M v Director General, Department of Family and Community Services

[2013] NSWCA 118

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

M v Director General, Department of Family and Community Services [2013] NSWCA 118

Hearing dates:

1 May 2013

Decision date:

01 May 2013

Before:

Basten JA;
Barrett JA;
Bergin CJ in Eq

Decision:

1. Dismiss the motion seeking review of the decision of Ward JA of 29 April 2013 refusing interim injunctive relief.

2. Refuse the application for referral to the Pro Bono Panel.

3. Direct that the summons be listed with appropriate expedition.

4. Otherwise dismiss the applicant's notice of motion filed 30 April 2013.

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

Catchwords:

ADMINISTRATIVE LAW - application in supervisory jurisdiction - no challenge available to fact-finding - interlocutory relief - whether assertion that fact-finding erroneous available

FAMILY LAW - whether injunctive relief to maintain status quo of children appropriate - where District Court ordered removal of children - where challenge to District Court decision undetermined - whether real prospect of setting aside judgment below - whether removal of children would disrupt settled arrangement

PROCEDURE - civil - interlocutory issues - injunction - whether injunctive relief should be granted to prevent applicant's children being removed to Adelaide -application already dealt with by single judge of the Court - where District Court order granted parental responsibility to children's father - where applicant's challenge to District Court decision undetermined - whether factual matters in original orders can be reagitated on application for interlocutory relief

PROCEDURE - civil - judgments and orders - whether applicant should be referred to Pro Bono Panel - whether referral in the interests of the administration of justice - Uniform Civil Procedure Rules, r 7.36 - where applicant lacks means to employ legal assistance - where no application made for legal aid in present proceedings

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 94
Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Supreme Court Act 1970 (NSW), ss 46, 48, 69, 75A
Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 51.58; Part 7, Div 9

Cases Cited:

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; 94 CLR 621
Druett v Director General of Community Services [2001] NSWCA 126
Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257
House v The King [1936] HCA 40; 55 CLR 499
Re The Will of Gilbert (1946) 46 SR (NSW) 318

Category:

Procedural and other rulings

Parties:

BM (Applicant)
Director General, Family and Community Services (First Respondent)
MB (Second Respondent)
MS (Third Respondent)
RM (Fourth Respondent)
HM (Fifth Respondent)
ZM (Sixth Respondent)

Representation:

Counsel:

Applicant self-represented
A J Allen (First Respondent)
P J Braine (Second Respondent)
Ms R Dart (Solicitor) (Third Respondent)
C M Wilson (Fourth to Sixth Respondents)
Solicitors:

Applicant self-represented
Crown Solicitor's Office (First Respondent)
Legal Aid Commission (Third Respondent)

File Number(s):

2013/129799

 Decision under appeal 

Jurisdiction:

9003

Citation:

Re M (No 4) - BM v Director General, Department of Family and Community Services [2013] NSWCA 97

Date of Decision:

2013-04-29 00:00:00

Before:

Ward JA

File Number(s):

2013/129799

Judgment

1. JUDGMENT of the COURT delivered by BASTEN JA: The applicant is the mother of five children. The present application is concerned with only three, whose names will not be used, to protect their identities, but may be referred to as R, H and Z. (On 29 April 2013 Ward JA ordered under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that there be no publication or disclosure of information tending to reveal their identities.)

1. R and H have a common father, to whom it is convenient to refer as Mr B; the third child, Z, has a different father. As to age, R will turn six in a little over two months, H has recently turned four and Z is two years. The three children were taken into care on 30 November 2011.

1. The Director-General, Department of Family and Community Services, sought orders from the Children's Court of New South Wales with respect to parental responsibility for each of the five children of the applicant. On 12 December 2012 orders were made in the Children's Court, which were the subject of appeal to the District Court. In a judgment delivered on 19 April 2013, Olsson DCJ made orders granting parental responsibility with respect to each child to his or her father, to the exclusion of the applicant, until each reached the age of 18 years. The orders with respect to the oldest children are not in dispute. It is sufficient to note that they had a different father to R, H and Z.

1. The order with respect to R and H is in dispute because their father, Mr B, resides in Adelaide and wishes to remove R and H to Adelaide. The Court was informed that they are booked to depart on a plane with him this afternoon, hence the urgency with which this Court has undertaken the review of the orders made by Ward JA to which I will shortly refer. The two oldest children have been removed to Perth with their father and the youngest, Z, lives in Junee with his father and has done since December 2011. Chronologically, the two oldest children (now 15 and 14 years respectively) are separated by approximately a decade from R and H.

