M v Secretary, Department of Communities and Justice

[2024] NSWCA 283

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

M v Secretary, Department of Communities and Justice [2024] NSWCA 283

Hearing dates:

12 September 2024

Date of orders:

02 December 2024

Decision date:

02 December 2024

Before:

Mitchelmore JA at [1];
McHugh JA at [70];
Basten AJA at [71]

Decision:

(1)   Time be extended for the filing of the summons to 18 July 2024.

(2)   The summons is dismissed.

Catchwords:

ADMINISTRATIVE LAW — bias rule — actual or apprehended — apprehended bias — where bias alleged by reference to reasons for judgment — sole reliance on reasons inverts proper inquiry — transcript did not disclose bias

ADMINISTRATIVE LAW — procedural unfairness — where applicant alleged denial of adjournment to obtain evidence — where primary judge informed applicant of relevant procedure — no application for adjournment made by applicant — procedural fairness did not require primary judge to independently adjourn hearing

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 43, 79, 90, 90A, 91, 105

Uniform Civil Procedure Rules 2005 (NSW), rr 50.1, 50.3

Cases Cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Hamod v State of New South Wales and Anor [2011] NSWCA 375

Hastwell v Health Care Complaints Commission [2021] NSWCA 22

Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Re M; Application of YA [2014] NSWSC 1736

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category:

Principal judgment

Parties:

“M” (Unrepresented) (Applicant)
Secretary, Department of Communities and Justice (First Respondent)
“Angelique” (Second Respondent)
District Court of New South Wales (Third Respondent)

Representation:

Counsel:
B J Dean (First Respondent)

Solicitors:
Crown Solicitor's Office (First and Third Respondent)

File Number(s):

2024/169234

Publication restriction:

1. Order pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there be no publication of the name or of anything which identifies or is likely to lead to the identification of the child the subject of these proceedings.
2. Order 1 applies throughout the Commonwealth of Australia.
3. Order 1 operates in respect of the child until she attains the age of 25 or dies, whichever occurs first.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

M v Department of Communities and Justice; M v Family and Community Services [2023] NSWDC 485

Date of Decision:

23 October 2023

Before:

Coleman SC ADCJ

File Number(s):

2023/207227; 2023/207267

HEADNOTE

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

The applicant is the mother of a child who was assumed into care on 22 February 2017. The Children’s Court made orders on 17 October 2017, under s 90A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act), prohibiting the applicant and the child’s father from approaching or contacting the child’s authorised carers. On 18 October 2018, the Children’s Court made an order pursuant to s 79(1)(b) of the Care Act allocating all aspects of parental responsibility for the child solely to the Minister until the child attained the age of 18 years.

The applicant filed a summons in the District Court commencing an appeal pursuant to s 91 of the Care Act. On 20 May 2019, Robison DCJ found that there was a realistic possibility of restoration of the child to the applicant within a reasonable period. On 19 August 2019, the Secretary applied to reopen its case and adduce further evidence, including a report by Dr Kate Renshall, a clinical psychologist. On 20 September 2019, Robison DCJ dismissed the applicant’s appeal, concluding there was no realistic possibility of restoration for a reasonable period.

The applicant applied on two occasions for the rescission of the care order under s 90 of the Care Act. The first application was dismissed on 22 May 2020. The second application, together with an application to remove the order made under s 90A of the Care Act, was dismissed on 19 July 2022. By reference to Dr Renshall’s report, Children’s Magistrate Richardson held that the applicant failed to show a significant change in any relevant circumstances.

On 20 June 2023, the applicant filed a summons commencing an appeal in the District Court and an amended summons on 18 August 2023 in which she sought an extension of time pursuant to r 50.1(c) of the Uniform Civil Procedure Rules 2005 (NSW). On 20 October 2023, Coleman ADCJ dismissed the applicant’s summons and amended summons.

His Honour did not consider that the applicant had a fairly arguable appeal, finding there was no evidence to establish a significant change in any of the relevant circumstances. The primary judge also considered that the primary considerations in s 90(2B) of the Care Act and the additional considerations in s 90(2C) did not support the applicant. His Honour considered that prejudice to the child would not be insubstantial, noting that the concerns raised by Dr Renshall’s report remained largely unaddressed and there was nothing to suggest the applicant resiled from her previously stated beliefs or assertions.

The applicant sought judicial review of the decision of Coleman ADCJ.

The Court (Mitchelmore JA; McHugh JA and Basten AJA agreeing) held, dismissing the summons:

Per Mitchelmore JA (McHugh JA agreeing):

(1) Reliance on the primary judge’s reasons for judgment to establish an apprehension of bias risks inverting the proper inquiry. The transcript of the hearing did not disclose a basis on which a fair-minded lay observer might apprehend that his Honour might not have brought an impartial mind to the resolution of the question for decision: at [59].

Ebnerv Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 applied.

(2)    The primary judge informed the applicant of the relevant procedure of the Court, namely that she could apply for an adjournment to address the absence of medical evidence from Dr Pusic, psychiatrist. The applicant did not make that application and procedural fairness did not require the primary judge to independently adjourn the hearing to provide an opportunity for her to put on the relevant material: at [65]-[66].

Hamod v State of New South Wales and Anor [2011] NSWCA 375 considered.

Per Basten AJA:

(3)    The transcript of the hearing and the reasons for judgment revealed scrupulous fairness in the primary judge’s procedural explanations and directions. The ground of apprehended bias was not satisfied: at [96]-[97].

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 considered.

(4) There was no substance in the claim that the primary judge failed to consider the applicant’s medical documentation. It was clear that the issues with respect to medical evidence, mental health concerns and earlier events of domestic violence were genuinely and realistically addressed: at [101].

Per Basten AJA (Mitchelmore and McHugh JJA agreeing):

(5)    There was nothing of substance in the letter from Dr Pusic tendered in this Court which was not known to the District Court. The letter did not demonstrate any practical unfairness caused by the failure of the primary judge to adjourn the application before him to allow the applicant to obtain such a report. In these circumstances, there was no procedural unfairness to the applicant. at [110]-[111].

JUDGMENT

1. MITCHELMORE JA: The applicant in these proceedings seeks judicial review of a decision of the District Court, dismissing her summons for leave to appeal from a decision of the Children’s Court. The Children’s Court had dismissed the applicant’s application, pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act), to rescind a care order made under s 79 of the Act with respect to her daughter.

2. Section 105(1)(b) of the Care Act prohibits the publication of the name of a child or young person with respect to whom proceedings before the Children’s Court are brought. That prohibition applies until the child or young person attains the age of 25 years or dies, whichever occurs first: Care Act, s 105(1A). Having regard to that provision, this Court made an order under s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that there be no publication of the name or of anything which identifies or is likely to lead to the identification of the child who is the subject of these proceedings. In previous proceedings, the applicant was referred to as Ms M, and the child as Angelique, which have been adopted in the title to these proceedings. Without intending any disrespect, I will refer to the applicant in these reasons as “the applicant” and to her daughter as “the child”.

3. The Secretary of the Department of Communities and Justice (Secretary) was the only respondent to take an active role in the proceedings, the other named respondents being the child (for whom no appearance was filed) and the District Court (which filed a submitting appearance). Although the summons in this Court was filed out of time, the Secretary did not oppose an extension of time other than in relation to the merits of the application. In circumstances where the Court has heard the full merits of the application, the applicant’s extension of time should be granted. However, for the reasons outlined below, the application should be dismissed.

Background to the application

4. The decision under challenge is one of a series that followed action that the Secretary took, in 2017, to assume care of the child under the Care Act. In her written and oral submissions in this Court, the applicant sought to reagitate the correctness of the actions of the Secretary, in 2017 and subsequently. However, those events are long since passed, and as was pointed out to the applicant during the hearing, her present application is limited to the decision of the District Court that is under review.

5. According to the reasons of Children’s Magistrate Sheedy of 15 June 2018, the child, who was born in July 2012, was assumed into care on 22 February 2017, a delegate of the Secretary having signed an order for removal of a child at immediate risk of harm pursuant to s 43(1) of the Care Act. As Children’s Magistrate Sheedy noted, the applicant (who was represented in the hearing before her Honour) did not agree that there was any valid reason for the child’s removal.

