L v Minister for Families, Communities and Disability Services

[2024] NSWCA 199

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

L v Minister for Families, Communities and Disability Services [2024] NSWCA 199

Hearing dates:

15 July 2024

Decision date:

09 August 2024

Before:

White JA at [1];
Mitchelmore JA at [113];
Basten AJA at [114]

Decision:

(1) The purported Notice of Appeal filed on 31 January 2024 is dismissed as incompetent.

(2) The Amended Summons Seeking Leave to Appeal filed on 16 April 2024, which has been treated as a Summons for Judicial Review, is dismissed.

(3) No order as to costs of the proceedings in this Court.

Catchwords:

ADMINISTRATIVE LAW — Jurisdictional error — Children and Young Persons (Care and Protection) Act 1998 (NSW) — where care orders made by the Children’s Court removed parental responsibilities from mother — where care orders confirmed on appeal by the District Court — where no appeal lies to the Court of Appeal — where part of applicant’s evidence not considered by judge — no cross-examination or argument addressed to judge on evidence not considered — whether judge displayed apparent bias — whether applicant denied procedural fairness — whether decision was legally unreasonable — nothing in transcript of hearing under review demonstrates reasonable apprehension of bias or procedural fairness — findings of judge were not unreasonable in any sense of the word — summons dismissed.

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9, 10A, 71, 72, 79, 82, 90, 91, 105

District Court Act 1973 (NSW), s 127(1)

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW),

rr 36.17, 59.6

Cases Cited:

Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14

Colquhoun v District Court of New South Wales [2014] NSWCA 460

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR1089; [2003] HCA 26

Druett v Director-General of Community Services [2001] NSWCA 126

Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR 178

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46

X v Director-General of the Department of Community Services [2001] NSWCA 413

Category:

Principal judgment

Parties:

Mother (Applicant)
Minister for Families, Communities and Disability Services (First Respondent)
Father of P (Second Respondent)

Representation:

Counsel:
Applicant unrepresented
B J Dean (First Respondent)
Second Respondent unrepresented

Solicitors:
Crown Solicitor for NSW (First Respondent)

File Number(s):

2024/93020; 2024/344411

Publication restriction:

1. No publication of the names or of anything which identifies or is likely to lead to the identification of the child and young person the subject of these proceedings.
2. Order 1 applies throughout the Commonwealth of Australia.
3. Order 1 operates in respect of each of the child and young person until he/she attains the age of 25 or dies, whichever occurs first.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Date of Decision:

6 October 2023

Before:

Coleman SC ADCJ

File Number(s):

2022/136757

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant in these proceedings, L, challenged the decision of Coleman SC ADCJ in the District Court which dismissed an appeal from orders of the Local Court made in respect of two of L’s children, P and M, and denied her the return of parental responsibility for those children.

Owing to concerns held by the Secretary of the Department of Family and Community Services (“the Secretary”) for the safety, welfare, and well-being of P and M, the children were removed from L’s care on 1 October 2020. On 7 October 2020, the Secretary commenced care proceedings in the Children’s Court, and on 12 April 2022, the Children’s Court made orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”) which removed parental responsibilities from L in respect of both children and allocated them elsewhere.

L appealed to the District Court pursuant to s 91 of the Care Act, seeking rescission of the orders of the Children’s Court and the allocation of sole parental responsibility for the children to her. Coleman SC ADCJ delivered oral reasons dismissing the appeal and confirming the orders of the Children’s Court on 6 October 2023.

The primary judge was satisfied that P and M were in need of care and protection at the time they were taken into care, relying largely on the evidence of caseworkers assigned to the children, reports from contact visits between L and P, and Risk of Serious Harm Reports tendered by the Minister for Family, Communities and Disability Services which indicated neglect of, and the risk of psychological harm to, the children. His Honour accepted expert evidence assessing L’s psychological state and rejecting her fitness to parent the children adequately or safely. His Honour also accepted evidence that L had not attended a number of parenting courses which had been recommended to her by a psychologist, despite the annexation of certificates of completion to an affidavit in evidence of which he was apparently not aware and to which he was not referred. Applying the “paramountcy principle” in ss 8 and 9 of the Care Act, Coleman SC ADCJ concluded that the restoration of parental care to L would expose P and M to an unacceptable risk of harm and dismissed the appeal.

The applicant purported to file a notice of appeal from the decision of Coleman SC ADCJ on 31 January 2024 and a summons for leave to appeal on 11 March, which was later amended on 16 April, seeking the setting aside of the District Court’s orders and the making of orders allocating to her full parental responsibility. As the judgment and order of Coleman SC ADCJ was not a judgement or order “in an action” within the meaning of s 127 of the Supreme Court Act 1970 (NSW), no appeal lay to this Court from the operative decision. However, pursuant to orders made by the Registrar on 13 May 2024 the summons for leave to appeal was treated as a summons for judicial review.

This summons, being so treated, alongside the applicant’s summary of argument, asserted that the judge erred in law and raised three grounds of jurisdictional error, being:

1. the judge displayed bias;

2. she was denied procedural fairness; and

3. the decision was legally unreasonable.

The Court (White JA, Mitchelmore JA and Basten AJA agreeing) dismissed the appeal, holding:

Per White JA (Mitchelmore JA and Basten AJA agreeing at [113] and [114] respectively):

The application to this Court is confined to review on the ground of error of law on the face of the record or jurisdictional error. Further, the application relates only to the decision of the District Court, and relief by way of judicial review no longer lies from the decision of the Children’s Court: [22], [24], [82].

