Re Alistair - [2006] NSWSC 411

No judgment structure available for this case.

CITATION: Re Alistair [2006] NSWSC 411
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21/04/06
24/04/06
28/04/06

JUDGMENT DATE :
12 May 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Kirby J

DECISION: (1) By consent, orders made on 24 April 2006 vacated; (2) The Summons is dismissed; (3) The Director-General should pay the costs of each of the other parties.

CATCHWORDS: Appeal against Magistrate's ruling - whether finding that child needs care can be re-examined - whether res judicata or issue estoppel - issues in Children's Court proceedings - establishment and welfare stages - whether error in discretion - whether remedy - certiorari - whether jurisdictional error or error on face of record - only ultimate determination.

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998
Farmily Law Act 1975 (Cth)
The Children Act 1989 (UK)
Supreme Court Act 1970

CASES CITED: In Re B (Minors) (Care Proceedings: Issue Estoppel) (1997) 3 WLR 1
In Re O & Anor (Minors) (Care: Preliminary Hearing) (2003) 2 WLR 1075
Re Fernando & Gabriel (2001) 53 NSWLR 494
Blair v Curran (1939) 62 CLR 464
Director-General, Department of Community Services v Dessertaine (2003) 31 FamLR 55
Acuthan v Coates (1986) 6 NSWLR 472
Director-General NSW Department of Community Services re Peter [2002] NSWSC 679
M v M (1988) 166 CLR 69
House v The King (1936) 55 CLR 499
Craig v South Australia (1995) 184 CLR 163
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
ASIC v Farley (2001) 51 NSWLR 494
DIMIA v Hanna [2004] NSWCA 275
Hargrave v Slater (2000) 113 A Crim R 371
R v Northumberland Compensation Tribunal; Ex Parte Shaw [1952] 1 KB 338
Plaintiff S157/2005 v Commonwealth of Australia (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82
Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of NSW in Court Session (2004) 60 NSWLR 602
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246

PARTIES: (Pl/Appl) Dept of Community Services
(1st Def/1st Resp) The father
(2nd Def/2nd Resp) The mother
(3rd & 4th Defs/3rd & 4th Resps) The children
(5th Def/5th Resp) Children's Court of NSW

FILE NUMBER(S): SC 2006/11737

COUNSEL: (Pl/Appl) R J Bromwich
(1st Def/1st Resp) R M Sweet
(2nd Def/2nd Resp) M J Hogg
(3rd & 4th Defs/3rd & 4th Resps) S W Ogilvy, sol
(5th Def/5th Resp) Not Represented

SOLICITORS:
(Pl/Appl) I V Knight
(1st Def/1st Resp) Mitchell Lawyers
(2nd Def/2nd Resp) Marion Rose & Co.
(3rd & 4th Defs/3rd & 4th Resps) Garden & Montgomerie
(5th Def/5th Resp) Not Represented

LOWER COURT JURISDICTION: Children's Court of New South Wales

LOWER COURT FILE NUMBER(S): 3/2005
4/2005
5/2005
6/2005

LOWER COURT JUDICIAL OFFICER : Flood LCM

LOWER COURT DATE OF DECISION: 02/27/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

David Kirby J

Friday 12 May 2006

(2006/11737) Re Alistair

JUDGMENT

1 KIRBY J: Application is made by the Director-General of the Department of Community Services ("the Department") for an order prohibiting Mr Sean Flood, a Local Court Magistrate, from receiving certain evidence in proceedings which are currently before the Children's Court at Young. The evidence should not be received, it was said, because there was a judgment, or at least an issue estoppel which operated to prevent its reception. The application was said to be urgent. The proceedings were due to recommence on 1 May 2006. Three weeks had been set aside.

2 Before going to the arguments, let me say something about the background to the application.

Background.

3 The matter involves allegations of sexual abuse against a young child. It concerns a family with a number of children. By order of James J the children have been provided with pseudonyms to preserve their anonymity (s105(1) Children and Young Persons (Care and Protection) Act 1998) ("the Act"). I will refer to the mother as "Ms F" and the father as "Mr D". The child, said to have been abused, will be referred to as "Yasmine".

4 The parents of Yasmine began their relationship in approximately 1994. The mother had a number of children from a previous relationship, including a son who will be referred to as "Bill". Bill was born in 1990. The first child of Ms F and Mr D, a son (known by the pseudonym "Alistair"), was born in 1996. Yasmine was born in April 1998. There were two further daughters born, respectively, in 1999 and 2001.

5 The parents separated in 2001, but thereafter resumed cohabitation. However, their relationship ended in approximately October 2004. The children remained with the father. The mother saw them from time to time. In January 2005, the father made a complaint to the police at Young concerning Ms F's son Bill. He alleged that Bill had sexually assaulted Yasmine. Yasmine was then aged six years. The complaint was referred to a specialist unit at the Wagga Wagga Police Station which dealt with such allegations.

6 In March 2005, the mother was given access to the children overnight. However, she did not return the children the next day, as required. On 21 March 2005, Mr D instructed solicitors to apply to the Local Court at Young for a Recovery Order under the Family Law Act 1975 (Cth). The hearing was fixed for the following day.

7 On the same day, 21 March 2005, at 1.27 pm, the specialist unit from the Wagga Wagga Police Station interviewed Yasmine concerning the allegations against Bill. Yasmine described events at Byron Bay from the year before, 2004. Bill had put his penis between her legs. She was dressed when this occurred. She said his penis did not touch her skin. He lay on top of her for a few minutes (Q255). She said she told her father when they were in Cairns (Q285).

8 The police, in the same interview, asked Yasmine about her relationship with her father. The father was then separated from the mother. Yasmine said that she sometimes slept in the same bed as her father (Q325). The transcript included the following: (Ex A: p117/8)

"Q327 ... I'm not saying that you shouldn't sleep with Dad but it's just if he was to touch you or something, that's, that's what I'm asking you about, OK? But you, nothing like that's happened ...
A. Yeah.

Q328 Nothing has?
A. Only, no. Nothing happened except that happened.

Q329 Yeah. What happened?
A. What I told you just then.

SENIOR CONSTABLE COX
Q330 With (Bill)?

DETECTIVE SENIOR CONSTABLE JORGENSEN
Q.331 With who?
A. Yeah."

9 Yasmine added that she liked living with her father (Q345/6).

10 Bill was interviewed immediately after Yasmine (at 2.48 pm). He was then 14 years old. He readily acknowledged the truth of her accusations. He said that he had done something to Yasmine at Byron Bay that he should not have done (Q50). It happened on "maybe three" occasions (Q57), some years before. He did not have an erection. There was "skin to skin" touching (Q220). However, he added that he was only doing to Yasmine what he had seen his stepfather do.

11 The police then questioned Bill about his observations concerning his stepfather. He described an occasion when he heard a noise in the big bedroom. He looked through a crack in the door. He saw that Yasmine had no clothes on and his stepfather had his pants below his knees (Q74). He said Yasmine was underneath (Q108) and he was on the bed rocking (Q76).

12 The following day, March 22 2005, the father's Recovery Action came before the Local Court at Young. According to an affidavit from the father, Ms F made an allegation in the course of those proceedings that he had abused their daughter Yasmine (Ex A: p199). She had never previously made that allegation. An order was, nonetheless, made by Mr Moon, Local Court Magistrate, that the children, including Yasmine, should be returned to their father.

13 The proceedings concluded at about 12.30 pm. Shortly after, at about 1.30 pm, the Court order was served upon the mother by the local police (Ex A: p8). At about the same time, the mother took Yasmine to a person running the refuge where she was staying, saying that Yasmine had something to say. Yasmine then said, in substance, that she had been sexually abused by her father. Detective Jorgensen, attached to the specialist unit at Wagga Wagga, was called. A further interview with Yasmine was arranged. It began at 4.31 pm that afternoon. Yasmine said that she had not said anything in her previous interview because she thought "you'd laugh" (Ex A: p130). She described conduct which began when she was about four. Her father had been "naughty". He had put "his penis near my wee wee" (Q67). He lay on top of her. He had removed her pants and put his tongue on her vagina a number of times. He twice told her not to tell anyone.

