Louise v Director General of Community Services
[2011] NSWSC 1646
•22 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: Louise v Director General of Community Services & Ors [2011] NSWSC 1646 Hearing dates: 21 December 2011 Decision date: 22 December 2011 Jurisdiction: Equity Division - Duty List Before: Slattery J Decision: Application dismissed. Plaintiff to pay the defendant's costs.
Catchwords: CHILDREN - application for relief in the Court's parens patriae jurisdiction - whether exceptional circumstances. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Commonwealth Powers (Family Law-Children) Act, 1986 (NSW)
Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Judiciary Act 1903 (Cth)Cases Cited: Croker v Commonwealth of Australia [2011] FCAFC 25
Goode v Goode (2006) 206 FLR 212
Re Barbara & Ors [2006] NSWSC 536
Re Campbell [2011] NSWSC 761
Re Georgia and Luke [2008] NSWSC 1277 Re Linda [2011] NSWSC 1596
Re Victoria [2002] NSWSC 647Category: Interlocutory applications Parties: Plaintiff:- mother
First defendant:- Director General
Second defendant:- father
Third defendant:- Children's Court
Fourth defendant:- childRepresentation: Second Defendant, for father:- S. Gardiner
Plaintiff, for mother:- G. Potkonyak
First Defendant, Director General:- C. Samuels
Third defendant, Children's Court (submitting appearance):- S. Ohnesorge
Fourth Defendant, for child:- Ms Rutkowska
File Number(s): 2011/407161 Publication restriction: Yes.
EX TEMPORE Judgment
This matter comes before the court in the Equity duty list with a request for urgent relief. The dispute before the Court relates to orders the Bidura Children's Court made on 2 November 2009 in respect of the plaintiff's daughter, Felicity (not her real name), who was born on 5 November 2003. The plaintiff, Louise (not her real name), is Felicity's mother. Her father, Robert (not his real name), is the Second Defendant in these proceedings. The 2 November 2009 orders provided for the following:-
"The Court makes the following orders:
1. Pursuant to section 79(1)(b) Parental Responsibility for Felicity is allocated to the Minister for Community Services until she attains the age of eight (8) years.
2. Pursuant to section 81(1)(b) that Parental Responsibility for contact be allocated solely to the Minister until the child attains the age of eight (8) years.
3. Pursuant to section 81(1)(a) that parental responsibility for all aspects except contact be allocated to Robert ("the father") until the child attains the age of eight (8) years.
4. Upon the expiration of Orders 1, 2 and 3 pursuant to Section 79(1)(a)(i), the Court orders that the child be placed under the parental responsibility of the father until the child attains the age of eighteen (18) years.
5. Pursuant to section 86 and until the child attains the age of eight (8) years, that there be minimum contact between the child and the sibling Brianna in accordance with the following:
a. Twelve (12) times per year, for a period of four (4) hours;
b. Supervised by the Central West Contact Service, or a similar service; and
c. The cost of such contact to be met equally by the mother and the father.
6. Pursuant to section 86 and until the child attains the age of eight (8) years, that there be minimum contact between the child and Louise ("the mother"), in accordance with the following:
a. Twelve (12) times per year, for a period of four (4) times;
b. Supervised by the Central West Contact Service, or a similar service; and
c. The cost of such contact to be met equally by the mother and the father.
7. Pursuant to section 73 the Court orders the acceptance of the following undertakings from the father:
a. To facilitate and comply with any contact Orders of the Court contained herein;
b. That he will not attend or interfere with the child's contact with the mother and/or Brianna;
c. That he shall not denigrate the mother or the maternal family in the presence of the child; and
d. That he shall advise the mother in writing of any major medical decisions in relation to the child.
8. Pursuant to section 73 the Court orders the acceptance of the following undertakings from the mother:
a. To facilitate and comply with any contact Orders of the Court contained herein; and
b. That she will not denigrate the father or the paternal family in the presence of the child.
9. Pursuant to section 82 the Minister file reports at nine (9) months and eighteen (18) months from the date of these Orders dealing with the following:
a. Contact between the child and the mother;
b. Contact between the child and Brianna.
c. Any other matters.
Notations:
A. It is noted that the contact referred to in Order 2 shall be exercised at the same time as the contact exercised by the mother pursuant to Order 3 herein.
