Re: Andrew

[2004] NSWCA 210

CITATION:	RE: ANDREW [2004] NSWCA 210 revised - 5/07/2004
HEARING DATE(S):	4 June 2004
JUDGMENT DATE:	24 June 2004
JUDGMENT OF:	Mason P at 1; Sheller JA at 6; McClellan AJA at 29
DECISION:	Appeal allowed and the order of O'Keefe J of 26 February 2004, that the father be joined as a party in the proceedings and be served with the summons, be set aside.
CATCHWORDS:	WELFARE OF CHILD - joinder of father to Supreme Court proceedings - where real risk to safety of mother and child - Children and Young Persons (Care and Protection) Act 1988 - natural justice - proper contradictor - where question in Supreme Court was one of law - whether service would pre-empt decision of Children's Court
LEGISLATION CITED:	Child Welfare Act 1939 Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	J v Lieschke (1987) 162 CLR 447 Pochi v Minister for Immigration and Ethnic Affairs (1979) 35 FLR 482 R v Bell; ex parte Lees (1980) 146 CLR 141 Separate Representative v E (1993) 114 FLR 1 Twist v Randwick Municipal Council (1976) 136 CLR 106
PARTIES :	Minister for Community Services Children's Court of New South Wales
FILE NUMBER(S):	CA 40143/04
COUNSEL:	R Bourke - First and Second Appellants N/A - First Respondent J Viney - Second Respondent M Cleary/K Renshall - Third Respondent
SOLICITORS:	I V Knight - Crown Solicitor - First and Second Appellants Children's Court of NSW - First Respondent Richard Parkinson - Second Respondent Kathryn Renshall - Third Respondent

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	10423/04
LOWER COURT JUDICIAL OFFICER :	O'Keefe J

CA 40143/04
SC 10423/04

MASON P
SHELLER JA
McCLELLAN AJA

RE ANDREW

In November 2003, the Director General of the Department of Community Services made a care application under the Children and Young Persons (Care and Protection) Act 1998 (“the Act”) in respect of a child, referred to as ‘Andrew’. The Children’s Court on 5 December 2003 directed that the Director General file and serve an affidavit of service or attempted service upon the father. In response, the Director General filed an affidavit which set out evidence supporting the proposition that service, or attempted service, upon the father in relation to the care application would place at risk the safety and well-being of the mother and Andrew.

After considering submissions from the Director General on the issue, the Children’s Magistrate handed down a written judgment on 30 January 2004, the effect of which was to refuse the Director General’s application to dispense with service on the father on the grounds that there was no power on the part of the Children’s Court to grant such an application. Significantly, the Children’s Magistrate held that it was unlikely that the father had a genuine interest in the child’s welfare and that there was a real risk that any order which enabled the father to be in contact with the child’s mother would place her, and possibly also the child, at risk.

By way of Summons, the Minister for Community Services and the Director General sought declarations in the Supreme Court including a declaration that the Children’s Court erred in law in refusing to dispense with service upon the father. The claimants also sought an order that the decision be quashed and the matter be remitted to the Children’s Court. The mother was joined as second respondent to this application and the separate representative of the child was also joined as a party. The first respondent, the Children’s Court filed a submitting appearance.

On 26 February 2004, the matter came before O’Keefe J on an expedition application. His Honour ordered that the hearing be expedited but also made an order that the father be joined as a party to the proceedings, on the grounds that it was not appropriate for the matter to proceed without the father being notified of the proceedings.

The appellants challenged the decision of O’Keefe J ordering that the father be joined as a party to the proceedings. It was submitted that service upon the father of notice of the Supreme Court proceedings and the joining of the father as a party in those proceedings would have the effect of frustrating the purpose of those proceedings. It was also contended that joinder of the father is not necessary as the interests of the father are not relevantly affected by the Supreme Court proceedings.

Held: per Sheller JA, Mason P agreeing:

1. Excluding the father from taking part in the proceedings, if he wishes to do so, seems on its face, antithetical to what the Act intends. However, it will be for the judge hearing the summons to determine whether, even so, a discretion lies with the Children’s Court to dispense with service upon a parent in care proceedings. The language of the Act must be weighed against considerations of the safety, welfare and well being of the child.

