Re Andrew

[2004] NSWSC 842

Reported Decision: 61 NSWLR 283

Supreme Court

CITATION:	Re Andrew [2004] NSWSC 842
HEARING DATE(S):	31/8/04
JUDGMENT DATE:	15 September 2004
JUDGMENT OF:	Wood CJatCL at 1
DECISION:	1.The decision of the First Respondent of 30 January 2004 be quashed; 2.The matter be remitted to the First Respondent for determination in accordance with the law.
CATCHWORDS:	Care Application - s 64 of Children and Young Persons (Care and Protection) Act 1998 - dispensing with service of Care Application on father - paramountcy of safety, welfare and well being of child - rights or interests of parents - mandatory and directory requirements of statute - whether Children's Court had power or discretion to dispense with service.
LEGISLATION CITED:	Children's Court Act 1987 Children and Young Persons (Care and Protection) Act 1998 Family Law Act Supreme Court Act
CASES CITED:	Annetts v McCann (1990) 97 ALR 177 Craig v State of South Australia (1995) 184 CLR 163 Gahan v Frahm [1999] VSC 410 George v Children's Court of New South Wales [2003] NSWCA 389 Grunwick Processing Laboratory Ltd v Advisory Conciliation and Arbitration Service [1978] AC 655 ETSA Utilities Pty Limited v Corporation of the City of Unley [2000] SASC 74 H v The Children's Court (1988) 12 Fam LR 285 J v Lieschke (1987) 162 CLR 447 Minister for Community Services v The Children's Court [2003] NSWSC 863 MPM Constructions v Trepcha Constructions [2004] NSWSC 103 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Andrew [2004] NSWCA 210 Re Jessica NSWSC 15 November 2001 Re X [1996] FLR 186 Smith v Minister of Community Welfare (1988) 12 Fam LR 159 Tasker v Fullwood [1978] 1 NSWLR 20 The Queen v Bell (1980) 146 CLR 141 Twist v Randwick Muncipal Council (1976) 136 CLR 106 Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78
PARTIES :	Minister for Community Services (Applicant 1) Director General of the Department of Community Services (Applicant 2) The Children's Court of New South Wales (Respondent 1) "Nicole" (Respondent 2) Child Separate Representative (Respondent 3)
FILE NUMBER(S):	SC 10423/04
COUNSEL:	G W Moore (A1) J F Viney (R2) M W Anderson (R 3)
SOLICITORS:	I V Knight

LOWER COURTJURISDICTION:	Children's Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Mulroney CCM

- 29 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Wednesday 15 September 2004

10423/04 Re Andrew

JUDGMENT – CLOSED COURT

1 WOOD CJ at CL: On 6 November 2003, an application was made by the Director General of the Department of Community Services (the Director General), to the Cobham Children’s Court, for an order allocating parental responsibility to the holder of that office, in relation to the child who is referred to in these proceedings as “Andrew”, and who is now aged 5 years and 9 months.

2 This application, which was made under s 79 of the Children and Young Persons (Care and Protection) Act 1998 (“The Act”), followed the receipt of various reports raising concerns as to the welfare of the child, which went to the possibility of him being at risk if he was left with his mother who had mental health and substance abuse problems, and who was in a relationship with a man who was believed to be violent, and to be a drug dealer.

3 An interim order was made on 7 November 2003 allocating parental responsibility to the Director General until further order of the Court. More correctly the order should have been made in favour of the Minister for Community Services (“the Minister”), but it does not appear that anything turns upon that so far as the present proceedings are concerned.

4 The interim order was continued, at further mentions of the proceedings, in the course of which the maternal grandparents were granted leave to appear generally, although not in respect of any determination as to care and protection.

5 On 5 December 2003 the Children’s Court Magistrate directed that the Applicant file an affidavit of service or attempted service upon the natural father of Andrew. An affidavit was thereafter filed by the maternal grandmother which identified her concerns as to the child living with or having unsupervised access with his father due to the lengthy police record of the latter. An affidavit was also filed on behalf of the Director General outlining the criminal history of the father, which included offences of assault, malicious damage, breaches of apprehended violence orders, and threatening to destroy or damage property to injure others, as well as robbery in company. The second last mentioned offence related to a siege situation during which the father had threatened to commit suicide, and during which he had in his possession an explosive device which he had made consisting of sodium, diesel and sodium phosphate. This incident was said to have occurred as a result of disputes with Andrew’s mother and as a result of him having been charged with a breach of an Apprehended Violence Order, as well as being wanted for a further breach.