14 The father was contacted. He was asked to attend the Young Police Station. He did so at approximately 6.00 pm. He assumed that the children would be returned to him, pursuant to the Recovery Order made that morning. Instead, he was arrested and charged with four offences in relation to Yasmine. He was refused bail.

15 The arrest of Mr D created a difficulty in respect of the care of the children. The Department was notified. Mr David Shepherd, the Case Work Manager, assumed the care of the children on behalf of the Minister (s44 of the Act). The girls were permitted to remain with their mother overnight. Alistair (the oldest child) was, after investigation, allowed to remain with a family friend.

16 The next day, 23 March 2005, an application was made by the Department to the Children's Court for an Emergency Care Order (s45). As it happened, the application came before the same Magistrate, Mr Moon. Mr Moon expressed concern about Ms F, the mother of the children, based upon allegations made by the father in the Recover Action. His Honour made an Emergency Care Order, adjourning the matter until 4 April 2005. He directed that the children should not be placed in the care of the mother, pending the Department's investigation of the allegations made by the father.

17 The same day, the 23rd March 2005, the father was brought before the Wagga Wagga Local Court. A facts sheet, incorporating the allegations of Yasmine, was placed before the Court (Ex A: p5). It stated that "the accused has maintained his innocence". Bail was again refused. The father was held in the cell complex at the Wagga Wagga Police Station. At approximately 3.00 pm that day, Detective Senior Constable Jorgensen went to the cells with Detective Senior Constable Louisa Cox. She intended to provide material from the Department concerning the care application, as well as a leaflet relating to Cedar Cottage, "a pre trial diversion programme". According to her statement made the next day, the father responded with these words: (Ex A: p180)

"... That's what I want to talk about, I don't want to go to gaol, if there is anything I can do, I'll do it, I don't want my little girl to go to Court, I love her, I love them all. I'll tell you everything. I want to be a eunuch, you know chemically castrated. I need to see a psychiatrist about it so I can get it done and if they won't do it I will go to India and be made a eunuch and then I will be safe to be around my children. I've been thinking about this for a long time, it is the only way to stop me because I have a real thing about sex, it is not just children it is women in general, ask (Ms F), she knows I've talked to her about it."

18 He added:

"... What you wrote that was read out in Court, it wasn't like that, buttocks going up and down and things, I blow raspberries on my daughters wee wee. I crossed the line but I didn't hurt her. I'm a victim too ..."

19 The father then described having himself been abused as a child. He briefly outlined what had occurred. He agreed to be interviewed, adding:

"... I'll tell you everything. I want to break this cycle, I don't want my little children to end up like me."

20 Detective Jorgensen also claimed that the father said that his allegations against the mother the previous day were not true. She had her faults but "was a great mother".

21 The account given by Detective Jorgensen was corroborated by Detective Cox, as well as the person in charge of the cells, Mr Stephen Orr. Mr Orr made a note of the conversation immediately after it occurred. He said that he was shocked by the openness of Mr D. He appeared to be truly sorry for his actions. Indeed, his conversation was overhead by other inmates who began calling out. He was called a "rock spider". Mr Orr became concerned for his safety. He telephoned the Superintendent at the Junee Prison, recommending that Mr D be placed in protection.

22 Mr Orr said, however, that Mr D's mood changed the following day. He became angry and abusive. He no longer wished to be interviewed. He told the Detectives, as set out in the statement of Senior Constable Louise Cox: (Ex A: p193 para 18)

"I am an innocent man. I have done nothing wrong. All I did was blow raspberries on my daughter's tummy."

23 Mr Shepherd from the Department, meanwhile, had observed the mother's conduct at the police station over a number of hours shortly before Mr D's arrest. He had been favourably impressed. Nonetheless, Magistrate Moon, having expressed misgivings on 23 March 2005, arrangements were made for the three daughters (including Yasmine) to be placed in the care of their grandparents, Mr D's father and mother. Mr Shepherd was then provided with the statement of Detective Jorgensen. The statement, as mentioned, included a withdrawal of allegations by Mr D against Ms F. The Department then permitted the children to return to the mother (Ex A: p41).

24 On 30 March 2005, the father again appeared before the Wagga Wagga Local Court. Bail was again refused.

The Care Application.

25 On 1 April 2005, the Department filed an application to the Children's Court seeking an Interim Order for the allocation of parental responsibility for the children to the Minister. The form makes provision for the final orders which will be sought. They were described in these terms:

"I hereby make application to the Children's Court for the following final orders:

1. A finding that the child (Yasmine) is in need of care and protection.

2. An Order pursuant to Section 79 of the Act allocating the parental responsibility of the child.

3. Such further Orders as the Court deems appropriate."

26 The form made provision for the grounds to be specified, reproducing the grounds which appear in s71 of the Act. The application ticked the following ground, corresponding to s71(1)(c):

"the child or young person has been, or is likely to be, physically or sexually abused or ill-treated."

27 Applications in similar terms were made in respect of Alistair and the other children.

28 On 4 April 2005, the matter came before the Cootamundra Children's Court. It was adjourned for hearing on 17 May 2005 to the Young Local Court. The father was still in custody. Arrangements had been made for him to attend that hearing. An Interim Order was made allocating parental responsibility to the Minister. The Minister, upon undertakings being given, permitted the children to remain in the care of the mother, with access to the father's parents at specified times. It was a condition that Ms F's son, Bill, should not reside with the mother. Arrangements were made for him to reside with his maternal grandmother in South Australia (Ex A: p54).

The Hearing on 17 May 2005.

29 The care application came before his Honour, Mr Dowd, an experienced Local Court Magistrate at Young, on 17 May 2005. The Department, the mother, the father and the children were separately represented. The Department had filed a number of affidavits. They included an affidavit from Mr Shepherd, who had been in charge of the case in its early stages, and an affidavit by Ms Tanya Wallace, who had assumed responsibility for the application. They described the history and annexed a number of documents. The documents included the police facts sheet, the interviews with Yasmine and Bill on 21 March 2005, the further interview with Yasmine on 22 March 2005, as well as the statements of Detectives Jorgensen, Cox and Mr Orr. An affidavit was also sworn by the father. He recounted the circumstances of his arrest. He denied any wrongdoing.

30 Mr Dalla, appearing for the Department, identified the issue in these terms: (Ex A: p206)

"Your Honour, the department is seeking a finding that the children are in need of care and protection, and the basis for that finding your Honour is s71(1)(c)."

31 Whether the children need care and protection is a threshold issue. It must be established as a matter of probability before a final Care Order can be made. It is sometimes referred to as "the establishment issue", borrowing a phrase from previous legislation. I shall have more to say about the structure of the Act shortly. Mr Ogilvy, solicitor, appearing for the children, consented to that finding. Mr Nicol, appearing for the mother, said that he had instructions to consent to an Interim Order. His Honour then reminded Mr Nicol that, in effect, what was being sought was in the nature of a final order. The following exchange took place: (Ex A: p207)

32 His Honour then invited the father's representative, Ms Campbell, to indicate her client's attitude. The transcript is in these terms: (Ex A: p208)

"CAMPBELL: Yes your Honour, my client of course is in a difficult position, not - without any admission, the issue is in fact before the criminal Courts being defended, it's possible this issue may disappear. We are, my client quite sensibly has stood back and said at the moment these children are in need of care, pursuant to (c), but not for the reasons of course my friends are going to be alleging. He believes that they're in need of care because in the event that the mother's allegations are found to be false, it is as abhorrent as if the possibility that he has done anything, and therefore the children are at risk with her."

33 Shortly thereafter, the following exchange occurred: (Ex A: p208/9)

"DALLA: ... a person can consent to a finding but the material, without any admissions ...
HIS HONOUR: That's right.
DALLA: ... but that does not mean that the material that is contained in the department's case is not advanced at any stage.
HIS HONOUR: No. It's quite obvious that everybody that appears in care matters has got a different interest, and they may all agree that a child, or children, are in need of care for different reasons and the Court's finding, if it's a by consent finding, as seems to be the case now, is not predicated specifically by any particular issue at this particular stage.
CAMPBELL: That's exactly right, we don't have the establishment version in the ACT from whence we come, but however, understand that. ..."