2. Prima facie, on the findings of the Children’s Court, if the father is notified of the proceedings in the Supreme Court there is some risk to the safety of the child and a greater risk to the safety of the mother. Despite protective steps identified by O’Keefe J, which can be taken at a hearing in the Supreme Court, if the father knows that proceedings about the future care of the child are on foot that may itself increase the risk to the safety of the child away from the court.

3. The trial Judge erred in not giving sufficient weight to the fact that the question raised in the Supreme Court proceedings was one of law about the power of the Children’s Court and also that the prerogative relief sought in the summons is directed to an ex parte application before the Children’s Court to which the father was not a party.

4. If service or notification of the summons was given to the father that will pre-empt any decision by the Children’s Court exercising a discretion if the claimants’ application to the Supreme Court succeeds.

5. Furthermore, O’Keefe J was unaware of the position of the separate representative of the child as a contradictor and that such interest as the father may have in the Supreme Court upholding the decision of the Children’s Court will be argued by this proper contradictor.

Held: per McClellan AJA (dissenting):

6. The issue in the proceedings is whether the father is entitled to notice of, and, if he wishes, to be heard, in relation to proceedings, which will determine whether he has a right to notice from the Director General pursuant to s64(4) of the Act. There can be no doubt that the father has an interest in the determination of that issue, which attracts the principles of natural justice and may affect one of his “fundamental rights.”

7. The test which must be applied is whether the application of the principles of natural justice, in this case service on the father, would frustrate the purpose for which jurisdiction is given to the Magistrate by the Act. At issue, is the need to ensure that paramountcy is given to the welfare of the child.

8. There is nothing in the evidence from which it could be concluded that the father would, or would not, behave in a violent manner towards the child if informed of the present proceedings. Furthermore, appropriate security measures could be put in place in the present case. Procedures could be adopted which would not require the mother or child to attend court on the same day or at the same place as the father.

9. The father being given notice of the Supreme Court proceedings need not pre-empt the decision of the Children’s Magistrate if the application to the Supreme Court succeeds and the matter is remitted to the Children’s Court. Although no doubt the father will become aware that an application has been made, if it is decided there is the relevant discretion, the proceedings could take place in a manner, which would ensure he would be unable to interfere with the hearing.

Legislation:
Child Welfare Act

1939

Children and Young Persons (Care and Protection) Act

1998

(1987) 162 CLR 447

(1979) 35 FLR 482

(1980) 146 CLR 141

(1993) 114 FLR 1

(1976) 136 CLR 106

ORDERS


Appeal allowed and the order of O’Keefe J of 26 February 2004, that the father be joined as a party in the proceedings and be served with the summons, be set aside.

**********

CA 40143/04
SC 10423/04

MASON P
SHELLER JA
McCLELLAN AJA

Thursday, 24 June 2004

RE: ANDREW

Judgment

1 MASON P: I agree with Sheller JA, adding the following remarks.

2 The meaning and intractability of s64(4) of the Children and Young Persons (Care and Protection) Act 1998 are at issue in the Supreme Court proceedings. The claimant contends that any duty to notify the father must yield in the circumstances to the child’s paramount interests. The claimant is entitled to litigate that issue in properly constituted proceedings unless and until it becomes clear that procedural fairness or overarching procedural rules require notification to the father.

3 The father is not a necessary party to the Supreme Court proceedings. They are properly constituted having regard to the issue tendered for decision and the presence of a proper contradictor (cf Supreme Court Rules Pt 9 rr7-8).

4 This is not to say that the Supreme Court can ignore the principles of procedural fairness or natural justice as they present during the balance of the proceedings in this Court. But they do not mandate the joinder and service of the father, because his rights are not directly affected by the relief sought. If that relief is granted it will not bind the father any more than a test case involving a different family altogether were litigated in the Supreme Court.

