R.C. and P.K. v The Secretary, Department of Communities and Justice

[2024] NSWDC 85

District Court

New South Wales

Medium Neutral Citation:

R.C. and P.K. v The Secretary, Department of Communities and Justice [2024] NSWDC 85

Hearing dates:

4-5 April 2022, 3 June 2022, 19 September 2022, 6 April 2023, 5 July 2023, 5-6 September 2023, 8 September 2023, 4-15 March 2024

Date of orders:

22 March 2024

Decision date:

22 March 2024

Jurisdiction:

Civil

Before:

Strathdee DCJ

Decision:

(1) The application for adjournment is refused.

(2) The further hearing date of 30 April 2024 is confirmed.

(3) The written submissions by the appellants are to be filed and served by 5 April 2024.

(4) The written submissions by the defendant are to be filed and served by 12 April 2024.

(5) The written submissions by the ILR are to be filed and served by 19 April 2024.

(6) Any submissions in reply, are to be filed and served by 26 April 2024.

(7) All submissions are to be forwarded by email to my Associate by the relevant due date.

Catchwords:

CHILD CARE APPEAL – Appeal from decision of the Children’s Court – application for adjournment under s 94(4) of the Young Persons (Child and Protection) Act 1988 (NSW) – delay in proceedings generally

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW).

Civil Procedure Act 2005 (NSW)

Cases Cited:

EK & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248

Kestle v Director, Department of Family and Community Services [2012] NSWChC 2

Category:

Procedural rulings

Parties:

R.C. and P.K. (Appellants/Plaintiffs)
The Secretary, Department of Communities and Justice (Defendant/Respondent)

Representation:

Counsel:
Mr Braine (for the Appellants/Plaintiffs)
Mr Dean (for the Defendant/Respondent)

Solicitors:
Speirs and Associates, Lawyers (for the Plaintiff)
Crown Solicitor for NSW, Lawyers (for the Defendant)
Ms Nelligan, as independent legal representative for the children, Legal Aid

File Number(s):

2021/235620 and 2023/198916

Judgment

1. The plaintiffs R.C. (the mother) and P.K. (the father) are appealing orders made by the Children’s Court and seek restoration of the children to either their joint care, or the care of the father.

2. This matter concerns three children (the children):

•   ALR, born 21 April 2020;

•   JR, born 7 June 2021; and

•   AYR, born 29 May 2022.

3. The children were each assumed into care shortly after they were born pursuant to decisions made by a delegate of the Secretary, Department of Communities and Justice (‘the Secretary’). That is, pursuant to decisions made by the delegate in accordance with the relevant provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘the Act’).

4. On 12 July 2021, on the application of the Secretary, the Children’s Court of New South Wales made final orders allocating parental responsibility for ALR to the Minister for Families and Communities (‘the Minister’) until ALR attains 18 years of age.

5. On 26 May 2023, the Children’s Court made final orders allocating parental responsibility for JR and AYR to the Minister until each attains 18 years of age.

6. Pursuant to s 91 of the Act, the parents have commenced appeals in this Court from the decisions made by the Children’s Court on 12 July 2021 and 26 May 2023.

7. The substantive hearing of the parents’ appeals commenced on 4 March 2024, after numerous adjournments over the previous two years.

8. On 14 March 2024, after several days of oral evidence, the parents applied to adjourn the proceeding to allow them time to obtain further evidence – namely, an assessment of the father’s capacity to care solely for the children. That is, to the exclusion of the mother.

9. The Secretary opposes the application to adjourn the proceedings.

BACKGROUND

10. On 24 April 2020, the Secretary filed an initiating application in the Children’s Court seeking care orders with respect to the child ALR.

11. On 13 November 2020, following interviews with the parents, the forensic psychologist Ms Katie Martens authored her first report, in which she recommended against the restoration of ALR to the care of her parents.

12. On 11 June 2021, the Secretary filed an initiating application in the Children’s Court seeking care orders with respect to the child JR.

13. On 12 July 2021, the Children’s Court made final orders allocating parental responsibility for ALR to the Minister until she attains 18 years of age.