6 The affidavit noted that the mother had expressed fears for her safety, and for that of Andrew, should the father locate them, arising out of previous incidents and threats. Those concerns, the affidavit deposed, were shared by the Department, should the father discover their whereabouts.

7 On 16 January 2004, Mr Mulroney CM directed the applicant to file a submission directed to the power of the Children's Court to make an order dispensing with service of the Care Application on the father. After taking into account the submissions received, his Worship found that he did not have the power to authorise the Applicant not to serve the father, or to excuse or ignore non-service. The only permissible exception to service he found was if reasonable efforts to effect service had been made, and had failed.

8 Orders were made that required an affidavit to be provided regarding the attempts which had been made to serve the father, along with some further orders that were designed to avoid direct contact between him and the mother, and to prevent disclosure of her residential address. The Children's Court Magistrate held, additionally to the finding as to the absence of the relevant power, that it was unlikely that the father had a genuine interest in the welfare of the child, and that there was a real risk that any order which enabled him to be in contact with the child’s mother would place her, and possibly the child, at risk.

9 Proceedings were then brought in this Court for a declaration that the Children's Court had erred in law in refusing to dispense with service upon the father and for an order quashing the orders that had been made. On 26 February 2004 O’Keefe J ordered that the hearing of the proceedings in this Court be expedited and that the father be joined as a party to them. The decision to join him as a party then became the subject of an appeal to the Court of Appeal, where it was submitted that his joinder would have the effect of frustrating their purpose. It was also submitted that his joinder was not necessary, as his interests were not relevantly affected by the proceedings in this Court.

10 It was held by Sheller JA, with whom Mason P agreed, McClellan J dissenting (Re Andrew [2004] NSWCA 210), that the appeal should be allowed and that the order of O'Keefe J, requiring the father to be joined to the proceedings in this Court, and the service upon him of the initiating summons, should be set aside. Effectively the matter was referred back to a Judge of the Common Law Division to decide the question which Mason P and Sheller JA identified as having arisen for determination. That question, their Honours observed, was one of law confined to whether or not the Children’s Court had a discretion to dispense with service upon a parent in Care proceedings.

11 It is in relation to that issue that the proceedings before me were pursued.

12 Provision in relation to the notification of a Care Application is made in s 64 of the Act, in the following terms:

64 Notification of care applications

(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.

(2) Children and young persons

The Director-General is required to notify a child or young person who is the subject of a care application of the making of the application.

(3) A notification under subsection (2) is to be made in language and in a manner that the child or young person can understand having regard to his or her development and the circumstances.

(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.

(5) The copy of the care application must be written and arranged in such a form that there is a reasonable likelihood that its contents will be understood by the person on whom it is served.

(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.

13 Guidance as to the Objects and Principles of the Act is given in Part 1 of Chapter 2 which, relevantly for present purposes, contains the following provisions:

7 What is the role of the objects and principles of this Act?

The provisions of this Chapter are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law.

8 What are the objects of this Act?

The objects of this Act are to provide:
(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 their parents or other persons responsible for them, and

(b) …

(c) ...

9 What principles are to be applied in the administration of this Act?

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.
(b) …
(c) …
(d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, 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.
(e) …
(f) …
(g) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

14 The expression “Parental Responsibility” in relation to a child is defined in section 3 to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children”.

15 It is submitted on behalf of the Minister and the Director General that the provisions in s 64(1) and (4) should be read subject to s 9(a) which gives paramountcy to the safety, welfare and well being of the child. It follows, so it was argued, that a discretion should be recognised for the Court to depart from the interests of procedural fairness that would require a parent to be served, where these interests were outweighed by the paramount interests of the child. This discretion, it was conceded, would be exercisable only in the most exceptional of circumstances where compliance with s 64(1) and (4) would involve an unacceptable risk for the safety, welfare and well being of the child.

16 The finding of the Magistrate that he did not have a power or discretion to dispense with service, in the present case, was said to give rise to a jurisdictional error and/or an error of law on the face of the record, falling within s 69 of the Supreme Court Act. Alternatively it was submitted that an error arose of the kind that fell within s 75 of the Supreme Court Act, such that this Court could make a declaration that the Magistrate erred by refusing the Director General’s application.