5 Procedural fairness is a fundamental legal principle, but occasionally courts have to balance other aspects of the public interest (see generally Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 511-512). Several cases have recognised that some qualification of the principles of natural justice may be dictated by the need to ensure paramountcy of the interests of the child (see eg In re K [1965] AC 201, J v Lieschke (1987) 162 CLR 447 at 457, Separate Representative v E (1993) 114 FLR 1 at 14. Cf also R v Bell; Ex parte Lees (1980) 146 CLR 141)).

6 SHELLER JA:

Introduction

In the Second Reading Speech introducing the Children and Young Persons (Care and Protection) Act 1998 (the Act) the then Attorney General said:


‘We want to encourage parents to come forward and seek assistance in the knowledge that they will not be treated as abusive parents but will be treated with respect as parents who need external support to assist them in their difficult parenting tasks. This will not be taken as a sign of failure, but instead is a realistic assessment of where help is needed to assist them and strengthen their ability to care for their family. The aim of these reforms is to allow my department to work co-operatively with parents and reach agreements with them on plans for the care of the children. Even where it is necessary for a child to be taken into out-of-home care, the bill makes provision for parents to continue to have some parental responsibility for the wellbeing of their children. The child is of paramount importance and these provisions do not focus on any alleged criminal activity but solely on the needs of the child or young person.”

7 On 6 November 2003, the Director General of the Department of Community Services (the Director General) made a care application under the Act in respect of a child, to whom I shall refer as Andrew. On 5 December 2003, the Children’s Court directed that the Director General file and serve an affidavit of service or attempted service upon the father. On 8 January 2004, the Director General filed an affidavit affirmed on that day which set out evidence in support of the proposition that service, or attempted service, of notice of the care proceedings upon the father, would place at risk the safety and well-being of the mother, and the child. On 16 January 2004, Children’s Magistrate Mulroney directed the Director General to file submissions as to the power of the Children’s Court to “dispense with service” of notice of the care proceedings on the father. On 30 January 2004, the Children’s Magistrate handed down a written judgment, the effect of which was to refuse the Director General’s application to dispense with service, on the grounds that there is no power on the part of the Children’s Court to grant such an application.

8 Section 64 of the Act “Notification of care applications” provides, so far as presently material, as follows:

“(1) Persons having parental responsibility
The Director-General is required to make reasonable efforts to notify the parents of a child or young person of the making of a care application by the Director-General in relation to the child or young person.
(4) Application for care order
In particular, the Director-General must, as soon as practicable after a care application is made in relation to a child or young person, cause a copy of the application, together with copies of all supporting affidavits and other documentary evidence that accompanied the application, to be served on the parents of the child or young person who can reasonably be located, subject to section 64A.
(6) Effect of failure to comply with this section
Failure to comply with the requirements of this section in relation to a care application does not invalidate the application or any decision of the Children’s Court on the application.”

9 Section 87 “Making of orders that have a significant impact on persons” provides, so far as presently material, as follows:

“(1) The Children’s Court must not make an order that has a significant impact on a person who is not a party to proceedings before the Children’s Court unless the person has been given an opportunity to be heard on the matter of significant impact.
(3) The opportunity to be heard afforded by this section does not give the person who is heard the status or rights of a party to the proceedings.”

10 Section 9 of the Act “What principles are to be applied in the administration of this Act?” provides, so far as presently material:

“The principles to be applied in the administration of this Act are as follows:
(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.”
Children’s Magistrate’s Decision

11 The Children’s Magistrate found on the basis of the evidence before him that it was most unlikely that the father had a genuine interest in Andrew’s welfare. He was also satisfied that there was a real risk that any order which enabled the father to be in contact with Andrew’s mother would place her safety, and possibly also that of Andrew, at risk. There was a risk that the father would use the opportunity to attend the court to commit a violent crime against Andrew’s mother, impeding the court in carrying out its function to hear and determine the proceedings and also placing at potential risk the safety of other persons attending at the court precincts. However, after referring to ss64 and 256 [service of notices] of the Act, the Children’s Magistrate remarked that the requirement that a person receive notice of proceedings that may significantly affect them is one of the most fundamental aspects of the operation of our legal system. He quoted this statement from the judgment of Brennan J in J v Lieschke (1987) 162 CLR 447 at 458:

“It would offend the deepest human sentiments as well as a basic legal principle to permit a court to take a child from its parents without hearing the parents when they can be heard and when they wish to be heard in opposition to the making of an order. … Only by ensuring, where practicable, that the parents or guardians have an opportunity to be heard can the Court be confident that it has protected whatever interests the child may have in its parents’ or guardians’ discharge of their duty to the child.”

