JW v Department of Communities and Justice

[2023] NSWDC 466

District Court

New South Wales

Medium Neutral Citation:

JW v Department of Communities and Justice [2023] NSWDC 466

Hearing dates:

21 and 25 September 2023

Date of orders:

29 September 2023

Decision date:

29 September 2023

Jurisdiction:

Civil

Before:

Acting Judge I Coleman SC

Decision:

(1) The relief sought in prayer 3 of the Notice of Motion is refused.

(2) Costs reserved.

Catchwords:

CONTEMPT OF COURT – application by the plaintiff (mother) for referral of the Secretary, Department of Communities and Justice for contempt pursuant to s 203 District Court Act 1973 (NSW) – conduct of the Secretary in exercising functions under ss 44 and 45 of the Care Act in assuming care of a child following an earlier s 90 determination by the District Court allocating parental responsibility for the child’s residence to the mother alleged to constitute contempt of court – interpretation of court orders – whether evidence capable of establishing wilful, deliberate or intentional breach of court orders – application for referral refused

Legislation Cited:

ChildrenandYoungPersons (CareandProtection)Act1998 (NSW), ss 43, 44, 45, 71, 79, 83, 90, 91 and 233

CivilandAdministrativeTribunalAct 2013 (NSW), s 73

DistrictCourtAct1973 (NSW), s 203

Cases Cited:

AA & Ors v Department of Family and Community Services [2016] NSWSC 842

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21

Department of Communities and Justice (DCJ) and Katie [2023] NSWChC 11

DVI v ZTT [2021] NSWCATEN 4

GRvSecretary,DepartmentofCommunitiesandJustice [2022] NSWCA 153

Mohareb v Palmer [2017] NSWCA 281

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Re Greta (No.2) [2012] NSWSC 856

Witham v Holloway (1995) 183 CLR 525

Category:

Procedural rulings

Parties:

Plaintiff/Applicant: JW
First Defendant/Respondent: Department of Communities and Justice

Representation:

Counsel:
Plaintiff/Applicant: Mr S Prince SC / Mr P Glissan
First Defendant/Respondent: Dr D Kell SC (Crown Advocate for NSW) / Mr J M Harris

Solicitors:
Plaintiff/Applicant: Thrive Workplace Consulting & Legal
First Defendant/Respondent: Crown Solicitor’s Office

File Number(s):

2021/187593

Publication restriction:

Non-publication order made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Consistent with the judgment given by her Honour Judge Olsson SC on 5 December 2022, the pseudonyms “JW” and “Paul” have been used in place of the names of the mother and the child respectively throughout this judgment.

Judgment

1. By prayer three of a Notice of Motion filed in Court on 15 September 2023, the plaintiff sought an order that pursuant to s 203 of the District Court Act 1973 (NSW), the Statement of Charge annexed to the motion be referred to the Supreme Court of New South Wales for determination. The Statement of Charge attached to the Notice of Motion read:

“Statement of Charge

To Secretary, Department of Communities and Justice,

You are hereby charged with contempt of court in that on 12 September 2023 you deliberately breached order 5 made by the District Court of New South Wales on 17 April 2023 in proceedings between the Plaintiff JW and you as Defendant, of which order you had notice on or about 17 April 2023, by removing the Plaintiff’s child Paul from her parental responsibility for his residence with her without her consent.

The Plaintiff seeks an order that you be punished for contempt of court by imprisonment or such other punishment as the Supreme Court of New South Wales determines to be appropriate.”

2. The defendant has at all times resisted the relief sought by the plaintiff. The matter came on urgently before her Honour Judge Olsson SC, who regrettably was unable to continue to hear it. It was heard before me initially on Thursday 21 September 2023, when the Court had the benefit of written and oral submissions from senior counsel for the parties, and again on the 25 September 2023 when further submissions were heard. Judgment was reserved on the latter occasion.

3. But for what the Court considers to be the urgency of the matter, and having regard to the pre-eminence of senior counsel appearing for the parties and the sophistication of their respective arguments, the Court would have reserved its decision for longer, and published a more carefully articulated judgment than is realistically possible with oral reasons today. As is usual, the court will edit these reasons in accordance with the protocols relating to the editing of ex tempore reasons for judgment.

4. The evidence before the Court comprises the affidavit of the plaintiff’s solicitor Colin James Werner sworn 14 September 2023, a further affidavit of Colin James Werner sworn 21 September 2023, and paragraphs 12 and 121 – 130 of an affidavit of Stephanie Lindsay, an officer of the defendant, sworn and filed in the Children’s Court on 15 September 2023. As contemplated on 25 September 2023, and by consent, the Court was informed on 28 September by email of the orders which were made that day in the care proceedings, as I will, perhaps somewhat loosely refer to them, instigated by the defendant in the Children’s Court on 15 September 2023.

5. Orders were made by the Children’s Court on 28 September in the following terms:

“1. Interim order of parental responsibility for residents to the Minister, time limited until 5pm on 24 October 2023;

2. Mother to file and serve any material by 6 October 2023;

3. Secretary to file and serve any material by 13 October 2023;

4. Views and wishes statement from Paul’s independent legal representative to be filed on 20 October 2023;

5. The matter is set down for hearing on 24 and 25 October 2023 before President Skinner in relation to interim parental responsibility and s 90 leave.”

6. As will be seen, those orders would assume particular significance in the context of the exercise of the Court’s discretion to refer the defendant to the Supreme Court to be dealt with for contempt if the discretion to refer is enlivened.

