JS v Secretary, Department of Family and Community Services

[2014] NSWCA 441

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

JS v Secretary, Department of Family and Community Services [2014] NSWCA 441

Hearing dates:

24/10/2014

Decision date:

19 December 2014

Before:

Emmett JA at [1];
Sackville AJA at [42];
Adamson J at [60]

Decision:

Summons filed on 13 May 2014 be dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - judicial review - appeal from Children's Court to the District Court - no appeal against judgment on statutory appeal to the District Court - whether error of law on the face of the record or jurisdictional error established

FAMILY LAW AND CHILD WELFARE - child welfare under state legislation - contact orders - whether the primary judge erred in making non-binding "notations" providing for contact rather than contact orders - whether the primary judge provided sufficient reasons for his decision - Children and Young (Care and Protection) Act 1998 (NSW), s 86

Legislation Cited:

Child Protection Legislation Amendment Act 2014 (NSW), Sch 1, cll [57]-[60]
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9, 86, 90, 247
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited:

Brimelow v Sharpe [2012] NSWCA 345
Craig v South Australia [1995] HCA 58; 184 CLR 163
Dranichnikov v Minister for Immigration and Ethnic Affairs [2003] HCA 26; 77 ALJR 1088
Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531
Re Anna, Bruno, Courtney and Deepak [2001] NSWC 79
Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226
Reimers v Health Care Complaints Commission [2012] NSWCA 317
Re Liam [2005] NSWSC 75
S v Department of Family and Community Services (District Court (NSW), Elkaim SC DCJ, 12 February 2014, unrep)
Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 200; 60 NSWLR 558

Texts Cited:

M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co)

Category:

Principal judgment

Parties:

Mr JS (Applicant)
Secretary, Department of Family and Community Services (First Respondent)
Ms SM (Second Respondent)
Peter Braine (Third Respondent - independent legal representative for Child A)
District Court of New South Wales (Fourth Respondent)

Representation:

Counsel:
Applicant (self-represented)
M Anderson (First Respondent)
L Saw (Second Respondent)
P Braine (Third Respondent)
Submitting appearance (Fourth Respondent)
Solicitors:
Applicant (self-represented)
Crown Solicitor's Office (NSW) (First Respondent)
Hansen Legal (Second Respondent)
Crown Solicitor's Office (NSW) (Fourth Respondent)

File Number(s):

2014/144280

Publication restriction:

See [2]

 Decision under appeal 

Date of Decision:

2014-02-12 00:00:00

Before:

Elkaim SC DCJ

File Number(s):

2013/171536

Judgment

1. EMMETT JA: By summons filed on 13 May 2014, the applicant (Mr JS) seeks relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of orders made by the District Court of New South Wales on 12 February 2014. The orders were made by the District Court in an appeal to that Court by Mr JS from a decision of the Children's Court made on 7 May 2013, as varied on 12 September 2013 under the "slip rule" (Uniform Civil Procedure Rules 2005 (NSW), r 36.17). Mr JS seeks to have the orders set aside.

1. Mr JS is the father, and the second respondent (Ms SM) is the mother, of a child born in 2010 (A). The decision of the Children's Court was made in relation to A, under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). Accordingly, at the commencement of the hearing of these proceedings, orders were made by the Court as follows:

Direct that these proceedings be conducted in closed court in the absence of the public, excluding persons other than those with a direct interest in the proceedings, but not so as to exclude the news media, pursuant to s 71(c) of the Civil Procedure Act 2005 (NSW), such direction reflecting the statutory provisions applicable in proceedings in the Children's Court (ss 104B and 104C of the Children and Young Persons (Care and Protection) Act 1998 (NSW)). [...] I also note that there is a requirement under s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) that there be no publication of the name of the child or any material (such as the names of the parents) that is likely to lead to the child's identification.

1. The effect of the orders made by the Children's Court on 7 May 2013, as varied on 12 September 2013, was as follows:

(1)   All current orders in relation to A be rescinded.

(2)   A be placed under the parental responsibility of the Minister for Family and Community Services (the Minister) for a period of 24 months from the date of the order.

(3)   Parental responsibility for contact with A be allocated solely to the Minister for a period of 24 months.

(4)   All aspects of parental responsibility other than contact be allocated to Ms SM for a period of 24 months.

(5)   At the expiration of that period of 24 months, all aspects of parental responsibility for A be allocated solely to Ms SM to the exclusion of Mr JS until A attains the age of 18 years.

(6)   A be placed under the supervision of the first respondent, the Secretary of the Department of Family and Community Services (the Secretary), until 7 May 2014.

(7)   Mr JS be prohibited from contacting or attempting to contact A and Ms SM, other than as approved by the delegate of the Secretary, for a period of 24 months.

(8)   Ms SM be prohibited from contacting or attempting to contact Mr JS, other than as approved by the delegate of the Secretary, for a period of 24 months.