17 Although the father was not personally represented before me and has not been notified of these proceedings, or served with the summons, a Child Separate Representative was joined as a party having been appointed under s 99 of the Act, to appear as a contradictor of the submissions of the Director General and of the Minister. The submission, which was advanced, in reply, was based upon the proposition that it is in the general interests of a child for both parents to be allowed to participate in care proceedings. It was contended that the provisions of s 64 are mandatory, and that no implied power or discretion exists to excuse non-compliance with the service requirements save where reasonable steps have been taken to serve the parent, and they have proved unsuccessful.

18 Before dealing with these submissions, there are some further provisions, which have a relevance for the determination of the issue which arises. They include the following:

51 Duty of Director-General to give information to certain persons

(1) If a child or young person is in the care and protection of the Director-General under this Part … the Director-General:
(a) must, as soon as practicable, cause notice of the fact that the child or young person is in the care and protection of the Director-General, and the fact that an application may be made to the Director-General for the discharge of the child or young person from the care and protection of the Director-General and the procedures for making such an application, to be given to:
(i) …
(ii) …
(iii) each parent of the child or young person who can reasonably be located, and
(b) must, in the case of a child, ensure that the child’s parents are kept informed of the whereabouts of the child, unless the Director-General has reason to believe that the disclosure of the child’s whereabouts would be prejudicial to the safety, welfare, well-being and interests of the child.

(2) The Children’s Court, on the hearing of any application made in respect of a child whose whereabouts have not been disclosed to a parent of the child, may order that the Director-General disclose the whereabouts of the child to such of the parents of the child as it may direct.
(3) Failure to comply with any provision of this section does not invalidate anything done under any other provision of this Act.
…

71 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) – (h) …
(2) …



72 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).

…
79 Order allocating parental responsibility
(1) If the Children’s Court finds that a child or young person is in need of care and protection, it may:
(a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility:
(i) to one parent to the exclusion of the other parent, or
(ii) to one or both parents and to the Minister or another person jointly, or
(iii) to another suitable person, or
(b) make an order placing the child or young person under the parental responsibility of the Minister.
(2) The specific aspects of parental responsibility that may be allocated by an order of the Children’s Court include, but are not limited to, the following:
(a) the residence of the child or young person,
(b) contact,
(c) the education and training of the child or young person,
(d) the religious upbringing of the child or young person,
(e) the medical treatment of the child or young person.

(3) The Children’s Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9 (d) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.

(4) …
…

81 Parental responsibility of the Minister
(1) If the Children’s Court makes an order placing a child or young person under the parental responsibility of the Minister, the Children’s Court must determine:

(a) which aspects (if any) of parental responsibility are to be the sole responsibility of persons other than the Minister, and
(b) which aspects of parental responsibility are to be the sole responsibility of the Minister, and
(c) which aspects (if any) of parental responsibility are to be exercised jointly by the Minister and other persons, and the Minister may exercise parental responsibility alone or together with another person or other persons accordingly.
(2) If an order places a child or young person under the sole parental responsibility of the Minister, the Minister must, so far as is reasonably practicable, have regard to the views of the persons who had parental responsibility for the child or young person before the order was made while still recognising that the safety, welfare and well-being of the child or young person remains the paramount consideration.

(3) …

…
87 Making of orders that have a significant impact on persons
(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.
(2) If the impact of the order is on a group of persons, such as a family, not all members of the group are to be given an opportunity to be heard but only a representative of the group approved by the Children’s Court.
(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

…
89 Copies of final orders to be given to all parties

The Children’s Court is to take such action as is reasonably practicable to ensure that each party to an application receives a copy of a final order of the Children’s Court concerning the application.