14. On 13 August 2021, the parents filed a Summons in the District Court commencing an appeal from the decision made by the Children’s Court on 12 July 2021.

15. On 4 April 2022, the hearing of the appeal initiated by the parents on 13 August 2021 commenced; however, the matter was adjourned part-heard on 5 April 2022, to allow time for the Children’s Court proceeding concerning JR to conclude and to allow time for a further assessment to be undertaken and report obtained from Ms Martens.

16. On 2 June 2022, the Secretary filed an initiating application in the Children’s Court seeking care orders with respect to the child AYR.

17. On 17 September 2022, following further interviews with the parents and observations of the children with their parents, Ms Martens authored her second report.

18. On 20 October 2022, the District Court vacated dates in November 2022 that had been set aside for the resumption of the parents’ appeal initiated on 13 August 2021.

19. On 26 May 2023, the Children’s Court made final orders allocating parental responsibility for JR and AYR to the Minister until each attains 18 years of age.

20. On 21 June 2023, the parents filed a Summons in the District Court commencing an appeal from the decision made by the Children’s Court on 26 May 2023.

21. On 5 September 2023, the hearing of the parents’ appeals resumed, however, the matters were again adjourned part-heard after it became apparent the evidence would not be completed within the time allotted for the hearing.

22. The substantive hearing of the evidence relative to the parents’ appeals commenced on 4 March 2024.

RELEVANT LEGISLATION

23. Section 94 of the Act relevantly provides:

‘94    Expedition and adjournments

(1)   All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person.

(2)   For this purpose, the Children’s Court is to set a timetable for each matter taking into account the age and developmental needs of the child or young person.

(3)   The Children’s Court may give such directions as it considers appropriate to ensure that the timetable is kept.

(4)   The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that –

(a)   it is in the best interests of the child or young person to do so, or

(b)   there is some other cogent or substantial reason to do so.’

24. It is plain from the language of s 94 of the Act that the Court retains a discretion to grant an adjournment provided one of two criteria are met. That is, it is in the best interests of the child or young person to grant the adjournment, or if there is some other cogent or substantial reason to do so. Notwithstanding that there may exist ‘some other cogent or substantial reason’ to grant an adjournment, the Court does not have to grant an adjournment in every case.

25. It is, however, incumbent upon the Court in any decision made under the Act – including a decision as to whether or not to grant an adjournment – to give paramountcy to the safety, welfare and well-being of any child or young person affected by the decision: see s 9(1) of the Act.

26. The parents submit that the power to grant the adjournment is discretionary and refer to EK & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248. The parents rely on that authority to indicate that I have a discretion which I accept. However, I note that her Honour Judge Truss' decision did not relate to an application for an adjournment under s 94(4) of the Act.

27. The Secretary submits that there are at least three reasons the application to adjourn the proceedings should be refused:

1. Firstly, an adjournment would be contrary to the requirement set out in s 94 of the Act for the matter to proceed as expeditiously as possible;

2. Secondly, the proposal of the parents to obtain a further report from Ms Martens carries a risk that the children will be exposed to a risk of psychological harm; and

3. Thirdly, there is a question as to whether the evidence proposed to be obtained by the parents will assist them in their appeal, given the evidence to date: cf Kestle v Director, Department of Family and Community Services [2012] NSWChC 2 at [39].

DISCUSSION

The requirement to proceed expeditiously

28. It is plain from the chronology of events outlined at paragraph [10] that litigation concerning these children has been on foot for several years. The Secretary submits it is significant that, in all of that time, and until only very recently, the parents have argued that the children should be restored to their joint care. At no time prior to February 2024, have the parents argued, or even suggested, that the children might be restored to the sole care of their father.

29. Further, it is significant that the casework team previously raised with the father the prospect of him caring for the children on his own, and that the father rejected that proposal: see transcript of oral evidence given by Angeline Tompsett on 5 March 2024, page 31.

30. Annexure 2 of Ms Tompsett's affidavit of 24 June 2020, contains the report of Ms Martens of 13 November 2020, which is found in Supplementary Tender Bundle at page 2830 and refers to an interview of both the parents. As at the date of that assessment, the parents only had one child, ALR, of which they were both parents.