Druett v Director-General of Community Services [2001] NSWCA 126; X v Director-General of the Department of Community Services [2001] NSWCA 413; Muldoon v Church of England Children’s Homes Burwood (2011) 80 NWLR 282; [2011] NSWCA 46; Colquhoun v District Court of New South Wales [2014] NSWCA 460, applied.

The applicant did not point to any error of law on the face of the record, as distinct from asserted errors of fact. In any event, the judge appropriately directed himself on the applicable principles and did not misconstrue the Care Act. The issue raised in the summons was therefore whether Coleman SC ADCJ committed jurisdictional error: [23], [83]-[84].

As to issue (i):

Although invited to do so, the applicant did not point to anything in the transcript which might indicate bias to a reasonable bystander. To the contrary, the judge was careful to explain to L the nature of the appeal and to assist her as appropriate where necessary to do so: [86].

As to issue (ii):

Even though the judge may have erred in finding that there was no evidence that the applicant completed parental education courses as recommended, this was a factual error within the exercise of jurisdiction: [98].

It was unnecessary to decide what the High Court meant by a “substantial argument” in Dranichnikov and if the failure to consider the certificates was thus a denial of procedural fairness, as L’s arguments regarding the certificates were not well-articulated, and even if based on established facts and of substance, this was not a ground upon which the primary judge’s decision turned: [97]-[98].

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1089; [2003] HCA 26, considered.

Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR 178, referred to.

There was no denial of procedural fairness in the conduct of the proceedings in the District Court: [87].

As to issue (iii):

A decision is only “legally unreasonable” if it is so unreasonable as not to be within the authority conferred. It was open for the judge to reject uncorroborated evidence, and to prefer the evidence of witnesses other than the applicant. The findings were not unreasonable in any sense of the word: [99]-[100].

JUDGMENT

1. WHITE JA: This is an application for judicial review of a decision of the District Court (Coleman SC ADCJ) of 6 October 2023 on an appeal to that Court from orders made in the Children’s Court on 12 April 2022 in respect of two children of the applicant.

2. In these reasons, I will from time to time refer to the applicant by the initial L, and the child and young person the subject of these proceedings as P and M respectively. I do so to avoid naming the child or young person or otherwise providing information that would identify, or be likely to lead to the identification of, either of them (Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”), s 105).

3. L is the mother of P and M. At the time of the hearing in the District Court, P was 5 years old and M was 15 years old.

4. The second respondent to the application is the father of P.

5. On 12 April 2022, the Children’s Court made orders pursuant to s 79 of the Care Act in respect of P. The Court allocated parental responsibility to the Minister for Family, Communities and Disability Services (“the Minister”) “for the aspect of contact only” until P attains the age of 12. All other aspects of parental responsibility for P were allocated to her father to the exclusion of the applicant until P attains the age of 12. On P attaining the age of 12, all aspects of parental responsibility were allocated to the father to the exclusion of the applicant until P reaches the age of 18. Other orders were made requiring the Department to provide a report to the Court concerning the suitability of the arrangements for the care and protection of P.

6. In respect of the young person M, the learned magistrate ordered that all aspects of parental responsibility for her be allocated to the Minister until she reaches the age of 18. As had occurred with P, orders were made in relation to the provision of reports required pursuant to s 82 of the Care Act.

7. L appealed to the District Court from the orders of the Children’s Court pursuant to s 91 of the Care Act. She represented herself in the Children’s Court, the District Court, and this Court. Subsection 91(2) of the Care Act provides that an appeal to the District Court is by way of a new hearing and that fresh evidence, or evidence in addition to, or in substitution for, the evidence on which the order was made, may be given on the appeal. The judge properly advised L of the nature of the appeal.

8. In her appeal to the District Court, L sought rescission of the orders of the Children’s Court and allocation of sole parental responsibility for P and M to her.

9. The appeal in the District Court was heard over four days between 25 and 28 September 2023. Promptly, on 6 October 2023, Coleman SC ADCJ delivered oral reasons and stated that “…the orders the Court will make will be to confirm the orders of the Children’s Court of New South Wales of 12 April 2022 and to dismiss the Notice of Appeal filed 12 May 2022, and the Amended Notice of Appeal filed 7 February 2023”.

10. The order as entered was that “the notice of appeal filed 12/5/22 and amended notice of appeal filed 7/2/2023 are dismissed”.

11. Section 91(4)-(6) of the Care Act provides:

“(4)    In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

(5)    Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.

(6)    The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly.”

12. It is by reason of s 91(5) and (6) that it is appropriate and customary, when the District Court dismisses an appeal from the Children’s Court, that the District Court confirm the orders of the Children’s Court. That was what Coleman SC ADCJ intended and proposed. I infer that the omission of the orders, as entered, to confirm the orders of the Children’s Court of 12 April 2023 was a slip or omission. That can be corrected by the District Court pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). It does not affect the application to this Court.

13. Section 127(1) of the District Court Act 1973 (NSW) provides:

“127 Right of appeal to Supreme Court

(1)    A party who is dissatisfied with a Judge’s or a Judicial Registrar’s judgment or order in an action may appeal to the Supreme Court.”

14. The judgment and order of Coleman SC ADCJ was not a judgment or order “in an action” within the meaning of s 127. No appeal lies to this Court from Coleman SC ADCJ’s judgment or order (Druett v Director-General of Community Services [2001] NSWCA 126; X v Director-General of the Department of Community Services [2001] NSWCA 413 at [24]; Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 at [8]; Colquhoun v District Court of New South Wales [2014] NSWCA 460 at [7]).