7. The source of power which the plaintiff seeks to enliven is not in doubt, and is s 203 of the District Court Act, which provides:

“203 Power to refer allegation etc of contempt to Supreme Court

(1) Without prejudice to the powers of the District Court under section 199, where it is alleged, or appears to the District Court on its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination.

(2) On any matter being referred to the Supreme Court under subsection (1), the Supreme Court shall dispose of the matter in such manner as it considers appropriate.”

8. The present application arises out of the alleged breach by the defendant of order 5 of the orders of this Court of 17 April 2023. Order 5 relevantly provided that pursuant to s 79(2)(a) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”), “the aspect of parental responsibility for Paul for residence is allocated to his mother from 19 May 2023”.

9. To provide the context for order 5, it is appropriate to record the terms of order 4 of the orders of this Court of 17 April 2023. The order provided that, “pursuant to s 79(2)(b), and subject to order 5, parental responsibility for Paul is allocated to the NSW Minister for Families and Communities from 5 December 2022 until midnight on 5 December 2023”. It is also relevant to provide context to order 5 to record the terms of order 6. That order provided that, “on the expiration of order 4, pursuant to s 79(2)(a) of the Care Act, all aspects of parental responsibility for Paul are allocated solely to his mother”. It is readily apparent that order 6 has not yet become operative. The notations to the Court’s orders provided as follows:

“While Paul is living with his mother while still under the parental responsibility of the Minister, she will be authorised by the Minister (subject to any contrary direction by the Secretary or his delegate and in accordance with the recommendations of Paul’s treating professionals) to provide day-to-day care including the following:

i. The capacity to consent to medical treatment, not involving surgery, on the advice of a medical practitioner.

ii. The capacity to consent to medical treatment involving surgery that a medical practitioner certifies in writing needs to be carried out as a matter of urgency.

iii. The capacity to consent to dental treatment (including treatment involving minor dental surgery) that a dentist has advised needs to be carried out.

iv. to consent to dental treatment involving dental surgery other than minor dental surgery that a dentist certifies in writing needs to be carried out as a matter of urgency in the best interests of the child or young person.

v. The capacity to make ancillary applications and authorise the payment of any services authorised by delegations (i) to (iv) above including to Medicare or NDIS.

vi. The capacity to correct and manage Paul’s behaviour as required.

vii. The capacity to give permission to participate in activities, such as school excursions.

viii. The capacity to make such other decisions that are required in day-to-day care and control.”

10. It is reasonably clear that those eight matters were in addition to the matter specifically referred to in order 5.

Background

11. The background to the proceedings is, for present purposes, at least, not significantly controversial, and reveals the following matters. The child Paul was born in late June 2014. He is, accordingly, nine years of age. The plaintiff is Paul’s biological mother.

12. On 10 June 2021, the Children’s Court made final orders pursuant to s 79(1)(b) of the Care Act, allocating all aspects of parental responsibility for Paul to the Minister for Families and Communities (the Minister or the Secretary). The Court does not understand that for present purposes there is a material distinction between the two, although in other contexts there may be. On 23 June 2021 the plaintiff filed an appeal to the District Court pursuant to s 91 of the Care Act.

13. Pursuant to s 91(2) of the Care Act, the plaintiff’s appeal proceeded as a hearing de novo. The District Court had all the functions and discretions vested in the Children’s Court under Ch 5 and Ch 6 of the Care Act, in addition to the functions expressly provided by s 91(4) of the Care Act. The procedure on appeal was thus that the Secretary had to effectively again prove the elements of its case pursuant to the provisions of the Care Act, being the “establishment” phase, which, if made out, enlivened the jurisdiction of the Court to make orders with respect to the care of Paul – the “placement” or “welfare” phase.

14. The decision of the District Court in respect of the appeal is taken to be the decision of the Children’s Court, and has effect accordingly pursuant to s 91(6) of the Care Act. The proceedings on appeal apparently involved a contest with respect to the establishment phase, and if it be established, the welfare or placement phase.

15. On 5 December 2022, her Honour Judge Olsson SC found that the statutory threshold pursuant to s 71(1) of the Care Act had been made out by the Secretary, and that there was a realistic possibility of Paul’s restoration to the plaintiff within the statutory period of two years. Her Honour’s reasons for so deciding are found at [49] – [58], and at [134] of her judgment of 5 December 2022. Accordingly, in view of her Honour’s findings, and the provisions of s 83 of the Care Act, and in particular s 83(6), the Secretary was directed to file a new permanency plan for Paul, to give effect to her Honour’s findings.

16. On 14 April 2023, the Secretary filed an Amended Care Plan in relation to Paul, pursuant to s 78, which sought to reflect the findings previously made by Judge Olsson SC. On 17 April 2023, her Honour made final orders giving effect to Paul’s restoration through a series of orders, the terms of which I have earlier recorded. There was no appeal against her Honour’s decision.

17. On 12 September 2023, the Secretary assumed the care of Paul, pursuant to the provisions of s 44 of the Care Act. Paul was assumed into care at his school on that day and arrangements were made for his subsequent placement. Section 44 of the Care Act is central to the current proceedings. Section 44 is headed, “Secretary may assume care responsibility of child or young person in hospital or other premises.” The section provides:

“44 Secretary may assume care responsibility of child or young person in hospital or other premises

(1) If the Secretary--

(a) suspects on reasonable grounds that a child or young person is at risk of serious harm, and

(b) is satisfied that it is not in the best interests of the child or young person that the child or young person be removed from the premises in which he or she is currently located,

the Secretary may, instead of removing the child or young person from the premises under a power of removal conferred by or under this Act, assume the care responsibility of the child or young person by means of an order in writing, signed by the Secretary and served on the person (whether or not a parent of the child or young person) who appears to the Secretary to be in charge of the premises.