6. On 23 February 2017, the child was placed with authorised carers, with whom she remained until June 2018. On 27 February 2017, the Secretary filed an application initiating care proceedings in the Children’s Court. The Secretary sought an interim order allocating parental responsibility of the child to the Minister for Family and Community Services (Minister), as well as a final order allocating parental responsibility of the child to the Minister until she attained 18 years of age, pursuant to s 79 of the Care Act. The Children’s Court made an interim order allocating parental responsibility to the Minister and subsequently made a finding that the child was in need of care and protection.

7. On 17 October 2017, the Children’s Court made orders under s 90A of the Care Act prohibiting the applicant and the child’s father from, among other things, approaching or otherwise contacting the child’s authorised carers. On 1 June 2018, those carers decided that they were no longer willing to provide long term care for the child due to concerns for their safety and that of their daughter. The order under s 90A remains in place.

8. Children’s Magistrate Sheedy was satisfied that restoration of the child to the applicant was not a realistic possibility. Her Honour described the hearing as involving “thousands of pages of [material]” and evidence that “stretched over many days and over many months”. Her Honour stated that he was “in no doubt” that the applicant and the child’s father genuinely loved the child, and that the child returned their love. However, her Honour was concerned about what he described as the applicant’s “tremendous effort” to discredit the Secretary’s concerns and maintain the position “that there were no concerns or risks when [the child] was in her care”.

9. Children’s Magistrate Sheedy concluded that the child would, if restored to her mother’s care, be at an unacceptable risk “from domestic violence, from her mother’s mental health, the ongoing dysfunction in the parental relationship and an inability to consistently make decisions which protect [the child] from risk of significant harm and which are in her best interest”. In light of the position the applicant had taken at the hearing, her Honour concluded that if the child was restored to her care there would be no significant change to her parenting of the child, and no workable plans or monitoring could be put in place to support the applicant. Her Honour acknowledged that the relationship between the child and the applicant would be affected by his decision.

10. On 18 October 2018, the Children’s Court made an order under s 79(1)(b) of the Care Act allocating all aspects of parental responsibility for the child solely to the Minister until she attained the age of 18 years.

11. The applicant filed a summons in the District Court commencing an appeal pursuant to s 91 of the Care Act. Section 91(2) provides that an appeal is by way of a new hearing and fresh evidence may be given. For the purposes of hearing and disposing of an appeal, s 91(4) provides that the District Court has all the functions and discretions that the Children’s Court has under, relevantly, Chapter 5 of the Care Act, which deals with proceedings in the Children’s Court including the making of orders under s 79.

12. In a judgment delivered on 20 May 2019, Robison DCJ concluded that there was a realistic possibility of restoration of the child to the applicant within a reasonable period. His Honour was satisfied that the applicant was in stable accommodation, had a strong attachment with the child, and there was “no evidence at all for this Court to form a conclusion that she has a mental health disorder as such”. His Honour described the applicant as having a dislike of the department but at the same time recognising the reality of the situation. His Honour found that there was “a degree of preparedness to work with the department, notwithstanding her dislike of the department and what she perceives they did to her”. His Honour noted that the applicant now had some insight into the department’s concerns, and that she had started counselling, which his Honour considered a significant step. Robison DCJ made it clear in the reasons that he would not be making any final orders until he had considered a care plan involving a staged restoration.

13. On 19 August 2019, the Secretary filed a notice of motion seeking to reopen its case and adduce further evidence, including a report of Dr Kate Renshall, clinical psychologist, to whom the applicant was referred on 2 July 2019 for a mental health and parenting capacity assessment. Dr Renshall produced a report dated 9 August 2019, in which she described the applicant’s presentation as “more suggestive of a personality disorder, specifically narcissistic and borderline personality disorder or traits”, and noted that the applicant showed “marked deficits in interpersonal functioning such as reduced empathy … and difficulty understanding her impact on others”. Dr Renshall considered that the applicant had a lack of insight into her parenting abilities, which put the child at risk of not having her needs met. At the same time, she noted that the child was comfortable in the applicant’s care and there were clear signs of an existing attachment between them.

14. On 20 September 2019, Robison DCJ dismissed the applicant’s appeal, concluding that there was no realistic possibility of restoration for a reasonable period. His Honour described Dr Renshall’s report as going “to the very heart of the issue when it comes to a lingering concern that the department had, which was reflected by me in my judgment, that there are some mental health issues”. His Honour accepted that the diagnosis proffered was effectively provisional and that there was no conclusive diagnosis. However, his Honour considered that appropriate weight needed to be given to well qualified expert opinion, referring not only to Dr Renshall but also to the plaintiff’s psychiatrist, Dr Nagesh, who in his evidence recognised a distinction between his qualifications and those of Dr Renshall and deferred to her findings and conclusions. The findings of Dr Renshall included that there were “traits of a mental health disorder”. His Honour stated:

“I note the reference to the plaintiff’s resistance to having herself participate in any kind of mental health assessment because she had maintained many times that she was being mentally cleared, having regard to those hospital records. When I consider that evidence, I am mindful of what her psychiatrist said when it comes to certain disorders which do not amount to mental health issues as such; which will require mental health type treatment. So there is a distinction there. Her psychiatrist in whom she has considerable trust, has given that evidence; this Court cannot ignore it, and accordingly accepts what her psychiatrist has said.”

15. His Honour commended the applicant for the attempts she had made in undertaking some counselling and reiterated that she had developed some insight, although he remained concerned about the entrenched nature of her resistance to what the department had asked her to participate in. Prioritising the interests of the child, his Honour noted that the applicant had received some counselling particularly in the context of domestic violence, but she had failed to embrace the recommendations Dr Renshall had made, in particular starting a proper course of psychotherapy with good intentions and a fair acceptance that she needed help. His Honour stated:

“The first expectation of any child is to be with that child’s mother or father. Indeed it is a right for a child to be in that situation. However, the mother, and I say this with the greatest of respect, has placed herself in the position where this restoration process cannot be continued. Indeed it has not even really started, and there is only one reason for that, that is the plaintiff herself. She is the only obstacle for the restoration process to commence.”

16. Since the decision of Robison DCJ, the applicant has applied on two occasions for rescission of the care order under s 90 of the Care Act. Section 90(1) provides that an application for the rescission of a care order may be made with leave of the Children’s Court. Section 90(2) provides that the Children’s Court may grant leave “if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied”. Before granting leave, s 90(2A) requires the Court to consider the matters in subss (2B) and (2C), which provide as follows:

(2B)   The primary considerations are as follows—

(a)    the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views,

(b)    the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements,

(c)    if the Children’s Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person.

(2C)    Additional considerations are as follows—

(a)    the age of the child or young person,

(b)    the nature of the application,

(c)    the plans for the child or young person,

(d)    whether the applicant has an arguable case,

(e)    matters concerning the care and protection of the child or young person that are identified in—

(i)    a report under section 82, or

(ii)    a report that has been prepared in relation to a review directed by the Children’s Guardian under section 85A or in accordance with section 150.

17. The Children’s Court may dismiss an application for leave under s 90 if the application is frivolous, vexatious or an abuse of process: s 90(2D). It may also dismiss an application for leave if it is satisfied that the application “has no reasonable prospect of success”, and “the applicant has previously made a series of applications for leave under this section that the Court has dismissed”: s 90(2E). In respect of the substantive application for rescission or variation of a care order, subss 90(6) and (7) provide:

(6)    Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration—

(a)    the age of the child or young person,

(b)    the views of the child or young person and the weight to be given to those views,

(c)    the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements,

(d)    the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,

(e)    the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f)    the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

(7)    If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so—

(a)    it may, by order, vary or rescind an order for the care and protection of the child or young person, and

(b)    if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.

18. The applicant’s first rescission application was dismissed by Children’s Magistrate Viney on 22 May 2020. The applicant made a second application on 26 November 2021, also seeking removal of the prohibition orders under s 90A of the Care Act in relation to the child’s previous carers.

19. On 19 July 2022, the Children’s Court refused the application for leave under s 90 of the Care Act and dismissed the application to remove the order made under s 90A of the Care Act. Children’s Magistrate Richardson noted that this was the second application that the applicant had made under s 90 of the Care Act. Relying on Dr Renshall’s report and views expressed by the child, her Honour concluded that the applicant had failed to show a significant change in any relevant circumstances. Her Honour was also not satisfied that there was a significant change such as to warrant the changing or granting of leave to revisit the s 90A order.

The applicant’s application to the District Court

20. On 20 June 2023, the applicant filed a summons commencing an appeal in the District Court from the decision of Children’s Magistrate Richardson. She filed an amended summons on 18 August 2023 in which she sought an extension of time pursuant to r 50.1(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The original summons was filed some ten months after the 28-day period allowed under UCPR, r 50.3(1)(a). The Secretary opposed the extension of time, as did the independent children’s lawyer.