15. This Court has jurisdiction to grant prerogative relief if the District Court committed jurisdictional error, or on the basis of error of law that appears on the face of the record of the proceedings. Pursuant to s 69(3) of the Supreme Court Act 1970 (NSW), if the Court is satisfied that the decision of Coleman SC ADCJ was made on the basis of an error of law that appears on the face of the record of the proceedings and should be quashed, and if the Court determines that, as a matter of law, only one particular determination should have been made by the judge, this Court would have jurisdiction to make such orders as are required finally to determine the proceedings (s 69(3)).

16. Section 69(3) has no application in this case. Even if the decision of the judge is liable to be quashed on the ground of error of law on the face of the record, it cannot be said that, as a matter of law, only one determination was open to the judge.

17. L did not file a summons for judicial review of the orders of the District Court. On 31 January 2024 she purportedly filed a notice of appeal. On 11 March 2024, she filed a summons seeking leave to appeal and, on 16 April 2024, she filed an amended summons seeking leave to appeal. She sought the setting aside of the District Court’s orders and orders allocating to her full parental responsibility for P and M.

18. We were informed that the Minister filed a notice of motion seeking summary dismissal of the purported notice of appeal and the summons seeking leave to appeal. On 13 May 2024, the Registrar ordered that:

“1. The applicant's Amended Summons seeking leave to appeal in proceedings 2024/93020 is to be treated as a Summons seeking Judicial Review.”

19. The Registrar ordered that the respondents were to file and serve any UCPR r 59.6 response by 27 May 2024.

20. The Minister filed her response addressing what she understood to be L’s grounds of review based upon the notice of appeal, the summons seeking leave to appeal, and L’s summary of argument.

21. The notice of appeal should be dismissed as incompetent. The amended summons for leave to appeal is treated as a summons for judicial review in accordance with the Registrar’s order.

22. L’s application to this Court is confined to review on the ground of error of law on the face of the record or jurisdictional error. The question for this Court is not whether Coleman SC ADCJ’s decision was right or wrong on the merits, but whether it was legally valid. To the extent review is sought on the basis of error of law on the face of the record, the error of law must appear from the documents commencing the proceedings and the reasons and orders of the judge. In so far as the challenge is based on jurisdictional error, it is open to the applicant to rely on evidence relevant to the identified jurisdictional errors.

23. L did not point to any error of law on the face of the judge’s reasons. Her challenges to the judge’s decision included allegations which, if upheld, would amount to jurisdictional error. She contended that the judge displayed bias, and that she was denied procedural fairness. I read her amended summons seeking leave to appeal and her summary of argument as including a contention that the judge’s reasons were so unreasonable they went beyond the authority conferred on a judge of the District Court under s 91 of the Care Act.

24. L’s summary of argument included challenges to the decision of the Children’s Court. She alleged that the learned magistrate erred in law, lacked integrity, and was biased, but advanced no basis for any such claim. In any event, relief by way of judicial review no longer lies from the decision of the Children’s Court, as the operative decision is that of Coleman SC ADCJ.

25. In her summary of argument, the applicant submitted that the judge failed to consider evidence of significant probative value that was germane to her children’s safety and well-being. However, the judge did so.

26. The applicant challenged the judge’s acceptance of evidence of Child Protection caseworkers, which she said tarnished her character and maternal capabilities and had no nexus to the reality of her parenting or mental health status. She also challenged the judge’s acceptance of the evidence of a psychologist, a Ms (and later Dr) Allison O’Neill, which was influential to the judge’s decision. These challenges did not go to the legal validity of the judge’s decision, but to the merits of the decision.

27. For reasons which follow, the application for judicial review of the decision should be dismissed.

Background facts

28. The Secretary of the Department of Family and Community Services commenced care proceedings in the Children’s Court on 7 October 2020 seeking an interim order allocating interim parental responsibility of P and M to the Minister. In the report in support of that application, the Department’s caseworker, Ms Lee, reported that P and M were removed from the care of L on 1 October 2020 because the Secretary held concerns for their safety, welfare, and well-being whilst in L’s care due to neglect and the risk of psychological harm. Ms Lee reported that there were three open cases for P and M between 2018 and 2020, and that the Department’s records indicated that caseworkers were unable to address the child protection concerns with L due to L’s non-engagement and her being unwilling or unable to plan for the children’s safety. Ms Lee referred to concerns about M’s inconsistent school attendance and behaviour, and asserted that M’s intellectual and cognitive level required assessment. She reported that the Department had attempted to engage with L to address the child protection concerns, but L relocated, did not engage with caseworkers, and was unwilling to accept referrals. Both open cases were closed because of competing priorities. There were concerns that L had repeatedly changed M’s schools, that in early high school M was showing levels of education that might be expected of a child in early primary school, and that M was displaying early childlike behaviour. She reported that, when caseworkers interviewed M in August 2020, M stated that she had been up until 1.00 – 2.00am watching YouTube and engaging in chatrooms. It was reported that L had objected to the high school’s proposal that M be cognitively assessed. Ms Lee reported that the Department’s child protection concerns included L’s not consenting to assessments or attending appointments with a private psychologist in relation to M.

28. Ms Lee’s report that accompanied the care application in relation to P included reports from an early childhood centre that P, then aged two, arrived with a full overnight nappy, a mouldy shirt, would not eat food, only drank bottles of formula, could not use a spoon, and would spend most of the day asleep. Ms Lee reported that the Department had received information relating to P and M’s nutritional deficiencies and developmental concerns.

29. L challenged Ms Lee’s evidence and cross-examined her. The judge accepted Ms Lee’s evidence (J [102]-[106]).

30. The judge found:

“[142] As recorded earlier the jurisdictional fact enlivening the Court’s power to make placement or welfare orders (s 72) means that the Court must find, and does by reference to the evidence, particularly of Ms Lee, that each of the children was in need of care and protection at the time they were taken into care.”