(2) An order under this section does not cease to have effect merely because the child or young person to whom it relates is transferred to different premises.”

18. In view of the use of the term “removal” in the section, it is appropriate to record that s 43, as is s 44, is found in Ch 5, Pt 1, Div 1 of the Care Act, which comprises three sections, ss 43, 44 and 45, and is headed, “Emergency Removal”. Section 43 is headed, “Removal of children and young persons without warrant”, and provides, in the terms set out in three particular subsections of s 43, the circumstances in which “removal” may occur. Section 45 of the Care Act is also relevant, and is headed, “Application to Children’s Court for care order”. The section provides:

“45 Application to Children’s Court for care order

(1) If a child or young person is removed from premises or a place under a power of removal conferred by or under this Act or the care responsibility of a child or young person is assumed by an order under section 44, the Secretary must make a care application in the Children’s Court for one or more of the following care orders in respect of the child or young person--

(a) an emergency care and protection order,

(b) an assessment order (within the meaning of Division 6 of this Part),

(c) any other care order.

(1A) The care application must be made within 3 working days after the day (the “relevant day”) on which the removal or assumption of care responsibility occurs. If this would permit the care application to be made more than 5 days after the relevant day, the application must instead be made no later than on the fifth day after the relevant day or (if the fifth day is not a working day) no later than the first working day after that fifth day. A “working day” is any day that is not a Saturday, Sunday or public holiday.

(2) On the hearing of the application, the Secretary must explain to the Children’s Court why the removal of the child or young person without a warrant was considered to be necessary.

(3) Despite subsection (1), the Secretary is not required to apply for any order of the Children’s Court if the Secretary considers that no order is necessary, but the Secretary must explain to the Children’s Court at the first available opportunity why no care application was made.

(4) Sections 61, 64, 67, 68, 70 and 90A apply to an application for an emergency care and protection order. The other provisions of Part 2 do not apply to such an order.”

19. The notes to s 45 read:

“Note: This section holds the Secretary accountable for the serious decision to remove a child or young person from his or her family suddenly.

If the Children’s Court considers that the removal of the child or young person was not warranted in terms of the Act, or was conducted in an inappropriate manner, adverse comment could be made in court or other steps taken to draw the matter to the attention of the Minister. However, the making of an order should not be refused, or the child or young person discharged from the care responsibility of the Secretary, only because of the inappropriate manner of the removal. The paramount issue for the Children’s Court is the safety of the child or young person and not the procedural failures of those with the statutory responsibility for the protection of children and young persons.

In the case of removal pursuant to a warrant issued by an authorised officer under section 233, the authorised officer who issues the warrant should first consider whether the child or young person could be adequately protected if an apprehended violence order were sought which might provide for the removal of the alleged perpetrator. The matter should be brought before the Children’s Court at the first available opportunity and an emergency care and protection order sought if further protection is necessary.”

20. The reasons for the assumption of Paul into the Secretary’s care are stated in the secretary’s assumption notice entitled “Assumption of care responsibility of child or young person in hospital or other premises” (found most conveniently for present purposes as annexure B to the first affidavit of Mr Werner). In substance, after reciting the provisions of s 44, namely (a) that Paul is suspected by the secretary on reasonable grounds of being at risk of serious harm and (b) the Secretary is satisfied that it is not in the best interests of the child that the child be removed from the premises in which he or she is currently located, the Secretary assumed the care and responsibility of the child under s 44 of the Care Act. The notice states that the child may not be removed from the premises described in the notice without the written approval of an authorised officer. The provisions of s 44(2) were recited.

21. Under the heading “Reasons for the assumption of care responsibility of children”, the notice recorded:

“Since restoration of Paul to his mother, JW, in May 2023 DCJ have held ongoing and increasing concerns regarding inadequate supervision, risk of physical and emotional abuse, parental mental health, Paul’s mental health, behavioural issues and absconding.

DCJ have serious concerns regarding the JW’s ability to adequately supervise Paul, her ability to recognise and respond to Paul’s significant emotional, developmental and behavioural needs and her scapegoating of Paul and services.”

22. The Secretary suggested that CatholicCare had been intensively working with the plaintiff and Paul throughout the restoration process. CatholicCare was said to have reported that the plaintiff is unable, unwilling or does not have the capacity to follow advice and recommendations from CatholicCare in regards to parenting Paul and implementing strategies to maintain his emotional and physical safety.

23. Zest Care workers were stated to have been in the plaintiff’s home as part of a safety plan agreed to with the plaintiff on 31 August 2023. In that time frame, the Department was said to have received three “risk of significant harm” (ROSH) reports and one report screened out as non-ROSH. The reports were said to demonstrate the plaintiff’s inability to adequately supervise Paul and meet his emotional needs. Paul was alleged to have absconded from the home and run across the road without looking for oncoming traffic on a number of occasions. The plaintiff was alleged to have not attempted to follow Paul to ensure his safety. It was allegedly a common report from the numerous services working with the family that the plaintiff often outsources her parenting role.

24. The plaintiff was stated to be not meeting Paul’s emotional and psychological needs, and to regularly threaten Paul that he will go back into foster care if he does not meet her behavioural expectations (as observed by support workers and CatholicCare caseworker). The plaintiff’s alleged non-compliance or lack of capacity to follow the safety plan, not allowing support workers into the home on the morning of 11 September 2023, and the plaintiff not keeping the balcony door locked at all times to restrict Paul’s access to the balcony were all relied upon by the Secretary.