B. It is noted that in relation to Order 2 and 3 herein, it is the intention of the mother and father to continue to facilitate supervised contact on a fortnightly basis or more frequently at the Central West Contact Service at Harris Park, or a similar service in the event that that service is no longer available.
C. The cost of engaging the Central West Contact Service at Harris Park or any similar service with respect to any contact pursuant to Order 2 and Order 3 herein and any additional contact as noted in Notation B herein will be shared by the mother and father equally.
D. That upon the child attaining the age of eight (8) years that the contact move to an unsupervised arrangement and occur at a frequency and for a duration based upon the child's expressed wishes."
The 2 November 2009 orders have two important features. First they are in the nature of a care order made under Children and Young Persons (Care and Protection) Act (" the Care Act" ) 1998, s 79(1)(b), under which parental responsibility for Felicity was allocated to the Minister for Community Services ("the Minister") until she attained the age of eight years. But the second feature of these orders, is that upon their expiration, pursuant to Care Act, s 79(1)(a)(i) it was envisaged that Felicity be placed under the father's parental responsibility until the she attained the age of 18. But notation D to the orders contemplated that Felicity's unsupervised contact with the plaintiff might increase after she turned 8.
The plaintiff's Summons seeks wide ranging declarations and orders: (1) a declaration that Order 4 of the 2 November 2009 orders is invalid as of 5 November 2011 (Felicity's eighth birthday); (2) a declaration that certain directions given by the third respondent, the President of the Children's Court at Parramatta, on 28 October and 4 November 2011, assuming the validity of the 2 November 2009 orders, are also invalid; (3) an order that the First Defendant the Director General of Community Services ("the Director-General") give his written consent to the plaintiff pursuant to s 69ZK(1)(b) of the Family Law Act 1975; (4) a declaration that the Children's Court only has power to make orders relating to Felicity, so as to make orders for the rescission of the 2 November 2009 orders; and (5) an interim order under the parens patriae jurisdiction of the Court, for contact between the plaintiff and her daughter, Felicity, in the short term, pending determination of the other relief.
Some background is required to explain why the plaintiff says that the making of these orders is warranted on this application made during the court's vacation period.
Felicity and her Family
Felicity has just turned eight. She has an older half sister Brianna who is 17. Felicity's father, Robert, is not Brianna's father. The 2 November 2009 orders also govern Brianna's contact with Felicity. The plaintiff also now has another child, a son Christopher, who was born on 14 July 2010. The 2 November 2009 orders provide that until Felicity attained the age of eight years there would be minimum contact between her and her mother in accordance with a schedule of contact arrangements which included contact 12 times a year for a period of four hours supervised by the Central West Contact Service or a similar organisation, with the cost of such contact to be borne equally between the mother and the father.
In a real sense the controversy that brings the matter before the Court urgently in the vacation list, as it is today, arises from one of the notations to the 2 November 2009 orders. Notation D says, "upon the child attaining the age of eight (8) years that the contact move to an unsupervised arrangement and occur at a frequency and for a duration based upon the child's expressed wishes." Just what that notation means for the legal arrangements for Felicity now that she has turned eight, has been a matter of controversy before me.
There have been a series of contested applications over several years between Felicity's mother and father. It is not necessary for me to detail them all in this judgment, other than to observe that there have been many of them and that they have been bitterly fought.
The precise way that the proceedings come before the Court is unusual. This is an application to exercise the Court's parens patriae jurisdiction in proceedings which would otherwise be expected to be determined in the Children's Court. Indeed, as I will shortly explain, there have been recent applications in the Children's Court involving these very issues.
The Application in the Children's Court
The plaintiff's solicitor, Mr Potkonyak, brought an application before the Children's Court, which overlaps with the issues before the court today and which was heard before its President, his Honour, Judge Marien SC last week, on 16 December.
When the matter came before me yesterday the plaintiff said that the application had been dismissed by Marien DCJ. But several of the defendants said that the plaintiff had, in effect, invited the dismissal before President Marien and that it had ultimately occurred by consent.
There is some merit in what both sides say about this. I am grateful for the representative of the Children's Court, the Fourth Defendant, who has obtained a transcript at very short notice of the Children's Court hearing on 16 December 2011 . That transcript reveals that Mr Potkonyak maintained an argument of a constitutional character before the Children's Court. He has repeated that argument here. I will advert to it shortly. The plaintiff had filed an application in the Children's Court for leave under Care Act , s 90 for leave to rescind or vary an existing care order. That matter came on for hearing in the Children's Court on 16 December before Marien DCJ. But Mr Potkonyak faced the dilemma as he saw it that if he was right about his constitutional point that the Children's Court had no jurisdiction to deal with the question that he was otherwise seeking to press under Care Act , s 90.
