KF v Parramatta Children's Court & 3 Ors

[2008] NSWSC 1131

CITATION:	KF v Parramatta Children's Court & 3 Ors [2008] NSWSC 1131
HEARING DATE(S):	27 October 2008
JUDGMENT DATE :	30 October 2008
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	Certiorari granted
CATCHWORDS:	CHILDREN - care proceedings - application for prerogative, declaratory relief - refusal by Children's Court magistrate to allow the mother to supply material to an expert for report - practice note no 30 - whether magistrate's leave required - effect of s105 Children and Young Persons (Care and Protection ) Act 1998
LEGISLATION CITED:	Children and Young Persons (Care and Protection ) Act 1998 (NSW) Family Law Act 1975 (C'th) Children's Court Rule 2000 Royal Commissions Act 1917 (SA) Evidence Act 1929 (SA)
CASES CITED:	Roget v Flavel (1987) 47 SASR 402 ABC v Royal Commissioner (1991) 56 SASR 274 Marriage of Bateman and Patterson [1981] 7 FamLR 33 Hot Holdings Pty Ltd v Creasy (1995-6) 185 CLR 149 SB v Parramatta Children's Court [2007] NSWSC 1297
TEXTS CITED:	Shorter Oxford English Dictionary
PARTIES:	KF (plaintiff) Parramatta Children's Court (1st defendant) Department of Community Services (2nd defendant) Child's stepfather (3rd defendant) Legal Aid Commission (4th defendant)
FILE NUMBER(S):	SC 2008/15106
COUNSEL:	E Lawson (plaintiff) M Higgins (2nd defendant) P Braine (3rd defendant) S Gardiner (4th defendant) Submitting appearance (1st defendant)
SOLICITORS:	Levy Partners (plaintiff) Crown Solicitor (1st and 2nd defendants) Legal Aid Commission (3rd and 4th defendants)
LOWER COURT JURISDICTION:	Children's Court of NSW at Parramatta
LOWER COURT FILE NUMBER(S):	Care App 2008/630
LOWER COURT JUDICIAL OFFICER :	Mitchell SCM
LOWER COURT DATE OF DECISION:	09/09/08

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Thursday 30 October 2008

2008/15106 KF v Parramatta Children’s Court & 3 Ors

JUDGMENT

1 HIS HONOUR: This is an application for prerogative or declaratory relief in respect of an order made by a magistrate at Parramatta Children’s Court in proceedings under the Children and Young Persons (Care and Protection) Act 1998. The plaintiff is the mother of a baby girl who has been found by the court to be in need of care and protection, and who is currently in the care of her grandmother. The plaintiff is in a relationship with a man who is not the child’s father, to whom I shall refer as the stepfather. The proceedings are now at what is known as the “welfare” or “placement” phase, where the court must determine, among other things, whether there is a realistic possibility of restoring the child to the care of the plaintiff and her stepfather.

2 That course is opposed by the Department of Community Services, which had instituted the care proceedings in the Children’s Court. The Department has been joined as a defendant in the proceedings in this Court, as have the stepfather and the Legal Aid Commission, which had been appointed as the child’s independent legal representative. The Children’s Court itself has also been joined as a defendant and, of course, has entered a submitting appearance.

3 The plaintiff and the stepfather seek the restoration of the child to their care. A body of affidavit evidence has been filed in the Children’s Court by the Department of Community Services. For present purposes, it is unnecessary to review that material. It is sufficient to say that it is adverse to the case for restoration, calling into question the parenting capacity of the plaintiff and of the stepfather, whose own children had been earlier removed from his care. This, of course, is material to which they have access.

4 Prior to the decision with which I am concerned, the plaintiff had sought an order for a parenting assessment by the Children’s Court Clinic under Chapter 5, Part 1, Division 6 of the Act. A different magistrate had declined to make that order. The plaintiff then decided to engage her own expert to make that assessment. To that end, she applied to the Children’s Court for leave to supply the departmental material to which I have referred to the expert for the purpose of preparing a report. On 9 September 2008 that application also was refused, and it is that decision which is the subject of the proceedings in this Court.