12 I interpolate that his Honour was there referring to the child’s interest in the parents being heard. At 458-9 Brennan J referred both to the parental interest in their relationship with the child and the child’s continuing interest in his or her relationship with the parents.

13 The Children’s Magistrate referred also to this statement by Barwick CJ in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109-110:

“The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal … But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate.”

14 I have quoted more from what the Chief Justice said in Twist than the learned magistrate thought necessary but an acknowledgment of the scope of the common law to the resolution of these proceedings is important. The learned magistrate carefully reviewed various sections of the Act and considered the submission of he Director-General that where the safety, welfare and wellbeing of the child will be jeopardised by the protective service of any process, the Children’s Court is possessed of the power to dispense with service. In conclusion he said:

“I do not believe that I have the power to authorise the applicant not to serve [the father]. Nor do I believe that the provisions of s64(6) enable me to ignore non-service of [the father]. In my view that provision only applies in situations where the reasonable efforts referred to in s64(1) have been made.”

15 The Children’s Magistrate then made orders seen as appropriate, so far as possible, to protect both the child and his mother.

Application for prerogative relief

16 By summons filed in the Supreme Court on 17 February 2004, the Minister for Community Services (the Minister) and the Director-General sought declarations that the Children’s Court erred in law by refusing the application to dispense with service upon the father and by refusing to proceed further in the care proceeding until reasonable efforts had been made to serve the father. The claimants also sought an order that the decision be quashed and the matter remitted. Order 5, which was an application for alternative relief, was not pressed at the hearing. The mother was joined as second respondent to the application and the separate representative for the child was joined as the third respondent. The first respondent, the Children’s Court of New South Wales, filed a submitting appearance. The father was not joined as a party.

17 On 26 February 2004, the summons was listed before O’Keefe J on an expedition application. On being told that the Children’s Court would be filing a submitting appearance, his Honour asked who was to be the contradictor and later queried why the father was not a party to the proceedings. His Honour was told, on behalf of the claimants, that to make the father a party would frustrate the whole purpose of the proceedings. His Honour was informed that para 5 of the summons for alternative relief was not to be pressed. O’Keefe J gave reasons for judgment for expediting the hearing and fixed a date which has now passed. The reasons for judgment continued as follows:

“There is, however, a matter that concerns me very much, namely that in the way in which the proceedings are structured there will be no contradictor. It will be, as it were, ‘we all agree’, that the Court should make an order. The effect of the orders sought may indirectly adversely affect the father who, on the evidence before me, has not to date been deprived of his rights of custody under the law. In addition, despite the question that was asked in that regard this morning, no clarification has been forthcoming from the Department or the Minister.
It is, in my view, fundamental that a person should be entitled to know of proceedings in court in which an order is sought that may adversely affect his or her rights. For the father to be joined as a party in these proceedings would also mean that there will be a contradictor. Furthermore, the fact that these proceedings will be heard in the Supreme Court, rather than in the Children’s Court, means:

· First, that neither the mother nor father will be here;

· As a consequence of that, it would not be possible for the father to follow the mother and child from this Court and so ascertain their whereabouts;

· Third, their address was shown in the apprehended violence order that was made on 31 January 2001, but neither the Minister, nor the Department, have been able to inform me of, let alone provide evidence as to, the present address of the mother or the child. It was said that the child is with one of the grandparents, but that is subject to a qualification and is less than certain;

· Next, there is nothing to suggest that if the father were to come to this Court to have the opportunity to be heard, anything untoward would happen to anybody, let alone the mother or child.