90 Rescission and variation of care orders

(1) An application for the rescission or variation of a care order may be made with the leave of the Children’s Court.
(2) The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.
(2A) …

(3) An application may be made by:

(a) …

(b) … or

(c) a person having parental responsibility for the child or young person, or
(d) a person from whom parental responsibility for the child or young person has been removed ,..
(e) …
(3A) …
(4) …
(5) …
(6) …
(7) If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so:
(a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and
(b) if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.
(8) …
…

93 General nature of proceedings

(1) Proceedings before the Children’s Court are not to be conducted in an adversarial manner.
(2) Proceedings before the Children’s Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.
(3) The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts.
…

98 Right of appearance

(1) In any proceedings with respect to a child or young person:
(a) the child or young person and each person having parental responsibility for the child or young person, and
(b) the Director-General, and
(c) the Minister, may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.
(2) …
(3) …

19 Finally it may be noted that the role of a child separate representative is spelled out in s 99 as follows:

99 Legal representation
…
(6) The role of a separate representative includes the following:
(a) to interview the child or young person after becoming the separate representative,
(b) to explain to the child or young person the role of a separate representative,
(c) to present direct evidence to the Children’s Court about the child or young person and matters relevant to his or her safety, welfare and well-being,
(d) to present evidence of the child’s or young person’s wishes (and in doing so the separate representative is not bound by the child’s or young person’s instructions),
(e) to cross-examine the parties and their witnesses,
(f) to make applications and submissions to the Children’s Court for orders (whether final or interim) considered appropriate in the interests of the child or young person,
(g) to lodge an appeal against an order of the Children’s Court if considered appropriate.

20 The Court of Appeal recognised in Re Andrew, as must I, that procedural fairness is a universal principle of the law, and that for a court to make an order that would directly affect the rights of a person having parental responsibility for a child, without giving that person an opportunity to be heard, would involve a significant departure from such principle (see also the decision of Nathan J in H v The Children’s Court (1988) 12 Fam LR 285). The provisions of the Act which I have noted, most particularly ss 51, 81(2), 87(1), 90(3) and 98(1) also underline a legislative intention that those with a parental responsibility of a child have a capacity to participate in proceedings involving their child.

21 In Twist v Randwick Municipal Council (1976) 136 CLR 106, Barwick CJ said 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: see Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414, and R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 205; [1923] All ER Rep 150. 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.”

22 The right or interest of parents to be heard in relation to decisions affecting their children, which is itself an incident of the universal and fundamental principle, was recognised in the judgment of Brennan J with whom Mason, Wilson and Dawson JJ agreed in J v Lieschke (1987) 162 CLR 447 at 458-459:

“There is a natural reciprocity between the duty and authority of parents with respect to the nurturing, control and protection of their child and the child’s rights and its interests in being nurtured, controlled and protected. The natural reciprocity between the interests of parents and child means that both the parents and the child have an interest in proceedings leading to the exercise of a power which is apt to affect the relationship between them. As a parent holds his or her authority over a child primarily for the benefit of the child, parental authority is to be regarded more as a trust than as a power, but that is not to say that parental duty and authority are burdens of which parents can be relieved against their wishes and without their being heard when it is practicable to hear them. The natural parental right to discharge parental duties and to exercise parental authority cannot be taken away without giving the parents an opportunity to be heard where it is practicable to do so.
…
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. A guardian who has been appointed in loco parentis is no less entitled to be heard. 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.”

23 At page 462 his Honour added, in relation to the parents’

“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.”

24 Deane J indicated his general agreement with Brennan J, and added (at 463 to 464), that the interests of parents in proceedings of the kind which were there involved (proceedings under s 82 of the Child Welfare Act 1939 for the custody and control of a neglected child) were neither “indirect or derivative in nature”. His Honour continued:

“To the contrary, such proceedings directly concern and place in jeopardy the ordinary and primary rights and authority of parents as the natural guardians of an infant child. True it is that the rights and authority of parents have been described as “often illusory” and have been correctly compared to the rights and authority of a trustee in that they are to be exercised “for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education” and in that they are susceptible of being overriden or supplanted by the courts either in the exercise of statutory jurisdiction or “for the protection of infants, qua infants by virtue of the prerogative which belongs to the Crown as parens patriae “. Regardless, however, of whether the rationale of the prima facie rights and authority of the parents is expressed in terms of a 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. They have deep roots in the common law. In 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.” (Citations omitted).