(9)   No later than 23 months from the date of final orders, the Secretary provide to the Children's Court and to the parties a report addressing certain issues specified in the order.

(10)   No less than 7 months from the date of final orders, the Secretary file a report that states the outcomes of the supervision, whether the purposes of the supervision have been achieved, whether there is a need for further supervision and whether any other orders should be made to protect A.

The Court was informed that the title of Secretary was formerly known as "Director-General", and the Care Act continues to refer to that former title. For the purpose of consistency, these reasons will refer only to the Secretary.

1. The Children's Court also accepted various undertakings from Ms SM, including undertakings to remain abstinent from any illicit or non-prescribed prescription drug and to apply her best endeavours to provide a home environment for A free from domestic violence, drugs and alcohol abuse and any criminal activity. In addition, the Children's Court made "notations" to the following effect:

A. The orders and notations are made to give effect to and otherwise implement a care plan filed on 14 April 2013, as amended (the Care Plan).

B. It is the intention of the Minister to facilitate contact between A and Mr JS on a minimum of 6 occasions per year, for a minimum of 2 hours on each occasion, for 24 months from the date of the final orders, during which period contact is to be supervised by officers of the Minister or persons authorised by the Minister.

C. A's contact with Mr JS is to be subject to a number of conditions, including that Mr JS not be affected by drugs or alcohol when he presents himself for contact and that he accept all reasonable directions in relation to the contact.

D. The Minister is encouraged to consider increasing contact between A and Mr JS to a minimum of 12 times per year.

District Court Proceedings

1. Being dissatisfied with the orders and notations made by the Children's Court, Mr JS appealed to the District Court from the decision of the Children's Court, by summons filed on 4 June 2013. The essence of Mr JS's complaint was that, under the regime established by the Children's Court, he is not permitted to have contact with A except when supervised by a delegate of the Secretary and subject to conditions imposed by the Secretary.

1. By cross-summons filed on 9 January 2014, the Secretary appealed from the decision in so far as it operated only for a period of 24 months from the date of the final orders. The Secretary sought to vary the orders to provide that they apply until A attains the age of 12 years. Leave was granted to file the cross-summons out of time.

1. On 12 February 2014, for reasons published on that day, Elkaim SC DCJ (the primary judge) varied orders 2, 3, 4, 5, 7 and 8 made by the Children's Court, such that the regime provided by those orders was to apply until A attains the age of 12 years. His Honour also made additional "notations" that varied the regime established under the "notations" made by the Children's Court. In particular, in Notation D, his Honour noted that it was the intention of the Secretary to increase, from 6 times per year to 12 times per year, the frequency with which contact would be facilitated.

1. The other "notations" made by the primary judge were to the following effect:

A. Mr JS's contact with A is currently suspended and Mr JS has not had contact with A since February 2013.

B. Prior to any contact occurring between Mr JS and A, and following Mr JS indicating his willingness to comply with the conditions set out at notations H, I and J below, A's allocated casework manager will consult with named psychologists in order to formulate the most appropriate way of reinstating contact, having regard to the lapse of time between Mr JS's last contact with A and the date of the orders of the District Court.

C. The Secretary intends to complete such consultation and prepare a suitable plan in relation to reinstating Mr JS's contact with A.

E. The Secretary intends to review the contact arrangements within 3 months of the first face-to-face contact between Mr JS and A.

F. The Secretary intends to review the contact arrangements again within 3 months of the first review and thereafter every 12 months.

G. The Secretary and his delegates will not accept communication from Mr JS except by telephone call of no longer than half-an-hour's duration.

H. Mr JS's contact with A is conditional upon his complying with the Care Plan and the Secretary may suspend contact immediately and without notice until satisfied that Mr JS will comply with the requirements of the Care Plan.

I. Mr JS's contact with A is also conditional upon his complying with further specified conditions, including that he must attend scheduled contact punctually, must accept all reasonable directions in relation to contact from the contact supervisor, must refrain from denigrating or speaking negatively about Ms SM or any member of A's maternal family during scheduled contact visits, must refrain from discussing with A any prospect of A's being restored to Mr JS's care or coming to live with him and must refrain from asking A about where he lives or about places he routinely frequents.

J. In the event that Mr JS does not comply with the conditions in Notation I, the Secretary may suspend contact immediately and without notice.

His Honour otherwise confirmed the orders made by the Children's Court and dismissed Mr JS's appeal.

1. In his submissions to the District Court, Mr JS contended that supervision of his contact with A should never have been required, because there was no threat, physical or emotional, to A as a result of having contact with him. He asked the District Court to make orders that A have contact with him from 5pm Friday to 9am on Monday on each alternate weekend and from 5pm Friday to 9am Saturday in each alternate week. He also sought contact for half of school holidays when A commences school, during which time other contact would be suspended.