34 Other issues were then discussed. Ms Campbell (Ex A: p219) referred to the confession by "the boy" (referring to Bill) that he had sexually abused Yasmine. An order was sought that Bill not be returned to the family. The proceedings culminated with his Honour stating the following: (Ex A: p220)

"HIS HONOUR: By consent I make a finding of care. I note the affidavit of (Bill) now been filed in Court, similarly the affidavit of Judy Jorgensen. I make interim orders as follows:

1. The matter is to stand over to 6 June next.

2. The department is to circulate a draft request for a Children's Court assessment report by 27 May.

3. Any response to that draft request is to be back with the department by 1 June.

4. The department is to file and serve all the appropriate documents by 4 June.

5. Section 86 contact with the paternal grandparents is to be each Thursday from 3.30 pm until 6.00 pm. Such contact to be supervised and otherwise additional contact, as arranged.

6. Any material required to be placed before the Children's Court Clinic by any of the parties is to be filed and served by 1 June, otherwise interim order in relation to the parental responsibility to the Minister, as before."

35 The orders made by his Honour were designed to elucidate the form of the Final Care Orders which should be made. The Registrar embodied these orders in a formal document, in accordance with the usual practice. The printed form included the following directions: (Ex A: p24)

"The Children's Court orders as follows: ( Distinguish between Final & Interim Orders) "

36 There followed the following orders:

"By Consent finding of Care made;

Interim Orders

1. Stood over to 6/6/2005 Cootamundra.

2. DOCS to evaluate draft request for Child Care Assessment report by 27/5/2005. ..."

37 The orders then reproduced, in an abbreviated form, each of the six orders set out above. The undertaking that Bill would not return to the mother's house was noted. It will be noticed that his Honour's order that the children were in need of care was separated from the interim orders which followed. It was, according to the Department, plainly a final order, in the nature of a judgment. If it did not give rise to a res judicata, it gave rise, at the very least, to an issue estoppel. No further evidence as to the need for care could, according to the Department, be entertained in these proceedings.

38 The case did not proceed at Cootamundra on 6 June 2005. There were a series of adjournments occasioned, in some cases, by the need for particular Magistrates to disqualify themselves, having been involved in the criminal proceedings concerning the father, or bail applications by him.

39 On 24 November 2005, after a committal lasting several days, the father was committed for trial on a number of charges based on the allegations of Yasmine. He was given bail. It is alleged that, whilst on bail, he committed further offences on 26 November 2005 which involved children. He has since been charged with procuring a child for the purposes of pornography and indecent assault. The charges do not concern his own children. They have not yet been dealt with. Before the charges were laid, he had been permitted contact with his son, Alistair. In January 2006 however, that permission was withdrawn.

The Hearing in February/March 2006.

40 The Care Application, meanwhile, came before his Honour Mr Sean Flood, a Magistrate specialising in proceedings before the Children's Court. Mr Sweet of counsel, on this occasion, appeared for the father. A document was filed on behalf of the father identifying the final orders which were sought (Ex D1). The application presupposed the determination on the threshold issue under s72(1). The father sought that parental responsibility for the children should be given to the Minister jointly with his parents (the paternal grandparents) or, alternatively, that parental responsibility for Alistair be given to him as father, and in respect of the female children, to the Minister and the paternal grandparents. The father also sought contact with the children each Saturday or, alternatively, supervised contact (s86). A number of other orders were sought, including an order restraining the mother from taking the children out of the state. The mother came from South Australia, where her mother still resided. Pursuant to the undertaking given to Magistrate Dowd, Bill had resided for some time in South Australia. Notwithstanding that undertaking, the mother had gone with the children to South Australia to visit her mother. She said she had done so because she had suffered an injury and was in need of assistance.

41 In the course of the hearing before Magistrate Food, Mr Dalla (for the Department) made the following statement, presumably reflecting discussions with counsel for the father: (Ex A: p239)

"DALLA: Well your Honour, firstly one issue that needs to be determined by this Court is whether any party is allowed to go behind the finding."

42 The following exchange then occurred:

"HIS HONOUR: Yes, well they're not allowed to and nobody's challenging that.

SWEET: There's no finding your Honour."

43 The Court then began looking at the finding made by Magistrate Dowd on 17 May 2005. Counsel for the father moderated his position, by acknowledging that there had been a finding. However, he added:

"... There was an agreement amongst the parties, on my instructions by consent, on an interim basis that the children were in need of care and protection. ..."

44 As the matter was debated, counsel for the father refined his argument further. Referring to the material annexed to the Department's affidavits, asserting sexual abuse of Yasmine by both the child, Bill, and the father, counsel said this: (Ex A: p258)

"... If an order was made by consent, which it was, stating that the children were in need of care your Honour would be unable to determine why it was or what constituted the grounds of consent to that particular order."

45 Counsel for the father submitted that no reasons had been given by Magistrate Dowd on 17 May 2005. No findings had been made. All that had occurred was an order by consent. Magistrate Flood then said this: (Ex A: p269)

"... I am of the view that even without deciding the issue estoppel question, that the exploration of issues regarding the natural father's situation of facing charges of sexual impropriety with (Yasmine) and other charges is central. It is pivotal to the question involving really this question of placement because ultimate placement is either with, at this stage, (the mother) ... or with the paternal grandparents or with neither. ..."

46 Having referred to a decision of another magistrate (quoting the English authority In re B (Minors) (Care Proceedings: Issue Estoppel) (1997) 3 WLR 1), his Honour then made a ruling. He said this: (Ex A: p273)

"... there was no strict rule of estoppel binding on any of the parties in children's cases and as he says the Court has a discretion to decline to allow a full hearing of the evidence in relation to matters decided in previous proceedings. I'm of the view that I will not exercise that discretion to decline a full hearing. I will allow scope to those who are concerned about this issue to give relevant evidence so that the Court itself can make an informed decision and ruling in the context of placement ... and contact ..."

47 Counsel for the father was invited to identify the witnesses he required. The witnesses he identified were, in most cases, witnesses who had been previously called in the committal proceedings, the police, the prison officers (including Mr Orr) and "three or four prisoners". He also required the officers from the Department. The matter proceeded, calling the officers from the Department.

48 On 2 March 2005, his Honour then provided reasons for the ruling which he had previously made. The transcript of the hearing before Mr Dowd on 17 May 2005, when the establishment finding was made, was not available. His Honour extracted the headnote in Re B (Minors) (supra), which he accepted as a statement of the principles to be applied. The headnote is in these terms:

"... that there was no strict rule of issue estoppel binding on any of the parties in children's cases, although the court had a discretion to decline to allow a full hearing of the evidence in relation to matters decided in previous proceedings; that where one party in a case concerning children wished to rely on, and another party to challenge, findings made in previous proceedings the court might wish to be made aware of those findings and of the evidence on which they were based before deciding whether to exercise its discretion to allow any issue of fact to be tried afresh; that, in exercising that discretion, the court would balance the underlying considerations of public policy that there was a public interest in an end to litigation, that delay in determining the case was likely to be prejudicial to the interests of the child concerned, that the child's welfare was unlikely to be served by reliance upon determinations of fact which turned out to have been erroneous, and that the court's discretion must be applied so as to work justice; that the court would also consider the importance of previous findings in the context of the current proceedings and whether there was any reason to think that a rehearing of the issue would result in any substantially different finding, having regard to whether the previous findings had been the result of a full hearing and if so whether there was any ground on which their accuracy could have been appealed at the time, and whether there was any new evidence or information casting doubt on their accuracy; and that, accordingly, the father would not necessarily be bound by the finding of sexual abuse made in the previous proceedings. ..."

49 His Honour then surveyed the material relied upon by the Department to establish the need for care and protection: the police facts sheet, the records of interview with the complainant and with Bill, the confession said to have been made by the father to the police and the supporting evidence of the prison officer. His Honour then said this: (Ex A: p431)

"That was the primary affidavit and the only evidence placed before the magistrate sitting in the Children's Court in Wagga on 17 May 2005."