25 Reference may also be made to Annetts v McCann (1990) 97 ALR 177 where Mason CJ, Deane and McHugh JJ said, in relation to the refusal of a Coroner to hear submissions from counsel for the parents of the deceased, into whose deaths he was inquiring, at 178/179:

“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: Commissioner of Police v Tanos (1958) 98 CLR 383 at 395–6 Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109–10; 12 ALR 649; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 496, 500; 14 ALR 519; J v Lieschke (1987) 162 CLR 447 at 456; 69 ALR 647; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 64 ALJR 357 at 371; 93 ALR 51 at 73. In Tanos , Dixon CJ and Webb J said (at 396) that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 344–5, 347, 349. In Kioa v West (1985) 159 CLR 550; 62 ALR 321, Mason J said (CLR at 584; ALR at 346) that the law in relation to administrative decisions:

… has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

In Haoucher , Deane J said (ALJR at 358; ALR at 53) that the law seemed to him: ‘to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making.’”

26 The Act does not confer any express power or discretion to dispense with service of a Care Application, except in the circumstances where, notwithstanding reasonable efforts to locate a parent, it has not been possible to effect service.

27 The Children’s Court Act 1987, it may be noted, confers jurisdiction in the following terms:

12 Jurisdiction generally
(1) The Court shall have such jurisdiction as may be conferred or imposed on it by or under this or any other Act.

28 The Children’s Court Act also makes provision in relation to the orders which can be made:

15 Orders of the Court
The Court may, in relation to all matters in respect of which it has jurisdiction, make such orders, including interlocutory orders, as it thinks appropriate.

29 Provision does exist in the Children’s Court Rules, for orders dispensing with various procedural requirements. However it can be seen that any practice or procedure with which they are concerned, is subject to its consistency with the Act under which the Court has jurisdiction to hear the particular proceedings.

30 The relevant rules are as follows:

5 Rule applies to all proceedings before the Children’s Court

(1) The general practice and procedure of the Court set out in this Rule applies to all proceedings commenced before the Court, unless otherwise specified.
(2) However, any practice or procedure set out in this Rule in relation to proceedings that is inconsistent with:
(a) the Act under which the Court has jurisdiction to hear the proceedings, or
(b) any regulation made under that Act, does not apply to the extent of the inconsistency.
6 Court may waive compliance with Rule
(1) The Court may, on any terms and conditions that the Court considers appropriate, waive any of the requirements of this Rule in respect of the practice and procedure to be followed in connection with any proceedings before the Court or in connection with any aspect of any proceedings before the Court.
(2) Compliance may be waived before or after the occasion for compliance arises.
…

19 Functions of Children’s Registrars

For the purposes of section 10A of the Act, the following functions are conferred on a Children’s Registrar:

(a) dispensing with the service of any process,

(b) to (h) …

31 As I have earlier observed, It was submitted on behalf of the Director General and the Minister, that the inclusion in s 64 of sub-s (6) assumed the existence of an implied power or discretion to waive the service requirement, in so far as it provides that non-compliance with the procedural requirements of the section does not result in the invalidity of the decision.

32 Although not addressed in terms that drew a comparison between mandatory requirements as to jurisdiction, and those requirements which are properly regarded as directory or regulatory or procedural, this proposition invited attention to the decisions which have turned upon that kind of distinction: for example Gahan v Frahm [1999] VSC 410 Hedigan J, Grunwick Processing Laboratory Ltd v Advisory Conciliation and Arbitration Service [1978] AC 655, ETSA Utilities Pty Limited v Corporation of the City of Unley [2000] SASC 74, MPM Constructions v Trepcha Constructions [2004] NSWSC 103 and Vameld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78.

33 The principles in relation to the question of construction which commonly arises in this context, in relation to administrative decisions, and the elusiveness of the distinction between mandatory and directory provisions, were considered in Tasker v Fullwood [1978] 1 NSWLR 20 at 23 –24 and in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. The majority (McHugh, Gummow, Kirby and Hayne JJ) said at 388-389:

“ Does the failure to comply with s160 mean that cl9 of the Australian Content Standard is invalid?
[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[92] Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said “a clause is directory where the provisions contain mere matter of direction and nothing more”. In R v Loxdale, Lord Mansfield CJ said “[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory”. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been “substantial compliance” with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case:
“substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.”
[93] In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”. (Citations omitted).