1. The Secretary opposed the making of such orders for contact. Rather, subject to the cross-appeal concerning the period during which the regime was to operate, the Secretary supported the regime established by the Children's Court, whereby the question of contact was left in the hands of the Secretary. That raised the question of the application of s 86 of the Care Act.

1. Under s 86(1), the Children's Court may make an order stipulating minimum requirements concerning the frequency and duration of contact between a child and his or her parents and make an order that contact with a specified person be supervised. Under s 86(2), the Children's Court may make an order that contact be supervised by the Secretary or a person employed in the relevant part of the Secretary's department (the Department).

1. Under s 86(3), an order stipulating minimum requirements concerning the frequency and duration of contact does not prevent more frequent contact with a child with the consent of a person having parental responsibility for the child. Under s 86(4), an order that contact with a specified person be supervised may be made only with the consent of the person specified in the order and the person who is required to supervise the contact.

1. The primary judge was of the view that the efficacy of orders under s 86 is limited in a case of the present kind, because of the necessity for the person supervising the contact to give consent. His Honour did not consider that that would be "workable in the present case". His Honour also did not think that s 86 orders were appropriate to long-term contact arrangements where, as A grows older, the details of any orders might become difficult to implement.

1. As indicated in Notation A, the primary judge recorded that contact between Mr JS and A had ceased in February 2013 and that Mr JS had not seen A since that time. Mr JS said to his Honour that that was in the best interests of A because A would be harmed by only seeing his father once every two months "in a box". The reference to a "box" was a description of the room in which the Secretary's delegate required contact sessions to take place. His Honour found Mr JS's reasons for stopping contact "unconvincing" and said that he would have thought that any contact was preferable to none at all and that Mr JS's actions were misconceived. However, his Honour accepted that contact once every second month was not sufficient.

1. The primary judge observed that there was no issue that Mr JS had had a loving and caring relationship with A prior to his removal by the Department. His Honour said that there was also no issue that, so far as A was concerned, Mr JS's conduct at the contact sessions was usually appropriate and consistent with his prior relationship with A. However, his Honour described Mr JS's conduct, other than with A, as "entirely unsatisfactory". His Honour found that Mr JS had developed a deep hatred and suspicion of the Department and blamed some of its officers for his separation from A and for the problems that had followed since December 2011, when A was originally removed from the care of his parents by the Department's officers.

1. The primary judge recorded that Mr JS was adamant that his contact with A should be substantial and that there was no need for his contact to be supervised. However, later, during his evidence, and following consultation with his counsel, Mr JS's position was somewhat ameliorated.

1. After hearing Mr JS give evidence and after reading documents about Mr JS's conduct over the previous year, the primary judge came to the view that any contact between Mr JS and A should be approached with "extreme caution". The reason for caution was not out of concern for the physical welfare of A, but rather because of the effect on A and on Ms SM, and therefore indirectly on A, that the conduct that was likely to be displayed by Mr JS at contact sessions, in pursuing what he regarded as his rights in respect of A, might have. His Honour had no doubt that Mr JS would behave inappropriately and that, if he were allowed to have direct communication with Ms SM, it would be frequent, oppressive and designed to overwhelm her will. His Honour considered Ms SM to be a vulnerable person and that exposure to a campaign of harassment from Mr JS would undoubtedly undermine her confidence and in turn have a negative effect on A.

1. The primary judge referred to a report by Ms Bronwen Elliott, a qualified social worker, to the effect that supervision of contact was essential, although there was little prospect of convincing Mr JS to agree with the Department's "perspective". Ms Elliott recommended that contact be recommenced only if Mr JS was willing to work with the Care Plan and that his contact with A be supervised. She recommended that, if contact was to recommence, it should occur in an agreed location that provided a positive environment, but where supervision could be maintained.

1. The primary judge concluded that, ultimately, the progress of Mr JS's contact with A rested in his own hands. If he was prepared to co-operate with the Department and not to intimidate its officers and people associated with the care of A, he should progress to extended periods of contact and ultimately unsupervised contact, including contact at his home and overnight. His Honour said that they were matters for the future and emphasised that they would not come to pass if Mr JS continued to act in a manner that might affect the safety and welfare of A, whether directly or indirectly.

1. The primary judge observed that, notwithstanding the frequent attacks made on the integrity of the Department and its officers, the caseworkers and managers who gave evidence before him were all prepared to support contact and the extension of contact with Mr JS in appropriate circumstances. His Honour was impressed with the Department's witnesses and, in particular, their ability to place the interests of A above the unwarranted attacks that Mr JS made on them. His Honour concluded that such of the documentary evidence as was relevant to contact all pointed unequivocally to the need for contact to be supervised and, to the extent possible, in accordance with the recommendations of Ms Elliott.

