Minister for Community Services v Children's Court of NSW & 3 Ors

[2005] NSWSC 154

Reported Decision: 62 NSWLR 419

New South Wales

Supreme Court

CITATION:	Minister for Community Services & Anor v Children's Court of NSW & 3 Ors [2005] NSWSC 154
HEARING DATE(S):	04/03/2005
JUDGMENT DATE :	10 March 2005
JUDGMENT OF:	Hoeben J at 1
DECISION:	Decline to make declarations sought. Summons dismissed.

CATCHWORDS:	Children's Court did have power to include in a good behaviour bond a condition that a child reside as directed by the Department of Community Services.
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 Children (Criminal Proceedings) Act 1987 Children (Criminal Proceedings) Regulation 2000 Crimes Act 1900
CASES CITED:	George v Children's Court of NSW [2003] 59 NSWLR 232
PARTIES:	Minister for Community Services (1st Plaintiff) Director-General of the Department of Community Services (2nd Plaintiff) Children's Court of NSW (1st Defendant) Nadya (2nd Defendant) JD - (3rd Defendant) SN (4th Defendant)
FILE NUMBER(S):	SC 12080/04
COUNSEL:	Mr G Moore - 1st and 2nd Plaintiffs Submitting Appearance - 1st defendant Mr R Hulme SC - 2nd Defendant
SOLICITORS:	IV Knight - (1st and 2nd Plaintiffs) Nicholas Moir & Associates Pty Ltd - 2nd Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Thursday, 10 March, 2005

12080/04 – Minister for Community Services & Anor v Children’s Court of NSW & 3 Ors; Re Nadya

JUDGMENT

1 HIS HONOUR: The first plaintiff, the Minister for Community Services (the Minister) and the second plaintiff, the Director-General of the Department of Community Services (the Director-General) seek a declaration that the first defendant erred in law by imposing a bond condition at Toronto on 29 March 2004 pursuant to s33(1A)(c) of the Children (Criminal Proceedings) Act 1987 that the child referred to in these proceedings “reside as directed by the Department of Community Services – not with mother unless child and mother consent” (the bond condition).

2 The Minister and Director-General seek a further declaration that the first defendant erred in law, by finding on 24 June 2004 that the bond condition made on 29 March 2004 “is not contrary to law”.

3 The plaintiffs’ summons was filed on 23 July 2004.

4 On 23 July 2004 the court ordered that the child, the subject of the proceedings in the Children’s Court, be known for the purposes of the proceedings as “Nadya”.

5 The first defendant filed a submitting appearance on 15 September 2004. Mr Hulme SC appeared on behalf of “Nadya”. Neither “Nadya’s” mother nor her father, who are the third and fourth defendants respectively, appeared.

Factual background

6 On 29 March 2004 “Nadya” was dealt with by the Children’s Court for the offence of “robbery in company” in breach of s97(1) of the Crimes Act 1900. “Nadya” was born on 30 April 1990.

7 The offence occurred on 15 March 2004 at approximately 8 pm. “Nadya” was apprehended at approximately 1 am on 16 March 2004. “Nadya” and her co-accused appeared before the Children’s Court at Wyong on 16 March 2004.

8 On that occasion the learned magistrate ordered that the matter be adjourned to the Toronto Children’s Court on 22 March 2004. Bail was granted, conditional upon “Nadya” residing as directed by the Department of Community Services (the Department) and not to be released until appropriate placement was found. Other conditions were also imposed.

9 At all relevant times “Nadya” was not in the care of or under the parental responsibility of the Minister. No representative of the Department was present at court on 16 March 2004. The Department did not consent to the bail conditions.

10 It would appear that “Nadya” and her mother and stepfather were having difficulties in their relationship. “Nadya” had left home on the night of the offence and had been placed at Allambie House Refuge. “Nadya’s” father had been unable or unwilling to care for her.

11 On 22 March 2004 the matter came before the Children’s Court at Toronto. “Nadya” was in custody, not having entered her bail. The magistrate stood the matter in the list to arrange for a representative of the Department to attend court “to find somewhere for you to go”. A representative of the Department did appear and inform the court that “the Department has nowhere to place the child”.