32. There was evidence before the judge that M was placed with foster carers on 3 May 2020. She has lived with them continuously since then. Since that placement, M has thrived. Her educational attainments were reported as now being consistent with an average 15 year old.

33. Caseworkers reported that P was doing well under the care of her father.

Relevant provisions of the Care Act

34. Section 8 of the Care Act lists four objects of the Act. The first (s 8(a)) is that children and young persons receive such care and protection as is necessary for their safety, welfare, and well-being, having regard to the capacity of their parents or other persons responsible for them.

35. Section 9(1) provides:

“(1)   This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.”

36. This is known as the “paramountcy principle” and is so referred to in the judge’s reasons referred to below.

37. Section 9(2) states other principles to be applied in the administration of the Act. Section 9(2)(a) provides that where a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare or well-being, he or she must be given the opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

38. In the present matter, M was in a position to express her own views. The evidence before the judge was that M did not wish to be returned to her mother’s care but wished to remain in the care of her foster parents. The judge appropriately took that into account.

39. Section 9(2)(f) provides:

“(f)   If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.”

40. The objects in s 8 and the principles in s 9 for the administration of the Act do not create, or confer on any person, any right or entitlement enforceable at law (s 7).

41. Section 10A(3) lists a sequential order of preference according to what is practicable in respect of the permanent placement of a child. The first preference is that the child or young person be placed in the care of his or her parents if it is practicable and in the child’s best interests to do so (s 10A(3)(a)). The judge addressed this issue. He concluded that it was neither practicable nor in the best interests of P or M to be returned to L’s care (J [148]).

42. Section 71 provides that the Children’s Court (which includes the District Court on appeal) may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason.

43. Section 72 provides that a care order is only to be made if the Children’s Court (which includes the District Court on appeal) is satisfied that the child or young person is in need of care and protection, or if not then in need of care and protection was in need of care and protection when the circumstances that gave rise to the care application existed and would be in need of care and protection but for the existence of arrangements for care and protection made under other specified provisions of the Act.

The Judge’s Reasons

44. The judge summarised the Secretary’s Report made in support of the care application filed on 8 October 2020 (at J [27]-[39]). His Honour appropriately directed himself that, before a care order could be made, he needed to be satisfied that P and M were in need of care and protection or would be in need of care and protection but for the existence of arrangements for their care and protection made under s 49. His Honour found that each child was in need of care and protection at the time they were taken into care. He referred in particular to the evidence of Ms Lee in making that finding (J [142]).

45. Ms Lee’s evidence included reports from a school psychologist at the high school at which M was enrolled in 2020 (then in Year 7) which stated that her academic performance was of a Year 4 level and that she presented with learning difficulties, immature behaviours, social difficulties, and a complex family history. The psychologist reported that psychological testing showed that M’s overall thinking skills were in the average range when compared to others her age. The psychologist recommended that M be assessed by a paediatrician or psychologist.

46. Risk of Serious Harm Reports concerning P and M tendered by the Minister included a report in 2016 that M, then in Year 3, had had regular absences since the commencement of her schooling in 2013 and during that period had attended three different local schools. It was stated that a previous principal had reported chronic attendance problems and frequent “no shows” at pick up time, and that L was currently unwilling to engage with the school and had had major altercations with the authorities and the school.

47. A report dated 3 November 2017 included concerns, apparently from her then school, that M had learning difficulties and the mother did not want to get any help for her and was refusing to allow M to see a counsellor or have M tested for learning disorders, and that the mother was not approachable, did not engage with the school, and was not forthcoming with information. The report also stated that M had displayed inappropriate sexual behaviour towards other students. M, who was then in Year 4, was reported to be at kindergarten level.

48. There were further reports that M behaved strangely in class in 2018, and that L rejected the school’s proposal for school counselling for M. There were continuing persistent attendance issues. There were similar reports in 2019.

49. The judge summarised steps taken by the Department from August 2020 in opening a case plan due to caseworkers’ concerns relating to neglect of both children leading to removal of the children from L’s care on 1 October 2020.

50. The judge also summarised the evidence concerning contact between L and P after P’s removal to the care of her father. Reports of her contact visits with P from the contact supervisors were generally critical of L’s behaviour on the basis that L had provided P with unhealthy food, was denigrating P’s father, was late for contact visits, and raised complaints about alleged injuries to P which were unfounded.

51. The judge also summarised Risk of Serious Harm Reports in April 2021 involving sexualised behaviour of M reported by M’s foster carers, possibly, and considered likely to be, attributable to her earlier living with L. The judge further summarised the chronology of events leading up to the filing of care plans. The judge briefly summarised a report by Ms O’Neill (see below at [54] ff).

52. The primary judge said that it had been a “recurring theme” of L’s case that, since 2021, there had been and remained an ongoing police investigation into possible abuse and sexual abuse of P by P’s father and M by M’s foster carers. His Honour found that the documents produced by the mother, including police records produced on subpoena, provided no support for those assertions, and that it was inconceivable that if anything remotely of the kind alleged by L had occurred, or was occurring, that there would not be a police record in relation to it (at J [77]).

53. In April 2021, Ms Lee was replaced by a Ms Vales as the caseworker for the children. In describing L’s cross-examination of Ms Vales, the judge recorded L’s assertions that her children were dying, and that there was an open police investigation. L said that the Department (or Ms Vales) had neglected them and had neglected the open police case. The judge found (J [109]) that there was no evidence that, in their current placements, either child was dying or at risk of harm of any kind. Nor was there evidence that now or at any time since 2021 there had been an open investigation or any current ongoing or other police investigation in relation to the care of the children in their current placements.