5 The application was made pursuant to practice direction no 30, issued in January of this year, governing “access to and publication of confidential Children’s Court documents”. The practice direction provides for application to the court “for access to or for leave to publish to non-parties confidential documents in care or criminal cases …”. Its terms are wide enough to encompass the furnishing of documents of that kind to an expert for a report in a particular case.

6 The plaintiff’s primary contention is that the leave of the Children’s Court was not required for her to supply the relevant material to an expert and that, to the extent that the practice note requires an application for leave, it is not authorised by the Act. In the alternative, she contends that the learned magistrate denied her procedural fairness in the conduct of her application. Written and oral submissions on both questions were provided by Ms Lawson, counsel for the plaintiff. Those submissions were adopted by Mr Braine and Mr Gardiner, counsel for the stepfather and the independent legal representative respectively, both of whom developed further arguments from the perspective of their clients. Counsel for the Department, Mr Higgins, contested the assertion of the lack of procedural fairness but on the first question, whether an application for leave was required, approached the matter in a non-adversarial way with reference to relevant authority.

7 In the event, there was substantial agreement between the parties about that first question and I find it unnecessary to determine the complaint about procedural fairness. Nevertheless, the first question raises an important matter of continuing significance in the conduct of care proceedings and I have taken time to reach my own conclusion about it. It is appropriate that I record my appreciation of the assistance provided by all counsel in submissions which were both carefully considered and responsible.

8 It needs hardly be said that, ordinarily, a party to legal proceedings does not need the leave of the court to refer material to an expert in the preparation of his or her case. If there is such a requirement in care proceedings in the Children’s Court, it must be found in the Act. Its only possible source would be s105, which inhibits the publication of the name of a child or young person involved in proceedings of this kind.

9 Relevantly for present purposes, s105(1)(b) provides that the name of a child or young person with respect to whom proceedings before the Children’s Court are brought “must not be published or broadcast in any form that may be accessible by a person in New South Wales …”. By subs(4), the prohibition extends to any material which identifies the child or young person or is likely to lead to his or her identification. Publication in contravention of the section is a criminal offence: subs(2). Exceptions to the prohibition are to be found in subs(3), including publication of the name of the child with the consent of the Children’s Court.

10 The question which I must determine is whether the provision by a party of evidence in care proceedings to an expert is a publication of the kind to which s105 is directed. If it is not, there is no statutory basis upon which the party could be required to obtain the leave of the court before doing so. The court’s power to issue practice directions is to be found in regulation 17 of the Children’s Court Rule 2000, but that regulation provides that a practice direction inconsistent with the Act does not apply to the extent of that inconsistency.

11 What, then, is the nature of the publication with which s105 is concerned? The term “publish” is not defined in the Act. There is no case directly on point, but guidance is to be found in South Australian authority.

12 In Roget v Flavel (1987) 47 SASR 402, Cox J examined s69a of the EvidenceAct 1929 (SA), which conferred a discretion upon a court to make a suppression order if it considered that undue hardship would be caused by the publication of the name of a party, a witness or a person alluded to in the proceedings. Again, the word “publication” was not defined in that Act. His Honour observed (at 405) that it is not a word of “fixed meaning”, and continued:

Obviously it refers to some kind of communication or notification to others, but its precise meaning in s 69a must depend, in my view, upon the context in which it is used, the mischief that the legislation is designed to overcome, and the need to construe the scheme created by s 69a in a way that will make it workable.

13 His Honour (at 406) set out relevant parts of the definition of “publication” in the Shorter Oxford English Dictionary:

“ The action of publishing or that which is published. 1.The action of making publicly known; public notification or announcement; promulgation. b. spec. in Law. Notification or communication to those concerned, or to a limited number regarded as representing the public …”

14 His Honour then added:

It does not refer to a substantially private communication, from one person to another, whether by way of preparation for an impending trial, or as information to someone with an obvious commercial or personal or other interest in the matter, or merely by way of unedifying gossip. The typical publication prohibited by s 69a will be publication by means of a newspaper or a television or wireless broadcast. However, there are other ways in which the communication of information may be made with the necessary public element - an announcement at a public meeting, for instance, or a statement uttered to the world at large on a street corner. Perhaps there could be cases in which, in accordance with the dictionary definition, notification to a relatively small group of people could be regarded, by reason of their random, or in some circumstances their representative, character, as a publication under s 69a. Obviously there will be borderline cases. …

In my opinion, that interpretation of s 69a will cope with the problem that, as I see it, the section is attempting to solve – the more or less wholesale communication of the suppressed material to all and sundry, including those with only an idle interest in the matter. I do not think that Parliament was attempting to stop and make unlawful … a communication between individuals, for one reason or another, with no public aspect about it.