22. On 15 September 2023, as required by s 45 of the Care Act, the Secretary filed an application in the Children’s Court seeking to vary the orders of this Court of 17 April 2023 pursuant to the provisions of s 90 of the Care Act. Section 90 of the Care Act is concerned with recission and variation of care orders. The section records that an application for the recission or variation of a care order may be made with the leave of the Children’s Court.

23. The orders made by the Children’s Court yesterday provide that the hearing before it on 24 and 25 October 2023 will embrace the Secretary’s s 90 leave application. Standing to bring the application is referred to in s 90(1AA) in non‑exclusive terms. There is no issue that the Secretary, pursuant to s 90(1AA)(a), has standing to bring the application. The section identifies the relevant considerations for a grant of leave pursuant to s 90 of the Care Act. Section 90(2A) makes clear by the use of the word “must” that the primary and additional considerations articulated in the section are mandatory relevant considerations.

Principles governing the motion

27. The principles governing the plaintiff’s application are not in doubt. The Court understands from the submissions of learned senior counsel for each of the parties, that the critical issue is whether, on the facts of the case, the plaintiff establishes what the plaintiff needs to, in accordance with the established principles in order for the discretion to refer for contempt to be enlivened. It is not in issue that s 203(1), by use of the word “may”, involves the exercise of discretion. There is no suggestion that that discretion should be exercised other than judicially, notwithstanding that the current application may not be a judicial determination in the strict sense.

28. As is not in doubt, this is not the hearing of a contempt application. This Court has no power to hear and determine a contempt application of this kind. The basis of the application is that the defendant is alleged to have wilfully breached an order of the Court, and that the evidence in that respect is capable of establishing the necessary elements of a contempt. It is not in doubt that the Court must, in order for the discretion to refer to be enlivened, make a finding that the conduct complained of is capable of amounting to contempt. Mohareb v Palmer [2017] NSWCA 281 (“Mohareb”) per Basten JA at [19]-[20].

29. As previously recorded, even if the conduct complained of is held to be capable of amounting to contempt, the Court has a discretion to decline to refer the matter to the Supreme Court. Mohareb at [22] and [23] in the judgment of Basten JA, provides support for that proposition. It is not in doubt, and has long been accepted, both in the context of s 203 of the District Court Act 1973, and s 73 of the Civil and Administrative Tribunal Act 2013 (NSW), which is a not dissimilar provision, that the power to punish for contempt is only used sparingly and only in serious cases (DVI v ZTT [2021] NSWCATEN 4).

30. Whatever the outcome of the current motion, the Court unreservedly accepts that if the power to refer is enlivened, and there were no reason in discretion not to, the Court would not decline to refer on the basis that this is not a serious case. It is a serious case on any view of the evidence. The onus is on the plaintiff to establish that the conduct in question is “capable” of amounting to contempt of the District Court. The standard of proof applicable in the hearing of a charge of contempt of the present kind, sometimes described as civil contempt, is the criminal standard of proof (Witham v Holloway (1995) 183 CLR 525; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21 (“CFMEU v Boral”) at [42]).

31. Unless the evidence relied upon by the plaintiff is capable of establishing contempt in accordance with the criminal standard, there would be no utility in granting the referral application in circumstances where the referral application would be determined by the Supreme Court in accordance with the requirement that the plaintiff discharge the criminal standard of proof.

32. As was explained in Witham v Holloway and reiterated in CFMEU v Boral, the proceedings in the Supreme Court, if referred, though similar in some respects, are different in a number of material respects to the proceedings in a criminal trial. The Court’s discretion, if the plaintiff establishes that there is evidence sufficient to warrant a referral to the Supreme Court, is governed by a number of considerations to which reference will necessarily be made if the power is potentially enlivened.

33. The present application has been agitated on the basis that the applicant must adduce evidence capable of establishing the following matters beyond reasonable doubt:

1. The first requirement is that an order was made by a Court. The Court does not understand that to be controversial, having regard to the concessions properly made in that context by the Crown Advocate, there undoubtedly was an order made by a Court.

2. The second requirement is that the terms of the order are clear, unambiguous and capable of compliance. The defendant disputes that that is the case.

3. The third requirement is that the order was served on the alleged contemnor. That undoubtedly occurred, and the Court does not understand the defendant to suggest otherwise.

4. The fourth requirement is that the alleged contemnor has knowledge of the order. It is, again, not in contest that the alleged contemnor, the Secretary, has knowledge of the order upon which the plaintiff moves.

5. The fifth requirement – which is controversial, and one of the two major controversies requiring determination – is that the alleged contemnor has breached the terms of the order. Consideration of alleged breaches of the order requires some care. The authorities are clear that the conduct of an alleged contemnor must have amounted to a wilful – as opposed to a casual, accidental, or unintentional – failure to comply with the court order, as Armstrong J recorded at [11] in DVI v ZTT.

34. The conduct of the Secretary may have been in breach of the order, in that Paul’s assumption into care may have been capable of being contrary to what the order provided. But it is necessary, the authorities establish, to look beyond whether there was objectively a failure to comply with an order, in order to determine whether there is conduct capable of establishing that the failure to comply or breach of the order was wilful, as opposed to casual, accidental or unintentional. The first category of breach may constitute contempt, the other three cannot.