In these circumstances, whilst I am prepared to order that the proceedings be expedited and fixed for hearing on 10 March 2004, and that subject to any argument to the contrary that may be advanced on that day before the judge hearing the matter, that the matter be heard in closed court, and that there be no publication of the material that would identify the child, the mother or their whereabouts or place of residence, I do not think it appropriate that the matter proceed without the father being notified of the proceedings.”

Leave to appeal and appeal

18 By leave granted by this Court on 29 March 2004 the Minister and Director-General appealed from O’Keefe J’s decision ordering that the father be joined as a party to the proceedings and directing that service be affected upon him because:

“(a) service upon the father of notice of the Supreme Court proceedings and the joining of the Father as a party in those proceedings, would have the effect of frustrating the purpose of those proceedings; and
(b) the interests of the father are not relevantly affected by the Supreme Court proceedings.”

19 The first ground was explained in this way. The application before the Children’s Magistrate was made ex parte by the Director-General. The father had not been given notice of the proceedings in the Children’s Court. The application to the Supreme Court was for the Magistrate’s decision on the ex parte application to be quashed. Ordinarily, the moving party in the proceedings who opposes the joining of another party to the proceedings or service of the proceedings on that other party will apply ex parte and the matter will be heard in the absence of the other party. The unusual feature of the proceedings in this instance was the Children’s Magistrate’s finding that it was unlikely that the father had a genuine interest in the child’s welfare, that there was a real risk that any order which enabled the father to be in contact with the child’s mother would place her safety, and possibly also that of the child, at risk and that the father would use the opportunity to attend the court to commit a violent crime against the child’s mother, impeding the court in the carrying out of its functions to hear and determine the proceedings and also placing at potential risk the safety of other persons attending the court precincts. If the Supreme Court orders the Minister and Director-General to serve the father with, or give notice to him of, the summons before the claimants’ application for prerogative relief is heard this may pre-judge and pre-empt the Children’s Court’s decision. This will of course only arise if the Supreme Court holds as a matter of law, contrary to the conclusion of the Children’s Magistrate, that there is a discretion in that court to dispense with notification of the father. Non-service or non-notification of the summons will be of no significance if the Supreme Court agrees as a matter of law with the Children’s Magistrate’s conclusion.

20 The purpose of the proceedings in the Children’s Court is to provide for the care and protection of a child in particular circumstances which at least include those set out under s71.

21 Section 71 provides:

“ 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:
(a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason,
(b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection,
(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,
(d) subject to subsection (2), the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents,
(e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,
(f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children’s Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service,
(g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with,
(h) section 171(1) [which applies where the child resides in unauthorised out-of-home care or with an authorised carer who is in breach of the carer’s authorisation] applies in respect of the child or young person.
(2) The Children’s Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of:
(a) a parent’s disability, or
(b) poverty.”

22 Excluding the father, assuming he can be served, from taking part in the proceedings, if he wishes to do so, seems on its face, antithetical to what the Act intends; see particularly, s64(4) and 87(1). As Brennan J said in Lieschke at 454, when speaking of s82 of the Child Welfare Act 1939 (NSW), which empowered the Court to provide by order for the custody and control of a neglected child:

“Such an order destroys or impairs the authority of the parents or other guardians to nurture, control and protect the child and their duty to exercise that authority. Where it is alleged that the child is under incompetent or improper guardianship, the very purpose of proceedings under s82 is to determine whether the duty and authority of the parents or other guardians should be modified, discharged or superseded in the interests of the child.”

23 However, it will be for the judge hearing the summons to determine whether, even so, a discretion lies with the Children’s Court to excuse the Director-General in care proceedings from notifying a parent, in this case the father. The language of the abovementioned sub-sections must be weighed against considerations of the safety, welfare and well-being of the child.

24 The second ground of appeal is not pressed. All that is in issue, with the abandonment of the relief sought in para 5, is a question of law about the power of the Children’s Court to dispense with service. The father has, no doubt, an interest to submit that the decision of the Children’s Magistrate was correct.

25 At the hearing of the appeal before this Court, Miss Cleary of counsel, who appeared for the separate representative for the child, made very helpful submissions emphasising the interest of the child in his father being a party to the proceedings. During the hearing before O’Keefe J, the position of counsel for the separate representative for the child as a contradictor was not revealed to his Honour.