The hearing in the District Court

21. The hearing took place before Coleman ADCJ on 23 October 2023. Given the applicant has alleged that she was denied natural justice, it is necessary to give some attention to the evidence before his Honour and how the hearing proceeded.

22. The applicant read a number of affidavits sworn by her, respectively dated 20 June 2023, 18 August 2023, 12 September 2023 and 28 September 2023 (the last of these affidavits was not in evidence in this Court). The Secretary did not object to any of the applicant’s affidavits and she was not cross-examined.

23. In her affidavit of 20 June 2023, the applicant referred to the fact that Dr Renshall’s report was prepared four years ago. The applicant apparently annexed to this affidavit two letters respectively dated 19 September 2019 and 4 November 2020, from Dr Nagesh, which she described as stating that she did not have a mental illness (these letters, which were also annexed to her affidavit of 18 August 2023, were in evidence before Robison DCJ). The applicant also stated at [5]:

“Im [sic] seeing Dr August Pusic Dr Augustus Pusic has more than 25 years’ experience as a Consultant Psychiatrist. He has held positions as a Director of Community Mental Health Services, for the trauma of removing my child when I was injured with a head injury. To support myself through the restoration process. Dr Pusic has encouraged me to file to have my daughter returned.”

24. In her affidavit of 18 August 2023, the applicant referred to one of the comments that Dr Renshall had made in her report, that she should continue to engage in psychotherapy over the course of the restoration, and reiterated that she was seeing Dr Pusic who was giving her counselling in relation to the removal of her child. The applicant again referred to seeing Dr Pusic in her affidavit of 12 September 2023.

25. The Secretary relied on an affidavit of Ms Nacre Fury, a senior caseworker with the department, affirmed on 22 September 2023. Ms Fury outlined the background to the Secretary’s involvement and the interactions between the applicant and the department. Exhibited to the affidavit were records from the departmental file as well as records held by Anglicare, which has had case management responsibility for the child since 27 August 2018.

26. In her affidavit at [122]-[126], Ms Fury referred to a number of documents that recorded the child’s wishes about contact with the applicant. The most recent record was a mental health summary report dated 22 August 2023, in which the child reported that she preferred visits with the applicant to be supervised by an Anglicare worker and that she felt safe and secure in the current arrangement. Under the heading “Secretary’s Position”, Ms Fury stated:

“128.   Given the extensive litigation history set out above at paragraphs 16 to 42, the Secretary is of the view that it is not in [the child’s] best interests for leave to be granted to re-open the proceedings. The Secretary is also of the view that the mother does not have a fairly arguable appeal and that there are continuing concerns for the mother’s interactions with [the child], which mean contact should continue to be supervised.”

27. In addition to the affidavit of Ms Fury, the Secretary tendered a court book, a copy of which was not before this Court but which the solicitor advocate for the Secretary in the District Court described as containing material relating to the various earlier proceedings (Tcpt, 23 October 2023, WF486.10). The Secretary also relied on written submissions filed on 20 October 2023, in which the Secretary submitted at [7] that the extension of time should be refused on the basis of the length of the delay, the applicant’s explanation for the delay, prejudice to the child and the lack of a fairly arguable appeal.

28. Specifically in relation to the applicant’s mental health, the Secretary’s submissions at [71] referred to the applicant as having “claimed she has seen psychiatrists” and noted the applicant’s references, in her affidavit of 18 August 2023, to Dr Nagesh and Dr Pusic. The submissions noted that the letters from Dr Nagesh were in evidence before Robison DCJ, and that subpoena evidence indicated that he had only seen the applicant on two occasions.

29. At the hearing, in inviting the applicant to make submissions the judge directed the applicant’s attention to [7] of the Secretary’s submissions and the factors to be considered on an application to extend time, noting that as the applicant she bore the onus (WF487.16). His Honour also referred to the decision of Lindsay J in Re M; Application of YA [2014] NSWSC 1736 (“Re M”), cited in the Secretary’s submissions, and told the applicant that there were statements in this jurisdiction and elsewhere that subjecting children to less, rather than more, litigation was generally desirable subject to other factors (WF487.30-40).

30. In her oral submissions, the applicant referred to having gone through counselling and that she was seeing Dr Pusic. The judge asked the applicant where he could find any reports from Dr Pusic in the evidence. When the applicant replied that she was not sure if the department had issued a subpoena to Dr Nagesh and Dr Pusic, the solicitor advocate for the Secretary informed his Honour that a subpoena had been issued to Dr Pusic but he had not produced any material (WF489.22-49). His Honour then said to the applicant (WF490):

“HIS HONOUR: Unless you can – I know what you say, in an affidavit, Dr Pusic told you, but, with all due respect, that’s not – even if it’s admissible, which it probably is, under the Care Act, that’s not evidence that would be remotely likely to advance your application this morning. So, unless you can direct me, somewhere in the affidavits on which you move the Court today, to a report from Dr Pusic, with great respect to you and Dr Pusic, he’s irrelevant.

APPLICANT: Okay. I was unaware that nothing was produced from Dr Pusic, because I live in Canberra and I haven’t been able to come to the Courts.”

31. The applicant made submissions in relation to the delay in filing the summons, between August 2022 and June 2023. In the course of those submissions, the judge raised with the applicant on a number of occasions that the material she was referring to had been or could have been before the court in the earlier proceeding. This applied in particular to police records dating back to 2017 that were produced in response to a subpoena from the department in May 2022. The judge explained to the applicant the significance of the length of the delay, stating (WF502-503):

“… Thus far, with respect to you, you don’t seem to have got very far out of the starting blocks on your explanation for delay. Length of delay is relative. It’s unnecessary to try to categorise a delay, but one would say that, broadly speaking, and there’s a decision of McHugh J, on an appeal – leave to appeal case, Gallo v Dawson, where, in effect, his Honour says that, the longer the delay, the more the other factors need to be made out. Conversely, of course, the shorter the delay, the less so. If you persuaded the Court, on the balance of probabilities, of B, C and D, I would be disinclined to knock you out, to put it crudely, over the length of the delay. Okay?

The delay is what it is. It’s the length of the – the relevance of the length of delay is, really, governed by those other three factors, which you may – matter for you, but you may wish to – I don’t know that you can take your explanation for delay any further than you have. The evidence isn’t there. …”

32. In response, the applicant submitted that she had attempted to see Dr Pusic for counselling but had to reschedule the appointment she had obtained in December 2022 because she picked up some casual work. She submitted that she had a significant relationship with the child and that she had gone through counselling, lived in Canberra with a school around the corner, and that she wanted to work with the department (WF503.19-50). The applicant submitted that in so far as an arguable appeal was concerned, six years had passed since the original orders and she was older and more mature (WF505).

33. Towards the conclusion of the applicant’s oral submissions, the judge asked the solicitor advocate for the Secretary whether she envisaged saying much in addition to her written submissions. When the solicitor advocate gave an estimate of half an hour, the applicant and his Honour had the following exchange (WF511.26-512.18):

“APPLICANT: Yeah, I just – I just sort of feel I haven’t had a fair shot at my submissions, at all, and I think that the department has actually given me not a chance to write it professionally, at all. I only just received it, like, you know, Friday night, and Court was on Monday, so--

HIS HONOUR: You haven’t made an application for an adjournment, which – I wouldn’t encourage you to, because I’m highly disinclined to grant it, but, when we resume – and, look, you should understand – I may be wrong, but I didn’t understand there was any direction that the department file a written outline, or was there?

WONG: No. It was just to assist the Court and the parties, you Honour.

HIS HONOUR: So, quite frankly, had she been minded to, Ms Wong could have sat there, said nothing and then stood up--

APPLICANT: Yeah.

HIS HONOUR: -- and read, word-for-word, from this document. So there’s no procedural unfairness, whatsoever. On the contrary --

APPLICANT: Yeah.

HIS HONOUR: -- as I’ve tried to explain to you repeatedly, what the department has done is focused --

APPLICANT: Thank you.