On that occasion Mr Potkonyak put to Marien DCJ, in effect, that the plaintiff did not have to make a Care Act section 90 application for two reasons. The first reason was that the 2 November 2009 orders had simply expired, once Felicity turned eight, and that the arrangements contemplated in Notation D had not yet arisen and therefore there were no existing care orders in respect of Felicity. The second reason, and perhaps one that appeared to be of more immediate importance to his Honour, was a submission that the Children's Court did not have jurisdiction to deal with a Care Act , s 90 application for a contact order.
His Honour was understandably quite surprised by the second application. I say understandably because, as Mr Potkonyak himself pointed out, if his argument is correct, the Children's Court has never had jurisdiction to make what he says are parenting orders alone, without a care order, not just in this case but perhaps in other cases too.
His Honour said that if Mr Potkonyak proceeded with his application that the Children's Court, did not have jurisdiction to make the order which was on its face being sought, then the proceedings may end up being struck out. That is the course his Honour ultimately took, essentially responding to what Mr Potkonyak had put, that the Children's Court did not then have jurisdiction. His Honour pointed out that the logical consequences of the plaintiffs' argument was that the plaintiff would need to come to the Supreme Court. Mr Potkonyak said that he would do that. Mr Potkonyak's argument is explained in more detail in the next section of these reasons, "The Issue of the Jurisdiction of the Children's Court".
The argument before the Children's Court also involved consideration of whether the issue Mr Potkonyak was raising should be notified under Judiciary Act 1903 (Cth), s 78B to the Attorneys General before it was fully argued. The same issue was raised with me in the argument yesterday by legal representatives of a number of the defendants. True to the indications he gave before Marien DCJ, Mr Potkonyak early this week commenced these proceedings for the mother in this court. The vacation duty list is not ordinarily the place where what is a potentially important issue of the allocation of federal powers would be decided, without notice to the Attorneys General of all of the States, or at least of this State.
The Issue of the Jurisdiction of the Children's Court
The short argument that Mr Potkonyak himself advances appears in its substantial elements to be the following. That the only surviving order of the Children's Court of 2 November 2009 is Order 4, an order by which parenting responsibility for Felicity is allocated to her father, Robert. The argument is that the sole power for the making of such an order is to be found in s 79(1)(a)(i) of the Care Act. But Mr Potkonyak points out that that under the Commonwealth Powers (Family Law-Children) Act , 1986, ("the Commonwealth Powers Act") certain matters otherwise within the jurisdiction of the Parliament of the State of New South Wales were referred to the Commonwealth Parliament, under s 3(1)(b) of that Act. The Commonwealth Powers Act, s 3(1) and (2) relevantly provide:-
"3 Reference of certain matters relating to children
(1) The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth for a period commencing on the day on which this Act commences and ending on the day fixed, pursuant to section 4, as the day on which the reference under this section shall terminate, but no longer, namely:
(a) the maintenance of children and the payment of expenses in relation to children or child bearing,
(b) the custody and guardianship of, and access to, children,
(c) the determination of a child's parentage for the purposes of the law of the Commonwealth, whether or not the determination of the child's parentage is incidental to the determination of any other matter within the legislative powers of the Commonwealth.
(2) Subject to subsection (2A), the matters referred by subsection (1) do not include the matter of the adoption of children or the matter of the taking, or the making of provision for or in relation to authorising the taking, of action that would prevent or interfere with:
(a) a Minister of the Crown, an officer of the State, an officer of an adoption agency approved under a law of the State, or any other person or body, having or acquiring the custody, guardianship, care or control of children under a provision specified in Schedule 1,
(c) the jurisdiction of the Supreme Court to make orders in respect of children who are in such custody, guardianship, care or control, or
(d) the jurisdiction of a court of the State, or other body, under a provision specified in Schedule 1, to make orders, or take any other action, in respect of:
(i) the custody, guardianship, care or control of children, or
(ii) access to children or the supervision of children. "
The matters referred under the Commonwealth Powers Act were broadly defined as matters dealing "with the custody and guardianship of and access to children". But there are some exceptions to that referral, namely matters that are set out in Schedule 1 to the Commonwealth Powers Act . But Care Act, s 79(1)(a)(i) is not one of those. The plaintiff's argument is, therefore, that the Care Act, s 79(1)(a)(i) power has been referred to the Commonwealth and now is within the exclusive jurisdiction of the Family Court. Mr Potkonyak says that as a result the Children's Court does not have jurisdiction to deal with his Care Act , s 90 application. I have considerable doubts about the merits of this argument for the reasons that the independent legal representative has pointed out.