34 Brennan J, although dissenting, in the result, set out the relevant principles (at 373/4) in a way that appears to me to have been consistent with the way in which they were stated by the majority:

“ [37] A provision which directs the manner of the exercise of a power is quite different from a provision which prescribes an act or the occurrence of an event as a condition on the power - that is, a provision which denies the availability of the power unless the prescribed act is done or the prescribed event occurs. In one case, power is available for exercise by the repository but the power available is no wider than the direction as to the manner of its exercise permits; in the other case, no power is available for exercise by the repository unless the condition is satisfied. A provision which prescribes such a condition has traditionally been described as mandatory because non-compliance is attended with invalidity. A purported exercise of a power when a condition has not been satisfied is not a valid exercise of the power.
[38] A third kind of provision must be distinguished from provisions which restrict the ambit of the power and provisions which prescribe conditions on its availability for exercise. A provision may require the repository or some other person to do or to refrain from doing something (sometimes within a period prescribed by the statute) before the power is exercised but non-compliance with the provision does not invalidate a purported exercise of the power: the provision does not condition the existence of the power. Such a provision has often been called directory, in contradistinction to mandatory, because it simply directs the doing of a particular act (sometimes within a prescribed period) without invalidating an exercise of power when the act is not done or not done within the prescribed period. The description of provisions as either mandatory or directory provides no test by which the consequences of non-compliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory.
[39] The terms of the statute show whether a provision governs the manner of exercise of a general power, or is a condition on a power, or merely directs the doing or refraining from doing an act before a power is exercised. The distinction between conditions on a power and provisions which are not conditions on a power is sometimes difficult to draw, especially if the provision makes substantial compliance with its terms a condition. Then an insubstantial non-compliance with the same provision seems to give the provision a directory quality, although in truth such a provision would have a dual application: substantial non-compliance is a condition; insubstantial non-compliance is not.” (Citations omitted).

35 The existence of sub-s (6) in s 64, it seems to me, in the instant case is only consistent with the service requirement being regulatory or directory rather than a mandatory precondition to jurisdiction, the non-compliance with which would lead to invalidity.

36 This brings me to the question whether there is, in this instance, sufficient occasion to impose a qualification upon the principle of procedural fairness earlier mentioned, which would support a discretion or implied power to waive service.

37 While acknowledging the fundamental nature of the principle of procedural fairness, Mason P in the earlier appeal in these proceedings, drew attention to the qualification, upon which the Minister and the Director General now rely, in the following passage of his reasons for allowing the appeal:

“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)).”

38 As his Honour noted, Brennan J had accepted in Lieschke 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, in so far as he had observed (at 456-457):

“The principle [stated by Barwick CJ in Twist, at 109 to 110, cited earlier] governs the proceedings of administrative agencies and, fortiori , the proceedings of the established courts: see per Dixon CJ and Webb J in Commissioner of Police v Tanos (1958) 98 CLR 383 at 396. That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings: see R v Ludeke; ; parte Customs Officers’ Association of Australia (1985) 155 CLR 513 at 520, 522–3,528,530; 59 ALR 417. Like the Chancery jurisdiction in wardship, the jurisdiction of the court under s 82 of the Act is to be exercised primarily for the benefit of the child and the exercise of that jurisdiction may require a determination as to the person in whose care the child should be. It may be said of the jurisdiction under s 82 what Lord Evershed said of the wardship jurisdiction in Re K (Infants) [1965] AC 201 at 219:
‘The jurisdiction … is surely … very special, and being very special the extent and application of the rules of natural justice must be applied and qualified accordingly. The judge must in exercising this jurisdiction act judicially; but the means whereby he reaches his conclusion must not be more important than the end. The procedure and rules … should serve and not thwart the purpose.’
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 The question which arises for determination, by reference to these authorities, seems to come down to whether, in circumstances where an application of the relevant principle of natural justice, that is, the right to be informed of the proceedings and to be heard, would frustrate the purpose for which jurisdiction was given to Children’s Court Magistrates, a power or discretion exists to dispense with its application.

40 Two decisions were cited by the plaintiffs as providing some support for their case. The first was the decision of Levine J in Re Josie [2004] NSWSC 642, concerning proceedings brought in this Court for a declaration that an order made in the Children’s Court, that there be no change in the young person’s placement until further order, was beyond power, and for consequential relief quashing that order. His Honour made an order excusing the Minister and the Director General, who were the plaintiffs in this Court, from naming the father of the child as a defendant in the Supreme Court proceedings.