15 Cox J’s approach was adopted by Matheson J in ABC v Royal Commissioner (1991) 56 SASR 274, at 282-4. Matheson J was examining s16a of the Royal Commissions Act 1917 (SA), enabling the Commission to forbid the publication of evidence or the names of witnesses, or persons alluded to, in an inquiry.

16 To these authorities there might be added the judgment of the Full Court of the Family Court of Western Australia in Marriage of Bateman and Patterson (1981) 7 Fam LR 33. The Court was called upon to consider the scope of the confidentiality provision in s121 of the Family Law Act 1975 (C’th) which, with certain exceptions, prohibits a person from printing or publishing material relating to proceedings in the Family Court. Their Honours observed (at 37):

An examination of the history of the section seems to point to the conclusion that the legislature, when it inhibited the printing and publishing of the matters referred to did not intend to interfere with the proper functioning of legal processes or indeed with social communications by private conversations or by private correspondence. Both words may be susceptible of different meanings depending on the context in which they are used. In particular “publish” may have very different connotations. In the law of defamation any communication to another person of defamatory matter amounts to a publication. In ordinary parlance “publish” is used most generally in the sense of making information or material available to the general public or a section thereof, or in the sense of making known generally.

17 These pronouncements are of assistance in interpreting s105. The purpose of that section is clear enough from its terms and its statutory context. Immediately preceding it are s104B, empowering the Children’s Court to exclude from a hearing any person not directly interested in the proceedings, and s104C, enabling a person preparing a report of proceedings for dissemination through a public news medium to be present unless the court otherwise directs. I am satisfied that s105 is concerned with the publication of material to the public at large or a section of it -usually, but not necessarily, by the news media. To adopt the words of Cox J in the last of the passages from Roget v Flavel cited above, it is not directed to “a communication between individuals, for one reason or another, with no public aspect about it.”

18 It is certainly not directed to the provision of material to an expert for the purpose of proceedings in the Children’s Court. Clearly, expert evidence has its place in care proceedings and it is most important that the expert have access to all relevant material. As Ms Lawson put it, the plaintiff seeks merely to provide material to an identified expert, who is qualified and bound by professional obligation to keep it confidential. It is a limited communication for a legitimate purpose, that is, the proper conduct of the plaintiff’s case, and it is intended that any report would be made available only to the parties to the Children’s Court proceedings.

19 Accordingly, the plaintiff did not need to seek the leave of the court to make material available to the expert. To the extent that the practice note purported to require her to do so, it had no foundation in the Act and was ultra vires. To adopt the terms of reg17(2) of the Children’s Court Rule, the practice direction is in that respect inconsistent with the Act and does not apply to the extent of that inconsistency. It follows that the learned magistrate’s decision was made without jurisdiction, and cannot stand.

20 The plaintiff seeks an order in the nature of certiorari or, alternatively, an appropriate declaration. The decision is an interlocutory one but, in all the circumstances, it appears to me that certiorari is appropriate. The ultimate decision to be made by the Children’s Court is the allocation of parental responsibility under s79 of the Act. The decision with which I am concerned is sufficiently connected with that ultimate decision to justify the remedy: Hot Holdings Pty Ltd v Creasy (1995-6) 185 CLR 149 at 159.

21 I would adopt the approach of Price J in SB v Parramatta Children’s Court [2007] NSWSC 1297 at [80]-[84], while acknowledging the differences between that case and this. Relief by way of certiorari is discretionary, but in the present case there is every reason to grant it. As I have said, the question raised is one of continuing importance in proceedings under the Act. The decision is that of the Senior Children’s Magistrate, whose view on any matter arising in this jurisdiction is entitled to considerable weight, and it was His Honour who issued the practice direction.

22 I order that the record of the Parramatta Children’s Court be removed into this Court, and that the decision of the Senior Children’s Magistrate of 9 September 2008 be quashed. I shall consult the parties about whether any other order should be made and, if necessary, I shall hear argument on costs.

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