Consistent with his views about the lack of jurisdiction of the Family Court, in August 2011 Mr Potkonyak filed an application in the Federal Magistrates Court to be dealt with under the provisions of the Family Law Act 1975. That application was dismissed in October 2011 for lack of a written consent by an authorised officer of the Department of Community Services under Family Law Act , s 69ZK. That provision prohibits a Court otherwise having jurisdiction under the Family Law Act , from making "an order under this Act... in relation to a child who is under the care of a person under a child welfare law", unless the written consent of a child welfare officer of the relevant state has been obtained. Under Family Law Act , s 69ZK "child welfare law" relevantly includes the Care Act : cf Family Law Regulation 1984, Schedule 5.
Here Mr Potkonyak sought such consent, which was refused on 14 October 2011. The relevant officer gave as reasons for the refusal that "there have previously been child protection concerns regarding the child, and there is a care order in place". The letter then invited the plaintiff to make a Care Act , s 90 application, which she did. But those Care Act , s 90 proceedings took the course I have already described.
Mr Potkonyak develops his argument further from the form of the 2 November 2011 orders. He says that Orders 1, 2 and 3 which were made under Care Act , ss 79(1)(b) and 81(1)(b), provisions which are referred to in Schedule 1 of the Commonwealth Powers Act , all expired on Felicity's 8 th birthday on 5 November 2011 and no longer exist. He says that even if Children's Court jurisdiction with respect to Order 4 was supported by Orders 1, 2 and 3 until 5 November 2011, after that, he says that as a merely ancillary parenting order, its subject matter was swept into Family Court jurisdiction by the Commonwealth Powers Act .
But Ms Rutkowska, on behalf of the child's independent legal representative points to difficulties with Mr Potkonyak's argument. I do not have to resolve these issues on this application but her argument also has some force. She submits that the wide definition of "care order" in Care Act , s 60 which "means an order under this Chapter [Chapter 5, ss 43-91] for or with respect to the care and protection of a child or young person, and includes a contact order under s 86" is sufficient to justify the full package of orders 1, 2, 3 and 4 made on 2 November 2011 and that they have not just ceased to exist. She says that the 2 November 2009 orders remain orders by which the Director General acquired "the custody, guardianship care or control" of Felicity within a Commonwealth Powers Act , Schedule 1 provision. As such, she says the jurisdiction to vary them remains in the Children's Court.
The Judiciary Act, s 78B
But I do not have to further analyse this argument because it seems to me, for reasons I will shortly explain, that the question raised does involve within Judiciary Act , s 78B(1) "a matter under the Constitution". Under Judiciary Act, s 78B(1) therefore the Attorneys General of the Commonwealth and the various States should be notified before it is argued. It is possible for the Court to give urgent interlocutory relief, before Judiciary Act , s 78B notices are served: Judiciary Act , s 78B(5). Here in any event the plaintiff seeks the interim exercise of the Court's parens patriae jurisdiction, which does not depend upon the constitutional point raised.
If this is the kind of point that Mr Potkonyak wants to take in these proceedings, then it brings with it the consequence that other interests who wish to argue for or against the position he raises will have to be notified. Even if Mr Potkonyak's point does not involve "a matter under the Constitution or involving its interpretation," Judiciary Act , s 78B it does seem at least to be an issue in which the Attorney General of this State may be interested in intervening before it is fully argued.