35. The contempt power has two primary objectives: compliance with orders of the Court, and, demonstrating for the benefit of a party who is found not to have complied with court orders and the community generally, that the orders of courts are to be honoured or complied with.

36. If the power to refer the Secretary for contempt is enlivened, whether to do so in the exercise of discretion requires determination. The matters which are relevant to the exercise of discretion include, the authorities accept, whether there are other remedies available to secure compliance with court orders, and the extent to which the party seeking referral has sought to enforce the orders of the Court pursuant to those remedies. If the fate of this motion turns on the exercise of discretion, that is a matter which could assume significance in the determination of the motion.

Plaintiff’s contentions

37. In a carefully reasoned and drafted letter, which appears to reflect the input of learned senior counsel for the plaintiff of 13 September 2023, the plaintiff’s solicitor wrote to the Secretary’s solicitor, and set out a number of contentions arising out of the actions of the Secretary on 12 September 2023. In oral submissions, senior counsel for the plaintiff spoke to this outline, amplifying the plaintiff’s contentions. To the extent that these reasons do not engage in the detail which they might with the oral submissions of either learned senior counsel, such a failure does not entail an absence of consideration of what clearly emerge as the primary contentions of each of the parties.

38. It was suggested by the plaintiff through the letter of 13 September 2023, as amplified in oral submissions, that the orders of the Court required compliance, unless and until they were amended or vacated under s 90 of the Care Act, and that a breach of the orders, as was alleged with respect to the actions of the Secretary on 12 September 2023, constituted a contempt of the Court in the absence of any amendment or variation of the current orders under s 90.

39. A major issue in the Motion involves a consideration, albeit not needing to be definitive, of the interaction between ss 44, 45 and 90 of the Care Act. The plaintiff made clear that, in her view, the assumption into care of Paul on 12 September 2023 was in breach of order 5 of the orders of the Court. To the extent that the defendant submitted, in writing and orally, that the Secretary’s conduct could not constitute a breach of order 5 – having regard to the terms of order 5 – the Court respectfully disagrees.

40. As its terms make clear, order 5 vested in the plaintiff parental responsibility for Paul’s residence. There is no reason, in the Court’s view, to consider that “residence” has any meaning other than its ordinary meaning in the context in which it appears in Judge Olsson SC’s orders – namely that Paul reside or live with the plaintiff (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28). It is not in doubt that on 12 September 2023, the actions of the Secretary meant that, contrary to order 5, the plaintiff was precluded from having Paul reside with her.

41. To the extent that the defendant appeared to assert that order 5 was not capable of founding a breach – by virtue of its absence of requirement that the Secretary do anything – the Court cannot accept that contention. What the order effectively did was, in the absence of any lawful basis for doing so, restrain the Secretary from disturbing Paul’s residence with the plaintiff. A breach of that restraint was capable of being a breach of order 5.

42. The plaintiff asserted that the actions of the Secretary by removing Paul, in the circumstances in which the Secretary did, deprived the plaintiff of parental responsibility for residence which had been awarded to her by the Court on 17 April 2023, pursuant to orders which have not been appealed or otherwise challenged. The Court accepts that was so.

43. The plaintiff reiterated the complaint made in writing during the course of oral submissions, that, since the orders of the Court in April this year were made, the Secretary had engaged in a pattern of resistance, obfuscation, and active undermining of the operation of the orders, including conduct requiring further intervention, and that the alleged pattern of behaviour had culminated in the contrived attempt to circumvent the operation of law and again remove Paul from his mother. Those are matters which no doubt will be agitated in the care proceedings, which the Children’s Court will hear on 24 and 25 October 2023, but are not allegations about which this Court can, or needs to, make findings.

44. As previously recorded, both in writing and orally, the plaintiff strenuously asserted that the actions of the Secretary on 12 September 2023 were in breach of the Court’s order, in that they had no legal justification. The plaintiff submitted that the Secretary and its officers were not authorised to use ss 44 and 45 of the Care Act to “circumvent and frustrate” the final orders made by the District Court in the way the Secretary was alleged to have done. Two broad contentions were advanced in that context. The first was that purporting to assume Paul’s care was “nonsensical”, when the orders of the 17 April 2023 made clear that parental responsibility for Paul was already allocated to the Minister, and that it was only the aspect of parental responsibility for residence that had been allocated to the plaintiff from 19 May 2023 along with the other matters set out in notation A to the orders.

45. It was submitted that the Assumption of Care document made no mention of the issue of parental responsibility for residence. The terms of s 44, and perhaps not insignificantly, the notes to s 45, suggest that the requirements of a notice under s 44 are those articulated in s 44(1)(a) and subs (1)(b). On the face of the Secretary’s notice, and the reasons for the assumption of Paul into care on 12 September 2023, it would be difficult to find that the notice was invalid, or otherwise failed to comply with the provisions of s 44. To the extent that it might, the note to s 45 suggests that such failures would not render the notice defective, or that action taken under s 44 in reliance upon it defective, or that the assumption of Paul into care in reliance upon it was invalid or unlawful.

46. It was secondly submitted that, on the face of the material provided, the action taken by the Secretary was not a “fresh matter”, but in reality a continuation of the matter in respect of which the District Court made orders on 17 April 2023. The Court does not understand that, after the determination of the appeal on 17 April 2023, this Court retained any residual or incidental jurisdiction with respect to any variation of the orders. It is clear – as has occurred, and as s 45 requires – that the Secretary, having acted in reliance upon s 44, was obliged to bring a fresh care application in the Children’s Court, which it is not in doubt that the Secretary did. The Court has not been referred to any statutory basis upon which this Court could have exercised the jurisdiction suggested by the plaintiff.