26 Prima facie, on the findings of the Children’s Court, if the father is notified of the proceedings in the Supreme Court there is some risk to the safety of the child and a greater risk to the safety of the mother. I am conscious of what O’Keefe J said about steps which can be taken at a hearing in the Supreme Court to reduce any risk flowing from the proceedings in that court. However, it seems to me to be recognised that if the father knows that proceedings about the future care of the child are on foot that may itself increase the risk to the safety of the child away from the court.

27 With due respect, I am of the opinion that O’Keefe J erred in not giving sufficient weight to the following matters:

1. That the question raised by the summons was one of law about the power of the Children’s Court.

2. That the prerogative relief sought in the summons is directed to an ex parte application before the Children’s Court to which the father was not a party.

3. That if service or notification of the summons was ordered to be given to the father that will pre-empt any decision by the Children’s Court exercising a discretion if the claimants’ application to the Supreme Court succeeds.

Furthermore, O’Keefe J was unaware that such interest as the father may have in the Supreme Court upholding the decision of the Children’s Court would be argued by counsel on behalf of the separate representative of the child.

Conclusion

28 In my opinion, the appeal should be allowed and the order of O’Keefe J of 26 February 2004, that the father be joined as a party in the proceedings and be served with the summons, be set aside. The appellants do not seek any order as to costs.

29 McCLELLAN AJA: I have had the benefit of reading the judgment in draft prepared by Sheller JA. His Honour has set out the relevant statutory provisions and the factual background of the matter which I gratefully adopt. However, I have come to a different conclusion with respect to the disposition of the appeal.

30 The issue determined by O'Keefe J and which is the subject of this application for leave to appeal is his Honour's decision that the father of the child, referred to as "Andrew" must be joined in the Supreme Court proceedings. The issue which must ultimately be determined in the Supreme Court proceedings is whether the decision of the Children's Magistrate Mulroney on the ex parte application by the Director-General, that the father must be notified of the proceedings, was correct.

31 There can be no doubt that the father of a child has a legitimate interest in proceedings which concern the custody or welfare of his child. The significance of that interest is recognised by the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Act"). Section 8 contains the objects of the Act, the first object being to provide for the "care and protection" of children "taking into account the rights, powers and duties of their parents." The "rights of parents" are also expressly acknowledged in s 9 which defines the principles to be applied in the administration of the Act. After a general statement that in relation to acts or decisions made under the Act "the safety, welfare and well-being of the child or young person must be the paramount consideration," s 9(a) goes on to provide that, "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 right of the parents." It would be inappropriate to attempt to exhaustively define the rights of a parent, but they must include a right to access and to provide care and support for the child.

32 In J v Lieschke (1986-87) 162 CLR 447 the High Court was required to consider the position of a child said to be a "neglected child" as defined in s 72 of the Child Welfare Act 1939 (NSW) and the obligation which the Children's Court had to allow the child's parents to be heard in the matter. The five children of one family had come before the Children's Court, a welfare officer having alleged that they were neglected. There were four girls and one boy in the family. The Magistrate determined that the parents would not be allowed to appear in relation to the girls but, if he found a prima facie case, he would "permit the parents to then call evidence in relation to the matter and … allow them to intervene at that particular point of time." In relation to the boy more serious allegations were to be made against the mother and the Magistrate decided "to permit the parents to appear by leave at the commencement of proceedings."

33 In the course of his reasons for judgment, Brennan J considered the relationship of a parent and child, describing it as giving rise to rights in both the child and the parent. The child has a right to be nurtured, controlled and protected by the parent. The parent has a "natural … right to discharge parental duties and to exercise parental authority" (at 458). Deane J described a parent's rights as not merely "indirect or derivative" in nature but as "the ordinary and primary rights and authority of parents as the natural guardians of an infant child" (at 463). Recognising that the rights of a parent have been described as illusory and are often compared to the rights and authority of a trustee, they are nevertheless "fundamental rights" with deep roots in the common law. His Honour said (at 463):

"Regardless, however, of whether the rationale of the prima facie rights and authority of the parents is expressed in terms of trust for the benefit of the child, in terms of the right of both parent and child to the integrity of family life or in terms of the natural instincts and functions of an adult human being, those rights and authority have been properly recognised as fundamental (see, eg, Universal Declaration of Human Rights , Arts 12, 16, 25(2) and 26(3) and the discussion (of decisions of the Supreme Court of the United States) in Roe v Conn (1976) 417 F Supp 769 and Alsager v District Court of Polk County, Iowa (1975) 406 F Supp 10. They have deep roots in the common law."