54. On 16 June 2021, Ms O’Neill provided a report to the Department, apparently pursuant to an order of the Children’s Court requiring L to attend an assessment. Her report identified herself as having been appointed as a court expert. The report is lengthy (some 46 pages).

55. Ms O’Neill was provided with extensive documentation, including L’s affidavits in the Children’s Court dated 7 October and 12 October 2020, together with affidavits filed in the Children’s Court by the Secretary and contact reports. She interviewed L, P’s father, M’s foster carer, and M, amongst others. Ms O’Neill observed M and P chatting and playing together. She observed P’s father interacting with P for about 30 minutes. She observed L’s engagement with P.

56. As well as interviewing L, Ms O’Neill administered a Personal Assessment Inventory which she described as a self-administered and objective measure of personality and psychopathological variables. Ms O’Neill considered that L’s responses to the test indicated that she engaged in “extreme positive impression management”. She said that the profile was “deemed invalid and was therefore not interpreted”. Of note, however, was that L indicated a high level of resistance to treatment.

57. Ms O’Neill stated:

“[35] Overall, [L]'s defensive style of responding was evident in the interview and formal testing. She appears unable or unwilling to acknowledge flaws in herself. Her account, therefore, cannot be relied upon. In such circumstances, it is impossible to make an accurate diagnosis. However, the documentation suggests that numerous people (eg. caseworkers, school, psychologist, GP, partners, and the children) have experienced [L] similarly. Namely, that she has problems with emotional and behavioural regulation, that she is quick to escalate and become emotional, that she is not always rational, and that there is a degree of delusional beliefs and paranoia in her presentation. She also appears to have an unstable sense of self and self identity, and a need for admiration and attention. As such, she appears to have significant and long-term interpersonal and intrapersonal issues, which likely reflect dysfunctional personality traits. It is possible that she would meet criteria for borderline personality disorder, although she has also demonstrate[d] some narcissistic and histrionic traits. This could only be diagnosed within the context of a long-term relationship with [L].”

58. L provided Ms O’Neill with an account of her contact visits with P (she had none with M). Ms O’Neill observed that L’s account was inconsistent with the contact reports. Ms O’Neill reported in detail on L’s interaction with P during the visit which Ms O’Neill observed and said that:

“[L] was observed to be overly intrusive, highly focused on food, and unable to identify or respon[d] to [P]’s cues. Her behaviour suggested extremely poor parenting skills and an inability to meet [P]’s emotional needs. [P] showed clear and persistent avoidant behaviours using verbal and non-verbal means to put distance between her and her mother … the reunion between them was highly suggestive of an avoidant style of attachment … [P]’s behaviour suggests that [L] has not reliably met the child’s needs and that [P] has developed avoidant strategies as a way of managing her feelings within that relationship … Through her behaviour, [P] indicated that her mother presents as a risk”.

59. Ms O’Neill described the particular behaviour of L and P which led her to those conclusions.

60. Ms O’Neill also opined:

“Based on the contact reports and the current observation, [P]’s behaviour in her mother’s presence and immediately after is highly unusual and concerning. Also concerning is that [L]’s account of events do not accord with the reality. It seems that she struggles to reality test and that [her] beliefs are fixed, delusional and paranoid”.

61. M told Ms O’Neill that L was OK and that she planned to write her mother a card. But M “…explicitly stated that she did not want to see [L] and could not be persuaded even if I was present. She said that she may soon, perhaps once she becomes ‘more confident’.”

62. Ms O’Neill opined that restoration of either child to L was not realistic and could not be supported. She said that:

“[L] has yet to take responsibility for her actions and continues to deny, minimise and/or blame others. Further, her insight into the impact her parenting practices have had on the children is limited. Moreover, she has failed to make any significant changes, such as therapy. While she has completed a parenting course, her behaviour in the observation indicated that she continues to mid-read [sic] cues, to be overly intrusive, and to be unable to respond to [P]’s emotional distress in any effective way. The children’s relationship with their mother continues to be unhealthy, and they have both expressed (at least at some level) distress about spending time with her. It seems likely that [M] will ned [sic] significant time in therapy before she is able to process her trauma.”

63. Ms O’Neill opined that significant weight should be placed on M’s wishes and that even if and when she expressed an interest in contact with L, this would need to be carefully managed with her psychologist. It was her opinion that the current contact arrangements were having a negative impact on P and that contact should cease until L “seeks help, improves her parenting skills and is able to implement new skills during assisted contact”.

64. Ms O’Neill also recommended that L attend a psychiatrist or clinical psychologist experienced in personality disorders and dialectical behaviour therapy (DBT). She also opined that L would benefit from redoing a Circle of Security parenting course, ideally with individual sessions, and additionally it would be advantageous if she attended courses regarding safe and protective parenting such as Keeping Children Safe, 123 Magic, or Triple P (Positive Parenting Program).

65. The judge found (J [129]) that the evidence of Ms O’Neill (or Dr O’Neill as she was at the time of trial, having completed a PhD) was compelling.

66. His Honour then said:

“[129] … The precursor to a consideration of Dr O’Neill’s evidence is that the mother steadfastly maintained during the course of lengthy cross-examination that she had undertaken all of the psychological, psychiatric, or other therapies and testing which the DCJ had required of her in reliance upon Dr O’Neill’s report. The objective evidence is to the contrary …”

67. The judge found that L had attempted to undertake DBT but there was no evidence that any appointment for sessions which had been booked had been kept (J [130]).