50 It was common ground on this application that his Honour, in this respect, was mistaken. As mentioned, an affidavit (of 17 May 2005) (supra para 29) by the father had also been filed and was before Magistrate Dowd. I will refer to the terms of that affidavit shortly.

51 Returning to the judgment of his Honour, reference was made to other evidence, including the answers provided by Bill and Yasmine in their various interviews, after which his Honour said this: (Ex A: p435)

"I had also read a number of affidavits that had been filed by the father and it was apparent and completely clear that the allegation that he had sexually abused (Yasmine) was denied and was heavily contested."

52 His Honour then reaffirmed his view that there was no strict rule of estoppel, adding the following: (Ex A: p435/6)

"The previous proceedings that are fundamental here are the proceedings on 17 May 2005 known as the establishment proceedings, and I, at the outset, decided that in the exercise of my discretion having regard to all of the material including both interviews with (Yasmine) and also having in mind the interview with (Bill) where he clearly says he saw his stepfather behaving in a sexually inappropriate way with (Yasmine) that procedural fairness would require the Court to allow a full hearing of all issues including a re-canvassing of establishment. ... "

53 Before concluding the judgment, his Honour expressed the need to examine the transcript of 17 May 2005 when Magistrate Dowd made the establishment finding. One of the parties produced a document which purported to record the discussion. It was plainly not the official transcript, as everyone recognised. Nonetheless, believing it to be accurate, part of the discussion was incorporated into the judgment. The document, in fact, was inaccurate, wrongly attributing to Ms Campbell (then appearing for the father) certain things in fact said by Mr Dalla, for the Department. His Honour concluded his judgment as follows: (Ex A: p439)

"I note that both prior to establishment, in what transpired to be an interview situation, the father made certain admissions to the police officer and the following day denied having made those admissions. That material of his second denial was not before the Court on the day of establishment and it is enlightening, or I think throws a light on the magistrate's approach to it, that he deliberately did not make a finding pursuant to s71(1)(c) because it had been clearly flagged to him that that ground was not admitted as a ground at large except that it was admitted to the extent that as set out by Miss Campbell - and I will not repeat what she had to say - there was a real contest between the parties as to whether or not the ground was established in terms of the father's alleged sexual abuse of his daughter (Yasmine).

I am clearly of the view that in this case I am not estopped and I find against the submission made by the learned representative of the Minister."
(emphasis added)

54 That passage repeated the same error earlier referred to. It was common ground on this application that the father's denial of the admissions was before Magistrate Dowd, both in the statement of Senior Constable Louise Cox and the father's own affidavit (being para 8 of the affidavit of 17 May 2005 (Ex A: p199)).

The Issues.

55 The Director-General, on behalf of the Department, sought to set aside the judgment of his Honour, Magistrate Flood, upon three bases. Paraphrasing the argument, they were:

· First, that the finding of Magistrate Dowd, under s72(1), that the children were in need of care and protection, was final. It was in the nature of a judgment attracting the principle of res judicata. Alternatively, there was an issue estoppel which prevented a re-examination of that issue.

· Secondly, if that be wrong, and there was a discretion to permit a re-examination of the issue of care, res judicata/issue estoppel applied on the particular facts and circumstances of the case before his Honour. No material had been identified justifying a re-examination of that issue.

· Thirdly, alternatively, the discretion miscarried by reason of his Honour mistaking the facts and allowing irrelevant considerations to guide his judgment.

56 The mother and the children, through their legal representatives, supported the Director-General's position. Counsel for the father opposed the making of an order. It was said by the father that he was not seeking to set aside the establishment finding. That finding, upon proper analysis, was referable to the allegations against Bill, not the father. Having regard to the issues of parental responsibility and contact between the children and their father which remained, the discretion had not miscarried.

57 I will briefly examine the Act before dealing with the arguments.

The Structure of the Act.

58 The Act, as the title suggests, is an Act for the care and protection of children and young persons. Section 8 identifies the objects of the Act, which include:

"s8(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, taking into account the rights, powers and duties of the parents ..."

59 The principles which are to guide the administration of the Act, and decisions under the Act, are identified in s9. They include:

"s9(a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents."

60 However, in deciding what action is necessary to protect the child:

"s9(d) ... the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development."

61 Chapter 5 of the Act deals with Children's Court proceedings. Provision is made for emergency care, as was required in this case (s43). There is an obligation upon the Director-General to make application promptly for orders, including emergency care and protection orders (s45).

62 Part 2 of Chapter 5 deals with Care Applications. A Care Application is an application for a care order. A care order is defined in these terms:

"s60 ...
care order means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86."

63 An application for a care order is a formal document. It serves to inform the Court and the parties of the care order which is sought and the grounds upon which it is sought (s61(2)). The application is made by the Director-General, unless the Act otherwise provides (s61(1)). Once made, the care orders can only be amended with the leave of the Court (s61(3)). Once served, the Registrar arranges a preliminary conference unless he believes it inopportune (s65(2)). The aim is to identify areas of agreement and disagreement and the means by which the areas of disagreement may best be resolved. The Act provides for alternative dispute resolution.

64 Inevitably, in many cases it is necessary for the application to be determined by the Court. Once that becomes necessary, there begins a two stage process. Both aspects, it should be emphasised, may be dealt with in the same hearing. There is what is termed "the establishment phase". It is followed by what is sometimes termed "the welfare phase" (cf In re O and Anor (Minors) (Care: Preliminary Hearing) (2003) 2 WLR 1075, per Lord Nicholls of Birkenhead, at 1080).

65 The establishment phase involves a determination of the need for care and protection, such as to warrant the intervention of the Court. It is a threshold issue. Lord Nicholls of Birkenhead in Re O (Minors), in the context of similar although not identical legislation in England (the Children Act 1989), said this: (p1080 para 14)

"... The purpose of this threshold requirement is to protect families, both adults and children, from inappropriate interference in their lives by public authorities through the making of care and supervision orders."

66 Section 71 sets out the grounds for the making of a care order. The section is introduced by the following words:

" s71 Grounds for care orders

(1) The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any of the following reasons:"

67 There follows seven grounds, including, relevantly, in the context of this case, the following ground:

"(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated, "

68 The Act then defines the determination which must be made:

" s72 Determination as to care and protection

(1) A care order in relation to a child or young person may be made only if the Children's Court is satisfied, on the balance of probabilities, that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection:

(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders)."

69 Only once that determination has been made, can the Court give consideration to final orders which will safeguard the child or young person. That is the second phase, the welfare phase. Interim orders may be made in the meantime (ss69, 70; Re Fernando & Gabriel (2001) 53 NSWLR 494, per Bell J). In preparation for the final orders the Director is obliged to prepare a care plan (s78) in consultation with and, as far as possible, with the agreement of the child or young person and his or her parents (s78(3)). The care plan must make provision for the following:

"s78(2) The care plan must make provision for the following:

(a) the allocation of parental responsibility between the Minister and the parents of the child or young person for the duration of any period for which the child or young person is removed from the care of his or her parents,

(b) the kind of placement proposed to be sought for the child or young person, including:

(i) how it relates to permanency planning for the child or young person, and

(ii) any interim arrangements that are proposed for the child or young person pending permanent placement and the timetable proposed for achieving a permanent placement,

(c) the arrangements for contact between the child or young person and his or her parents, relatives, friends and other persons connected with the child or young person,

(d) the agency designated to supervise the placement in out-of-home care,

(e) the services that need to be provided to the child or young person."

70 Specific provision is made in respect of the allocation of parental responsibility, or specific aspects of that responsibility. It may be allocated to one parent to the exclusion of the other, or to a suitable person, or to any of them and the Minister jointly. The aspects of parental responsibility that may be allocated include where the child or young person should live, contact with others, including parents, his or her eduction, religious upbringing and medical treatment.

71 Of particular relevance in this case, in terms of the final orders, is the power to make "a contact order". The Act makes the following provision:

" s86 Contact orders

(1) If a child or young person is the subject of proceedings before the Children's Court, the Children's Court may, on application made by any party to the proceedings, do any one or more of the following:

(a) make an order stipulating minimum requirements concerning the frequency and duration of contact between the child or young person and his or her parents, relatives or other persons of significance to the child or young person,

(b) make an order that contact with a specified person be supervised,

(c) make an order denying contact with a specified person if contact with that person is not in the best interests of the child or young person.