34 The High Court determined that a parent was entitled to be heard in relation to the whole of the proceedings with respect to the girls as well as the boy.

35 Fundamental to the High Court's reasoning was the general principle stated by Barwick CJ in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109-110 in the following terms:

"The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal … But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear."

36 In his judgment in Leischke, Brennan J identified the fact that "it would offend the deepest human sentiments as well as a basic legal principle to permit a court to take a child from its parents without hearing the parents when they can be heard and when they wish to be heard in opposition to the making of an order" (at 458).

37 Referring to the judgment of Priestley JA in this Court, Brennan J said in Leischke (at 462):

"Priestley JA, holding that the welfare of the child is the first and paramount consideration in determining the matter of a neglected child, held that the appellant's custody rights were irrelevant to the decision of the issues of fact leading to the making of an order under s 82, ie, irrelevant to the questions whether the children were neglected and what was the best course to take in regard to the future of each child. For reasons earlier stated, a child's interests in being nurtured, controlled and protected by its parents or, in default, its guardians is not irrelevant to the determination of where the child's interests lie. Even if the appellant's custody rights were irrelevant to the issues of fact, that is not destructive of the right to be heard. The right to be heard arises chiefly from the consideration that a person's interests are apt to be affected if an adverse decision is made, whatever issues of fact are relevant to the making of the decision. And so the parents whose authority in respect of their children, whose access to them and whose duty to nurture, control and protect them are under challenge, are entitled to be heard on every issue of fact which is relevant to the decision which the court might make affecting those interests."

38 Brennan J also accepted that although the principles of natural justice applied to the decision-making process in the Children's Court, there may be circumstances where they could be modified or disregarded. He said (at 457):

"If unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred, the application of those principles would have to be qualified: see Kioa v West (1985) 159 CLR 550 at 615, 633-634). In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child: eg, it may be necessary to keep a welfare report confidential, as in In re K and as provided for in s 89(3) of the Act. But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred: see Re J R L: Ex Parte C J L (1986) 161 CLR 342."

39 Deane J considered that the rights at issue were so fundamental that "[i]n the absence of an unmistakable legislative intent to the contrary, they cannot properly be modified or extinguished by the exercise of administrative or judicial powers otherwise than in accordance with the basic requirements of natural justice" (at 463-464).

40 The issue in the proceedings in this Court is whether the father is entitled to notice of, and, if he wishes, to be heard, in relation to proceedings which will determine whether he has a right to notice from the Director-General pursuant to s 64(4) of the Act. In my opinion there can be no doubt that the father has an interest in the determination of that issue, which attracts the principles of natural justice. If the determination is adverse to the father he may be precluded from proceedings affecting one of his "fundamental rights."

41 The proceedings in this Court being confined to the identified legal issue, no question of any statutory or common law exception to the application of the principles of natural justice can arise. However, I accept that the matter should be addressed by considering whether the application of the principles of natural justice to the proceedings in this Court would frustrate the purpose for which jurisdiction is given to the Magistrate by the Children and Young Persons (Care and Protection) Act. In that respect the test which must be applied is whether the application of the principles of natural justice, in this case service on the father, would frustrate the purpose for which the jurisdiction is conferred. At issue is the need to ensure that paramountcy is given to the welfare of the child.

42 In the proceedings in the Children's Court, evidence was tendered of the father's criminal history, which includes convictions with respect to serious matters of violence. As the Magistrate identified, the father has made serious threats against "Andrew's" mother and the mother now has genuine fears for her safety.