1. The proceedings in this Court have been commenced by a summons issued on 25 April 2013. It seeks an order restoring R and H to the parental responsibility of the applicant and an order for "equal shared parenting responsibility under common law" for Z. The grounds, which are not separately identified, allege errors on the part of the Department of Community Services. However, the submissions, which are set out in an affidavit of the applicant dated 29 April 2013, also alleged that the applicant did not receive a fair trial, in part because material which she had been led by Truss DCJ, as the listing judge, to believe would be subpoenaed by the Department was not available and because Olsson DCJ was misled by incorrect statements made by lawyers for the other parties in the course of submissions.

1. If there were an appeal from a judgment in the District Court in these proceedings, one might expect that it would come to this Court. In fact, as has been explained in past authority, an appeal is a statutory remedy and there is no statute which provides for an appeal in proceedings such as these: Druett v Director General of Community Services [2001] NSWCA 126.

1. This Court does, however, have a supervisory jurisdiction with respect to judgments in the District Court pursuant to s 69 of the Supreme Court Act 1970 (NSW), such proceedings being allocated to this Court by s 48(1)(a)(iv) and (2). The matter before the Court as presently constituted does not require final determination of the relief claimed in the summons. Accordingly, it is not necessary to decide whether the matters referred to in the summons and in the applicant's affidavit could properly support an order setting aside the judgment in the District Court. Rather, the matter comes before this Court as a matter of urgency because the applicant seeks urgent injunctive relief on an interim basis to prevent R and H being removed to Adelaide, prior to the determination of the challenge to the orders of the District Court.

1. Such an application would normally be dealt with by a single judge of the Court, as indeed happened, the original motion being heard by Ward JA on 29 April 2013. The application was dismissed: Re M (No 4) - BM v Director General, Department of Family and Community Services [2013] NSWCA 97. The motion before this Court seeks review of that decision.

1. This Court has power to discharge or vary a judgment or order of a single judge of appeal: Supreme Court Act, s 46(4). An application for variation or discharge may be made by notice of motion, as was done in the present case: Uniform Civil Procedure Rules 2005 (NSW), r 51.58. However, this Court has consistently held that the review is not a fresh hearing, nor does it necessarily allow the flexibility of an appeal by way of rehearing as, for example, one governed by s 75A of the Supreme Court Act. There are two factors which constrain the nature of the review, each of which is apposite in the present case. First, the review will involve a matter of practice and procedure in relation to which a restrictive course is usually taken: in Re The Will of Gilbert (1946) 46 SR (NSW) 318. In addition, the review will often be concerned with the exercise of a discretionary power, and hence subject to the constraints identified by Kitto J in Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; 94 CLR 621 at 627 (often referred to as deriving from the similar principle which applies in relation to criminal sentencing, explained in House v The King [1936] HCA 40; 55 CLR 499 at 505).

1. The gravamen of the applicant's complaint in this Court in relation to the present circumstances may be summed up by reference to a paragraph in her written submissions. (It may be noted the applicant argued her application by telephone with commendable clarity despite her lack of legal training.) The matters she raised are generally set out in her written notes which she provided in advance. The relevant passage reads as follows:

"It would be a failure of justice, including natural justice, toward my children and I if I am not assessed for restoration of my children and it would be unjust for my children's lives to be disrupted by being sent interstate away from their mother and brother during this short assessment period; it would be unjust [to] upset the status quo and unjust not to assess the mother for restoration of her children. They also haven't assessed Mr B, even though his psych reports recommended he should be assessed however, there was a DOCS placement report recommending against placing R or H with him."

1. The applicant's complaints concerning the lack of assessments of parenting capacity and the exclusion of witnesses and other evidence at the hearings both in the Children's Court and in the District Court can only be properly considered by reference to the procedural history in those courts. The full procedural history, including earlier applications to the Supreme Court challenging decisions made in other places are not before this Court. The applicant had representation in the Children's Court and for a time in the District Court. It is not possible at this stage for this Court to place any weight upon the complaints in respect of these procedural matters.

1. Ward JA stated that the applicant based her claim for interlocutory relief on two matters, namely "her concerns as to the safety for her middle children [R and H] and, second, her concerns as to the effect of the separation of those children from their younger sibling [Z]": at [24].

1. As Ward JA noted, the concerns for the safety of R and H depended on allegations which had been made by the applicant in the proceedings in the Children's Court and in the District Court in relation to the health and conduct of the father. The allegations had not been accepted.

1. There is a real issue as to the extent to which factual matters that were at the heart of the original orders can be reagitated on an application for interlocutory relief in this Court, which does not have jurisdiction to review the merits of the factual findings in the exercise of its supervisory jurisdiction. On the assumption that some form of review was available, Ward JA said she was not satisfied that there was material before her warranting the conclusion that the children would be in danger if restored to the care of their father: at [26].