68. The judge accepted Dr O’Neill’s evidence (which he incorporated into his reasons at [133]) that:

“What I had suggested at the time of my initial report was that I considered personality disorder, but also some delusions and paranoia as part of her presentation, and I did suggest then that she have a psychiatric review and assessment, and ideally that the treatment be ongoing so that the clinician could better understand her symptoms. But regrettably she seems to continue to believe that there are no issues, either with her functioning or her parenting, and no reason for the children’s removal, and therefore she has not, as I understand it, engaged in appropriate treatment.”

69. Dr O’Neill gave evidence that she understood from L’s affidavit that she mentioned that she had completed some parenting courses but said that she had not seen any certificates. She said that she had seen no certificates of completion of those courses or of any reference to them from the DCJ caseworkers .

70. The judge accepted Dr O’Neill’s oral evidence that the absence of evidence of completion of the courses which she had suggested that the mother undertake was not contradicted by any other evidence (J [133]).

71. In fact, there was evidence that L had completed at least some of the parenting courses recommended by Ms O’Neill.

72. A Ms Perera became the caseworker for the children in about September 2021 (J [112]). Ms Perera deposed that:

“The mother attached certificates for parenting courses and other therapeutic services she had attended. A copy of the emails passing between the mother and Ms Markham [of the Department] between 29 March and 3 April are at pages 74 to 89 of Exhibit CP-1.”

73. Those pages of the exhibit are contained in the electronic court book for the appeal, but were in disarray (and partially incomplete) in the hard copies with which the Court was provided. Page 82 of the exhibit was a certificate dated 7 September 2021 that L had attended 3 of 3 sessions of the 123 Magic Emotion coaching course. Page 86 was a “Triple P Certificate” presented to L in recognition of her completing the Group Triple P (Positive Parenting Program) between 20 July and 24 August 2021. Page 87 was a certificate presented to L for attending 5 of 5 sessions of the Circle of Security course between 18 August and 15 September 2021.

74. In her cross-examination of Dr O’Neill, L did not show her those certificates to probe whether, and if so how, they affected Dr O’Neill’s opinions. Nor was Ms Perera cross-examined as to the Department’s consideration of those certificates. No reference was made to them in the parties’ submissions.

75. L consulted a psychiatrist, Dr Yu-Tang Shen, on 22 December 2021. Dr Shen’s report of that day stated that, based on the available evidence, L was suffering from no diagnosable psychiatric disorder. Under the heading “Recommendations”, Dr Shen said:

“While I was not provided a schedule of questions to respond to, I might provide some general recommendations.

She would benefit from the assistance of an interpreter in formal settings, such as interactions with agencies, and in the court. She would also benefit from utilising her hearing aide.

When providing her new information, it would be helpful to repeat it several times, providing it in smaller manageable packets at a time, and consider providing information in a pictorial or visual format, as well as written information to remind her of any discussions.

She may benefit from additional support with a functional assessment by an Occupational Therapist, particularly with her capacity to manage her household and in the event of considering of childcare, how she would be able to care for her children and their needs, and thereby developing a practical plan on developing her skills in those areas.

It may also be helpful to employ the services of a transcultural clinician to provide her support with navigating the legal system, coordinating appointments for herself and possibly her children, and also developing coping skills to manage her emotional needs.

She may benefit from a more comprehensive neuropsychological assessment to further assess her cognitive performance, with the benefit of assistance with an interpreter and ensuring she wears her hearing aides.”

76. When cross-examined on Dr Shen’s report, Dr O’Neill stated that Dr Shen was relying upon L’s self-reporting. Dr Shen asked L to complete a self-report measure called the “PAI” which Ms O’Neill had also asked her to complete. Ms O’Neill considered that L’s score on the PAI she administered was so high as to invalidate it. She said that Dr Shen had found that the PAI finding he administered was very elevated and that L was also defensive, but the scale of defensiveness on the test conducted by Dr Shen was just under that assessed by Ms O’Neill on the test conducted by her. Dr O’Neill said that the positive impression score meant that L was very keen to deny or minimise any problems and that had been noted by Dr Shen. She noted that Dr Shen also said, on the basis of L’s self-reporting, that L did not believe that she had any issues that would require psychological intervention. Dr O’Neill noted that Dr Shen did not say, but according to Dr O’Neill it was there in the PAI given to L by Dr Shen, that L also scored highly in terms of some paranoia and in terms of grandiosity or inflated self-esteem. She said that Dr Shen noted that there were areas that merited further enquiry, namely impaired empathy, suspiciousness, and inflated self-esteem, and said that this was consistent with what she had found. She said that Dr Shen’s findings as to L’s tendency to minimise or reject concerns about her psychological state was consistent with what she (O’Neill) had found. She considered that Dr Shen’s report was consistent with her findings about L’s limited insight. Dr O’Neill said that she understood Dr Shen’s conclusion to be that he did not have any evidence to believe that there was a psychiatric disorder, but said that that in part was based upon her self-reporting and the accuracy of the information provided, and that his opinion might change if other information came to light.

77. The judge accepted Dr O’Neill’s evidence (J [135]).

78. The judge addressed himself to the terms of the Care Act. He noted the principles articulated in ss 8 and 9 which mandated that the “paramountcy principle” applies.

