Re Anna, Bruno, Courtney and Deepak
[2001] NSWSC 79
•13 February 2001
CITATION: Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 revised - 30/03/2001 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 1396/01 HEARING DATE(S): 13 February 2001 JUDGMENT DATE:
13 February 2001PARTIES :
Department of Community Services - plaintiff
Anna - first defendant
Bruno - 2nd defendant
Courtney - third defendant
Deepak - fourth defendantJUDGMENT OF: Hodgson CJinEq at 1
COUNSEL : Mr. Singleton for plaintiff
Mr. Viney for 1st defendant
Mr. Rogers (s) for 2nd & 3rd defendants
Ms. Defina (s) - children's representativeSOLICITORS: I.V. Knight, Crown Solicitor for plaintiff
No appearances filed for other partiesCATCHWORDS: FAMILY LAW AND CHILD WELFARE - Parens patriae jurisdiction of Supreme Court - Proceedings in Children's Court - Interim order made by Children's Court - Interference by Supreme Court - Relevant principles. LEGISLATION CITED: Children & Young Persons (Care & Protection) Act 1998 (NSW), s.247 DECISION: See end of judgment
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORAM: HODGSON, CJ in Eq.
Tuesday 13th February 2001
NO. 1396 OF 2001
RE ANNA, BRUNO, COURTNEY AND DEEPAK
JUDGMENT
1 These proceedings concern four children who, for the purpose of these proceedings, are known as Anna, Bruno, Courtney and Deepak. Anna and Bruno are aged respectively nine and eight, and they are children of the second defendant. Courtney and Deepak are aged respectively five and three, and they are children of the second and third defendants.
2 Those four children have for some time been in the care of the first defendant, who is their grandmother. However, those four children and two older children, who are children of the third defendant, have since 19 November 1997 been wards pursuant to s.72 of the Children (Care & Protection) Act, 1987, and thus under the control of the plaintiff.
3 In recent times the plaintiff, the Director General of the Department of Community Services, has been proceeding in the hope of being able to restore Courtney and Deepak to the care of the second and third defendants.
4 On 15 January 2001, the first defendant lodged an application with the Children’s Court, seeking orders which would have the effect of ensuring that Courtney and Deepak remained in her care. That application apparently was adjourned on that day to 2 February 2001, when it was further adjourned to 8 February 2001. However, after the Court hearing had taken place on 2 February 2001 the Department removed Courtney and Deepak from the care of the first defendant and placed them with their maternal aunt and her husband, those being the persons who were already caring for the two oldest children, that is, the two children of the third defendant.
5 When the matter came back before the Children’s Court on 8 February, the learned Magistrate made interim orders to the effect that Deepak and Courtney should continue to reside with the first defendant, and that the first defendant should have responsibility in relation to medical treatment and education, with other aspects of parental responsibility being left with the Department.
6 On the Department's application, that order was stayed with the view to an application being made to the Supreme Court, resulting in these proceedings. There was a short hearing before Simos, J. on 9 February 2001, and on that day his Honour made orders to the effect that Courtney and Deepak could remain with the maternal aunt and her husband up to and including today. The plaintiff has today sought that in effect I extend that provision until some other order is made by the Children’s Court, or alternatively until the Children’s Court finally disposes of the first defendant's application.
7 The plaintiff also seeks orders authorising the plaintiff to organise the professional assessment of the four children by a qualified psychologist, and organise the professional assessment of Courtney and Deepak by a qualified speech pathologist; and, as I understand it, that aspect of the application is not opposed.
8 I have been provided with a considerable amount of material but, having regard to the nature of these proceedings and the absence of cross-examination, it will not be possible for me to come to any conclusion on disputed questions of fact.