31. At [37] she states the following:

‘[PK] expressed a hope that [ALR] would be restored to his care. He did not anticipate that he would struggle in any areas of parenting. I asked [PK] if he would consider parenting [ALR] independently if that was the advice of the courts. He stated that he has an opinion that children require both a mother and father to parent them and does not want to separate from [RC].’

32. Given the evidence that there has never been an assessment of the father's capacity to care solely for the children, the parents now seek to adjourn the matter to allow time to obtain that evidence. I note that this matter was only raised at the conclusion of the case for the parents’ evidence on 14 March 2024. I understand that it was the first time that Counsel for the Secretary and the solicitor who is the independent legal representative (‘ILR’) for the children were made aware of such application. I note that the parents have offered no explanation as to why it has taken them so long to raise the possibility that the father may care solely for the children.

33. The Secretary asserts, in anticipation that the parents may claim that the delay in raising this issue can be attributed to poor legal representation, the Court should not lightly accept that claim in the absence of evidence, particularly given the parents have retained the same lawyer for quite some time and given the issue was previously raised with the father by the casework team.

34. I accept that prior to February 2024, the parents had never suggested to the Court, or the psychologist retained in the proceedings, that the children would be restored to the sole care of their father, to the exclusion of their mother.

35. The likely course of events following that indication, if it was made earlier, would have meant that evidence could have been prepared by all parties on that issue, and the need to adjourn the hearing (after two weeks set aside for the hearing and several days of evidence) would not have arisen.

36. Given the significant amount of evidence that has already been prepared and heard in this matter, the significant delay in raising this issue, and given the likelihood that allowing further evidence will lead to a further delay in the finalisation of the proceedings, the Secretary submits it would be contrary to s 94 of the Act to allow the adjournment.

37. I agree with that submission.

38. The Secretary has contacted Ms Martens who has indicated that she could not provide a report before late May 2024, but in any event, she would want to see PK after he had had a visit with the children on his own, and without the mother being present at that visit. He has never had contact with the children on his own. This further extends the period of the proposed adjournment. She has also indicated that she would want to speak to ALR, as given she is 4 years old, Ms Martens deems her capable of being interviewed.

39. One can imagine that after those events have occurred, and if the report produced by Ms Martens supports sole parenting by the father, the parties may wish to obtain additional written reports, and may necessitate some witnesses being recalled.

40. It seems to me that the delay would be at a minimum of four months, more likely six plus months, which I do not believe is in the best interests of the children.

The risk of harm to the children

41. According to Ms Martens, her assessment of the father would involve her observing him alone with the children and involve her (Ms Martens) interviewing ALR.

42. The Secretary submits that the assessment proposed by Ms Martens carries a risk that the children will be exposed to psychological harm.

43. The Secretary submits that if a member of the casework team were provided an opportunity to give evidence with respect to the proposed assessment, the casework team would likely have indicated the following:

1. If the father is to have one-on-one visits for the first time by himself, family time would need to transition back to being supervised entirely by Barnardos, because the casework team would need a family time report to provide to Ms Martens and because the father has never had visits by himself. Accordingly, they would need proper oversight.

2. In addition, if the mother is to have visits with the children without the father present, these would also need to be supervised by Barnardos given the mother has not had visits alone with the children in the absence of the father to date.

3. A visit supervised by Barnardos would need to occur on a weekday, which would mean the father would need to take time off work.

4. It would be potentially confusing for the children to transition back to supervised contact, given the recent moves to have less supervision by Barnardos.

5. Additionally, at present, the carers play the primary parenting role within the family time visits, for example, attending to nappy changes and the like. If the primary parenting role was transitioned to the father (or the mother) this would be disruptive for the children and would be additionally disruptive if it is then transitioned back to the carers afterwards.

6. Although there are concerns about how the children would cope with these changes, there are particular concerns about ALR, given her age and history. If the changes are to be implemented, the experience with ALR to date is that she can take a long time to feel comfortable with new people because of the changes in her life.

44. I accept that further assessment involving the children carries the potential for them to experience, at best, disruption and confusion, and, at worst, psychological harm.