79. His Honour appropriately directed himself in relation to other principles to be applied under s 9(2). He found that the evidence did not establish that the mother could or would parent P and M adequately and safely. He found that to restore them to the care of their mother would be to expose them to an unacceptable risk of harm (J [138]). The judge appropriately directed himself that the course to be followed must be the least intrusive in the life of the child and consistent with the paramount consideration being the best interests of the child (s 9(2)(c)). His Honour said that:

“[139] … Both M and P are safe and settled in their current care arrangements. The evidence suggests that whatever difficulties M may currently be encountering, the quality of her care, the quality of her life, as is that of P, has never been higher than it is currently and has become since the children were taken into care in October of 2020. Sadly, and particularly having regard to the mother’s own evidence of the fact and Dr O’Neill’s amply demonstrated expert opinion evidence, there is no rational basis for finding that the mother’s capacity to safely raise her children will improve at any time in the future, or are likely to improve within the next two years to an extent which could justify restoring them to the mother’s care ....”

80. The judge found that L was not likely to be able to satisfactorily address the issues that had led to the removal of her children from her care. His Honour found that P’s father had demonstrated that he was likely to be able to satisfactorily address the issues that had led to P’s removal from her mother’s care and was doing so (J [146]). His Honour considered the permanent placement principles (s 79(3)) (J [147]).

81. His Honour found that, to the extent necessary to so find, he was comfortably satisfied that to restore the children, or either of them, to L’s care, or to order unsupervised contact by L with either of them, would constitute an unacceptable risk of harm to them, essentially of a psychological nature (J [149]).

Determination

82. Because no appeal lies to this Court from Coleman SC ADCJ’s decision, the question for this Court is not whether his Honour’s decision was correct or incorrect, but whether it is liable to be quashed either on the ground that an error of law appears from the judge’s order or reasons, or because the judge committed jurisdictional error, meaning that he did not have the authority to decide the case in the way in which he did.

83. L asserted that the judge erred in law, but she did not point to any error of law in the judge’s reasons, as distinct from asserted errors in the judge’s findings of fact.

84. As explained above, the judge appropriately directed himself on the principles he was to apply on the appeal from the Children’s Court and did not misconstrue any of the provisions of the Care Act.

85. As to jurisdictional error, L’s purported amended summons seeking leave to appeal (which is to be treated as a summons for judicial review) and her summary of argument raise three grounds of jurisdictional error, namely:

(a)    the judge displayed bias;

(b)   she was denied procedural fairness; and

(c)   the decision was legally unreasonable.

86. As to the first, although invited to do so, L did not point to anything in the transcript that might indicate to a reasonable bystander that the judge might not have brought an impartial mind to his task. It is apparent from the reading of the transcript that there would be no basis upon which a reasonable bystander might have apprehended that the judge might not have brought an impartial mind to the resolution of the case. To the contrary, the judge was careful to explain to L the nature of the appeal and, from time to time, to assist L in seeking to put to a witness the gist of what L was attempting to put. At one point in the cross-examination of Dr O’Neill, the judge indicated that L would need to complete her cross-examination within five more questions, but the judge’s intervention was appropriate having regard to the discursive nature of L’s purported cross-examination. That intervention did not involve any denial of procedural fairness, nor raise any reasonable apprehension of bias.

87. As to the second, there was no denial of procedural fairness in the conduct of the hearing of the appeal in the District Court.

88. In this Court, a question was raised from the Bench as to whether the judge erred in finding that there was no evidence of L’s having completed parental education courses as recommended by Ms O’Neill, and in not considering what significance, if any, that might have. The question raised was whether this might amount to jurisdictional error.

89. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1089; [2003] HCA 26, Mr Dranichnikov had propounded a claim for asylum on the ground that he feared persecution as a member of a particular social group, namely businessmen who publicly criticised and sought reform of the law enforcement authorities to compel them to take measures to prevent crime in Vladivostok and protect businessmen who protested (at [18]). The Refugee Review Tribunal held that Mr Dranichnikov had a well-founded fear of persecution, but not for a “Convention reason”. This was because it did not accept that he was liable to persecution by reason of his membership of a particular social group. It identified the particular social group as businessmen in Russia generally, rather than the social group identified by Mr Dranichnikov. It did not address his contention that there was a particular social group of the description for which he contended.

90. Gummow and Callinan JJ, with whose reasons Hayne J agreed, said (at [24]):

“To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”

91. Kirby J considered this to be a constructive failure to exercise jurisdiction (at [88]) rather than a denial of natural justice. Gummow and Callinan JJ also considered the failure to address Mr Dranichnikov’s submission was a constructive failure to exercise jurisdiction (at [25]).

92. At the conclusion of L’s cross-examination of Dr O’Neill, the judge pointed out to her that she had not taken Dr O’Neill to any evidence that suggested that it was unreasonable or wrong in some way for Dr O’Neill not to change her opinion. As noted above, at no point did L refer Dr O’Neill to the certificates of her completion of parenting courses recommended by Ms O’Neill in her report. She made no reference to them in her closing submissions.

93. The judge did not say that he would only have regard to documents to which he was referred in the parties’ submissions. He did say that if a document were in the court book as an exhibit that was not “attached to an affidavit that a party reads and nobody was cross-examined on it, then anybody wanting to make anything of a document of such a kind would not get very far”. The certificates of completion of parental courses were an exhibit attached to Ms Perera’s affidavit in the court book. The affidavit was read and the exhibit was taken to have been tendered, but neither Ms Perera nor Dr O’Neill was cross-examined on the certificates.

94. L advanced no well-articulated argument to the judge in relation to the certificates. They were not drawn to his Honour’s attention.

95. No submissions were advanced as to what was meant in Dranichnikov by a “substantial argument”. In the context of that case, the argument not addressed by the Tribunal was “substantial” not only because it was uncontradicted, but also because, if accepted, it would have been decisive (at [78]).

96. .