Proceedings in this Court

1. As I have said, Mr JS filed a summons seeking relief in this Court, pursuant to s 69 of the Supreme Court Act, on 13 May 2014. Some days before the date fixed for the hearing of the proceedings in this Court, Mr JS applied by email to the Registrar for the hearing to be adjourned for one week. It was said Mr JS was not fully prepared and that he found the matter "really stressful". The application was supported by a letter from a general medical practitioner saying that Mr JS had had "a severe exacerbation of his major depression, anxiety and post-traumatic stress disorder" since a caveat was enforced on his property, as a result of which he had been unable to obtain finances "to put his documents together". The letter expressed the view that "these events have exacerbated his serious symptoms" and would have made it extremely difficult for him "to get the requested paperwork to the Supreme Court by the due date". The letter expressed the view that Mr JS needed "to be granted a further extension of at least one week". The Court declined to grant an extension on the basis of that material but indicated that an oral application could be made on the day of the hearing.

1. On the day of the hearing, Mr JS applied for the hearing to be vacated. No specific basis for an adjournment was advanced other than that he was not ready to proceed. Mr JS appeared in person and was assisted by Ms Tanya Johnson and by his father, each of whom addressed the Court on occasion during the course of the hearing. Having heard Mr JS's submissions, the Court declined to vacate the hearing date. The Court was not satisfied that Mr JS would be in any better position to conduct the appeal at a later time.

1. There is no right of appeal to this Court from a decision of the District Court on appeal from the Children's Court (Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [8]). Accordingly, these proceedings are framed as an application for judicial review under s 69 of the Supreme Court Act. To succeed in such an application, it would be insufficient for Mr JS to point to some error of fact or some miscarriage of discretion on the part of the primary judge. He must establish jurisdictional error or error of law on the face of the record. In that context, the record would include the reasons of the District Court. There would be jurisdictional error if the District Court made a decision outside the limits of the functions and powers conferred on it or made a decision that it lacked power to make. Incorrectly deciding something that the District Court is authorised to decide is not jurisdictional error that would be subject to review (see generally, Craig v South Australia [1995] HCA 58; 184 CLR 163; Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531).

Mr JS's amended summons

1. In his amended summons to this Court, Mr JS seeks orders that indicate lack of comprehension as to the nature of the proceedings, in so far as it seeks orders that the "appeal" be "allowed", bearing in mind that the proceedings are not an appeal. The amended summons refers to grounds contained in a document filed by Mr JS (the JS Submissions).

1. The JS Submissions contain 25 headings. Under each heading are submissions that fail to address the questions that would be raised by an application for relief under s 69 of the Supreme Court Act. Most of the submissions are misconceived. The headings are as follows:

1. ERRORS OF LAW

2. BREACH OF PRIVACY

3. DICTATORSHIP BY THE DIRECTOR-GENERAL - THE CROWN OVER JUDGE

4. IGNORING RELEVANT MATERIAL - RELYING ON IRRELEVANT MATERIAL - FAILURE TO AFFORD A "PROPER, GENUINE AND REALISTIC CONSIDERATION" OF MATERIAL. FAILURE TO ATTRIBUTE SUFFICIENT WEIGHT TO AN ISSUE

5. IDENTIFYING A WRONG ISSUE - JUDGE ELKAIM "IDENTIFIES ISSUE"

6. JUDGE ELKAIM'S THOUGHTS

7. JURISDICTIONAL ERROR - INCORRECT INTERPRETATION FROM THE COURTS BELOW - UNCERTAINTY AND ACTING UNDER DICTATION FROM THE CROWN

8. JURISDICTIONAL ERROR - DECISION-MAKER HAD NO AUTHORITY TO MAKE DECISION THAT WAS MADE

9. NO PROCEDURAL FAIRNESS OF NATURAL LAW OR NATURAL JUSTICE AND IGNORANCE OF [Mr JS's] CONCERNS

10. ERROR OF LAW AS NO EXTENSION OF THE MOTHER'S PERMANENCY PLACEMENT WAS IN CHALLENGE + no procedural fairness

11. ERRORS OF LAW - FAILURE TO AFFORD A PROPER GENUINE CONSIDERATION OF MATERIAL - FAILURE TO PROVIDE ADEQUATE REASONS OF DECISION

12. JURISDICTIONAL ERROR CONSTRUCTIVE FAILURE OF THE DECISION-MAKER TO EXERCISE HIS JURISDICTION

13. BAD FAITH OF THE JUDICIAL SYSTEM - KNOWLEDGE OF FALSITIES

14. JUDGE DID NOT USE HIS POSITION OF DUTY TO ENQUIRE

15. NO EVIDENCE GIVEN * DICTATORSHIP FROM DIRECTOR-GENERAL/CROWN EMPLOYEES - [Ms SM] GIVEN NO OPPORTUNITY TO PLEAD HER CASE, STATE HER WISHES AND DID NOT PRESENT AN AFFIDAVIT