47. It was submitted further that, in seeking to rely upon ss 44 and 45 of the Care Act, the Secretary was engaging in a “collateral attack” on the orders made by the District Court, and improperly bypassing the correct procedure at law, which would have been to seek a review pursuant to s 90 of the Care Act.

48. It may be an oversimplification of the submissions of senior counsel for the plaintiff to identify the thrust of the plaintiff’s case in the manner in which the Court has. In substance – as will be seen when the defendant’s submissions are referred to – pivotal to the fate of this Motion is whether the defendant’s purported reliance upon s 44 of the Care Act deprives the plaintiff of the ability to discharge the onus of establishing that any breach of order 5 was capable of being wilful, deliberate or intentional in accordance with the criminal standard of proof.

Defendant’s contentions

49. In written submissions, the defendant, having identified a number of background matters, and identified the statutory scheme in terms which the Court does not understand to be controversial, under the heading “a referral should not be made”, advanced a number of contentions. The first was, as indicated earlier, that the order does not impose a sufficiently clear and unambiguous obligation on the Secretary to be capable of founding a contempt. It was submitted that order 5 of the orders of 17 April 2023 did not impose any obligation on the defendant. The order allocated the aspect of parental responsibility for Paul for residence to the plaintiff, but was submitted to bestow no additional powers or responsibilities on her.

50. As previously suggested, the Court does not accept that order 5, or a breach of order 5, would be incapable of enlivening the power to refer the Secretary for contempt. The order clearly provided that, absent some lawful basis for doing so, the plaintiff was entitled to have Paul reside with her without interference from the Secretary in that regard, or interference other than in accordance with the provisions of the other orders made by the Court on 17 April 2023. The Court respectfully disagrees with the contention of the defendant that order 5 did not restrain the defendant from doing anything. In the Court’s view, it did.

51. When properly understood, and as explained in oral submissions by the Crown Advocate, the primary thrust of the defendant’s contentions is that the orders did not restrain the defendant from exercising a statutory power to assume care of Paul pursuant to s 44 of the Care Act. That is ultimately – in terms of statutory interpretation and, if the matter were to be determined on the merits by the Supreme Court, the critical findings of fact – what this motion is primarily about.

52. The defendant relied on the terms of s 44, and on the evidence of Ms Lindsay and the paragraphs of her affidavit to which reference has been made in support of the contention that the plaintiff could not demonstrate that the Secretary’s actions were capable of being found to be deliberate, wilful or intentional breaches of the Court’s orders.

53. It was submitted by the defendant that there is no express or implied statutory provision in the Care Act which qualifies the operation of s 44 in the way the plaintiff’s submissions necessarily involve. The Court has not been referred to any statutory provision which suggests that the power referred to in s 44 is qualified by any other statutory provision, or that a s 90 Care Act application is a necessary precursor to action under s 44. With respect to senior counsel for the plaintiff, if that were so, given the power of the Children’s Court under the Care Act to make interim orders, which power is not in doubt once a s 90 application is filed in accordance with s 45(1A), it is difficult to see how s 44 would have any work to do.

54. As submitted by senior counsel for both parties, this Court does not need to attempt to suggest a definitive construction of the operation of the section. It is sufficient to record that the Court is not persuaded that s 44 could not have the operation for which the defendant contends. As previously suggested, the statutory scheme created by ss 44 and 45 – and, although not relevant for present purposes, s 43 with respect to emergency removal – appears to operate independently of the other provisions of the Care Act. Although, as s 45 makes clear – and the notes to s 45 make even clearer – the serious decision to take Paul from the residence of his mother is one for which the Secretary must be accountable in view of the existence and terms of order 5, the section does not appear to provide support for the plaintiff’s construction of s 44 of the Care Act.

55. The Court has recorded the mandatory requirements set out in s 45 of the Care Act. It has also recorded the matters in the notes which appear to suggest that the paramount consideration, consistent with the objects and purpose of the Care Act itself, is the safety of a child or young person, and not the procedural failures of those with statutory authority for the protection of children and young persons.

56. It was submitted on behalf of the defendant that, if the Secretary were referred to the Supreme Court, it could not be established beyond reasonable doubt that the Secretary had acted in wilful or deliberate breach of the Court’s orders. That submission gains support from the evidence of Ms Lindsay, and from the terms of the assumption into care notice given by the Secretary.

57. The Court is concerned that even if the Secretary did not have the power to assume the care of Paul on 12 September 2023, and even if the construction of s 44 urged by the plaintiff was correct, it would still be difficult on the evidence before this Court to accept that, whilst the assumption of Paul into care was undoubtedly deliberate and intentional, it could be found on the criminal standard of proof that doing so involved a wilful, deliberate or intentional breach of the Court’s orders.

58. The second aspect of this issue, which this Court cannot determine, and is not required to determine, is whether the Secretary acted in good faith in assuming the care of Paul, or whether, as the plaintiff contends in the terms recorded earlier, the defendant was endeavouring, without appealing the orders of 17 April 2023, to circumvent their operation. Those are not matters about which this Court can make findings, but it records that the evidence before it does not enable the Court to find on the evidence before it, that the actions of the defendant on 12 September 2023 were capable of being wilful, or involved a deliberate attempt to breach the orders of the Court. In accordance with the civil standard, the plaintiff may be able to discharge that onus of proof, but the Court is not persuaded that the evidence presented is capable of discharging that onus on the criminal standard of proof.