12 The matter was adjourned to 29 March 2004 to enable the Department to make further inquiries regarding accommodation for “Nadya”. Bail was continued upon the same conditions, however “Nadya” remained in custody. During this appearance, “Nadya” entered a plea of guilty to the charge.

13 On 29 March 2004 the matter again came before the Children’s Court at Toronto. On this occasion the Department was represented by a solicitor. A background report was provided to the Children’s Court by the Department (dated 25 March 2004) which detailed the attempts made by the Department to provide assistance under s113 of the Children and Young Persons (Care and Protection) Act 1998. The court was advised that no accommodation had been found for “Nadya”, despite the best endeavours of the Departmental officers.

14 The learned magistrate indicated an intention to release “Nadya” upon entering a recognizance conditional upon her residing where directed by the Department. The matter was stood in the list to enable the Department’s solicitor to make further inquiries.

15 Upon resumption of the hearing, the following exchange took place:

“SOLICITOR: The instructions I have is that the Department are certainly aware of the order that your Worship intends to make. They instruct me that they do not have the facilities available to house Nadya, nor are they in a position to provide any direction to her as to where she resides. They simply don’t have the facilities to house her. They ask whether Juvenile Justice has any facilities. I’m not aware of what inquiries have been made through Juvenile Justice through the court. The current situation is that I’d suggest to the court and I ask the court consider that if an order is made placing Nadya on a bond as suggested earlier, Nadya has difficulties in signing the bond because, as I’ve said, the Department are not in a position to provide that direction.
BENCH: Well they’ve had two weeks to find somewhere for her to live. I mean I find that completely unacceptable that the Department is not prepared to provide somewhere for her to live and it’s clear that she can’t go back home to her mother. Well it’s clear that it wouldn’t work. She’s not prepared to go home anyway and her mother is not prepared to have her. … and DOCS are the people who should provide somewhere for her to go, given that her mother says she can’t and it’s obviously not going to work if she goes to her mother …
SOLICITOR: Well I simply stress to your Worship the Department’s position is they are unable to find anywhere.
BENCH: Well I don’t accept that. I see many children here in much worse predicaments than Nadya and the Department finds somewhere for them to go. So I don’t accept that it’s not possible to find somewhere for Nadya to go. Not after two weeks. If might be if it was one or two nights, three nights even a week sometimes it takes to find somewhere. I don’t know what’s going on here, why the Department has dug their heels in. I don’t understand it. There’s nothing they’ve put to me which explains it to me as to what’s really going on as to why nowhere has been found.
SOLICITOR: It’s simply a lack of resources …”

16 “Nadya” was released upon entering a bond under s33 of the Children (Criminal Proceedings) Act 1987, without conviction, to be of good behaviour for a period of 12 months. In addition to the statutory requirements of such a recognizance, the following condition was imposed:

“With the condition, Nadya, that you reside as directed by the Department of Community Services, not with your mother unless both the mother and Nadya agree.”

17 It is this condition which the plaintiffs argue was contrary to law as it imposed obligations upon a third party namely the Department, without the Department’s consent. In addition, it imposed an obligation on “Nadya” that had the potential to be impossible to comply with.

18 On 5 April 2004 the Department lodged an application, pursuant to s43 of the Crimes (Sentencing Procedure) Act 1999 to re-open the “robbery in company” proceedings to correct a sentencing error. The Director-General argued that the condition of the recognizance was contrary to law (s43(1)(a)).

19 On 24 June 2004 the Children’s Court dismissed the Director-General’s application. In dismissing the application the learned magistrate held that the condition did not impose an obligation upon the Department, but rather the obligation was upon “Nadya” to follow the recommendation of the Department. Specifically her Honour said:

“Whilst Magistrate Wahlquist made it clear what she wanted the Department to do, her order fell well short of compelling them or binding them to do so.”