HIS HONOUR: --for you, on what the relevant principles are, so--

APPLICANT: Yeah. That’s okay. I’ll be really--

HIS HONOUR: No. Let’s not play games, because – I note you have said, a couple of times this morning, you claim you were denied procedural fairness. If you want to make an application for an adjournment, based on what you say is a procedural unfairness in having to make your submissions today, when we resume, you take a deep breath and make it. It’s no good having what you might call a smoking gun, where you don’t raise it and then, if you don’t get the decision you want, you go somewhere else and raise it. That won’t get you anywhere. You either put up or you adopt the alternative. So, when we resume, be very clear about it, if you want to make an application to adjourn, on some procedural basis, you make it, because, if you don’t and you don’t like the decision in this case, you’ll get no joy, particularly in view of what I’ve just said to you, from an appeal Court, on that basis. Okay?”

34. The judge confirmed with the applicant that she was on notice of the hearing date from the time it was set down on 26 July 2023. His Honour reiterated that the applicant could seek an adjournment if she wished, and noted that she had already spoken for over an hour before saying to her, “It’s not the hearing; it’s to see whether you get one” (WF513.37). After taking the morning tea adjournment, the applicant did not apply for an adjournment.

35. The applicant then made submissions on the changes she had made since the report of Dr Renshall, including seeing a psychiatrist, with her next appointment on 10 December. In response to a question from his Honour as to whether that was Dr Pusic, the applicant said (WF514.15-37):

“Yeah, correct, yeah. I’ve got an appointment with him. So I’m quite happy if my leave is approved to provide – he’s happy to attend Court to – or do a report, which he’s quite happy to do, and I’m going to continue my counselling with him, to help me mitigate (as said) the process, as well as giving me some support….”

36. When the applicant submitted that the focus should be on what information was relevant now, the judge stated (WF515):

“HIS HONOUR: That’s your difficulty, you see, isn’t it? You don’t have any – you haven’t – the only psychiatric report you’ve filed in 2020, and you haven’t got a single piece of paper from Dr Pusic. So, accepting everything you say – and you’re the one who wants the extension of time to run an appeal--

APPLICANT: Yes.

HIS HONOUR: --that doesn’t get you anywhere. The respondent says you shouldn’t get leave, because you don’t make out an entitlement. So it doesn’t help you to say Dr Renshaw’s [sic] report is 2019, because you don’t have any recent medical evidence, that either explains the failure to appeal within time or provides a basis on which, if you did get an extension of time, that would be likely to be a significant factor in redetermination of the proceedings.

APPLICANT: Yeah.

HIS HONOUR: In any event, what else do you want to say?

APPLICANT: So the… I’m hoping, I’m crossing my fingers – that leave is approved, I can provide that to the Court.

HIS HONOUR: You’re putting the cart before the horse, with respect. You’re not going to get leave on the basis of what you might come up with. It’s not going to happen.

APPLICANT: Okay.

HIS HONOUR: You either get it, or you don’t, on what’s there.

APPLICANT: I do – I will be providing that.

HIS HONOUR: You should have provided it long before. I’m not proceeding to decide a case on the basis of what evidence you might come up with. That’s not how it works.”

37. In the oral submissions made on behalf of the Secretary, the solicitor advocate referred to the absence of medical evidence to support that the applicant was presently seeing a psychiatrist or intended to see a psychiatrist (WF526.15-25). In relation to prejudice, the Secretary submitted that allowing the applicant to commence an appeal out of time was contrary to the child’s best interests. On the issue of whether the case was arguable, the Secretary submitted that the applicant had a responsibility to show the Court why her case had more substantial merit than merely being fairly arguable, and that the submissions the applicant had made did not reflect the evidence she filed.

38. The independent legal representative for the child was also named as a respondent on the summons. Counsel for the independent legal representative adopted the submissions of the Secretary (WF530.14) and made some additional oral submissions.

Primary judgment

39. That same afternoon, Coleman ADCJ gave judgment dismissing the application. His Honour noted that the applicant had filed her summons some ten months after the time for appealing as of right had expired: at [1].

40. In setting out the background to the matter, his Honour stated that given the application was for an extension of time to appeal under s 90, as opposed to an extension of time to appeal an original order for care and protection, the reasons of the Children’s Court assumed “particular significance” (at [6]), before addressing in some detail the reasons of Children’s Magistrate Richardson at [8]-[33]. It is not immediately apparent why the reasons of the Children’s Magistrate had particular significance in an appeal involving a decision under s 90 of the Care Act in contradistinction to a decision under s 79. An appeal from either decision is pursuant to s 91 of the Care Act which, as I have noted above, is by way of a new hearing in which fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given.

41. The issue is of some significance having regard to the manner in which his Honour proceeded to summarise the reasons of the Children’s Magistrate, in which his Honour also passed comments regarding the evidence before him. Relevantly, in relation to what his Honour described as the applicant’s “mental health concerns”, his Honour noted that the Children’s Magistrate had referred to the views of Dr Renshall, and also to the applicant’s unreliable narrative of her mental health history: at [21]. His Honour then stated at [22]:

“Although there is no evidence to the contrary, as submitted by each [of] the Secretary and counsel for [the child], the plaintiff has not presented any medical or other reliable evidence before this Court to suggest that the finding of the Magistrate in the court below was wrong or other than reasonably open.”

42. In the course of the hearing, a question arose as to what was “the finding” to which his Honour was there referring. Counsel for the Secretary contended that it was the finding of Children’s Magistrate Richardson that the applicant was an unreliable historian. Having regard to the nature of an appeal under s 91 of the Care Act, the relevance of whether the applicant’s evidence demonstrated that the finding was wrong or other than reasonably open was questionable. It also suggests an assessment of the applicant’s evidence on the application before the judge as unreliable, in circumstances where that evidence was not tested, consistently with his Honour having said to the applicant that the hearing was not an appeal, but rather was to see if she would get one. However, it is necessary to read this in context of what follows in his Honour’s reasons.

43. His Honour referred again to the applicant’s evidence in relation to her mental health under the heading “The plaintiff’s case in this Court”. Relevantly for present purposes, his Honour stated:

“[35] The plaintiff referred to two psychiatric reports from Dr Nagesh, dated 19 September 2019, and 20 November 2020, the latter stating that the plaintiff did not have a ‘mental illness’. That is the last medical evidence which the plaintiff has put before the Court. There is no evidence from the other psychiatrist, to whom the plaintiff referred, Dr Augustus Pusic, a very experienced and well-regarded psychiatrist.

[36] The plaintiff says that she continues to see Dr Pusic. There is no report from Dr Pusic. Beyond recording that the plaintiff says, and there is no reason to doubt what the plaintiff says in this regard, that she continues to see Dr Pusic, the Court cannot speculate about what might be said in evidence which is not before it. If Dr Pusic, as a consultant psychiatrist, considers it necessary or beneficial for the plaintiff to continue to see him, it can reasonably be inferred that Dr Pusic’s opinion is that, in some way, doing so is necessary or desirable having regard to his view of the plaintiff’s mental health or well-being.

[37] To the extent that the plaintiff may have commenced to consult Dr Pusic since the decision of the Children’s Court in July last year, that might, in theory, be new or fresh evidence, but in the absence of evidence from Dr Pusic, that cannot advance the present application.”

(Emphasis added.)

44. It is apparent from the emphasised part of [36] above that to the extent that what his Honour said in [22] might have suggested that he found the applicant to be an unreliable witness, his Honour did not reject her evidence that she was seeing Dr Pusic on that basis. Rather, the difficulty his Honour identified was that there was no evidence from Dr Pusic. His Honour’s statement that the Court could not speculate about what might be said in evidence that was not before it was obviously correct.

45. The final sentence of [36] could on one view suggest that the judge did not pay heed to his immediately preceding observation about the need not to engage in speculation. However, read fairly and with what follows in [37], the point his Honour was making was that although Dr Pusic’s continuing to see the applicant would likely be because he (Dr Pusic) saw it as necessary or desirable for her mental health or wellbeing, there was no evidence from Dr Pusic that elaborated upon this. It followed, as his Honour proceeded to acknowledge in [37], that while seeing Dr Pusic might be new or fresh evidence as compared with the material that was before Children’s Court Magistrate Richardson, without evidence from Dr Pusic his Honour was not in a position to make that assessment.

46. The Secretary relied on the absence of evidence from Dr Pusic, with his Honour noting the Secretary’s submission that concerns arising from a case review held in November 2022, about the applicant’s insight and ability to prioritise the child’s interests over her own, were “not allayed by the absence of any medical evidence post November 2020 from anyone, and more significantly the absence of any evidence from Dr Pusic”: at [52]. His Honour continued:

“…The plaintiff appeared to be under the misimpression that, in some way, it was the responsibility of the Secretary to procure evidence from Dr Pusic. The Secretary has endeavoured to do that with a subpoena, that being the only way the Court understands that the Secretary could access any information or evidence from Dr Pusic. It is self-evidently apparent that the plaintiff was under no such constraint. She could have obtained a report or reports from Dr Pusic. Why she did not has not been adequately explained.”