16. BIAS [sic] TREATMENT SHOWN FROM THE ATTITUDES OF DEPARTMENT STAFF WHEN LEAVING OUT REPORTS OF CHILD ABUSE DIRECTLY FROM [Ms SM]. BIAS [sic] TREATMENT FROM JUDGE ELKAIM WHEN STATING GREAT EFFORT OF THE DEPARTMENTS DELEGATES

17. INCORRECT INTERPRETATION FROM THE COURT BELOW + BULLYING FROM THE DEPARTMENT

18. INFLEXIBLE APPLICATION OF A POLICY - NO REGARD GIVEN TO INDIVIDUAL MERITS OF THE APPLICANT - DICTATORSHIP UNDER THE CROWN AND DIRECTOR-GENERAL

19. JUDGE DISMISSES AND IGNORES RELEVANT EVIDENCE GIVEN ORALLY AND IN TRANSCRIPT

20. MISSING EVIDENCE NOT ACCOUNTED FOR

21. DICTATORSHIP - INFLEXIBLE APPLICATION OF POLICY

22. IMPROPER PURPOSE

23. JUDGE IGNORING RELEVANT FACT AND MERIT OF [Mr JS]

24. CONTEMPT IN COURT

25. ERROR IN JUDGMENT.

1. While some of the headings are reminiscent of grounds upon which relief might be granted under s 69, the material underneath the headings set out above reflects misapprehension on the part of the author of the issues that might arise in such proceedings. For example, while there is a reference to jurisdictional error in the JS Submissions, no part of the JS Submissions raises any matter that could constitute jurisdictional error on the part of the District Court. The vast majority of matters mentioned in the JS Submissions are addressed to what appear to be complaints about the outcome of the District Court proceedings, and would not, without more, constitute jurisdictional error. In addition, the JS Submissions contain complaints about the conduct of the Department and not about the reasons for the primary judge's decision.

1. For example, under the first heading, the JS Submissions complain that the reasons of 12 February 2014 were not the genuine reasons of the primary judge. That contention appears to have stemmed from a misunderstanding of a communication that Mr JS received from Elkhaim DCJ's chambers indicating that the hearing had concluded and that he had reserved his decision. Furthermore, the material under the fourth heading does no more than quarrel with the submissions made to, and the findings made by, the primary judge.

1. The complaint about procedural fairness is that the primary judge said that the cross-summons filed on behalf of the Secretary had been filed by consent. The transcript discloses that, although counsel who was then appearing for Mr JS initially foreshadowed that the filing of the cross-summons might be opposed, having subsequently obtained specific instructions from Mr JS, counsel said that he did not oppose its filing.

1. The material under "Error in Judgment" complains that the primary judge found Mr JS's counsel "helpful", whereas during the hearing, his Honour "pulled up counsel on a number of occasions for not fulfilling his duty as barrister". The matter was not further particularised. The complaint is essentially one against Mr JS's counsel.

1. While it is apparent that Mr JS has a genuine and heartfelt sense of grievance at the circumstances in which A was taken from the custody of his parents, nothing contained in the JS Submissions and nothing said by Mr JS during the course of the hearing suggests any reviewable error on the part of the primary judge in dealing with the appeal from the Children's Court.

Section 86 of the Care Act

1. Another of Mr JS's complaints is that the primary judge declined to make a contact order under s 86 of the Care Act but instead made a series of "notations" that provided for contact between Mr JS and A to take place. During the course of the hearing, a question was raised by the Court with counsel for the Secretary concerning the proper construction of s 86 of the Care Act. The effect of s 86 is summarised above (at [11]-[12]). The primary judge appears to have approached s 86 on the basis that its language prevented flexibility in the framing of orders for contact. Rather, his Honour preferred to make "notations", which counsel for the Secretary confirmed are no more than an expression of intentions that are not intended to have the effect of court orders. The essence of Mr JS's complaint is that the primary judge's decision only to make "notations" does not give him certainty about the frequency of his future contact with his son. Mr JS had sought, before the primary judge, a contact order providing for a minimum level of contact between him and A, and, importantly for Mr JS, providing that such contact not be supervised.

1. The only order made by the primary judge with respect to contact with A was that parental responsibility for contact be allocated solely to the Minister until A attains the age of 12 years. Thus, notwithstanding Notation D (summarised above at [7]), counsel for the Secretary conceded before this Court that there was nothing requiring the Minister to ensure that contact occurred between Mr JS and A, and that the Minister could terminate any contact at all.

1. The primary judge provided two interrelated reasons for his Honour's decision not to make an order under s 86. First, he considered that the efficacy of such an order would be undermined by the need for the consent of the person supervising the contact (in this case, the Secretary). That is a reference to s 86(4) of the Care Act. The implication of that reference was presumably that the Secretary did not consent to the making of a contact order pursuant to which the Secretary would be required to supervise the contact between Mr JS and A.