(2) The Children's Court may make an order that contact be supervised by the Director-General or a person employed within the Department only with the Director-General's or person's consent.

(3) An order of the kind referred to in subsection (1)(a) does not prevent more frequent contact with a child or young person with the consent of a person having parental responsibility for the child or young person.

(4) An order of the kind referred to in subsection (1)(b) may be made only with the consent of the person specified in the order and the person who is required to supervise the contact."

Res Judicata or Issue Estoppel?

72 As set out above, the primary submission of the Director-General was that the finding of the Court under s72(1) that Alistair and each of the other children were in need of care and protection was final. It could not later be traversed. It was a judgment, or at the very least, gave rise to an issue estoppel (Blair v Curran (1939) 62 CLR 464, per Dixon J at 531/2).

73 Here, there can be little doubt that, at the hearing before his Honour, Mr Dowd, on 17 May 2005, his Honour made, with the consent of the parties, what purported to be a final determination of the threshold issue under s72(1). He then made orders designed to advance the second phase, the welfare phase.

74 However, in making his determination, his Honour did not give a judgment. He made no findings, as such. It is said by the Director-General that a judgment and findings were unnecessary (cf Director-General, Department of Community Services v Dessertaine (2003) 31 FamLR 55, para 51; cf Acuthan v Coates (1986) 6 NSWLR 472, per Kirby P; Director-General NSW Department of Community Services re Peter [2002] NSWSC 679, per O'Keefe J). The application contained only one ground (s71(1)(c)). Each of the parties, the mother, the father and the children, consented to the application. The consent was expressed to be without admissions on the part of the father. It was also without admissions by the mother. Mr Nicol, appearing for the mother, made the following statement immediately before his Honour made the finding of care (Ex A: p220).

"NICOL: Your Honour, I should for the record say that there is no admission that the child was interfered with, (Bill) has interfered with any of the children inappropriately.

HIS HONOUR: Yes, I note that Mr Nicol."

75 Mr Sweet of counsel, on behalf of the father, submitted that, since the father denied wrongdoing, and the child acknowledged wrongdoing, the Magistrate's finding must be a finding based upon the admitted wrongdoing of the child. It could not reasonably be taken as being related to any wrongdoing of the father. However, a number of observations should be made about that submission. First, when counsel then appearing for the father signified her client's consent before Magistrate Dowd, that limitation was not identified. Indeed, the basis of consent which was identified was as follows: (Ex A: p208)

"... He believes that they're in need of care because in the event that the mother's allegations are found to be false, it is as abhorrent as if the possibility that he has done anything, and therefore the children are at risk with her."

76 Secondly, the position of the father and that of the child, Bill, cannot be differentiated in the way suggested. Yasmine had made allegations against both. Each was said to have made admissions, Bill to the police in the record of interview, and the father to police in the presence of a prison officer. The legal representatives of each said at the hearing that consent to the s72(1) finding was "without admission".

77 In a busy Children's Court, where the Act encourages informality (s93), extensive reasons are not required. There is no summons before this Court to set aside his Honour's finding. Yet, it was not entirely satisfactory that the position should be left to inference. The material concerning the alleged sexual misconduct was confined to the child Yasmine. One must infer that each party was acknowledging, without admission in the case of the mother and the father, that, in the case of Yasmine, the Director could establish, as a matter of probability, that she had been sexually interfered with both by Bill and the father. In the case of the other children, the Director could only rely upon inference, drawn from the conduct of the father and Bill towards Yasmine. Upon that basis it must be taken that the parties were consenting to a finding, without admission in the case of the father and the mother, that the remaining children were likely to be sexually abused, absent an order for care.

78 A perceptive article was published by Children's Court Magistrate, John Crawford, in the Children's Law News "The Threshold Test: Limited Concessions by the Parents that a Child is in Need of Care" ((2003) 8 CLN 11). After a review of the Act and a number of English authorities, Mr Crawford identified the following propositions relevant in this context: (at 22/23)

"1. It is not inconsistent with the 'paramount interest' principle that a finding be made on limited grounds consistent with concessions made by parents. It is not every case that requires a determination to be made on every possible ground.

2. Where the threshold test is adequately met by the parent's concession then there seems less support for the need to call full evidence where the result of the receiving such evidence will have little or no real impact on the outcome of the case.

3. Whether a full hearing is embarked upon or not is a matter of judicial discretion and a party cannot insist on leading evidence once the threshold test has been met by the concession.

4. Where there is an important factual issue that goes to the nature of the final order (or is central to case planning for the child) then the court will be slow to preclude the Authority (and presumably other parties) from leading evidence. It does not necessarily follow however that the resolution of disputed facts can only be (or is best resolved) at the threshold stage. Factual disputes will be required to be determined also in the context of a placement hearing. It is essentially a matter of discretion for the court to determine the stage in the proceedings that a particular factual dispute then relevant need be resolved. The court does have however, to be alert to any adverse consequences that can flow from a decision on an important matter being delayed or remaining unresolved (such as in Re D above)."

79 Here, the fourth principle was of especial relevance at the "establishment" or threshold stage on this application. As his Honour, Magistrate Flood, later observed, the issue of whether the father had sexually abused Yasmine or was likely to abuse the other children, lay at the heart of issues which would arise in the second phase, that is, the issues of parental responsibility and contact (and the terms of such contact if granted). Nonetheless, as Mr Crawford pointed out, there was no need, necessarily, to resolve those issues at the threshold stage, provided the Court was satisfied, as a matter of probability, upon one of the grounds specified in s71(1), that care and protection was required.

80 Dealing, then, with the Director-General's first submission, that the principle of res judicata or issue estoppel prevented the Court from again looking at the establishment issue, it was submitted that this Court should not follow Re B (supra) upon which the learned Magistrate relied. Re B was concerned with different legislation, such that it would be perilous, in the submission of the Director-General, to transpose to the New South Wales Act a rule developed in a different context. Certainly, there are differences between the New South Wales Act and the English statute. However, there are also similarities. Both provide that the safety and the welfare of the child or young person is paramount. Each has adopted a two stage inquisitorial process designed to expose what is best for the child.

81 Here there was no res judicata. There had been no previous proceedings where judgment had been entered or a final order made. The entire claim had not been dealt with. The care application before Magistrate Flood was the same application that was before Magistrate Dowd (cf Blair v Curran (supra) per Dixon J at 531/2). In the course of a hearing, where a ruling or determination is made, it is open to the Court, before final judgment, to revisit the issue if there is a proper basis for doing so. Further, there was no issue estoppel, for the reasons given in Re B (supra). The order under s72(1) was not an order from which there was an appeal, as the Director acknowledged. Any right of appeal comes at the end of the process, once final orders have been made (s91). The proceedings remained inquisitorial until the final orders, they being orders seeking an outcome in the best interests of the child. As Hale J (as she then was) said in Re B: (at 12)

"... (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; ..."

82 Mr Crawford, in the same article made the following observation, consistent with this view. He said: (at 12)

"The purpose of a 'threshold test' is to provide a safeguard against excessive and unwarranted intervention by the State into the lives of parents and children. Cases where intervention has occurred that is unjustified are sifted out. It is a step in a process that often commences with a report being made and ends with the making of an appropriate court order (and the monitoring of such orders). There is absolutely no analogy with a trial that establishes the facts of the crime upon which a sentence is later imposed. The 'threshold test' is not intended to be the exclusive opportunity to establish the facts upon which a final order may be made although in practice it will often provide the court with much relevant information for that decision."
(emphasis added)

83 Therefore, Magistrate Flood was correct, in my view, to accept Re B as stating the principles which should guide him. The Court has a discretion to permit a party to reopen an issue, including the issue of establishment, if it is appropriate to do so. The question becomes whether the learned Magistrate's discretion miscarried, and if it did, whether this Court should intervene.

The Exercise of the Discretion.