49. As noted earlier, it was submitted by the defendant that there was no statutory or other limitation on the power in s 44 of the kind asserted by the plaintiff. The defendant sought to rely upon a number of decisions of the Supreme Court in support of that contention. The first of those decisions was Re Greta (No.2) [2012] NSWSC 856 (“Re Greta”), a decision of White J, as White JA then was. That was a case, as [1] and [2] of his Honour’s judgment record, where final orders had been made, and the operative order provided that there be joint parental responsibility for the mother and the Minister during the currency of which the children were removed from the home in which they were residing with their mother pursuant to s 43 of the Care Act. His Honour declined, for the reasons recorded, particularly at [12], to grant the relief sought by the mother.

50. His Honour’s judgment engaged with ss 43 and 45 of the Care Act. His Honour recorded at [12] that whilst the circumstances of the children’s removal will form relevant background to the decision of the Children’s Court to be made on the Director General’s application for rescission or variation of the care orders pursuant to s 90, whether the Director General’s delegate acted lawfully or not in removing the children should not be a relevant consideration as to whether there should be a change, and if so, what change there should be to the care orders of 16 December 2010 allocating joint parental responsibility between the plaintiff and the Minister. It is difficult to suggest why that should not also be so in the case of an assumption of care pursuant to s 44 of the Care Act, and thus remove, or at least limit, the exposure of the Secretary to a contempt charge arising out of action taken pursuant to the section.

51. White J, accordingly (at [13]), declined to make a declaration as to the lawfulness of the children’s removal. His Honour added that such a declaration should not have any effect on the determination of the matters that would be in controversy between the Minister or the Director General and the plaintiff. His Honour recorded (at [14]) that, had he come to a different view as to the appropriateness of the relief sought he would nevertheless have refused the declaration. Later, at [25] of his decision, White J recorded that the power under s 43(1) was to be exercised having regard to the principles in s 9 whereby the safety, welfare and well-being of the child or young person is paramount. There is no reason to suggest that the power conferred by s 44 would not be similarly exercisable.

52. In Re Greta, the caseworker considered that immediate action had to be taken, even though it was in the early hours of the morning. The caseworker explained to the plaintiff that she was concerned for the children’s safety and welfare because of the presence of the plaintiff’s partner in the house, and gave the plaintiff and her partner the opportunity to have her partner leave. In the circumstances, there was not a denial of procedural fairness. Matters of the kind to which his Honour referred are not revealed to have occurred in this case.

53. Although not determinative of the motion, his Honour’s observations in Re Greta do provide some support, in the Court’s view for not rejecting the defendant’s contentions with respect to the interaction of ss 44 and 90 of the Care Act, if only in terms of the standard of proof which the plaintiff must discharge if the referral application is granted. Although ss 43 and 44 are concerned with different circumstances, the effect and consequences of the exercise of the power conferred by both sections are substantially the same.

54. In GR v Secretary, Department of Communities and Justice [2022] NSWCA 153, in the judgment of Brereton J, with which Gleeson and Mitchelmore JJ concurred, after extensively reviewing the history of the matter, his Honour recorded (at [58]) the submission of the parent that there was no authority for the Secretary to assume care responsibility as, under the extant Children’s Court orders, the Minister did not have parental responsibility. His Honour recorded that the fact that, by those orders, the Minister did not have parental responsibility did not preclude the exercise by the Secretary of the power under s 44 to assume care of a child if the conditions for its exercise were satisfied. Upon exercise of the power, the Secretary has, by s 49, care responsibility for the child, which includes the powers under s 157 to consent to medical treatment. Again, although not determinative, his Honour’s observations are considered to provide support for the Court not rejecting the defendant’s contentions with respect to the interaction between ss 44 and 90 of the Care Act in a referral application, if only in terms of the standard of proof which the plaintiff would have to discharge in the Supreme Court.

55. Finally, in this context, in AA & Ors v Department of Family and Community Services [2016] NSWSC 842 at [127], Slattery J recorded that nothing in the Care Act indicated that a risk assessment was a mandatory precondition of action under s 44 of the Care Act, and that s 44 involved reasonable grounds which could be made out by the refusal to allow a risk assessment to occur. Factually, that is not this case. More relevantly, at [133] and [134], his Honour considered the s 44 decision and “improper purposes”. His Honour recorded the submission of the plaintiffs that s 44 should not be used to transfer children from Court-ordered home to a non-custodial parent, and referred to the emphasis of the absence of change of circumstances and other matters upon which the plaintiffs relied. His Honour referred (at [134]) to the trigger for the decision of the Secretary to assume a child into care, and recorded, in a number of respects, that any deficiencies in relation to actions prior to the exercise of power under s 44 did not defeat the reliance of the Secretary on s 44 itself. As submitted by the defendant, the decision provides support for the Secretary’s case.

Consideration

66. For the foregoing reasons, the Court is not persuaded that there is evidence capable of establishing beyond reasonable doubt the fifth of the requirements in order for the referral application to be granted. It may be that, if tested, the evidence would establish that, as the plaintiff contends, the defendant was motivated by and acted pursuant to a desire to achieve one or more of the objectives alleged by the plaintiff. But the evidence before this Court could not establish beyond reasonable doubt, that the Secretary’s actions were unauthorised or unlawful by virtue of the operation of s 90 in the manner asserted by the plaintiff or otherwise, or that the actions of the Secretary, as revealed by the evidence before this Court, were capable of being found beyond reasonable doubt to have involved a wilful, deliberate or intentional breach of the Court’s orders.