43 The relevant findings of the Magistrate were that there was a real risk that any order which enabled the father to be in contact with "Andrew's" mother would place her safety, and possibly that of "Andrew", at risk. The Magistrate also found that the father might use the opportunity to attend the court to commit a violent crime against "Andrew's" mother, impeding the court in carrying out its function to hear and determine the proceedings and also placing at potential risk the safety of other persons attending the court precincts. I consider that these findings were open to the Magistrate.

44 When the proceedings came before O'Keefe J, his Honour identified two problems arising from the fact that the father had not been joined. He held that it is "fundamental that a person should be entitled to know of proceedings in court in which an order is sought that may adversely affect his or her rights." His Honour was also concerned that, as constituted, there was no contradictor. Before this Court the second problem was addressed by the representative of "Andrew" accepting the role of contradictor both in this Court and the court below.

45 Justice O'Keefe had regard to the evidence of the father's criminal record which was tendered to the Magistrate. His Honour noted that, amongst other difficulties, the father was the subject of an apprehended violence order for the benefit of the mother and the child. He also concluded that there is nothing since February 2001 to suggest that the father has in any way breached the order or threatened to cause harm to the mother or the child.

46 As to concern about the potential for the father to adversely affect the hearing of the proceedings in the Supreme Court, O'Keefe J said:

"Furthermore, the fact that these proceedings will be heard in the Supreme Court, rather than in the Children's Court, means:

§ first, that neither the mother nor father will be here;

§ as a consequence of that, it would not be possible for the father to follow the mother and child from this Court and so ascertain their whereabouts;

§ third, their address was shown in the apprehended violence order that was made on 31 January 2001, but neither the Minister, nor the Department, have been able to inform me of, let alone provide evidence as to, the present address of the mother or the child. It was said that the child is with one of the grandparents, but that is subject to a qualification and is less than certain;

§ next, there is nothing to suggest that if the father were to come to this Court to have the opportunity to be heard, anything untoward would happen to anybody, let alone the mother or child."

47 With respect to those who may have a contrary view, I have come to the conclusion that the decision of O'Keefe J was correct. However, as I have indicated, I believe it is necessary to consider the potential impact on the Children's Court proceedings of the service on the father of the summons in the Supreme Court proceedings before that decision can be made.

48 In that respect, although the criminal record of the father demonstrates a history of violent offences and the necessity for an apprehended violence order, there is nothing in the evidence from which it could be concluded that the father would or would not behave in a violent manner towards the child if informed of the present proceedings. Regrettably, courts must regularly secure their proceedings from persons intent upon causing disruption or harm to those conducting the proceedings or others involved in them. I can see no reason why appropriate security measures could not be put in place in the present case. Furthermore, the proceedings will not require the address of either the child or the mother to be disclosed to the father and I have no doubt procedures could be adopted which, consistent with the obligation for the father to receive a fair hearing, would not require either the mother or child to attend court on the same day as the father. With the utilisation of appropriate electronic equipment, a hearing could even be arranged with the mother and child in one place and the father in another place.

49 It is submitted that if the father is given notice of the Supreme Court proceedings, this would pre-empt the decision of the Magistrate in the event that it is held that there is a discretion in the Magistrate to proceed to hear an application pursuant to s 61 without the Director-General having complied with s 64(4). With respect to those who have a different view, I am not persuaded that this is the case. Although no doubt the father will become aware that an application has been made, as I understand the process of the Children's Court, if it is decided that there is the relevant discretion, the proceedings in that court could take place without the father being aware of the time or place at which they will be heard and in a manner which would ensure that he would be unable to interfere with the hearing.

50 This matter raises questions of obvious difficulty. If it was the intention of the Parliament that the principles of natural justice could be modified or excluded it is plain that it must, in the words of Barwick CJ in Twist (at CLR 110), "be made unambiguously clear." As I am not persuaded that serving the father with the summons in the Supreme Court proceedings would frustrate the proceedings in which decisions must be made as to the welfare of "Andrew", I am of the opinion that the appeal should be dismissed.

51 The orders I would propose are:

1. Appeal dismissed.
2. The applicant is to pay the respondent's costs.

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Last Modified: 07/06/2004