84 It is useful to begin by examining what Hale J said in Re B concerning the discretion to permit a second look at an issue which has previously been argued and determined. Her Lordship said this: (at 11)

"It seems to me that the weight of Court of Appeal authority is against the existence of any strict rule of issue estoppel which is binding upon any of the parties in children's cases. At the same time, the court undoubtedly has a discretion as to how the inquiry before it is to be conducted. This means that it may on occasions decline to allow a full hearing of the evidence on certain matters even if the strict rules of issue estoppel would not cover them."

85 Her Lordship provided an example concerning findings in other cases (such as divorce proceedings or criminal trials) which may be relevant. She added: (at 11)

"Sometimes, the party concerned or some other party will wish to challenge them. In such an event, it seems to me, the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh."

86 Hale J then identified some of the factors which would need to be borne in mind in the exercise of the discretion. They included: (at 11/12)

"(1) The court will wish to balance the underlying considerations of public policy, (a) that there is a public interest in an end to litigation -- the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so; (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; and (d) the court's discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 947, 'must be applied so as to work justice and not injustice'.

(2) The court may well wish to consider the importance of the previous findings in the context of the current proceedings. If they are so important that they are bound to affect the outcome one way or another, the court may be more willing to consider a rehearing than if they are of lesser or peripheral significance.

(3) Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone. The court will want to know (a) wether the previous findings were the result of a full hearing in which the person concerned took part and the evidence was tested in the usual way; (b) if so, whether there is any ground upon which the accuracy of the previous finding could have been attacked at the time, and why therefore there was no appeal at the time; and (c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings."

87 Here, the Director-General, in support of the second contention, says that nothing was put before Magistrate Flood to justify re-examination of the establishment issue. The findings before Magistrate Dowd on 17 May 2005 were made by consent. The father was present and represented. He had been given the affidavits and annexures. He was therefore apprised of the material relied upon by the Director-General. He was implicitly offered (as the mother was explicitly offered) the opportunity to have the evidence called before a determination was made. Yet, he declined that offer. He chose, rather, to consent, without admissions, to the finding under s72(1). These were all relevant considerations, according to the Director-General. The learned Magistrate, however, did not advert to any of them. The only change was one which was not relevant, namely that the father was differently represented.

88 In support of the third contention (that in the exercise of the discretion his Honour had regard to irrelevant considerations), the Director-General pointed to a number of matters. First, the Magistrate was at a considerable disadvantage. He did not have a transcript of what had gone before. In particular, he had no record of what had been said before Magistrate Dowd on 17 May 2005. He was furnished with a note taken by one of the parties, purporting to record the discussion, which proved to be inaccurate. His appreciation of what happened before Magistrate Dowd was therefore not soundly based. Secondly, his Honour wrongly assumed that Magistrate Dowd was not provided with the father's denial of the allegations, including the alleged confessions. It was common ground that his Honour was wrong. Magistrate Dowd had before him both the alleged confession and the denials. Thirdly, his Honour did not advert to the issues identified by Hale J in Re B, set out above. In particular, he did not consider whether a rehearing may result in any different finding. The Director-General submitted, accordingly, that there was error.

The Father's Position on this Application.

89 It should be said that the father, through counsel, has shifted his position since the issue was first raised before Magistrate Flood on 27 February 2006. Immediately before his Honour made the preliminary ruling on that day, counsel for the father, Mr Sweet, made the following submission: (Ex A: p272)

"SWEET: And, your Honour has the decision of B before you so there's not an estoppel question on that. The question that your Honour has to decide, in my submission, is whether my learned friend has got to prove that the children are in need of care and protection in these proceedings or that's taken as established. And in my submission, your Honour needs to have that matter proved in the proceedings currently before you."

90 When his Honour ultimately gave judgement, he concluded by saying this: (Ex A: p436)

"... procedural fairness would require the Court to allow a full hearing of all issues including a recanvassing of establishment ... "

91 Mr Sweet, in helpful written submissions in the application before me, sought to dispel what he termed "misconceptions" concerning the father's position. The first "misconception" was identified in these terms:

"(a) That the father, in the Children's Court proceedings before Magistrate Flood, was attempting to disturb the finding of establishment. (The father does not seek to disturb the finding of establishment unless establishment has the effect that it prevents the father from testing the allegations made against him concerning Yasmine which, it is submitted, it does not.) "

92 What was meant by the qualification (the words in parenthesis) was not entirely clear. Insight was provided by supplementary submissions. Counsel said this:

"11. It is apparent from the reasons given by Magistrate Flood, that his Honour did not purport to disturb the finding of establishment, but allowed the allegations of sexual abuse to be tested on the question of stage two of the proceedings, that is to say, the issues of contact or placement and/or contact."

93 In the same submissions, counsel added:

"14. ... The father does not seek to revisit that determination. The section 72 determination is not the subject of any challenge. ..."

94 The way in which the establishment finding could remain undisturbed, and yet the police and other witnesses called in respect to the allegations against the father, was identified by counsel to be as follows:

"12. An examination of the transcript of proceedings before Magistrate Dowd (page 206-221) reveals that it is not possible to determine the findings of fact, gleaned from the evidence before him, that the Magistrate relied upon to exercise his discretion to make a finding of establishment 'by consent'. There were denials (on the part of the father) as to facts alleged by the Department to support the 'ground' or 'reason' for establishment which was section 71(1)(c). ..."

95 Counsel elaborated, stating the following proposition which was uncontroversial:

"12. ... There is nothing in section 72 or any other provision in the Act that prevents the Court making a determination as to facts in issue at stage two of the proceedings, that is to say, determining issues as to placement and or contact. ..."

96 However, counsel added these words:

"14. ... It is submitted that, in circumstances where there is a denial of allegations of sexual abuse made against the father by Yasmine, at the time that the section 72 determination was made, it was appropriate for Magistrate Flood to allow that evidence to be tested at stage two of the proceedings, being the 'welfare' or 'disposal' stage, without seeking to challenge the finding of establishment. Indeed, Magistrate Flood referred to the need for 'a ground to be established' to give the Court jurisdiction to hear 'the contest'. It is apparent from his Honour's reasons that the 'contest' was the contest at stage two of the proceedings."

97 There are, I believe, a number of difficulties with that submission. First, the words used by counsel in his submission to the Magistrate, and by his Honour in his judgment, suggest that what was being dealt with was the first stage, the establishment stage, not the welfare stage. The submission made immediately before his Honour's preliminary ruling was that establishment needed to be "proved in the proceedings currently before" Magistrate Flood (supra para 89). Magistrate Flood then ruled that he would "allow a full hearing of all issues including a recanvassing of establishment ..." (supra para 90).

98 Secondly, as previously indicated (supra paras 75/76), the position of the father and the child Bill cannot be differentiated in the way suggested by Mr Sweet. The better view (supra para 77) is that both the mother (on behalf of her son Bill) and the father acknowledged, by their consent, without admissions, that the Director could establish, as a matter of probability, that Yasmine had been sexually interfered with, or abused, by Bill and the father, and that a finding of the need for care and protection was justified.

99 Thirdly, the submission appears to be that, at the welfare stage, the father could seek to demonstrate that he had not, as a matter of probability, sexually abused Yasmine or acted towards her in a sexually inappropriate way. If that was the objective, and the relevance of calling the police, the prison officers, prisoners and so on, that objective, and those witnesses, went to the issue of establishment.

100 That is not to say that evidence given at the establishment stage is irrelevant at the welfare stage. It is relevant. Here material tendered to establish the need for care and protection of these children was also plainly relevant to a determination of whether contact, or unsupervised contact, was in the paramount interests of each child. That may call for a closer examination of that material than was necessary during the establishment phase. It may justify the calling of witnesses not called when the material was first tendered. However, were that to occur, such witnesses must be capable of giving evidence relevant to the final orders that should be made in the interests of the child or young person. In that context, it is important to recognise that the issue in the welfare phase is different from the issue in the establishment phase.