1. However, it is clear that the Secretary did consent to a minimum of twelve instances of supervised contact per year between Mr JS and A. (The Secretary had originally handed up to the primary judge a minute of orders and notations providing for a minimum of six instances of supervised contact per year, but during the course of the hearing before the primary judge, the Secretary agreed to twelve contact sessions per year.) There was no suggestion that that consent was only forthcoming in the context of a notation, as opposed to a contact order, being made to that effect. Thus, the question for the primary judge was then whether to embody such a provision for contact within a contact order or within a notation.

1. The second reason given by the primary judge was that s 86 orders are not appropriate to long-term contact arrangements where, as A grows older, the details of any orders may become difficult to implement. In other words, the primary judge considered that the employment of notations, rather than a contact order, would afford greater flexibility in the management of Mr JS's contact with A. Counsel for the Secretary explained to this Court that, in the hypothetical situation in which Mr JS ceases to comply with the requirements of the Care Plan for A, it may become necessary for the Secretary to suspend contact between Mr JS and A for a certain period of time (as contemplated by Notation H made by the primary judge). In that situation, if there had been a contact order in place requiring that there be a minimum number of contact sessions per year, the Secretary would risk being in breach of that order if it reasonably came to the view that contact should be suspended.

1. Alternatively, the Secretary might withdraw its consent to the contact, without which consent the contact order may no longer have any force. I use the word "may" because it is not clear from s 86(4) whether the "consent" referred to contemplates only consent that is given or not given before the making of a contact order, or whether it also contemplates the possible withdrawal of consent after a contact order has been made. It is that potential future withdrawal of consent by the Secretary that the primary judge may have had in mind when outlining his Honour's first reason for not making an order under s 86 (as summarised at [33] above).

1. An additional consideration that was raised during the course of argument before the primary judge, but to which reference was not made in his Honour's reasons for judgment, was the fact that, if a contact order were made and it needed amendment in the future, an application under s 90 of the Care Act would be required. In those circumstances, it would be preferable to limit the amount of further litigation to which A would be exposed by refraining from making a contact order and instead relying on notations.

1. The authority relied on by the primary judge for his Honour's conclusion in relation to s 86 was Re Liam [2005] NSWSC 75. In that case, McDougall J considered an order that had been made in the Children's Court, pursuant to s 86, to the effect that the child in question was to have contact with his mother for one and a half hours, twice per week, "such contact to be supervised if the Director-General so wishes, pending further order". McDougall J held that the terms of s 86 required the Children's Court to decide whether any contact ordered under that section was to be supervised or not; that is, the Children's Court could not leave the decision as to whether the contact was supervised up to the discretion of the Secretary. McDougall J considered that the decision of the Children's Court in that case amounted to a delegation to the Secretary of its duty to consider, and if necessary (and with consent) to impose, a requirement for supervision on the Secretary or on anyone else.

1. The significance of Re Liam for the present case is that, if a s 86 order were made under which supervision was required under s 86(1)(b), it would not be possible to allow for unsupervised contact until the expiry of that order, even if circumstances change such as to render unsupervised contact appropriate or desirable, unless an application were made under s 90 to vary the terms of the original s 86 order to dispense with the requirement for supervision. Under s 86, as interpreted by Re Liam, a contact order must either require that contact be supervised or require that it not be supervised; it cannot leave the decision as to supervision to the discretion of the Secretary. Although the subparagraphs to s 86(1) are introduced by the words "the Children's Court may ... do any one or more of the following", with the consequence that a s 86 order may theoretically be made without any mention of supervision, the practical effect of such an order would be that the decision whether or not to require supervision would be left to the discretion of the Secretary.

1. The object of making orders under s 86, and to record notations, for that matter, is to ensure the welfare of the child in question. If it is in the best interests of A to have contact with Mr JS, that will be achieved on the assumption that the Secretary and his delegates exercise their control over contact competently and in good faith. If there were a suggestion to the contrary, it would be open for a further application (under s 90) to be made to the Children's Court to vary the orders now in place as a consequence of the orders of the District Court. There was no error in the primary judge's decision not to make a s 86 order but instead to make a series of notations, even though his Honour's reasons for reaching that decision may have been expressed in short form.

Conclusion

1. In the circumstances, Mr JS has not established any basis upon which the relief he claims under s 69 of the Supreme Court Act should be granted. The proceedings should be dismissed with costs.

1. SACKVILLE AJA: I am grateful to Emmett JA for setting out the background to the present application.

1. The applicant was represented before the District Court, but was unrepresented in this Court. The primary Judge (Elkaim SC DCJ) gave examples in his judgment of the applicant's inappropriate behaviour: S v Department of Family and Community Services (District Court (NSW), Elkaim SC DCJ, 12 February 2014, unrep) at [14], [16]-[18], [23]. Some behaviour of that kind was evident in this Court, as the transcript of argument reveals.