47. His Honour referred in some detail to a case review record of 16 November 2022, from which he drew a number of recurring themes, including the applicant’s “implacable and objectively unsupported belief that [the child] being restored to her care would be in [the child’s] best interests”: at [53]. His Honour also drew from this record that the carers had acknowledged, frankly, that the child had a number of difficulties in respect of which there was no rational basis for assuming, much less finding, that the applicant might do better than the carers were doing: at [54].

48. The judge then turned to the four recognised factors relevant to the exercise of discretion to extend time for an appeal in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 (“Tomko (No 2)”). His Honour held that the delay was not so lengthy as to be fatal to the success of the applicant’s application to extend time, although her explanation for the delay in filing was unclear and inadequate: at [62]-[63]. His Honour considered that the two critical factors were whether granting leave would occasion prejudice to the child and whether the applicant had a fairly arguable appeal: at [65].

49. As to the first of those factors, his Honour stated that if time to appeal were extended the terms of s 90 made it clear that the applicant bore the onus of establishing an entitlement to relief, the focus being whether there had been a significant change in any relevant circumstances: at [67]. His Honour found that there was “no evidence before this Court which appears capable of establishing that there has been a significant change in any relevant circumstances since the care orders which were the subject of the plaintiff’s s 90 application in the lower court were made”: at [67]. His Honour stated at [68]:

“The evidence by which the plaintiff expects to prove significant changed relevant circumstances is largely limited to her own unqualified opinions or unsupported allegations. In the course of submissions, the plaintiff stated that she could secure evidence of various matters which may demonstrate a change in relevant circumstances, whether significant or otherwise. With respect to her, the Court cannot determine the plaintiff’s application on the basis of what, at some unidentified time, in some unidentified way, further evidence might tend to establish. There is a material distinction between beliefs, assertions, and submissions on the one hand, and the evidence which may be capable of establishing them on the other. The latter is absent in this case.”

50. His Honour’s statement that there was no evidence in the present case was not correct in so far as the applicant had put on more than one affidavit in which she said that she was seeing Dr Pusic and, as his Honour stated in [36], there was no reason to doubt that evidence. However, the focus of his Honour’s comments in [68] was on evidence that could relevantly advance the application that the applicant was bringing. That required more detailed evidence, including from Dr Pusic, which was not before his Honour. In the absence of evidence capable of establishing significant change in the applicant’s insightfulness and parenting capacity, his Honour considered it difficult to see how the applicant had a fairly arguable appeal.

51. Lest that view was unfair to the applicant, his Honour moved to consider the relevant considerations outlined in s 90(2A) of the Care Act: at [69]. In concluding that the applicant did not have a fairly arguable appeal (at [74]), his Honour examined the matters articulated in s 90(2B), to which the Court is required to have regard by s 90(2A): at [70]. His Honour found that nothing with respect to the child’s wishes provided any comfort for the applicant (s 90(2B)(a)): at [71]. Further, his Honour considered that the child had been in care for more than half her life and her present arrangements appeared stable and adequate (s 90(2B)(b)): at [72]. His Honour noted that none of the additional considerations referred to in s 90(2C) of the Care Act supported the applicant in terms of a reasonably arguable case: at [73].

52. His Honour then moved to the question of prejudice to the child. Notwithstanding his Honour’s reference to what Hodgson JA said in Tomko (No 2) at [14], in which the relevant prejudice was clearly identified as that flowing from the delay, his Honour evaluated prejudice by reference to the substantive application. His Honour was persuaded that the prejudice in this respect would be not insubstantial: at [81]. His Honour considered that the concerns that underpinned Dr Renshall’s report remained largely unaddressed and that the applicant had not adduced evidence capable of establishing that they had been: at [81]. There was also nothing in her application suggesting that she in any way resiled from previously stated beliefs or assertions, and evidence in her affidavits that suggested she maintained them: at [82]. Additionally, his Honour considered that it was difficult to suggest anything positive would have emerged in the interests of the child if time to appeal were extended, stating at [83]:

“…as submitted by each of counsel for the Secretary and [the child], it is not hard to imagine, particularly given her age, and the importance which her wishes would assume that, although not a party to the proceedings in the strict sense, it is inevitable that [the child] could not avoid being effectively drawn into any s 90 appeal which would result from extending time to appeal.”

In view of “the most recent document that provided the Court with a snapshot of [the child’s] progress, her position in life, her attachments, her issues, and the like, drawing her into further litigation would not be in her best interests”: at [85].

53. His Honour returned to Dr Renshall’s report at [87] of his Honour’s reasons, stating that “[o]ther than her claims to have done so”, the applicant had advanced no reliable evidence to suggest that she had successfully addressed the issues of concern that Dr Renshall had identified. The first of Dr Renshall’s recommendations in her report was that the applicant undertake psychotherapy with a psychiatrist who had expertise working with people with personality disorder diagnoses, with the therapy to take place over a 12-18 month period with a minimum of 30 sessions. Having regard to the recommendations that Dr Renshall made, his Honour considered that the “absence of evidence of implementation of those recommendations remain[s] concerning”.

The application for judicial review

54. The applicant’s grounds of review comprised seven numbered paragraphs. To the extent that these paragraphs alleged error, they related to the merits of her application for rescission of the care order. Her written and oral submissions also devoted significant attention to the merits of her claims, going back to the point in time at which the child was taken into care, when the applicant was subjected to domestic violence. She referred in this context to a medical certificate from February 2017 which supported that she had a head injury, confirmation of her subsequent receipt of victim’s compensation, and the two letters from Dr Nagesh which she relied on to support that she did not have a mental illness at that time but rather was the victim of domestic violence, for which she had since undergone counselling. The applicant also relied on a COPS event entry dated 9 August 2017 at 10.10am, which recorded that she was not outside Mosman Public School at this time, so as to challenge the basis of the s 90A prohibition order.

55. During the hearing, the applicant confirmed that the point she was seeking to make was that the documents that detailed the basis for the care order that the Secretary obtained continued to be significant in the maintenance of the arrangements with respect to the child when they should not have been. The applicant submitted that his Honour failed to take into account the progress she had made in the seven years since the child was taken from her care. The applicant submitted that her life was becoming increasingly stable, making reference to her employment, her receipt of counselling for treatment following sexual assault and her enrolment in university to study law, which demonstrated her insight into why the child was removed from her care.

56. The applicant referred in her oral submissions to a care plan dated 18 May 2017, not long after the child was taken into care, which described the child as having no health issues and that she appeared to be meeting most developmental milestones and was interacting well with the applicant during contact. The applicant relied on this document as suggesting that the child’s problems, such as were described in Dr Renshall’s report, may have been in response to the child wanting to be with her real family.

57. The applicant also spent a significant portion of her submissions addressing the correctness of material in Dr Renshall’s report. As with the departmental documents that dated to the time of the child’s removal, the applicant submitted that undue weight was placed on Dr Renshall’s report and adhering to her opinions, when circumstances had changed, as supported by other material. She submitted that her matter had been effectively prejudged on this basis, relying on the change in Robison DCJ’s attitude to her case following receipt of Dr Renshall’s report and submitting that this had been repeated in subsequent decisions, including of Coleman ADCJ, when matters had moved on since 2019. The applicant submitted that she had gone through counselling to address the adversity she had suffered, had insight into what had occurred and had made changes she considered were significant, including attending law school and having a stable job and residence.

58. In so far as the applicant’s allegation of prejudgment, she relied on a number of authorities in this regard, including S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358, Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684, Livesey v The New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 and Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44. Where prejudgment is alleged, the question for the Court is whether a fair-minded lay observer might reasonably apprehend that his Honour might not have brought an impartial and unprejudiced mind to the resolution of the issues: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (“Ebner”) at [6]. In Ebner at [8], the majority stated that the first step is to identify what it is said might lead a judge to decide a case other than on its legal and factual merits, while the second step is to articulate the “logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.