101 At the establishment stage, the issue is whether the grounds have been established, as a matter of probability, such as to warrant a finding that the child was in need of care and protection. Relevantly, it concerned whether, as a matter of probability, in the case of each child, s71(1) (c) had been established, that is that Yasmine had been sexually abused by the father and Bill, and the remaining children were likely to be sexually abused. Once that had been established, the issue changed. In determining the final orders, including the issues of parental responsibility (s79) or contact (s86) the Court would be guided by the test defined by the High Court in M v M (1988) 166 CLR 69. The Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) described the context within which the issue arose in that case in these terms: (at 71/2)

"Central to the case are the wife's allegations that the father has sexually abused the child and that the child's welfare will be put at further risk. At first instance Gun J was not satisfied that the father had so abused the child. On the other hand, he was not satisfied that the father had not so abused the child. He considered that there was a possibility that the child had been sexually abused by the husband and that in the interests of the child he should eliminate the risk of such abuse by denying access to the husband. He also rejected the suggestion that the husband should have supervised access."

102 The Court said this: (at 77)

"It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw (1938) 60 CLR 336, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child."

103 The Court added: (at 77)

"In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case."

104 The test was expressed in these terms: (at 78)

"In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse."

105 That test has been criticised (cf Patrick Parkinson, "Family Law and Parent-Child Contact: Assessing the Risk of Sexual Abuse" (1999) 23 MULR 345). Nonetheless it remains the test in respect to the application before his Honour.

Did His Honour's Discretion Miscarry?

106 Having decided, I believe correctly, that neither res judicata nor issue estoppel prevented a re-examination of the establishment issue, in an appropriate case, his Honour then exercised his discretion to allow "a full hearing" including "a recanvassing of establishment". His judgment appears, fundamentally, to have rested upon a number of propositions. The first was uncontroversial. His Honour recognised that, in dealing with the second phase, the welfare phase, the conduct of the father towards his daughter Yasmine, and the other children, was fundamental. The second proposition was that certain material (whether the affidavit of the father or the later denial of the confession which appears in the statement of Senior Constable Cox) was not before Magistrate Dowd when he made his finding on 17 May 2005. Thirdly, that, accordingly, procedural fairness required a full hearing of all issues, including a recanvassing of establishment.

107 It was, as mentioned, common ground that the learned Magistrate was mistaken in his assumption that Magistrate Dowd did not have all the material, including the denials of the father. The material before Magistrate Dowd, when consent was given, was the same as the material before Magistrate Flood.

108 There was, therefore, no issue of procedural fairness or unfairness in respect of the hearing before Magistrate Dowd. As the Director-General pointed out in his submissions, the father was present at the hearing. He was represented. He was apprised of the case he had to meet. He was offered the opportunity of having the witnesses called, and declined. Instead, through counsel, he, like the mother, consented to the finding under s72 that the children were in need of care and protection, without admissions. No explanation was given as to why the father should have consented at one time and yet sought a re-examination of the issue at a later point in time. Nothing fresh was identified as casting doubt upon material relied upon by the Director-General at the time of the establishment hearing. Subject to one matter, the only relevant change was that different counsel apparently made a different forensic assessment as to what was in the best interests of the father. The one change that had occurred between the establishment hearing (17 May 2005) and the hearing before Magistrate Flood (27 February 2006) was that the father had been given bail, pending his trial. That was, however, an immaterial change in respect of the issues at the establishment stage, although it was, no doubt, an important difference at the welfare stage. If granted placement (in respect of Alistair) and/or given contact in respect of all the children, the father, after his release, was now in a position to take advantage of such orders.

109 I believe his Honour's discretion did miscarry. The mistake of fact, which was understandable, given the absence of transcript, allowed irrelevant or extraneous matter to guide or affect his Honour's decision (House v The King (1936) 55 CLR 499 at 504/5). More than that, I believe, with respect, there was a failure to have regard to relevant considerations. Having accepted that no judgment or issue estoppel prevented a re-examination of establishment, the Court, in the exercise of its discretion, was required to undertake a balancing exercise in making its decision, as suggested by Hale J in Re B (supra). Due weight should have been given to the previous finding, the circumstances in which it was made, the desirability of finality and the question of delay should a further hearing be permitted. The other issue identified in Re B also needed to be considered (supra para 87).

110 There was a further matter which, in my view, had some importance. The father had been committed for trial in respect of the allegations of Yasmine. The Act provided (s108) that, for reasons one can readily understand, the jurisdiction of the Children's Court to hear and determine any proceedings with respect to a child or young person is not affected merely because criminal proceedings are pending against a party to the proceedings. That is not to say that such proceedings, and the timing of such proceedings, are irrelevant, as the word "merely" in s108 emphasises. No date had been fixed for the father's trial when the matter proceeded before his Honour. Nonetheless, by enquiry, some indication of the likely hearing date could no doubt have been given.

111 What was contemplated in the Children's Court proceedings before his Honour was the calling of many witnesses who had already been called in the committal proceedings. Later they would again be called in the trial. The issue, in these circumstances, was whether there was, on the part of the father, a collateral purpose in having such witnesses called before the trial. There were also issues of cost and convenience, although they may not have been the most important.

112 During the course of the hearing before me the criminal trial was mentioned in the District Court. It was not set down. However, it was ascertained that the trial is likely to take place in late July 2006, that is, in approximately three months.

113 The outcome of the criminal proceedings is obviously relevant to the Children's Court proceedings, although not necessarily determinative. If the father were convicted and imprisoned, the outcome may, as a practical matter, be determinative. If he were acquitted, issues would remain as to whether placement and/or contact (whether supervised or unsupervised) would nonetheless pose an unacceptable risk. Resolving those issues may well be assisted by reference to the transcript in the criminal proceedings, which would include, no doubt, the transcript of Yasmine's evidence.

114 Returning to the Magistrate's discretion, and the issues identified by Hale J in Re B (supra), the question must be asked whether the witnesses to be called at the request of the father are likely, at this stage, materially to affect the outcome. Mr Ogilvy, the solicitor for the children, pointed to a number of matters which suggested that a hearing before the Children's Court at this point is inappropriate. First, the allegations of sexual misconduct by Yasmine were serious. The criminal trial was only months away. The trial would provide a determination of the guilt or otherwise of the father in respect of such allegations. Secondly, the criminal jury would have an advantage not available to his Honour, namely, seeing and evaluating the evidence of Yasmine. Thirdly, even were the father ultimately acquitted, the issue would remain, whether there was an unacceptable risk in his having contact or unsupervised contact with the children. Fourthly, since being given bail, further allegations of sexual misconduct had been made against the father, involving children other than his own children. Further charges had been laid. These charges had yet to be determined.

115 One may add to that list that the father has a psychiatric history, which includes admissions to psychiatric hospitals. I might add that there are mental health issues in respect of the mother as well, although they are not relevant in this context.

116 The Department does not oppose supervised access to the children by the father after the criminal trial. It simply says that, before the criminal trial, access to the complainant is plainly inappropriate and access to her siblings is unwise. An assessment has been made by Ms Jenny Howell, consulting psychologist, of the harm that may arise from contact before the criminal trial. She has provided a report (Ex D3) which recommends against such contact.

117 These matters were no doubt relevant to the exercise by his Honour of the discretion to permit a re-examination of establishment, at least so far as it concerned the father. However, no reference was made to them.

Is there a Remedy?

118 During the hearing it was simply assumed that, if the Director-General succeeded on any one of his submissions, he was entitled to the relief claimed, namely, an order in the nature of prohibition or certiorari (s69(1) Supreme Court Act 1970). No submissions, written or oral, were made concerning that issue.

119 However, in the course of writing the judgment, and having rejected the first submission of the Director-General (relying upon res judicata and issue estoppel), the issue arose in my mind as to the availability of a remedy. The parties were invited to make further submissions, and did so. They consented to the setting aside of certain orders made at the conclusion of the hearing.

120 An order in the nature of certiorari is somewhat broader than prohibition. Its availability is dependant upon jurisdictional error and/or an error on the "face of the record". In Craig v South Australia (1995) 184 CLR 163, the Court emphasised that an order in the nature of certiorari was not simply a discretionary remedy, available to correct error. The Court said this: (at 175/6)

"... It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirements of procedural fairness, fraud and 'error of law on the face of the record'."