20 By way of update, I was advised that as of 4 November 2004 “Nadya” has been under the parental responsibility of the Minister. She is currently residing with the “Youth Off the Streets” (YOTS) organisation. It is, of course, common ground that the bond will expire in a little over three weeks.

Competing submissions

21 The plaintiffs submit that the Children and Young Persons (Care and Protection) Act 1998 contains provisions to provide for the situation which confronted the Children’s Court on 29 March 2004 and consequently, one must look to that legislation to assess whether or not the Children’s Court had power to impose the condition which it did.

22 Sections 74, 113 and 120 of that Act deal with the provision of advice and assistance for homeless young persons under sixteen, and the making of orders directing a person or organisation to provide support for a young person for a period not exceeding 12 months.

23 That Act was considered by the Court of Appeal in George v Children’s Court of NSW [2003] 59 NSWLR 232. The Court held that that Act provided exclusively and exhaustively for the relief which the Children’s Court might order arising out of obligations imposed on the Director-General and the Minister by that Act. By reference to the express terms of the sections and the findings of the Court of Appeal, the plaintiffs submit that orders requiring the Director-General and the Minister to provide support for young persons under that Act can only be made with the consent of the Director-General or the Minister.

24 The only way in which the condition under consideration could be given any force and effect was if the Department gave a direction to “Nadya” as to where she was to reside. The condition was therefore tantamount to requiring the Department to provide accommodation for “Nadya” without its consent.

25 The plaintiffs say that the magistrate erred in the following respects:

“(i) Imposing the condition after having been informed that the Department (not being a party to the proceedings) did not consent to the condition.
(ii) Imposing a condition as to accommodation when it was informed that the Department did not have any accommodation available and therefore was unable to make a direction as to where “Nadya” was to reside.
(iii) Imposing a condition upon the Department that it did not have power to make, i.e. that it find accommodation for “Nadya”.

26 As indicated, implicit in those submissions is the proposition that a condition imposed as part of a good behaviour bond had to be given an interpretation which gave substance to it. The only way that could occur in this case was if an obligation was imposed on the Department to give a direction as to accommodation.

27 As a subsidiary part of the same argument, the plaintiffs submitted that the qualification to the condition – “not with your mother unless both the mother and “Nadya” agree” was placing a restraint upon the exercise of discretion by the Department should it decide to give such a direction. The Children’s Court did not have power to impose such a restriction.

28 On behalf of “Nadya” it was submitted that the Children and Young Persons (Care and Protection) Act 1998 was irrelevant. The power for what the learned magistrate did was to be found in s33 of the Children (Criminal Proceedings) Act 1987.

29 That Act relevantly provided:

“33(1) If the Children’s Court finds a person guilty of an offence to which this division applies, it shall do one of the following things:
(b) It may make an order releasing the person on condition that the person enters into a good behaviour bond for such period of time, not exceeding 2 years, as it thinks fit,
…
(1A) A good behaviour bond referred to in subsection (1)(b):
…
(c) may contain such other conditions as are specified in the order by which the bond is imposed, other than conditions requiring the person under bond:
(i) to perform community service work, or
(ii) to make any payment, whether in the nature of a fine, compensation or otherwise.”

30 Mr Hulme SC referred the Court to regulation 7 of the Children (Criminal Proceedings) Regulation 2000:

“7. The kinds of conditions that may be imposed in relation to an order made in respect of a child under s33(1)(b) or (e) of the Act include the following:
…
(d) Conditions relating the child’s place of residence,
(h) Conditions requiring the child to comply with the directions of a specified person in relation to any matter referred to in par (a)(g).”

31 Mr Hulme SC submitted that regulation 7 could be usefully contrasted with regulation 10 which dealt with the imposition of conditions as to residence or treatment when making a parole order. Regulation 10 provided:

“10(1) Before the Children’s Court makes a parole order containing terms or conditions relating to residence or treatment, the Court:
…
(b) must satisfy itself, having regard to the Juvenile Justice Officer’s report, that it is feasible to secure compliance with the terms or conditions.
(2) Before a Children’s Court makes a parole order containing terms or conditions requiring the co-operation of a person other than the offender or a Juvenile Justice Officer, it must obtain the consent of the person to the specification of those terms and conditions insofar as they require the person’s co-operation.”