59. In so far as it concerns the decision under review, the applicant’s allegation rested largely on the reasons for judgment of Coleman ADCJ. As the joint judgment in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 explained at [67], relying on the reasons to establish an apprehension of bias risks inverting the proper inquiry, as it first assumes the existence of a reasonable apprehension of bias. Having carefully reviewed the transcript of the hearing, it did not disclose a basis on which a fair-minded lay observer might apprehend that his Honour might not have brought an impartial mind to the resolution of the question for decision.

60. The attention the applicant gave to the merits of these arguments, which she advanced in the court below, was otherwise at odds with the limited scope of the review that is available in the present proceedings, which is concerned only with judicially reviewable errors: see e.g., Hastwell v Health Care Complaints Commission [2021] NSWCA 22 at [90] (Leeming JA). The weight to be given to particular evidence was properly a matter for his Honour as the decision maker, and will not provide a basis for a finding of jurisdictional error unless it is clear that little weight has been accorded to a factor of great importance: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; [1986] HCA 40 (“Peko-Wallsend”). Even then, “a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits”: Peko-Wallsend at 42 (Mason J).

61. Turning to the applicant’s allegation that she was denied procedural fairness in relation to his Honour’s treatment of her evidence about Dr Pusic, the applicant reiterated that at the time of the hearing in the District Court she had seen Dr Pusic and had referred to this during the hearing in the District Court. However, she did not have any letter from Dr Pusic at that time. The applicant submitted that she was denied an adjournment to obtain a report from Dr Pusic. She contended that it would have been “helpful” for the judge to adjourn her matter until she could get a letter instead of having to approach this Court.

62. In evidence before this Court was a letter the applicant received from Dr Pusic dated 22 November 2023, after the hearing in the District Court and his Honour’s decision. According to the applicant, she was waiting on that letter at the date of the hearing. The letter supports that submission which, omitting the formal parts and noting that Dr Renshall is referred to as Dr Renshaw, stated:

“This certifies that I have been seeing [the applicant] since May 2023. I have seen [the applicant] on some four occasions and she is due for review on the 11 December 2023.

I am aware that [the applicant] is seeking extension of time to appeal against orders of the Children’s Court.

I can say that [the applicant] has engaged well in outpatient psychotherapy. [The applicant] did provide me with a copy of a report prepared by Dr Renshaw [sic]. [The applicant] has been willing to discuss issues raised by Dr Renshaw. In attending outpatient psychotherapy and being willing to address all the issues leading to the removal of her daughter from her care, she is hopeful that this could lead to her convincing the Court, and to all others concerned, that it would be in the child’s best interest if she were to have increased contact with her daughter.

I continue to see [the applicant] on a regular basis and I will be able to provide a full report on [the applicant’s] mental state when required.”

63. In Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [309]-[316], Beazley JA examined a court’s duty to unrepresented litigants. Her Honour stated at [309] that a court’s duty to ensure that a trial is fair requires that an unrepresented litigant does not suffer a disadvantage from exercising the recognised right to be self-represented. The role of the trial judge in this context includes taking appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial: at [311].

64. In the present case, the applicant had filed affidavits in which she gave evidence of seeing Dr Pusic. When the applicant first referred to him during the hearing, his Honour made it clear to the applicant that her evidence about seeing Dr Pusic was unlikely to advance her application, such that unless she could point to a report from him, Dr Pusic was irrelevant (see [30] above). In response to statements from the applicant that Dr Pusic was willing to attend court or provide a report and she hoped she could provide something if leave were granted, his Honour emphasised that he would decide the question of leave only on what was before him. His Honour also made it clear that the applicant should have provided the material on which she wished to rely before the hearing, noting that it had been set down nearly three months earlier (see [36] above).

63. In between those exchanges, as counsel for the Secretary emphasised, in response to a concern that the applicant expressed that she had not had sufficient time to address the issues the Secretary had raised, his Honour informed her of her entitlement to seek an adjournment and invited her to make that application if she wished to. I have extracted that whole exchange at [33] above. An adjournment was the available procedure that the applicant could have applied for, including to address the absence of evidence giving rise to an arguable appeal, which was an issue that the Secretary had raised in the written submissions, and which his Honour raised with the applicant during the hearing. True it is that his Honour did not encourage the applicant to make that application, and indeed said he would be disinclined to grant it in the circumstances. Nonetheless, his Honour informed the applicant that it was the available procedural application, and invited her to consider it shortly before taking a brief adjournment.

64. Ultimately, the applicant did not make that application. Nonetheless, she alleged that his Honour denied her procedural fairness because he did not independently adjourn the hearing, so as to provide an opportunity for her to put on material from Dr Pusic. Procedural fairness did not require his Honour to take that course.

65. I have read the additional reasons of Basten AJA and also agree with his Honour’s analysis of the letter from Dr Pusic, and the absence of any practical unfairness having regard to the terms of that letter.

66. I note that apart from Dr Pusic, the applicant relied on a letter from Laurelle Morgan, psychologist, who stated that the applicant had been attending weekly to fortnightly counselling sessions since 22 November 2023, having attended seven sessions as at the date of the letter. As the applicant only commenced seeing Ms Morgan after the hearing in the District Court, there can have been no denial of procedural fairness in respect of that letter and what it disclosed.

Conclusion

69. The applicant has not established that the decision of Coleman ADCJ was affected by reviewable error. The Secretary did not seek costs. Accordingly, I propose the following orders:

1. Time be extended for the filing of the summons to 18 July 2024.

2. The summons is dismissed.

70. McHUGH JA: I agree with Mitchelmore JA. I also agree with Basten AJA’s additional reasons for concluding that there was no procedural unfairness to the applicant in proceeding with the hearing in the absence of a report from Dr Pusic.

71. BASTEN AJA: On 18 July 2024, the applicant (Ms M) filed a summons seeking judicial review of a judgment of Acting Judge Coleman in the District Court, who had dismissed an appeal from a judgment of the Children’s Court. The Children’s Court judgment had dismissed an application by Ms M under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act) seeking rescission of an earlier order allocating parental responsibility for the applicant’s daughter to the Minister.

72. The judgment under review was delivered on 23 October 2023. The summons not having been filed by 23 January 2024, the applicant requires an extension of time of some six months. The matter having been heard and there being no opposition from the Secretary, Department of Communities and Justice, she should have the extension of time. However, I agree with Mitchelmore JA that the summons must be dismissed.

Background

73. The lengthy history of litigation involving Ms M and the Secretary has been outlined by Mitchelmore JA and need not be repeated.

74. Proceedings were commenced by the Secretary in the Children’s Court in relation to Ms M’s child, referred to in earlier proceedings as Angelique (a pseudonym). Angelique was born in 2012. Care of Angelique was assumed by the Secretary on 22 February 2017. It was not in doubt that the Secretary held concerns at that time for the safety of the child due to her exposure to domestic violence between Ms M and at least one, if not more, of her partners. Although issues have been raised from time to time as to Ms M’s mental health problems, she continues to assert that she has no such problems and that she was the victim of serial domestic violence and sexual assault.

75. On 1 March 2017, the Children’s Court made an interim order allocating parental responsibility to the Minister. On 23 August 2017, Angelique was placed with carers with whom she remained for one year. Since then, she has been with her present carers, on the South Coast of New South Wales. On 17 October 2017, the Children’s Court had made an order pursuant to s 90A of the Care Act, prohibiting the mother and the father from contacting the former carers.

76. On 15 June 2018, Magistrate Sheedy delivered a judgment determining that restoration of Angelique to the care of her mother was “not a realistic possibility”. She also concluded that return to her father was not a realistic possibility. On 18 October 2018, Magistrate Sheedy made final orders allocating parental responsibility for Angelique to the Minister until she attained the age of 18 years.

77. Ms M has, over the ensuing years, taken various steps to obtain unsupervised contact with Angelique and, ultimately, a return of her daughter to her care and control.

78. On 30 December 2019, Ms M filed an application in the Children’s Court seeking variation or rescission of the care order. On 22 May 2020 the Children’s Court refused leave on the basis that the magistrate was not satisfied of any significant change in the mother’s circumstances. After further proceedings in both the Children’s Court and the District Court, on 19 July 2022, Magistrate Richardson refused leave for Ms M to apply for a rescission of the care order and of the “prohibition order” under s 90A.

79. A little more than one year later, in August 2023, Ms M commenced proceedings by way of summons in the District Court seeking to challenge the July 2022 decision of the Children’s Court. Following a hearing on 23 October 2023, Acting Judge Coleman SC delivered an ex tempore judgment dismissing the summons.