121 The Court defined jurisdictional error in these terms: (at 177)

"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction."

122 Having provided a number of illustrations, the Court then dealt with a situation where, in determining jurisdiction, the Court was obliged to find the existence or absence of certain jurisdictional facts. However, simply asking the wrong question was not enough (cf Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171). The Court may go wrong within jurisdiction, to be corrected on appeal, if there is a right of appeal. However, an error within jurisdiction cannot be corrected by an order in the nature of certiorari under s69 of the Supreme Court Act. The Court elaborated as follows: (at 179/80)

"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.”

123 The Court thereafter identified what was comprehended at common law by the phase "on the face of the record". It had a narrow meaning. It would not ordinarily include the Court's reasons for decision (at 181). This aspect of the Court's decision has since been overcome by amending s69 of the Supreme Court Act to insert subsections (3) and (4), which are in these terms:

"s69(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination."

124 There is some controversy, following these amendments, as to whether errors of law which are unrelated to the Court's jurisdiction are enough to justify the making of an order under s69. Sperling J in ASIC v Farley (2001) 51 NSWLR 494 at 498-9 took the view that they were, providing they appear "on the face of the record" as redefined by s69(4). The Court of Appeal (Santow JA, Bryson JA and McClellan AJA agreeing), adopted the same view in DIMIA v Hanna [2004] NSWCA 275 at [28]. However, Davies AJ in Hargrave v Slater (2000) 113 A Crim R 371, took a contrary view.

125 Even before s69 was amended, Denning LJ in R v Northumberland Compensation Tribunal; Ex Parte Shaw [1952] 1 KB 338 gave a broad reach to the writ of certiorari. He said this: (at 348)

"Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction errors of law; and several judges have said as much. But the Lord Chief Justice has, in the present case, restored certiorari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record, even though they do not go to jurisdiction."

126 See also Plaintiff S157/2005 v Commonwealth of Australia (2003) 211 CLR 476, per Callinan J at 521.

127 On the other hand, Hayne J made the following statement in Re Refugee Review Tribunal; Ex Part Aala (2000) 204 CLR 82: (at 141)

“In deciding whether writs of prohibition and certiorari (and analogous forms of relief) should be granted, a distinction is drawn between jurisdictional error and error within jurisdiction. This Court has not accepted that this distinction should be discarded ( Craig v South Australia (1995) 184 CLR CLR 163 at 179). As was noted in Craig v South Australia (at 177-8), that distinction may be difficult to draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not."

128 These comments, with respect, appear more accurately to reflect the insistence of the High Court in Craig v South Australia (supra) that an order in the nature of certiorari is not simply another discretionary remedy to correct an error of law (cf Craig at 180/1).

129 Here there was no jurisdictional error. His Honour determined, correctly in my opinion, that neither res judicata nor issue estoppel inhibited a re-examination of the question of establishment, and that he had a discretion to allow that re-examination. There were no jurisdictional facts that his Honour needed to determine before exercising that discretion. There was not such a radical misconception of the nature of his function that his error may be characterised as jurisdictional error (cf Mason P, Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of NSW in Court Session (2004) 60 NSWLR 602 at 614 (para 53). Any error that occurred was in the exercise of that discretion and was, in my view, an error within jurisdiction.

130 However, there was, as I have found, error in failing to take account of relevant matters and in taking account of certain irrelevant matters, namely, a mistaken view as to the material before the original Magistrate. These were errors of law. If the broad view of certiorari were accepted, was there an error on the face of the record for the purposes of s69(4)? Section 69(4) enlarges "the record" to include the reasons for judgment, where they relate to the Court's "ultimate decision". His Honour's judgment or order cannot be so characterised. It was a judgment or order given on an application made in the course of the hearing. The ultimate decision is the judgment which finally determines the rights of the parties, including the children (cf Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246, per Gibbs CJ at 248). As submitted by Mr Sweet, counsel for the father, "the record", for the purposes of determining the present application, is that identified in Craig v South Australia (supra). It does not include the reasons. It includes the ruling that there was no estoppel or res judicata. It includes the order that the witnesses identified may be called. In my view, upon that basis, there was neither jurisdictional error nor error on the face of the record. An order in the nature of certiorari is, therefore, not available.

131 Nonetheless, the learned Magistrate may, in the light of these reasons, choose to revisit the issue concerning the calling of witnesses. However, that is a matter entirely for him.

Orders.

132 Accordingly, I make the following orders:

1. By consent, orders made on 24 April 2006 vacated.

2. The Summons is dismissed.

3. The Director-General should pay the costs of each of the other parties.

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12/05/2006 - Change to legal reps - Paragraph(s) N/A

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Citations

Re Alistair [2006] NSWSC 411

Most Recent Citation

GA v Director General, Department of Human Services [2011] NSWDC 57

Cases Citing This Decision

17

Secretary, Department of Communities and Justice v KH [2022] NSWCA 221

Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89

Ritson v Leighton [2015] NSWCA 62

Cases Cited

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Statutory Material Cited

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Re Jayden [2007] NSWCA 35

R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8

Blair v Curran [1939] HCA 23

CITATION:	Re Alistair [2006] NSWSC 411 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21/04/06 24/04/06 28/04/06
JUDGMENT DATE :	12 May 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
DECISION:	(1) By consent, orders made on 24 April 2006 vacated; (2) The Summons is dismissed; (3) The Director-General should pay the costs of each of the other parties.
CATCHWORDS:	Appeal against Magistrate's ruling - whether finding that child needs care can be re-examined - whether res judicata or issue estoppel - issues in Children's Court proceedings - establishment and welfare stages - whether error in discretion - whether remedy - certiorari - whether jurisdictional error or error on face of record - only ultimate determination.
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 Farmily Law Act 1975 (Cth) The Children Act 1989 (UK) Supreme Court Act 1970
CASES CITED:	In Re B (Minors) (Care Proceedings: Issue Estoppel) (1997) 3 WLR 1 In Re O & Anor (Minors) (Care: Preliminary Hearing) (2003) 2 WLR 1075 Re Fernando & Gabriel (2001) 53 NSWLR 494 Blair v Curran (1939) 62 CLR 464 Director-General, Department of Community Services v Dessertaine (2003) 31 FamLR 55 Acuthan v Coates (1986) 6 NSWLR 472 Director-General NSW Department of Community Services re Peter [2002] NSWSC 679 M v M (1988) 166 CLR 69 House v The King (1936) 55 CLR 499 Craig v South Australia (1995) 184 CLR 163 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 ASIC v Farley (2001) 51 NSWLR 494 DIMIA v Hanna [2004] NSWCA 275 Hargrave v Slater (2000) 113 A Crim R 371 R v Northumberland Compensation Tribunal; Ex Parte Shaw [1952] 1 KB 338 Plaintiff S157/2005 v Commonwealth of Australia (2003) 211 CLR 476 Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of NSW in Court Session (2004) 60 NSWLR 602 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
PARTIES:	(Pl/Appl) Dept of Community Services (1st Def/1st Resp) The father (2nd Def/2nd Resp) The mother (3rd & 4th Defs/3rd & 4th Resps) The children (5th Def/5th Resp) Children's Court of NSW
FILE NUMBER(S):	SC 2006/11737
COUNSEL:	(Pl/Appl) R J Bromwich (1st Def/1st Resp) R M Sweet (2nd Def/2nd Resp) M J Hogg (3rd & 4th Defs/3rd & 4th Resps) S W Ogilvy, sol (5th Def/5th Resp) Not Represented
SOLICITORS:	(Pl/Appl) I V Knight (1st Def/1st Resp) Mitchell Lawyers (2nd Def/2nd Resp) Marion Rose & Co. (3rd & 4th Defs/3rd & 4th Resps) Garden & Montgomerie (5th Def/5th Resp) Not Represented

LOWER COURT JURISDICTION:	Children's Court of New South Wales
LOWER COURT FILE NUMBER(S):	3/2005 4/2005 5/2005 6/2005
LOWER COURT JUDICIAL OFFICER :	Flood LCM
LOWER COURT DATE OF DECISION:	02/27/2006