- SUBMISSIONS
9 Mr Singleton, who appeared for the plaintiff, submitted that this Court had full jurisdiction to deal with the matter, and to come to the decision which it considered to be in the best interests of the children. He referred me to s.247 of the Children & Young Persons (Care And Protection Act) 1998, which provides that nothing in that Act limits the jurisdiction of the Supreme Court. He also referred me to the case of DOCS v W, (1999) SCNSW 664, in which Austin, J. gave consideration to the parents patriae jurisdiction of this Court. He also referred me to the decision of Cowling v Cowling (1998) FLC 92,801, relating to the principles to be applied in interim decisions concerning custody, where the Court considered the importance of maintaining the status quo, but also said that the status quo was not to be construed narrowly as necessarily meaning the actual physical situation of the children at the time the Court makes its decision.
10 Mr Singleton submitted that, prior to the application being made by the first defendant to the Children’s Court, the Department had begun the process of restoring the children to their natural parents, and in fact a decision had been reached to move the two children, Courtney and Deepak to their maternal aunt within the next four to six weeks. He submitted that the application to the Children’s Court was an attempt to forestall this.
11 The plans of the Department for the children were based on a detailed report, made by a psychologist, Mr Champion, which highlighted concerns about the situation with the children with the first defendant, and also supported steps being taken to change the situation over the ensuing months.
12 Mr Singleton submitted that the relevant status quo included the legal right of the Department to discharge its responsibility for the children in the way it considered appropriate, and its plans for implementing the recommendation of Mr Champion and for a gradual progression directed towards ultimate restoration of the two children to the second and third defendants.
13 Mr Singleton submitted that the children were now in the care of the maternal aunt and her husband, who had been assessed back in 1998 very positively in a report which had also been adopted by a child psychiatrist, Dr Waters. He submitted that it could be more traumatic for them now to be returned to the care of the first defendant. He submitted that the maternal aunt and her husband had been good carers of the two eldest children for three and a half years, and there had been no problems. On the other hand, the report of Mr Champion did suggest problems in the household of the first defendant. It suggested that this household lacked the calmness and stability that was desirable for these two children.
14 Finally, Mr Singleton submitted that there was now the prospect of strongly contested and emotional proceedings in the Children’s Court. The maternal aunt and her husband would not be directly involved in those proceedings, and there would be an advantage in the two children being insulated to some extent from the stress of those proceedings.
15 These submission were supported by Mr Rogers, who appeared for the second and third defendants. He submitted that the Magistrate had not given reasons for her decision, apart from expressing concern that the action of the Department had disturbed the status quo.
16 Mr Viney for the first defendant submitted that the plaintiff was not in substance giving effect to the intent of the original order made in November 1998, which contemplated restoration to the parents within two years. He submitted that Courtney and Deepak had only been with the maternal aunt and her husband for some ten or eleven days, and that there was no up-to-date assessment of them, and no evidence as to the physical circumstances in which the children were being held or as to what arrangements were being made, for example, for looking after the children before and after school.
17 He pointed out that the defendant had had the full-time care of these children since 1997. He referred to Mr Champion's report and submitted that, on the evidence, the first defendant and her husband had taken notice of the recommendations in that report to improve the childrens’ situation and had put those recommendations into place. He submitted that the first defendant had been honest and frank in admitting that some of her strategies in relation to two of the children could be improved, and had taken steps by having counselling to do that. He submitted that there was nothing in the evidence to suggest that the children had been held back in their development through their care by the first defendant, and submitted that, on the evidence, they were attached to their older siblings from whom they had been removed. He pointed to evidence from persons outside the home supporting the standard of care which the children were given by the first defendant.
18 He submitted that the order made by the Magistrate was made after a careful hearing and after careful discussion as to the appropriate order to be made.
19 Ms Defina, who appeared by leave for the two children, also referred me to the decision of Cowling, and submitted that the paramount consideration was the interests of the children. She submitted that, if there was a stable placement of the children in existence at the time of the hearing, then that would normally be continued, otherwise the Court just had to consider what would be in the Children’s best interests. She submitted that the present physical situation, having only been in place for a few days, could not be regarded as a well settled, stable placement. However, she also accepted that it was not clear that the prior placement was itself well settled.