Nature of proceeding under Care Act, s 90

80. As noted above, the appeal to the District Court was significantly out of time. Nevertheless, the judge held that “if the plaintiff established that she had a fairly arguable appeal, and if the Court did not accept that extending time was likely to cause prejudice … to the child, the Court would not withhold relief because the plaintiff has not adequately explained her delay in appealing”: [64].

81. The judge then noted, and accepted, a submission by counsel for the Secretary that “the present application is unlike an application to extend time to appeal against an order for care and protection made after the hearing of a protection application” but, if leave were granted, on a rescission application “the plaintiff bears the onus of establishing an entitlement to the relief which s 90 provides”: at [66], [67]. Although there was no challenge to that proposition, there may be some doubt as to whether it was, in strict terms, correct. It is true that to make a variation or rescission order under s 90, the Court must be satisfied that it is appropriate to do so, but that language does not necessarily impose a burden of proof on the applicant, as it might in the case of adversary proceedings in a civil court.

82. Secondly, the judge held:

“67 … There is no evidence before this Court which appears capable of establishing that there has been a significant change in any relevant circumstances since the care orders which were the subject of the plaintiff’s s 90 application in the lower court were made. In the context of this case, changes in the plaintiff’s housing, employment, academic or financial circumstances would not have the requisite relevance to enliven s 90.

…

69   In the absence of evidence which appears capable of establishing a significant change in the plaintiff’s insightfulness and parenting capacity, it is difficult to see how the plaintiff has a fairly arguable appeal.”

83. The correct legal approach to considering the question of an extension of time to permit an application for leave to appeal is by no means easy to state. It is necessary to explain the circumstances by reference to s 90 of the Care Act, which relevantly provides as follows:

90   Rescission and variation of care orders

(1)   An application for the rescission or variation of a care order may be made with the leave of the Children’s Court.

(1AA)   An application may be made by—

(a)   the Secretary, or

…

(d)   a person from whom parental responsibility for the child or young person has been removed, …

…

…

(2)   The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.

(2A)   Before granting leave to make an application to vary or rescind the care order, the Children’s Court must consider the matters set out in subsections (2B) and (2C).

(2B)   The primary considerations are as follows—

(a)   the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views,

(b)   the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements,

(c)   if the Children’s Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person.

(2C)   Additional considerations are as follows—

(a)   the age of the child or young person,

(b)   the nature of the application,

(c)   the plans for the child or young person,

(d)   whether the applicant has an arguable case,

(e)   matters concerning the care and protection of the child or young person that are identified in—

(i)   a report under section 82, or

(ii)   a report that has been prepared in relation to a review directed by the Children’s Guardian under section 85A or in accordance with section 150.

(2D)   The Children’s Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process.

(2E)   Without limiting subsection (2D), the Children’s Court may dismiss an application for leave under this section if it is satisfied that—

(a)   the application has no reasonable prospect of success, and

(b)   the applicant has previously made a series of applications for leave under this section that the Court has dismissed.

…

(6)   Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration—

(a)   the age of the child or young person,

(b)   the views of the child or young person and the weight to be given to those views,

(c)   the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements,

(d)   the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,

(e)   the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f)   the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

84. Read in isolation, subs (2) suggests that where a significant change in any relevant circumstances is established, there might be something approaching a duty to grant leave, so that the status of the current arrangements can be reviewed. However, the requirement in subs (2A) to consider matters set out in the following two subsections indicates that there is only a power, not a power coupled with a duty. That is because, whatever the change in relevant circumstances affecting, for example, the parenting skills of the mother and her mental stability, the change may yet need to be weighed against the best interests of the child.

85. Further, the section appears to have been expanded over the years, with little attention to its structure. What are now “additional considerations” within subs (2C), were once the full statement of the matters to be taken into consideration before granting leave, pursuant to former subs (2A).

86. Even in the earlier form, there was ambiguity as to whether the need to consider whether the applicant “has an arguable case” referred to in an arguable case for leave (that is whether there has been a significant change in circumstances) or whether it applied to the case for variation or rescission. By way of contrast, the term “application” in subss (2D) and (2E) must have the same meaning on each occasion that the term is used, being the application for leave which must be frivolous, vexatious or an abuse of process, or having no reasonable prospects of success, or having followed a series of applications previously dismissed.

87. In selecting as one of two critical factors the question whether the plaintiff had established “a fairly arguable appeal” it may be that the judge read subs (2C)(d) as referring to a fairly arguable appeal and not merely a fairly arguable case for leave. That reasoning would probably be correct. On the other hand, the second critical factor identified by the primary judge, namely whether granting leave would occasion prejudice to the child, appears not to have come from the Care Act, but from the four factors of general relevance identified in Tomko v Palasty (No 2). ^[1] That suggests the first (and the remaining two factors) had the same source.

    1. (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55].

88. The considerations in Tomko were concerned with rules applicable in the general appellate civil jurisdiction of the Supreme Court. With respect, it was an error to apply those considerations in the present context. Such general law principles must have limited operation in the special context provided by s 90 of the Care Act, at least since the section took its present form following the commencement of the Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW), Sch 1[29]. The application of s 90 must be governed primarily by its own terms: to adopt a hierarchy of considerations from a different procedural context could involve legal error.

89. Nevertheless, no point was taken in relation to this matter and it is not clear that the approach adopted in the District Court, although erroneous in principle, could have had any material effect on the outcome. To place weight on potential prejudice to the child was entirely consistent with the primary considerations identified in subs 2(B). The judge stated:

“85   … In the absence of a clear likelihood of possible benefit to [Angelique] in granting this application, prejudice to [Angelique] would, if nothing else did, justify declining to extend time to appeal.”

90. On any view, that finding was open and probably a sufficient basis for rejecting the allegation of miscarriage.

Grounds of appeal

91. Having considered the possible error of law identified above, which it is appropriate to do having regard to the fact that the applicant is a litigant in person, it is necessary to address the grounds which, far from lucid though they were, have been identified as arising from the summons for judicial review and the appellant’s written and oral submissions.

Apprehended bias

92. As the Secretary properly noted, the applicant’s written submissions referred to a “feeling” that the lower court judges “have sided … to the Department instead of hearing my case fairly” referring, apparently as an aside, to “an apprehended bias”.

93. If it arises, this challenge should be considered first. In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd ^[2] Kirby and Crennan JJ stated:

“117   … An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided.”

2. (2006) 229 CLR 577; [2006] HCA 55.

94. In the same case, Gummow ACJ explained:

“2   … If the bias submissions were to succeed, the remedy would be a retrial. If the copyright submissions were to succeed, the Full Court would itself provide the orders which should have been made and there would be no occasion to order a retrial.” ^[3]

3. See also Callanan J at [172].

95. Further, Callinan J observed:

“179   The respondents were correct in submitting, and the Full Court in holding, that it was right in determining this issue to look not only at the course of the trial, but also at the reasons for judgment, and to read them together to see whether the cumulative effect was one of apparent bias.”

96. There was, however, no arguable basis for alleging a reasonable apprehension of bias. That the applicant considered (and no doubt still considers) that she has been unfairly treated and that her daughter would be better off with her than with alternative carers may be accepted. She strongly disagrees with the outcome of her various applications and the orders made with respect to her daughter in the Children’s Court and the District Court. It is true that various judicial officers have accepted the evidence presented by the Secretary as to the need for protection for Angelique. However, for judges to uphold one side of a case and reject the other can never, of itself, demonstrate improper favouring of one party. There must be some indication of hostility to the unsuccessful party, or an improper refusal to consider his or her evidence. There was no such material available in the present case: rather, both the transcript and the reasons for judgment reveal scrupulous fairness in his procedural explanations and directions. Indeed, given the need for both an extension of time and leave to appeal, Judge Coleman was farther from the merits of the claim than other judicial officers who had dealt with the matter. Indeed, the applicant recognised as much in the course of her oral submissions. ^[4]

    4. Tcpt, 12/09/24, pp 12(1)-(10); 26(28)-(35).

97. The ground of apprehended bias, even with its relatively low hurdle of asking whether the fair-minded observer “might” apprehend that the judge “might” not determine the matter fairly on the evidence, is not satisfied. The ground must be dismissed.

Failing to consider relevant material

98. The applicant’s written submissions alleged that the judge “did not take into account my years of medical documentation”. In substance her complaint appeared to be that Angelique was removed from her care in circumstances where she (the mother) was the victim of domestic violence. That violence included her being thrown downstairs and suffering concussion. That situation had resolved, but the Secretary was maintaining the need to continue the care order with respect to Angelique because of alleged mental health issues. Ms M relied on medical evidence, including a report of Dr Abhishek Nagesh of 17 September 2019, that she was not psychotic and had no mental illness. It was this evidence, she submitted, which had been ignored.