The evidence will not assist

45. The Secretary further submits that the proposed assessment would not assist the Court in its determination of the appeals because it is unlikely to overcome the evidentiary and other difficulties the parents already face given the evidence provided to date, including:

1. The evidence concerning the risk of harm posed by the mother to her children combined with her evidence that it is possible she will return to live with the father and the children after a period of 3 years, if the father were to have sole care of the children; and

2. The strength of the children’s attachments to their current carers and the risks of psychological harm associated with breaking those attachments.

46. In this respect, the facts of the present matter are similar to the facts in Kestle v Director, Department of Family and Community Services [2012] NSWChC 2, in which a request made for an adjournment, in similar circumstances to the circumstances of the present matter, was rejected. Those proceedings involved an application for an adjournment on the basis that further evidence was required as to the mother’s current mental and emotional health.

47. His Honour Judge Marien SC, President of the Childrens Court (as he then was) refused the application for an adjournment, indicating that he ‘was not satisfied that adjournment of the proceedings was in the best interests of the children’ nor was his Honour ‘satisfied that there was a cogent or substantial reason to grant the adjournment’.

48. In Y v The Secretary, Department of Communities and Justice (No 6) [2021] NSWDC 392 his Honour Judge Levy stated the following:

‘[940]   The appellant has had timely access to all the materials that were needed for him to make his submissions before now. At this point, his demand for a further procedural indulgence must be weighed along with the competing interests of his daughter who is experiencing mental suffering from the effects of his delaying litigation conduct. The Secretary’s interests and the public interest in achieving finality of the litigation must also be weighed and taken into account.

[941] In balancing those interests, applying the requirements of s 9(1) and s 94(1) of the Care Act, which require expeditious disposition of the proceedings with the safety, welfare and well-being of the child in mind as the paramount consideration, the appellant’s demand for a delay must be seen to be subservient to the child’s interests.

[942]   It would be an affront to the proper administration of justice to delay giving judgment in this case on the basis of the appellant’s 12 August 2021 email, or any of his earlier emails, whether considered individually or cumulatively.

[943]   In arriving at that view, due regard has been given to the overriding purpose of facilitating the just, quick and cheap resolution and disposition of the real issues in the proceedings before this Court: s 56(1) of the Civil Procedure Act 2005 (NSW) (“CP Act”)’.

49. Whilst I accept that this is a request for an adjournment for different reasons than in the present case, his Honour’s comments confirm my view that the competing interests of the father and his daughter must be considered. For reasons I have already discussed, I do not believe that an adjournment is in the interests of the children, and that there is no cogent or substantial reason to do so that would outweigh the best interests of the children.

50. I also note that the Civil Procedure Act 2005 (NSW) (‘CP Act’) does not apply to the Children’s Court, however it does provide an overriding obligation on the Court to ensure that matters are dealt with in a timely fashion.

51. I have been unable to find any further authority on s 94(4) of the Act.

CONCLUSION

52. I am of the view that the wording of s 94(4) of the Act is sufficiently firm such that only in exceptional circumstances should an adjournment be granted, and I do not believe that such circumstances have been made out. The is no explanation for why this matter had not been attended to prior to the commencement of the hearing, and I am very concerned about the impact that an adjournment may have on the children.

53. I acknowledge that Counsel for the parents submits that this is an application which is crucial to the father's case, and I accept that to be true, but it is not sufficient in my mind to warrant exercising my discretion in the terms set out in s 94 of the Act. I also note that s 90 of the Act would allow the father to come back to Court and demonstrate that there has been a significant change in circumstances, if such a change occurred, and seek a variation of the orders I make.

52. I make the following orders:

1. The application for adjournment is refused.

2. The further hearing date of 30 April 2024 is confirmed.

3. The written submissions by the appellants are to be filed and served by 5 April 2024.

4. The written submissions by the defendant are to be filed and served by 12 April 2024.

5. The written submissions by the ILR are to be filed and served by 19 April 2024.

6. Any submissions in reply, are to be filed and served by 26 April 2024.

7. All submissions are to be forwarded by email to my Associate by the relevant due date.

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Decision last updated: 22 March 2024