41 The making of that order seems not to have been contested, and his Honour did not, as a consequence, give consideration to the question whether it was within his power to dispense with the joinder of a parent. For him to have done so in relation to proceedings in this Court would however appear to have been consistent with the decision of the majority in the earlier appeal in the present case. Accordingly this decision does not assist in the resolution of the issue, which I must decide.

42 The second decision is that of Campbell J in Re Jessica NSWSC 15 November 2001 which related to an application made in this Court by the Minister and the Director General for an order that would permit a young person, who had psychiatric problems, to be sedated. It was not a matter that would have been justiciable in the Children’s Court. The mother and a separate representative for the child had been joined as parties, but not the father, because of concerns that his re-emergence into her life would be very detrimental to her welfare, and would also adversely affect the welfare of her siblings and mother.

43 While the non-joinder of the father appears not to have been the subject of contest, Campbell J did observe:

“There is no doubt that ordinarily the father of a child should be a party to proceedings concerning the welfare of that child. However, the court has a power to dispense with the father being a party in such proceedings in some circumstances. In J. v Lieschke (1987) 162 CLR 447 page 457 Brennan J (with whom Mason and Dawson JJ agreed, and Deane J was ‘in general agreement’ recognised that: ‘In some circumstances the usual principles of natural justice whereby a father ought to be joined in such proceedings might be overcome, in circumstances where the welfare of the child necessitated such course.”

44 After examining the evidence in relation to the history of the child’s relationship with her father, his Honour stated that he “was satisfied that there are good reasons for [him] not to be joined to the present proceedings”. Clearly this decision does not provide any authority in relation to the power or discretion to dispense with the joinder of a parent to care proceedings in the Children’s Court. It is, however, of some relevance in so far as it recognises that there are circumstances where the interests of natural justice need to give way to the paramount interests of the child.

45 It is clear that the fact that a parent removes himself or herself from contact with a child does not give rise to a cessation of the parental responsibility, which exists in relation to that child: s 61C Family Law Act.

46 It is also clear that the right of a parent to exercise parental responsibility towards the child would be significantly affected in the event of orders being made in the Children’s Court, that would permit a Care Application to be determined, of which he or she did not have notice. On the other hand, where a Care Order is made, provision exists for its rescission or variation (s 90), inter alia, upon the application of a parent. In that sense the rights of the child and of the parents are not the subject of any final determination.

47 That the rights of parents in relation to their children are important rights which are not lightly to be diminished or denied is not only clear from the provisions of the Act, and the authorities to which I have referred, but it is also clear from the Second Reading Speech in relation to the Bill, in the course of which the 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 to 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.”

48 The paramountcy of the safety, welfare and well being of the child over the rights of the parents, referred to in s 9 of the Act, cannot, however, be overlooked. As the authorities previously mentioned acknowledge, as do other authorities dealing with situations where there are competing considerations of public policy, for example, The Queen v Bell (1980) 146 CLR 141, ultimately it becomes a matter for the Court to weigh the respective considerations against one another. An example of a case where recognition was given to the circumstance that, in the context of Children’s Court proceedings, the principles of natural justice may sometimes have to give way to the greater interests of the child can be seen in Smith v Minister of Community Welfare (1988) 12 Fam LR 159.

49 Although the Children’s Court is an inferior court with its jurisdiction limited to that which is conferred on it by or under the Children’s Court Act, or by or under any other Act, it also has a jurisdiction arising by implication, upon the principle that a grant of power carries with it everything that is necessary or incidental for its exercise.

50 I do not regard the decision of the Court of Appeal in George v Children’s Court of New South Wales [2003] NSWCA 389 as giving rise to any qualification of that proposition. Moreover, it was not concerned with the directory or regulatory provisions which relate to the procedural aspects involved in the exercise of the Court’s jurisdiction.

51 The question in that case was whether the Children’s Court had an implied power to make an order for a particular form of substantive relief, namely the payment of fares and accommodation expenses to the parents of a child in Foster care, so as to allow them to have contact with the child, rather than with procedural aspects.

52 It may also be observed that at first instance (reported as Minister for Community Services v The Children’s Court [2003] NSWSC 863) Grove J, whose decision was upheld on appeal, noted that:

“A power may be implied where it is necessary to achieve the carrying out of an object of the statute”.