1. One of the difficulties in cases of this kind is to discern from the litigant's submissions the nature of his or her grievances and whether they raise legal issues capable of determination. As Emmett JA has explained, it appears that the applicant's central complaint, at least in a legal sense, is that the primary Judge erred in declining to make an order under s 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act). Once that question was identified, it was taken up with counsel representing the other parties to the application.

1. Section 86 of the Care Act has been amended since the District Court heard the appeal: Child Protection Legislation Amendment Act 2014 (NSW) Sch 1, cll [57]-[60]. Section 86 in the form it took at the time the District Court appeal was heard, was as follows:

"(1) If a child or young person is the subject of proceedings before the Children's Court, the Children's Court may, on application made by any party to the proceedings, do any one or more of the following:

(a) make an order stipulating minimum requirements concerning the frequency and duration of contact between the child or young person and his or her parents, relatives or other persons of significance to the child or young person,

(b) make an order that contact with a specified person be supervised,

(c) make an order denying contact with a specified person if contact with that person is not in the best interests of the child or young person.

(2) The Children's Court may make an order that contact be supervised by the Director-General or a person employed in that part of the Department comprising those members of staff who are principally involved in the administration of this Act only with the Director-General's or person's consent.

(3) An order of the kind referred to in subsection (1)(a) does not prevent more frequent contact with a child or young person with the consent of a person having parental responsibility for the child or young person.

(4) An order of the kind referred to in subsection (1)(b) may be made only with the consent of the person specified in the order and the person who is required to supervise the contact."

1. The argument in this Court proceeded largely on the basis that the applicant, in order to obtain relief, had to demonstrate either an error of law on the face of the record (Supreme Court Act 1970 (NSW) s 69(1), (3), (4)) or a jurisdictional error (Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531). However, as the written submissions for the Independent Legal Representative for the child, Mr Braine, pointed out, the jurisdiction of the Court is wider. Section 247 of the Care Act provides that nothing in the Act limits the jurisdiction of the Supreme Court. It may therefore have been open to the applicant to invoke, for example, the parens patriae jurisdiction of the Supreme Court, which is not displaced by the Care Act. But as Mr Braine also pointed out, the Court is generally reluctant to exercise that jurisdiction unless the orders under review are plainly wrong or affected by procedural unfairness: see Re Anna, Bruno, Courtney and Deepak [2001] NSWC 79 at [20]-[22] (Hodgson CJ in Eq). Invoking the parens patriae jurisdiction in the present case would not have improved the applicant's position.

1. In the District Court, the applicant's counsel submitted that an order should be made under s 86(1)(a) of the Care Act stipulating minimum requirements concerning the frequency and duration of contact between the applicant and his son. It appears to have been common ground between the Minister and the applicant at the District Court hearing that a minimum of twelve visits should be arranged each year. It also appears to have been common ground that despite the applicant's hostile attitude to the Department and some allegations of domestic violence, he had a loving and caring relationship with his son prior to the latter's removal by the Department.

1. The primary Judge nonetheless rejected the submission made on behalf of the applicant. His Honour gave brief reasons for doing so (at [43]), as follows:

"The father said I should proceed by way of orders under Section 86. I disagree. In my view the efficacy of orders under this section is limited, in particular in a case of the present kind, by the necessity for the consent of the person supervising the contact to be given (Re Liam [2005] NSWSC 75). I do not think that will be workable in the present case. I also do not think Section 86 orders are appropriate to long term contact arrangements where, as [the child] grows older, the details of any orders might be difficult to implement".

1. The legal effect of the orders made by the primary Judge and the rejection of the application for an order under s 86 of the Care Act is that visits between the applicant and his son are to be permitted only at the discretion of the Minister (through the Director-General). The applicant has no legal entitlement to see his son; nor for that matter, does his son have any legal entitlement to see his father.

1. It is not easy to discern from his Honour's reasons why the applicant's submission was rejected. Previously, his Honour referred (at [35]) to evidence strongly suggesting that supervision of visits between the applicant and the child was essential to ensure the child's welfare. His Honour seems to have been concerned that the Director-General might not consent to an order that visits be supervised (although no finding to that effect was made) and thus there might be little point to making an order under s 86(1)(a) stipulating the minimum number of visits. Alternatively, his Honour may have been concerned that even if the Director-General consented to supervise the visits (as contemplated by s 86(2) of the Care Act), the arrangements might prove to be impracticable because of the applicant's potential misbehaviour. Again, his Honour may have taken the view that the applicant would not consent to supervision, or cooperate with a regime of supervision. However, the applicant's evidence in re-examination suggests that he would have been prepared to consent if that was the price to be paid for renewing contact with his son.

