but I wouldn’t have thought that at such short notice he would be able to but it’s another matter for him to get his receptionist or someone to fax a file, I suppose. I mean, I could see how he could do that at short notice, particularly if it produced in other proceedings.

…

APPELLANT: That’s okay, I’ve got no objection. That could be good because it does also prove that I consistently engage with him, that I followed the clinician’s report, you know, that I’m actively involved, I’m committed, I’m focused. And that is why things have changed.”

220. The following morning, counsel noted that clinical file notes had been obtained from Dr Ahmed but no medical reports. [18] The applicant said that the material was incomplete, because it did not included medical reports; when asked whether she objected to the judge seeing the documents that had been produced she replied, “No, of course not.” [19]

     18.    Tcpt, p 82.

     19.    Tcpt, p 83.

221. There is nothing in these exchanges to demonstrate procedural unfairness. The only disadvantage suffered by the applicant was that, having failed to make arrangements for Dr Ahmed to be at Court to give evidence, she was not granted an adjournment. There was no explanation as to when she decided she wanted him to give oral evidence, nor as to why she had not made arrangements for him to attend court. In these circumstances the failure to adjourn the leave application did not constitute procedural unfairness. Whether the applicant herself had requested that Dr Ahmed produce material to the Court was somewhat unclear, but may be addressed in considering the second allegation of procedural unfairness.

222. The second matter involved a somewhat imprecise and unsubstantiated complaint that she had been refused leave to issue certain subpoenas and that “the subpoenas I requested were not returned.”

223. The complaint with respect to the refusal of leave to issue subpoenas, which apparently occurred at a directions hearing before another judge, is far too vague and unsupported to allow any inference as to unfairness. The first subpoena which she asserted “never came back” related to her “gas bill to prove my huge leak … I was unable to prove malice”. Material along these lines would not have been significant (nor perhaps relevant) to the leave application.

224. There was a further exchange at the very beginning of the second day when the primary judge (by no means for the first time) suggested that the applicant should focus on whether there had been a significant change in circumstances. [20] The applicant responded:

“APPELLANT: Okay. Well, what I’m trying to get to is that the significant change that I’m doing is to prove that it was malice and this is the way that I’ve done it, your Honour, is by going to all the effort to chase up doctors, to go through with a fine tooth comb all the files of the children which I spent many hours last year doing, going through all the – another thing I wanted to tell you is I subpoenaed so much material to prove it was malic[e]. I don’t know if you’ve had the opportunity to look at that but I was – just like to bring this up with you.

When I went to get my hands on that, on level 9, I was told it’s in transit, I’m privy to any of it. So, I didn’t have the opportunity, when I put – to show you any – to use any of that as evidence in court today. So, that was a bit of a share, your Honour.

HER HONOUR: Sorry, I don’t understand what you mean.

APPELLANT: I subpoenaed about twenty – “

20.    Tcpt, pp 76-77.

225. There was then some confusion as to whether the subpoenaed documents were in court or were available in the District Court registry. [21] In the event, the contents of a box of documents which had been in Court were identified as Court files and not subpoenaed documents. Some documents were apparently obtained and counsel for the Secretary proceeded to identify a number of items which he said the applicant wished to tender. Those documents were ultimately admitted as Exhibit 3.

     21.    Tcpt, p 80.

226. Following discussion as to the unavailability of reports from Dr Ahmed (referred to above), counsel for the Secretary and counsel for the carers of the two boys addressed the Court, as did the independent legal representative of the children. The applicant addressed in reply. Although there was passing reference to the absence of material from Dr Ahmed in the applicant’s final submissions, [22] there was no further complaint about unavailable documents.

     22.    Tcpt, pp 105-106.

227. The applicant did not produce in this Court the subpoenas which had not been issued, or were not the subject of returns, nor did she produce any reports from Dr Ahmed to show possible prejudice. Nothing was placed before this Court to demonstrate a denial of procedural fairness in the District Court.

(c)   disregarding the Convention

228. Finally, reference should be made to the complaint that the primary judge failed to have regard to the Convention. As explained in Re Henry, [23] the terms of the Convention are not mandatory considerations, disregard of which would demonstrate legal error. In circumstances where the applicant did not place any reliance before the primary judge on any aspect of the Convention (nor did any other party), there can be no error on the part of the judge in not referring to it.

     23. At [220].

Conclusion

229. There is no suggestion that the primary judge applied the wrong legal principles, nor that she failed to have regard to some matter to which she was required to give consideration.

230. A reading of the judgment as a whole provides no basis for identifying a reasonable apprehension of bias. True it is that the judge declined to make findings favourable to the applicant in a number of respects, but there is no indication of pre-judgment, or any other form of bias, and the findings are merely the legitimate exercise of the judicial function.

231. Finally, there is no demonstration of procedural unfairness. The Court was not taken in the course of oral submissions to any passage in the transcript of the hearing in the District Court on 14 January 2013 which indicated unfairness.

232. The summons to review the decision of the District Court should be dismissed.

233. MEAGHER JA: I agree with Basten JA.

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Endnotes

Amendments

24 August 2017 - Typographical error corrected on coversheet.

Decision last updated: 24 August 2017