Be that as it may, in my view, this is a matter to which Judiciary Act, s 78B arguably applies. The passage of the Commonwealth Powers Act in 1986 by the New South Wales Parliament referred certain powers of that Parliament to the Commonwealth. This was done under the mechanism provided for the referral of powers under the Commonwealth Constitution, s 51(xxxvii). The issue the plaintiff raises is really one of identifying with precision the scope of the powers so referred. If the plaintiff is right, the scope of the powers so referred is wider than had hitherto been assumed. It seems to me that this issue does attract provisions of Judiciary Act , s 78B. But when the issue is formulated in any s 78B notices the parties would be wise to bear in mind the warnings given by the Federal Court in Croker v Commonwealth of Australia [2011] FCAFC 25 at [30]:-
" [30] A Constitutional issue does not arise in a proceeding simply because a party contends that it does. It must appear to the court that a question arising under the Constitution or involving its interpretation is involved: see Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 (per Toohey J); Glennan v Cmr of Taxation (2003) 77 ALJR 1195 at [14] (per Gummow, Hayne and Callinan JJ). The Constitutional question, identified in a notice given for the purposes of s 78B of the Judiciary Act, must be framed with "a reasonably high degree of specificity": see State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549 at 557 (per Kirby P)."
I propose, therefore, to adjourn the important question raised by Mr Potkonyak, until next year, when it can be determined. That part of the proceeding will be adjourned for mention to a date suitable to the parties in February 2012.
But in this context I must consider whether the Court should grant the interim relief the plaintiff seeks for unsupervised contact with Felicity.
Interim Contact Issues
There has been contact between the plaintiff and Felicity in the last twelve months and up until October this year. That contact has taken place largely in accordance with the 2 November 2009 orders. The plaintiff complains that those orders, which contemplate holding supervised contact at the Central West Contact Service, are humiliating for her and they impair the proper relationship between herself and Felicity and moreover they are said to be inconsistent with Felicity's proper relationship with Felicity's older sister Brianna.
The course the plaintiff then took, partly perhaps on the basis of Mr Potkonyak's view about the existence of the constitutional issue, was that the matter of the nature of the plaintiff's future contact with Felicity, especially whether or not it would be unsupervised contact, should best be brought to a head. But this was done through the plaintiff deciding not to see Felicity from October onwards. So the matter comes before the court now: with Mr Potkonyak submitting that the court should exercise its parens patriae jurisdiction because the Children's Court has no jurisdiction; the mother is not seeing her daughter; the daughter is not seeing her mother; this is not in the daughter's best interests. Therefore, the plaintiff says, the court should intervene in its parens patriae jurisdiction, to ensure Felicity is not disadvantaged.
There are problems with the Court acceding to this submission. Judges of this Court have given persistent and well grounded warnings about the exercise of this court's parens patriae jurisdiction, where such an exercise of jurisdiction will displace the expertise of specialist tribunals such as the Children's Court. A detailed exposition of the reasons for these warnings, which has been consistently quoted in other cases, is the decision of Palmer J in Re Victoria [2002] NSWSC 647:
"37 I do not think that there should be encouraged a procedure whereby persons who have fully contested a matter in the Children's Court and wish to appeal can by-pass the appeal provisions of the 1998 Act and come straight to this Court seeking to invoke its inherent wardship jurisdiction. Quite apart from the fact that to do so would sanction a departure from the appeal procedure laid down by the legislature in the 1998 Act, such an application would involve a quite different question from that which is normally raised on an appeal. In an application to this Court in its wardship jurisdiction, the question is not whether the decision of the Children's Court, or of the District Court on appeal from the Children's Court, was right or wrong or whether the wide powers conferred on a Court under the 1997 or 1998 Acts were rightly or wrongly exercised or could have been better exercised. The question before this Court will be: what is in the best interests of the child as matters stand at the date of this Court's judgment. It may be that the circumstances revealed in, or flowing from, the decisions of the lower Courts have a great part to play in the consideration of that question, but they will not necessarily be conclusive. Indeed, in certain circumstances what transpired in the lower Courts might be utterly irrelevant to the question before this Court in the exercise of its inherent jurisdiction.
38 That this is so is demonstrated by the fact that an order of this Court in its parens patriae jurisdiction does not set aside an earlier order made by a statutory Court such as the Children's Court; the statutory Court's order still stands although in a sense it may be said to be superseded where it is inconsistent with this Court's order, so that an injunction in the nature of prohibition would lie to restrain the statutory Court from enforcing its earlier inconsistent order: see In re Harris 37 SR(NSW) 17, at 28-29 per Jordan CJ and Long Innes J, and at 31-32 per Maughan AJ.