97. L’s contention that she had completed parenting courses recommended by Ms O’Neill was based upon established facts and was in itself an argument of substance, so far as it went. But it was not a ground upon which the judge’s decision turned. In the context of the issues considered by the judge, the argument was not substantial for determining the outcome of the case, although, conceivably, it might possibly have affected views the judge expressed as to the appropriateness of future contact arrangements. Those views were not material to the judge’s orders.

98. It is unnecessary to decide what the High Court meant in Dranichnikov by a “substantial argument” (See eg Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR 178 at [47] and cases cited). The argument that L had completed the parenting courses recommended by Ms O’Neill was not well articulated. If the judge erred in not referring to the certificates to which he had not been referred, the error was a factual error in the exercise of his jurisdiction and not jurisdictional error.

99. As to the third question, the decision was not legally unreasonable. A decision is “legally unreasonable” if it is so unreasonable as not to be within the authority conferred. An irrational decision, or a decision for which there was no intelligible or logical basis, or a decision to which no reasonable judge could have arrived, would be beyond the authority conferred on a judge of the District Court by s 91 of the Care Act. If a judge gave no adequate weight to a factor which, under the Care Act, was of great importance or great weight to a factor of no importance, that might be unreasonable in a legal sense. There may be an analogy with appellate review of a discretionary judicial decision (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72], [109]-[110]). But judicial review on the ground of legal unreasonableness is not to be equated with a merits review.

100. The judge rejected L’s allegations that, as she put it, her children were “dying” under the care of M’s foster carers and P’s father. This was because her evidence was uncorroborated, her allegations were contradicted by the evidence of caseworkers of the Department, and by Dr O’Neill’s observations of P and M. His Honour accepted Dr O’Neill’s evidence as to what arrangements were in the best interests of the children. He took into account M’s wishes. He accepted the evidence of the Department’s caseworkers in preference to L’s evidence. His Honour’s findings were not unreasonable, in any sense of that word.

101. Accordingly, the amended summons for leave to appeal (which is being treated as a summons for judicial review) should be dismissed.

102. L raised further arguments which should be briefly noted.

103. L submitted that the judge failed to give reasons for his decision. That is patently unsupportable.

104. L relied on an affidavit she made on 5 July 2024. That affidavit was irrelevant to the challenge to the validity of the judge’s decision. Her affidavit was, in substance, a submission which has otherwise been addressed above. She deposed that

“[9]    The New South Wales Bar Association, Law Society, Crown Prosecutor, Independent Commission Against Corruption (ICAC), and Health Commissioner clearly understand that my children need to be returned to my care. Their support underscores my capability and the necessity of their return.”

105. None of the annexures to the affidavit, which attaches correspondence from the NSW Bar Association, the Law Society, ICAC, and the Health Care Complaints Commission, indicates that they “support” her application or underscores her capability and the necessity for her children’s return.

106. Even if they did, it would not be relevant to this Court’s decision as to whether Coleman SC ADCJ’s decision should be quashed.

107. The Law Society advised L of a solicitor who would be prepared to advise her on a free, or significantly reduced, basis under its pro bono scheme. The Bar Association advised her that its pro bono scheme did not respond to her application. L redacted substantial parts of ICAC’s response to a complaint made to it. It is apparent from the unredacted parts that ICAC’s Assessment Panel did not accept her complaint for investigation. The Health Care Complaints Commission acknowledged her complaint against a health care professional, apparently Dr O’Neill, and advised her of the procedures which would be involved in assessing her complaint.

108. In her affidavit, L deposed that both of her children had repeatedly expressed their profound desire to return to her care. Even if true, that evidence would not affect the validity of the decision under review. She deposed that her eldest daughter had written numerous letters begging for her return to L’s custody. None of those letters was attached to her affidavit. Again, even if that evidence is true, it would not affect the validity of the decision under review. Pursuant to s 90 of the Care Act, the Children’s Court may grant leave for an applicant to apply for the rescission or variation of a care order “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) and (2)). L’s affidavit of 5 July 2024 does not establish that there has been any significant change of circumstances. But if there has been, that is not relevant to this Court’s jurisdiction to review the decision of the District Court.

109. In a document titled “Short Minutes of Order” handed up by L during the hearing in this Court, and which was treated as further submissions, she contended in essence that her case was supported by the Care Act, the Victims Rights and Support Act 2013 (NSW), the Family Law Act 1975 (Cth), and the “Bringing Them Home & Stolen Generation Compensation Law” [sic]. Reference was also made to the asserted need for this Court to abide by obligations under international conventions to which Australia is a party, including the United Nations Conventions on the Rights of the Child, and in particular articles 3 and 9.

110. Little needs to be said about these submissions, except to say that even if relevant, they would speak to the fact that the Court should apply principles in effect reflecting the paramountcy principle. The application of that principle by Coleman ACDJ, and its relevance to the present proceedings, has already been dealt with above and does not support the applicant’s case.

111. The Minister did not seek costs. The second respondent represented himself. He did not file written submissions, nor make oral submissions. He did not ask for costs, and would not be entitled to costs for his time (Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14). Any expenses, such as travel to the court, would be de minimis. In these circumstances there should be no order as to costs.

112. For these reasons, I propose the following orders:

1. The purported Notice of Appeal filed on 31 January 2024 be dismissed as incompetent.

2. The Amended Summons Seeking Leave to Appeal filed on 16 April 2024, which has been treated as a Summons for Judicial Review, be dismissed.

3. No order as to costs of the proceedings in this Court.

113. MITCHELMORE JA: I agree with White JA.

114. BASTEN AJA: I agree with White JA.

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Decision last updated: 09 August 2024