1. It is also not entirely clear from his Honour's reasons whether his rejection of the applicant's submission was influenced by a particular construction of s 86 of the Care Act and, if so, what his Honour considered to be the correct construction of that section. The reference in the judgment to Re Liam suggests that his Honour construed s 86 to mean that once a court orders that visits be supervised, it is not open to the Minister, as the person having parental responsibility for the child, to vary the regime. On this interpretation of s 86, the Minister would be unable, without a further court order, to dispense with supervision if he or she no longer considered supervision to be required, or to discontinue visits altogether if supervised visits proved to be unmanageable or inimical to the child's welfare.

1. It is arguable that the primary Judge did not give adequate reasons for refusing to make an order under s 86 of the Act. It is also arguable that if his Honour construed s 86 of the Care Act in the manner I have suggested, he committed an error of law. Section 86 may well authorise orders which not only provide for the Director-General (or someone else) to supervise a specified minimum number of contact visits, but which also provide for a variation to the minimum number of visits in specified circumstances. Such circumstances perhaps might include a determination by the Director-General that supervised visits are no longer practicable because of misbehaviour by the "specified person" or are no longer consistent with the safety, well-being and welfare of the child (see s 9(1)).

1. These issues were raised in argument, but they were not fully debated. I do not think it is either necessary or appropriate to resolve them because I consider that even if the judgment of the District Court was affected by an error of law on the face of the record, this Court has a discretion whether or not to grant relief in the nature of certiorari quashing the orders made by the District Court. In the particular circumstances of the present case I would not grant relief to the applicant.

1. There may be a distinction between the extent of the Court's discretion to refuse relief in the nature of prerogative relief and that of the High Court exercising the jurisdiction to grant constitutional writs conferred by s 75(v) of the Constitution: see Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 200; 60 NSWLR 558 at [130]-[135] (Spigelman CJ, Mason P and Handley JA agreeing) (speaking of relief in the nature of prohibition). The weight of authority suggests that relief in the nature of certiorari for error of law on the face of the record is discretionary, although the discretion must be exercised within "appropriate bounds": Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [6] (Basten JA, Campbell JA and Hoeben JA agreeing); Brimelow v Sharpe [2012] NSWCA 345 at [33]-[34] (Macfarlan JA, Tobias AJA agreeing); at [47] (Meagher JA); M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co) at [12.250].

1. One of the grounds on which relief in the nature of certiorari may be refused is that the applicant has alternative remedies available: M Aronson and M Groves, Judicial Review of Administrative Action at [12.270]; Dranichnikov v Minister for Immigration and Ethnic Affairs [2003] HCA 26; 77 ALJR 1088 at [33] (Gummow and Callinan JJ, Hayne J agreeing). In the present case, the applicant does not have an alternative remedy immediately available in respect of any error of law by the District Court (other than invoking the parens patriae jurisdiction of the Supreme Court). But the orders made by the District Court are not final and may be rescinded or varied upon application to the Children's Court. The applicant is entitled under s 90 of the Care Act to apply for an order varying or rescinding the care order: s 90(3)(d). (This entitlement is not affected by the 2014 amendments.) Any such application requires the leave of the Children's Court, which is only to be granted if "it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied": s 90(1), (2), (2A). If the Director-General, for example, terminates the visits between the applicant and his son, this may constitute a significant change in relevant circumstances that would enliven the discretion of the Children's Court to grant leave to the applicant to apply for rescission or variation of the care order.

1. The applicant's entitlement to seek a variation or rescission of the care order, even though he must show a significant change of circumstances in order to obtain leave, seems to me a powerful reason to withhold relief, assuming the applicant was able to show that the District Court committed an error of law on the face of the record. I do not minimise the effect of the orders made by the District Court. There is a very marked distinction between the position of a father who is entitled, by virtue of a court order, to participate in a minimum number of visits with his child and the position of a father whose "entitlement" is dependent on the continuation of a favourable exercise of discretion by a Departmental official.

1. Nonetheless, it is important to bear in mind the difficult and fraught circumstances of the present case. This Court was informed that regular supervised visits are in fact taking place on a monthly basis between the applicant and his son, in conformity with the notations recorded by the District Court. The Court was also informed that the visits were taking place with a view to moving towards unsupervised contact in the future. In my opinion, it is undesirable that the status quo be immediately disturbed by further disputation as to the form of the orders made by the District Court. Having regard to the history of the proceedings, it is quite likely that further disputation at this stage will exacerbate tensions and perhaps work against the welfare of the child.

1. As I have indicated, if the current regime of visits is altered, the applicant has the opportunity to seek a variation or rescission of the care order. Thus the orders made by the District Court do not mean the applicant's relationship with his son, or the determination as to what regime is in the son's best interests, is entirely a matter for the discretion of the Director-General. In these circumstances, this Court should not intervene.

1. For these reasons, I agree with the orders proposed by Emmett JA.

1. ADAMSON J: I have had the benefit of reading the reasons of Emmett JA in draft. I agree with the orders his Honour proposes and with his Honour's reasons.

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Decision last updated: 19 December 2014