39 As I have said earlier, this Court should not encourage any process by which those dissatisfied with the result of proceedings in the Children's Court can simply set at naught the proceedings in that Court and come afresh to this Court, invoking its parens patriae jurisdiction in order to argue all over again the matters that have been debated before the lower Court. If that were to be in any way encouraged, then parties would inevitably face the risk of being involved in a multiplicity of uncontrolled proceedings fought in the Children's Court and in the Supreme Court, with the distinct possibility of conflicting concurrent orders obtained in the Supreme Court and in the lower Court.
40 What I have said indicates, in my view, the approach which, as a general rule, this Court ought to adopt when its wardship jurisdiction is sought to be invoked in what is in substance an appeal from a decision of the Children's Court. This approach is supported, in my opinion, by decisions of this Court such as Re Weir (1953) 70 WN(NSW) 78; Ping v Van Der Kroft [1982] 2 NSWLR 731; T v H (1985) 3 NSWLR 270, at 274; and Re Anna, Bruno, Courtney and Deepak (supra) at paras.20 to 22. Of course, as these authorities indicate, there may be exceptional circumstances in a particular case which justify the Court in departing from that general approach.
41 In the present case, DOCS says that exceptional circumstances are constituted by the inordinate delay which Victoria has suffered in the determination of her custody status in the proceedings which have so far occupied the Children's Court. I am the first to agree that it is a truly appalling state of affairs that this child's custody status should have been the subject of such protracted proceedings. By this, I do not intend to criticise in the slightest degree the conduct of the case by the learned Magistrate in the Children's Court. I very well appreciate there are constraints on the resources of that Court so that it will often be impossible to give large blocks of time to the hearing of a complex case, such as this one undoubtedly is. The fact of the matter remains, nevertheless, that completely unacceptable delay has occurred in the determination of this dispute.
42 However, that delay alone does not justify, in my opinion, the parties in leap-frogging the appeal provisions of the 1998 Act and coming directly to this Court. To allow such a process would be to thrust onto this Court the burden of appeals from the Children's Court simply on the ground that the District Court lacks sufficient resources to discharge its obligations to hear cases, particularly urgent cases, in a timely manner. To allow that process would be to shift the burden of the problem from one Court to another without addressing its cause."
Re Victoria has been applied by Justice White in Re Barbara [ 2006] NSWSC 536 and more recently, for example, by McCallum J in Re Georgia and Luke [2008] NSWSC 1277 and in Re Linda [2011] NSWSC 1596. In my view, the fact that the plaintiff might wish to argue the constitutional point described earlier in these reasons is not a basis for exercising the court's parens patriae jurisdiction, especially in circumstances where the mother is able to continue in the interim, to have contact with her child (albeit supervised contact) in the child's best interests, if she chooses to do so.
Given the careful consideration that experts in the Children's Court have already given in relation to making orders about supervised access to Felicity in the past, I am not persuaded that this court should simply bypass those procedures and now just order unsupervised access in its parens patriae jurisdiction, without further close re-examination of the expert evidentiary contest. The course that the plaintiff presses upon the Court is opposed by the independent legal representative. And it seems to me that that opposition is based on good grounds.
But I should observe that a curious situation has arisen here that does not seem to me to result from the fact that a constitutional point has been taken in this case. Mr Potkonyak seems to have taken the view that he can do nothing in the Children's Court under Care Act , s 90 without somehow impairing his client's rights to take the constitutional point that he seems to be so keen to pursue. In effect, by the plaintiff's choice, through her lawyers, she has invited the dismissal of her Care Act , s 90 application on Friday of last week.
Care Act , s 90 has been crafted to reduce the multiplicity of contested applications involving children the subject of care orders and with good reason. The provision is designed to reduce the burden of stress on the child and persons who are associated with the care and development of the child.
The regrettable fact is that the application does seem to have been dismissed by Mr Potkonyak's own invitation. No fully argued finding was made that the Children's Court lacked jurisdiction. Yet when the matter came before me, the helpful submissions from Felicity's independent legal representative told the court that had a leave application proceeded before the Children's Court, it would not have been opposed at least by that party. Indeed, on behalf of the child the independent legal representative said that the application for Care Act, s 90 leave would have been supported, so as to allow investigation of the possibility of restoring unsupervised contact between Felicity and her mother.