1. The applicant complains that reliance should not have been placed on findings which were under challenge in the substantive proceedings. The material before Ward JA was in substance part of the evidence before the District Court, though it did not include the transcript. There was no evidence before her, or before this Court, as to the nature of the danger which it was contended would be suffered by the children, other than that which had been assessed and dealt with both in the Children's Court and the District Court. The complaint that reliance should not have been placed on the findings is without substance, unless it can be shown that the findings were wrong.

1. So far as the question of separation of the children from each other was concerned, Ward JA noted that R and H had in fact been separated from Z since November 2011: at [27]. No doubt the removal to Adelaide will diminish the opportunity for contact in the future, but, as an interim measure whilst the proceedings in this Court are underway, it seems unlikely that such separation would have any significant adverse affect. There was no evidence before this Court to that effect. Although Ward JA did not refer to this question, it is apparent that this was one of the issues dealt with in the proceedings in the District Court and should be rejected for the same reasons as the challenge to the suitability of the father of R and H as a guardian of his children.

1. In a case such as the present, injunctive relief to maintain the status quo may be appropriate where there are real prospects that the judgment below will be set aside and that the removal of children from one situation to another followed by their return to the original situation would cause significant disruption of an otherwise settled arrangement. However, in the present case the applicant has not demonstrated that there are real prospects of success in challenging the judgment and orders of the District Court, nor was significant material placed before Ward JA to demonstrate the nature of their present foster care arrangements or the effects of a change in those arrangements in the interim. It should be added that the substantive proceedings in this Court could not in any event involve challenges to the factual findings made below, except indirectly, such as by way of procedural unfairness. The material before this Court does not demonstrate that there would be real prospects of success in challenging the procedural fairness of the proceedings in the District Court.

1. For these reasons, the motion seeking review of the decision of Ward JA refusing injunctive relief should be dismissed. Other orders in the notice of motion seek final relief and cannot be dealt with on an interlocutory basis. Order 7, however, seeks a referral for pro bono legal assistance. This appears to have been added as a result of Ward JA noting the existence of the scheme under the UCPR: at [32]. Such provision arises under Part 7, which deals with parties to proceedings and representation. It is an obscure place to refer to a scheme for legal assistance and it was by no means inappropriate for the judge to refer the applicant to the provisions. However, it does not follow that an order should be made under Part 7, Div 9.

1. The rules provide for the establishment of a "Pro Bono Panel" and empower the Court to refer a litigant to the Registrar for further referral to a barrister or solicitor on the Panel if satisfied that it is "in the interests of the administration of justice" to take that course. In making that decision, the Court may, but generally will, to the extent that the information is available, take into account the means of the litigant, his or her capacity to obtain legal assistance outside the scheme and the nature and complexity of the proceedings: r 7.36(2).

1. An application for referral should set out such information as is available to the applicant in respect of these matters: in the present case, there is a paucity of information available, but some matters may be inferred. An application for referral will usually be dealt with by a single judge of the Court. Although the matter is now raised before a full Court, it is appropriate that it be dealt with now, rather than further delay being incurred by referral to a single judge in a later list.

1. In Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257, the Court endorsed remarks of Brereton J sitting in the Equity Division that, although it should not form an opinion on the merits of the litigant's case, the Court should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit and should be conscious of the fact that the voluntary services of the profession should not be imposed upon where it may be inferred that legal aid has been sought and refused for lack of merit, or otherwise a referral would be futile.

1. In the present case, the Court may accept that the applicant is without means to employ legal assistance. She has in the past obtained assistance through Legal Aid. She has not however made an application for legal aid in respect of the proceedings in this Court. It may also be accepted that the proceedings, to the extent that they involve the welfare of children as well as the interests of their mother, raise issues of importance which, if there is an indication of error, require that proper consideration be given to the possible correction of the error. Otherwise, the proceedings are not complex. The ultimate difficulty for the applicant in the present case lies in the restricted nature of the supervisory jurisdiction of this Court. On the material presently before the Court, it is not satisfied that a referral would be in the interests of the administration of justice. The application for referral to the Pro Bono Panel should be refused.

1. To the extent that the other relief sought in the motion is relief which will be available at the final hearing of the summons, it is appropriate to dismiss the motion.

1. As was pointed out in the course of argument, s 94 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) requires that all matters of this kind that are before the Children's Court are to proceed as expeditiously as possible. That section does not apply to these proceedings, nevertheless it is appropriate that the same sentiment be adopted in listing the matter for hearing. There may be further steps to be taken before the matter is ready to be heard; nevertheless the Court directs that the summons be listed with appropriate expedition.

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Decision last updated: 10 May 2013