32 Mr Hulme SC submitted that the Children (Criminal Proceedings) Act 1987 and its Regulations provided a sufficient source of power for the imposition of the condition under consideration. There was no requirement when granting a good behaviour bond under s33 for the consent of any person to be obtained before imposing a condition of the kind envisaged by Regulation 7(h). The wording of Regulation 7 was to be contrasted with the wording of Regulation 10, which made very specific provision for consent to be obtained in the case of parole orders. Had consent been a requirement under Regulation 7, it would have been a simple matter to add provisions for consent such as those contained in Regulation 10.

33 Mr Hulme SC also focused upon the form of the condition. It was his submission that the condition did not require the Department to give a direction. The condition only became operative if the Department gave a direction. In the absence of such a direction it was not a question of “Nadya” failing to comply with the condition, but rather the condition not being operative.

34 He conceded that the imposition of such a condition might in a practical sense impose considerable pressure on the Department to find accommodation, and therefore give a direction, but it did not require the Department to do so. It was at all times open to the Department to decline to give a direction.

35 Mr Hulme SC submitted that there were many orders made by courts which implicitly involved the co-operation of third parties in relation to which no consent was sought or obtained. The making of the declarations sought by the plaintiffs would have extensive implications for those orders. An obvious illustration was a condition of bail which is often imposed that the accused reside at certain specified accommodation. The occupier or owner’s consent was usually not obtained or required.

36 In the alternative Mr Hulme SC submitted that since alternative accommodation had in fact been arranged for “Nadya”, and since the bond would expire in a little over three weeks, the summons was in reality seeking judicial advice in that the point was in reality moot.

37 In reply to the moot point argument, the plaintiffs referred me to the decision of the Victorian Court of Appeal in Secretary to the Department of Human Services v Magistrates’ Court at Melbourne (2002) 6 VR 140 at 147, par 21. Although something of a moot point had arisen in that case, the Court of Appeal of Victoria proceeded to give a decision and provide reasons because of the general importance of the point. It also had regard to the inconvenience to the parties if the same point had to be brought forward again in separate proceedings. I accept that submission. The point raised is an important one with potential ramifications beyond the Children’s Court and I propose to decide the question. In any event, the matter is not entirely moot in that the bond does have at least three weeks to run.

Decision

38 The submissions on behalf of “Nadya” are persuasive. As a matter of simple English, I do not read the condition under consideration as requiring the Department to provide the sort of assistance, care and accommodation contemplated by the Children and Young Persons (Care and Protection) Act 1998. I agree with Mr Hulme SC that that Act is irrelevant.

39 The learned magistrate clearly had power to impose the condition under consideration. The source of that power is to be found in s33 of the Children (Criminal Proceedings) Act 1987 and in Regulation 7 made under that Act. Since no obligation was being imposed on the Department to give a direction, the condition was within power.

40 The person who was obliged to comply with the condition was “Nadya”. That obligation would only crystallise if a direction were given by the Department. That does not mean that the condition was a nullity. Rather it meant that the condition was subject to a step being taken by a third party. If that step were not taken, the condition did not become operative.

41 I do not propose to deal with the subsidiary argument advanced on behalf of the plaintiffs that the qualification to the condition, ie “Not with your mother unless both the mother and Nadya agree” was beyond power because it limited the discretion of the Department if it decided to give a direction. This was, unlike the primary issue, essentially a moot question. It was not fully argued. My preliminary inclination is that the qualification to the condition was beyond power, but I do not make any decision on that question.

42 For the reasons set out above, I accept the submissions put on behalf of “Nadya”. I am of the opinion that the condition “That you reside as directed by the Department of Community Services …” was within power. Accordingly, I decline to make the declarations sought in the summons.

43 The orders of the Court will be:

(i) Summons dismissed.
(ii) Costs reserved.

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