67. It is, strictly speaking, unnecessary to consider discretionary matters in view of the Court’s findings with respect to the breach of order 5 alleged by the plaintiff but, the Court having had the benefit of learned and helpful written and oral submissions of senior counsel with respect to the exercise of discretion, if the power to refer were otherwise enlivened, it is appropriate that the Court consider the discretionary aspects of the application.

68. The defendant submitted that, if a referral was made, pending a determination by the Supreme Court, the proceeding is “apt to have a chilling effect on the exercise of the Secretary’s emergency protection powers”, and that the threat of contempt prosecution may “negatively impact the Secretary’s delegates when making decisions in relation to children, in respect of whom any order has been made at some previous stage, even a number of years earlier”. It was further submitted that this may serve to place children at risk and undermine the central purpose of the Care Act.

69. With great respect to the learned Crown Advocate, the Court cannot accept those contentions. If the plaintiff made out a proper case for referral, that would not be a reason for not exercising the power to refer. The notes to s 45 of the Care Act records that it “holds the Secretary accountable for the serious decision to remove a child or young person from his or her family suddenly.” Where, as in this case, such action is taken in the face of a Court order, failing to refer an appropriate contempt application would be inconsistent with that objective.

70. Objectively, if the Court is satisfied that the plaintiff has adduced evidence capable of proving the elements of the contempt beyond reasonable doubt, it would be difficult to reconcile making those findings with declining to refer the application to the Supreme Court. It is to be remembered that this Court is only determining whether to refer the contempt application to the Supreme Court, and not to decide whether, if referred, the contempt application must be prosecuted. That is a decision for others, who may be influenced by the matters raised by the Secretary.

71. A number of matters relevant to the exercise of discretion are not in doubt. The first is that, as s 45 required, the secretary filed a care application in the Children’s Court. That was done expeditiously. It came before the Court expeditiously. Yesterday, the Children’s Court made an interim order allocating parental responsibility to the Minister, time limited until 5 pm on 24 October 2023. Although the extent to which this Court can safely draw inferences from that order is limited, it can, in the context of this application, be inferred that the Children’s Court, no doubt on limited evidence and subject to time and other constraints, declined to order that Paul be returned to the residence of the plaintiff. That does not necessarily mean that the defendant could not have been in contempt, but it would as a matter of discretion raise questions about the utility of granting the present application.

72. More importantly perhaps, the Children’s Court has made special arrangements for a hearing by the President of the Children’s Court on 24 and 25 October 2023 of the issue of interim parental responsibility and s 90 leave. The reality is probably that, before the appropriate entity in the Supreme Court considered whether to prosecute the Secretary if the referral application is granted, the substantive proceedings will have been determined by the Children’s Court, at least on an interim basis. That has a number of consequences in terms of the objectives of a referral for contempt. I referred earlier to two primary objectives of contempt referral applications. They could crudely be described as forcing compliance with Court orders, and leaving a defaulting party and the community in general in no doubt that when Courts make orders they will be obeyed.

73. It may be that the Children’s Court will make orders which restore Paul to the residence of the plaintiff. It would not necessarily mean that the Children’s Court made any critical findings of the conduct of the Secretary – but, rather, that such a decision was in the best interests of Paul. Similarly, if different orders are made and Paul is not restored to the interim residence of the plaintiff, that would not necessarily involve the Children’s Court not making critical or adverse findings of the kind contemplated by the note to s 45 about the Secretary. Either way, and importantly for present purposes, the Secretary would, whatever the outcome, be in no doubt that having exercised the power vested in it under s 44, the Secretary’s actions were reviewable, and were scrutinised by the Children’s Court within about six weeks of Paul’s removal, leaving no doubt that compliance is necessary and will have been achieved, whatever the outcome.

74. Whatever the outcome of the proceedings in the Children’s Court, it is difficult to see how, by the time any referral was heard by a judge of the Supreme Court, the Secretary would not be found to have purged any contempt of which the Secretary may have been found guilty. As the decision in Department of Communities and Justice (DCJ) and Katie [2023] NSWChC 11 (“Katie”) makes clear, in an appropriate case, if the Secretary has acted in the ways alleged by the plaintiff and is found to have, the Secretary may well pay a high price, in terms of a costs order. As I understand the judgment in Katie, the paternal grandmother was awarded $174,169.61 in costs pursuant to s 88 of the Care Act.

75. Even if the substance of the plaintiff’s complaints about the conduct of the Secretary are established in the Children’s Court in accordance with the civil standard of proof, there would be ample scope for that Court, as Katie demonstrates, to make an order for costs which in the circumstances would be likely to be of considerable magnitude.

Disposition

76. For the foregoing reasons, and without being critical of the plaintiff for bringing this application, the Court is not persuaded that it is appropriate that the matter be referred to the Supreme Court accordingly pursuant to s 203 of the District Court Act.

77. The relief sought in prayer 3 of the Notice of Motion is refused. Costs are reserved. The Court will entertain any costs application that a party makes, but as these reasons hopefully imply, the Court will take some persuading that any order for costs is justified in the circumstances.

78. The plaintiff acted reasonably in bringing this motion. It has been keenly contested. The issues raised, particularly with respect to statutory interpretation, do in the Court’s view, raise important and serious issues. As submitted by the Crown Advocate, these proceedings are more than strictly inter partes. There is a public interest in a matter of this kind, unlike some, where there is no public interest.

Orders

1. The relief sought in prayer 3 of the Notice of Motion is refused.

2. Costs reserved.

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Decision last updated: 01 November 2023