99. It was accepted by the Secretary before the primary judge that “neither Dr Renshall nor any other competent expert has asserted that the plaintiff suffers from a psychiatric condition”. These matters were referred to by Judge Coleman at [19]. The reasoning in the District Court referred, however, to other views expressed by Dr Renshall as to “persecutory and grandiose and disorganised thinking” and other matters which affected her parenting capacity: Judgment at [20], [21].)

98. Judge Coleman further stated:

“24   … The fact is, however, that, as the plaintiff has confirmed on a number of occasions during the course of submissions before the Court today, the last occasion involving domestic violence perpetrated against her was in 2017. It is not in dispute that the domestic violence, which the plaintiff suffered in 2017, could have an enduring impact on her to this day, but the Court records that in terms of medical, circumstantial, or other evidence, put bluntly, the evidentiary trail with respect to domestic violence or its current impact on the plaintiff goes cold in 2017 …. The plaintiff does not contend that her current parenting capacity is adversely impacted by past experiences of domestic violence in any event.”

101. It is clear that the issues with respect to the medical evidence, mental health concerns, and the earlier events of domestic violence, so far as they were the subject of evidence, were genuinely and realistically addressed in the District Court. There was no substance in the claim that they were not.

Procedural unfairness

102. The ground of procedural unfairness was articulated in the applicant’s written submissions as arising from the fact that “the evidence has only been discovered since the time of the hearing and was evidence of [s]ignificant changes rejected by Judges in the Lower Court”. ^[5] She further stated: ^[6]

“I now have an updated letter from my [p]sychiatrist Dr Pusic which states I’m receiving [c]ounselling to deal with the grief of losing my child.”

In the course of oral submissions, she stated that Dr Renshall’s report is now almost five years old, and that she had “an updated psychiatrist clearance”. ^[7] The letter from Dr Pusic will be addressed in due course; it is necessary to put the challenge in the context of the proceedings in the District Court.

5. Applicant’s written submissions,18 August 2024, par 4.

6. Ibid, par 12.

7. Tcpt, 12/09/24, p 35(5).

103. Referring to the course of the District Court hearing to the absence of medical evidence, the applicant said that the primary judge told her, in effect, that it was too late to get a report from her treating psychiatrist, Dr Pusic. The applicant submitted that “it would have been helpful for [the judge] … to adjourn my particular matter until at least I could get that document”.

104. The question of a possible adjournment of her appeal in the District Court was raised, but by Judge Coleman and not her, and not in this context. At a point when the judge was encouraging the applicant to complete her oral submissions, she stated: ^[8]

     8. Tcpt, 23/10/23, p 30(26) (Court Book, p 511).

“Applicant:   I just sort of feel I haven’t had a fair shot of my submissions, at all, and I think that the department has actually given me not a chance to write it professionally, at all. I only just received it ….

His Honour:    You haven’t made an application for an adjournment, which – I wouldn’t encourage you to, because I’m highly disinclined to grant it, but, when we resume – and, look, you should understand – I may be wrong, but I didn’t understand there was any direction that the department file a written outline, or was there?

Wong [for the Secretary]: No, it was just to assist the Court and the parties,       your Honour.

His Honour:    So, quite frankly, had she been minded to, Ms Wong could have sat there, said nothing and then stood up –

Applicant:    Yeah.

His Honour:    And read, word-for-word, from this document. So there’s no       procedural unfairness, whatsoever.

…

His Honour:    … Let’s not play games, because – I note you have said, a couple of times this morning, you claim you were denied procedural fairness. If you want to make an application for an adjournment, based on what you say is a procedural unfairness in having to make your submissions today, when we resume, you take a deep breath and make it.”

105. There was a short adjournment, following which the applicant did not seek an adjournment of the hearing. The applicant did, however, refer to her psychiatric evidence: ^[9]

     9. Tcpt, p 33(27) (CB 514).

“Applicant:   I’ve proceeded in the arguable case of actually doing all of Kate Renshaw’s [sic] recommendations. I’m seeing a psychiatrist at the moment. I am seeking – I’m still – I’ve got my next appointment on 10 December, so I have an ongoing—

His Honour:    Is that Dr Pusic, you’re talking about?

Applicant:   Yeah, correct, yeah. I’ve got an appointment with him. So I’m quite happy if my leave is approved to provide – he’s happy to attend Court to – or do a report, which he’s quite happy to do, and I’m going to continue my counselling with him ….

…

His Honour:   That’s your difficulty, you see, isn’t? You don’t have any – you haven’t – the only psychiatric report you’ve filed in 2020, and you haven’t got a single piece of paper from Dr Pusic …. The respondent says you shouldn’t get leave, because you don’t make out an entitlement. So it doesn’t help you to say Dr Renshall’s report is 2019, because you don’t have any recent medical evidence, that either explains the failure to appeal within time or provides a basis on which, if you did get an extension of time, that would be likely to be a significant factor in redetermination of the proceedings.

…

Applicant:   I’m hoping, I’m crossing my fingers – that leave is approved, I can provided that to the Court.

His Honour:   You’re putting the cart before the horse, with respect. You’re not going to get leave on the basis of what you might come up with. It’s not going to happen.

…

Applicant:   I do – I will be providing that.

His Honour:   You should have provided it long before. I’m not proceeding to decide a case on the basis of what evidence you might come up with. That’s not how it works.”

106. In an affidavit dated 20 June 2023, the applicant had stated that she had seen Dr Pusic “for the trauma of removing my child when I was injured with a head injury”, and to “support myself through the restoration process”. The applicant repeated that statement in her oral address, to which the primary judge responded by asking if there were any reports from Dr Pusic. ^[10]

     10. Tcpt, p 8(20)-(30), (CB 489).

107. The applicant had not attached any report to her affidavit, but suggested that the Department may have subpoenaed Dr Pusic. The advocate appearing for the Secretary, Ms Wong, stated her understanding that a subpoena had been issued to Dr Pusic, “but he has not produced any material”. ^[11]

     11. Tcpt, p 8(47).

108. There followed exchanges between the applicant and the judge to clarify that she had not issued a subpoena, and she did not know what response there had been to the department’s subpoena. Despite understanding that Dr Pusic was prepared to provide a report, she had not sought to obtain one. The judge was correct to conclude that, apart from the fact that she might be benefiting from counselling (to be inferred from the mere fact that he was continuing to see her), the content of any forthcoming report was a matter of speculation. It is to be recalled that the continuation of the proceedings occasioned uncertainty as to the arrangements for Angelique which the judge reasonably considered was not in her best interests.

109. In the hearing in this Court, the applicant tendered a letter from Dr Pusic dated 22 November 2023. Dr Pusic stated that he had seen the applicant on four occasions since May 2023 and was due to review her on 11 December 2023. The letter was not available before the hearing in the District Court, but Dr Pusic spoke of his awareness that the applicant was “seeking an extension of time to appeal against orders of the Children’s Court”. He continued:

“I can say that [Ms M] has engaged well in outpatient psychotherapy. [Ms M] did provide me with a copy of a report prepared by Dr Renshaw [sic]. [Ms M] has been willing to discuss issues raised by Dr Renshaw [sic]. In attending outpatient psychotherapy and being willing to address all the issues leading to the removal of her daughter from her care, she is hopeful that this could lead to her convincing the court, and to all others concerned, that it would be in the child’s best interest if she were to have increased contact with her daughter.

I continue to see [Ms M] on a regular basis and I will be able to provide a full report on [Ms M’s] mental state when required.”

110. There was nothing of substance in this letter which was not known to the District Court. It does not demonstrate that any practical unfairness was caused by the failure of the judge, of his own motion and over opposition from the Secretary and the child’s representative, to adjourn the application before him to allow Ms M to obtain a report from Dr Pusic, a step which, a year later, she had still not taken.

111. In these circumstances, there was no procedural unfairness to the applicant in proceeding with the hearing in the absence of a report from Dr Pusic.

Conclusions

112. The applicant has failed to make out any available ground for judicial review, even on the most generous construction of her grounds and submissions. It follows that the summons must be dismissed. The Secretary does not seek an order for costs in that event, and no such order should therefore be made.

**********

Endnotes

Decision last updated: 02 December 2024