- DECISION
20 In this matter, the Court is being asked to make an order that displaces a considered order made within jurisdiction by another judicial officer. The usual principle that applies when the Court is asked to do this is that the Court will not interfere with such an order, particularly an order made in exercise of a discretion, as this is, unless the Court is satisfied that the decision is plainly wrong, or unless some error appears in the process leading to that decision, such as failure to give a proper hearing, error of law, or failure to give reasons.
21 No one has referred me to any authority in which that approach has been strictly applied to cases of this kind. Indeed, it was submitted by Mr Singleton that, because of the nature of the Court's traditional jurisdiction, which is expressly preserved by s.247 of the 1998 Act, and because of the paramountcy of the interests of the children, this Court would not regard itself as strictly limited by that approach.
22 I think that submission is correct. However, I think the principles I have mentioned are still relevant, and that this Court would approach the matter on the basis that justification has to be shown for overriding the decision of another judicial officer.
23 I do not have before me satisfactory evidence of the reasons given by the Magistrate. However, from what has been conveyed to me from both sides by statements from the Bar Table, it appears that the Magistrate did place weight on what she regarded as a disturbance to the status quo by the action of the plaintiff, and it does not appear there was any further analysis as to what was the real status quo. It may be that such analysis emerged in the dialogue preceding the Magistrate's decision. However, even Mr Viney, who appeared for the first defendant, has not been able to indicate that there was really any such analysis or consideration.
24 I mention this because it does seem to me that the question of the correct analysis of what was the status quo is central to a determination of what provision should be made in relation to these children, pending the final determination of the Children’s Court proceedings.
25 In this matter the status quo had these elements. Firstly, the Department had full responsibility and authority in relation to the care of the two children; secondly, they were physically in the care of the first defendant; thirdly, plans were in place for the progression towards restoring the two children to the care of the first and third defendants. Those plans were based on a very detailed and comprehensive report by Mr. Champion, and involved the prospect that the care of the children would be transferred from the first defendant to the maternal aunt and her husband, as a step towards restoring them to the care of the second and third defendants. Restoration to the second and third defendants was not going to be the inevitable result of those plans, because that final step depended very much on the second and third defendants proving, at least to the satisfaction of the plaintiff, that they had rehabilitated themselves to the extent they could be trusted with the care of the two children.
26 When analysed in that way, I do not think it is fair to regard what the Department did, in response to the defendant's application, as a disturbance of the status quo, or at least to regard it as simply a disturbance of the status quo, without having regard to the more complex nature of the status quo which I have defined.
27 Having regard to that analysis, and having regard to the other matters put by Mr. Singleton, including what seems to me to be the undesirability of a further sudden change in the situation of the two children, I think it is appropriate to make an order which will have the effect that the two children will for the time being remain with the maternal aunt and her husband. The order will not preclude some other interlocutory order being made by the Children’s Court if a change of circumstances emerges which justifies some change being made.
28 It appears from the evidence that the first defendant has grave concerns as to whether it will be appropriate, even in the medium term, to return the two children to the care of the second and third defendants, and I think it should be made clear, either by order or by an undertaking by the plaintiff, that that step will not be taken before there is a final decision by the Children’s Court in the Children’s Court proceedings.
29 I make the following orders.
30 Subject to the following orders, I order that Courtney and Deepak be placed in the care of the plaintiff, until the determination of the Children’s Court proceedings in relation to them brought by the first defendant.
31 I order that the previous order may be superseded by a different interim order made by the Children’s Court, if either material fresh evidence or a material change of circumstances justifies such a different order, in the view of the Children’s Court.
32 I order that appropriate provision be made by the plaintiff for weekly access between the two children, the first defendant, her husband, and Anna and Bruno, and I reserve liberty to apply to this Court in relation to such access.
33 I make orders 10 to 15 in the Notice of Motion.
34 I stand the summons over to Monday, 13 August 2001, before the Registrar.
35 I reserve costs.
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