53 His Honour continued:

“It has been suggested that implication may be made to provide detail of great importance, if not actually essential, to the proper and effectual performance of the work which the statute has in contemplation: Craies on Statute Law 7th Edn @ p 111 citing Cookson v Lee 1854 23 L.J. Ch 473 however I would apply the views of Dawson J (which had general agreement of the other members of the bench) in Grassby v The Queen 1989 168 CLR 1 where his Honour said @ 16-17:
‘……. a magistrate’s court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent.’

and
‘It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’.”

54 Taking into account these considerations, I have come to the conclusion that the Children’s Court should be found to have an implied power to dispense with service of a Care Application upon a parent. In summary, that finding depends upon the following combination of circumstances:

(a) The jurisdiction of the Children’s Court to entertain a Care Application is conferred under a statute that has the objects and the guidelines as to its application which are spelled out in ss 8 and 9, in which it is made clear that the interests of a parent are subservient to the interests attaching to the safety welfare and well being of the child;

(b) The Court has an implied jurisdiction that extends to those matters that are incidental to, or necessary for, the proper discharge of the jurisdiction which is imposed on it by statute;

(c) The procedural requirements set out in s 64 are to be regarded as directory or regulatory rather than mandatory;

(d) It is accepted that the rules of natural justice do need to give way where their application would frustrate the purpose or objects of the legislation by which jurisdiction is conferred.

(e) The Court is able to make such orders, including interlocutory orders as it thinks appropriate in relation to matters within its jurisdiction (s 15 Children’s Court Act ) and it is given power to dispense with the service of process by the Children’s Court Rules (r 6).

55 Of some assistance for my conclusion is the observation of Lord Evershed, in the decision in Re K cited by Brennan J in Lieschke, to the effect that the procedure and rules applicable to this area of jurisdiction “should serve and not thwart its purpose”. Similarly, some support can be found in the decision of Stuart-White J in Re X [1996] FLR 186 where the Court excused service of the Notice of Care proceedings upon a father because of the potentially catastrophic results, to the family and to the child, of his involvement, although this was a case where the Family Proceedings Rules (UK) conferred a discretion.

56 I am, however, satisfied that it is only in exceptional circumstances that the power to dispense with service could be exercised, that is, where service upon, or participation of, the parent in the proceedings, would unacceptably threaten the safety, welfare and well being of the child. The power must be read in a way that reflects the need, in this context, to balance the interests of natural justice and those of the child. Moreover before it is exercised it would seem to be appropriate, if not essential, for a Separate Representative for the child to be appointed, who might place before the Court any matter in opposition to the effective exclusion of the father from the proceedings.

57 I accept that my conclusion does not sit entirely comfortably with sections 51 and 87(1) of the Act, particularly the latter provision However I am of the view that they must similarly be read as being subject to the qualification which would justify the Court dispensing with service on a parent where that is in the paramount interests of the child. In that regard s 87 must already be understood as subject to a qualification in those cases where despite reasonable efforts to serve a parent, that party had not received notice of the proceedings.

58 While I am persuaded of the correctness of the approach which I have taken, it does seem to me to be desirable for any residual doubt to be resolved by amendment of the Act so as to create an express power in the Court in appropriate cases, to excuse compliance with those provisions which would otherwise require each parent to be notified of, and to participate in, Care proceedings. The desirability of certainty in this respect is reinforced by the circumstance that Care proceedings need to be determined promptly, and with a minimum of litigation and technicality, since, very often, urgency attaches by reason of the dangerous and unhealthy situation in which the subject child may be found.

59 The present proceedings before this Court are not an appropriate vehicle for a determination of whether, upon the evidence, the power should or should not be exercised on this occasion. That is a matter for the Children’s Court to determine, on the merits, after hearing from the parties who have already been joined, and preferably from a Separate Representative for the child.

60 Otherwise, I am satisfied that a jurisdictional error has been established within the principles discussed in Craig v State of South Australia (1995) 184 CLR 163 at 177 to 178.

61 Accordingly, I order that:

1. The decision of the First Respondent of 30 January 2004 be quashed;

2. The matter be remitted to the First Respondent for determination in accordance with the law.

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Last Modified: 09/20/2004