There seems to be practical tension between, on the one hand, the plaintiff's pursuit of the constitutional point and on the other hand the rapid resolution of a Care Act , s 90 application. This tension is particularly acute where, as here, the independent child's representative says that an investigation of the issues raised on the Care Act , s 90 application is desirable and a grant of leave would not be opposed.
Of course the plaintiff seeks determination of her case in what she perceives will be the more favourable environment of the Family Law Act , 1975, Part VII as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006: see Goode v Goode [2006] FamCA 1346. But her constitutional point may not succeed. Keeping the Care Act proceedings going as an alternative was always a prudent option.
In many ways this is an unusual case because of the very terms of the orders that I have identified that expired, so far as the contact aspect of them is concerned, when Felicity turned 8. The court can only grant leave under Care Act, s 90 if there has been a significant change in the relevant circumstances since the care order was last made or varied: see Re Campbell [2011] NSWSC 761 . The expiry of the orders themselves may well constitute a forceful argument, as Mr Potkonyak says, that there has been a change of circumstances.
If the plaintiff pursues a further Care Act , s 90 application, of course, that will be a matter, not for me, but for the Children's Court to examine. I have been provided with considerable material on both sides about the background to this matter. I observe in light of that material that should a further Care Act, s 90 application proceed, one can anticipate arguments being put along the lines that there are changes in circumstances such as (1) the plaintiff's apparently satisfactory care of her other child, Christopher, born since the making of the 2 November 2009 orders and (2) some recently obtained evidence from the consultant psychiatrist Dr Tom Heint that rejects the currency of any assumption behind the 2 November 2009 orders that the plaintiff suffers from a borderline personality disorder. Indeed Dr Heint said:-
"I have been supportive psychotherapy for her for the last 2 years on a regular basis and she has not demonstrated any psychiatric symptoms at all. I do not agree with Dr Quadrio that Louise has a Borderline Personality Disorder and I doubt that she has ever demonstrated any of the criteria regarded for such a diagnosis as per DSM 4."
Both of these may perhaps, when examined more closely, qualify as changes of circumstances that may support the grant of the relevant leave.
Why such practical matters are not pursued not withstanding the constitutional issues of the kind the plaintiff now seems to be raising, is something of a mystery to me, especially as the rapid resolution of these contact issues before Felicity gets much older is in her best interests. I will not be determining the constitutional issue. That will only be determined after the Attorneys General who are required to be notified, are notified. That may take some time. In the meantime bringing an application under Care Act , s 90 is being deferred.
But the matter is now before me in vacation. As I consider this application whether or not to exercise the Court's parens patriae jurisdiction I am concerned about the fact that the kind of contact which the 2 November 2009 orders of the Children's Court structured into a sensible regime, has now been suspended by the plaintiff's unilateral act and that taking what looks to be a perfectly legally available view that a Care Act , s 90 application can still be made, until some court decides that the Children's Court has no jurisdiction, has been deferred in favour of pursuing the constitutional issue.
Above all it seems to me that what should be done is to regularise Felicity's life in her best interests. I may perhaps intervene now at a minimal level, to request the parties in the next few hours to confer about short term contact arrangements between Felicity and her mother over the vacation period, or at least until the constitutional issue is resolved.
But if the parties cannot agree upon a framework in the short-term, by which I mean in the next few hours whilst I am sitting in the vacation list today, I may make some limited directions this afternoon about that issue.
Costs
The defendant seeks costs of this application in these proceedings. The plaintiff says that, in effect, the Director General has caused the result in these proceedings because of a failure to issue Family Law Act , s 69ZK certificate. The plaintiff also says she is not in a position to pay the costs. Neither of those seem to me be valid reasons not to make costs orders against the plaintiff.
Someone has to pay the costs of involvement of all the parties in the Court today. In my view there should be a costs order against the plaintiff, because of the failure to obtain a parens patriae order from the Court. This costs order will only apply in respect of costs of today and yesterday.
Orders
The second defendant has provided by way of open offer ("a notation") an offered form of further supervised contact between the plaintiff and Felicity to which he is prepared to agree. I will note the offer so made and which is recorded in Exhibit 1. The Court orders:-
1. I note the matters that the second defendant (the father) proposes in the notation, Exhibit 1.
2. Stand the matter in the Equity Registrar's list on 1 February 2012.
3. Order the plaintiff to pay the defendant's costs of the application on 21 and 22 December 2011.
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Decision last updated: 03 February 2012
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