Re Benji and Perry

[2018] NSWSC 1594

Supreme Court

New South Wales

Medium Neutral Citation:	Re Benji and Perry [2018] NSWSC 1594
Hearing dates:	18/10/2018
Date of orders:	18 October 2018
Decision date:	18 October 2018
Jurisdiction:	Equity
Before:	McDougall J
Decision:	Summons dismissed. No order as to costs.
Catchwords:	CHILDREN – parens patriae jurisdiction – application in effect to prevent implementation of orders made by the Children’s Court – where Children’s Court ordered that children the subject of the application be returned to their carers – where Department contends that this would pose an unacceptable risk of harm – necessary for a court exercising supervisory or prerogative jurisdiction to confine itself to its powers and not engage in merits review – where judgment of the Children’s Court appears logical and analytical on its face – no reviewable error disclosed – application dismissed – more detailed reasons to follow.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Briginshaw v Briginshaw (1938) 60 CLR 336 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Director-General of the Department of Community Services v Priestley [2004] NSWSC 639
Category:	Procedural and other rulings
Parties:	Secretary of the NSW Department of Family and Community Services (Plaintiff) The Children’s Court of New South Wales (First Defendant) Mr and Mrs Thompson (Second Defendants)
Representation:	Counsel: M Anderson (Plaintiff)   Solicitors: NSW Crown Solicitors (Plaintiff) J David (Second Defendants) A Mowbray (Mother) B Smith (Direct Legal Representative for Perry) S Luke (Independent Legal Representative for Benji)
File Number(s):	2018/316182

Judgment   (ex tempore – revised 19 october 2018)

1. HIS HONOUR: I have come to the conclusion that the application in this matter should be dismissed. Both because of the hour and because of the volume of material, including decided cases, that has been put before me on short notice, I propose to give brief reasons now and to deliver more detailed reasons when time permits.

2. The application before the Court is in effect, although not in law, one to prevent the implementation of orders made on 16 October 2018 by the Children's Court of New South Wales. The application involves what is often called the parens patriae jurisdiction.

3. The subject of the application are two boys, aged 13 and ten. They will be known by the pseudonyms of "Perry" and "Benji" respectively. Perry has been in the care of the second defendants, who will be known by the pseudonyms "Mr and Mrs Thompson", for many years and indeed, three years ago, this Court made orders for them to adopt him.

4. Benji is the biological child of a mother who will be known by the pseudonym "Ms Lane". He has been in the care of Mr and Mrs Thompson for almost all his life. He and Perry regard each other as brothers.

5. There is a third child involved, although the orders of the Children's Court do not affect her. She will be known by the pseudonym "Alexa". She is the full biological sibling of Benji. She had been in the care of Mr and Mrs Thompson for about four years.

6. It appears to be common ground that Mr and Mrs Thompson could not cope with some of Alexa's behaviours. Accordingly, she left their care for short-term respite care. There was evidence before the Children's Court that an explanation for Alexa's behaviours may have been that she suffered from a condition known as Reactive Attachment Disorder. I shall seek to explain that in more detail in my later reasons.

7. When Alexa was placed into respite care, she made complaints of sexual abuse relating in particular to Mr and Mrs Thompson. There was some suggestion that Benji and Perry may have been involved one way or another. The complaints were reported to the Department of Family and Community Services, and investigated appropriately. The Department expressed the view that they had been "substantiated". Since Mr Anderson of Counsel, who appeared for the Secretary today, placed some weight on that substantiation, I shall set out the way that the learned Magistrate described it in his reasons at page 9:

At this point it is appropriate that I make some comment on the notion that the abuse allegations have been “substantiated”. At its highest, “substantiation” is an indication that some person, upon reviewing all the available evidence, has reached a determination that the allegations were true. I have not been told whether any particular process, expertise, or standard of proof was employed in that process. It must certainly have been the case that the person who substantiated the allegations did so without having been informed of Ms Howell’s competing hypothesis. Substantiation is nothing more than a value judgment made by another person who, in this case, did not have all of the evidence that the Court has heard. It is not something which renders an allegation into fact or binds any subsequent fact-finder.

8. Mr Anderson did not cavil with that description of the concept. I have to say that "substantiation", so understood, must have minimal if any probative weight, even in a court, like the Children's Court, that is not bound by the rules of evidence and that is to be conducted with as little formality and technicality as possible.

9. In those circumstances, Alexa remained where she was (or she may have been moved to other carers; I do not know, and it does not matter for present purposes). The Department took steps to remove Benji and Perry from the care of Mr and Mrs Thompson.

10. That led to two applications in the Children's Court. One was brought by Mr and Mrs Thompson. It sought the allocation of parental responsibility for Benji and Alexa to them. The application in respect of Alexa was not pressed at the hearing. The Secretary brought an application seeking allocation of parental responsibility for Perry to the Minister until Perry attained the age of 18.

11. Each side, if I can call it that, opposed the orders sought by the other. It is worth noting that not only Mr and Mrs Thompson, but also Ms Lane and the legal representatives of Perry and Benji opposed the applications made by the Secretary, and supported the applications made by Mr and Mrs Thompson.

12. The hearing before the Magistrate occupied some eight days, over a number of months. Obviously, there was a lot of evidence. The Magistrate gave reasons on 16 October 2018. I have studied them carefully. I have to say that on their face they appear to be detailed and comprehensive. They demonstrate what appears to be a reasoned approach to the issues and an appropriate analysis of the evidence. They set out conclusions that could follow from the evidence as it was recounted by the Magistrate.

13. The Secretary wishes to challenge the orders, insofar as they were final orders. That means, in respect of Perry, that the Secretary has the right of appeal to the District Court, pursuant to section 91(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). However, there is no right of appeal in respect of the order made as to Benji, because that order was an interim order and thus an appeal is excluded.

14. The essential complaint made by Mr Anderson of Counsel, for the Secretary, is that the learned Magistrate applied the incorrect test when assessing, in substance, the question of who should have the care of the two boys. However, when that submission was examined, it proved to be not so much that the Magistrate adopted the wrong test but, rather, in some way applied it wrongly on the facts before him. I have to say that when the complaint is looked at in that way, it is very difficult to understand how there can be an appropriate basis for this Court to intervene in the exercise of its parens patriae jurisdiction. As Young CJ in Eq said in Director-General of the Department of Community Services v Priestley [2004] NSWSC 639, it will generally be inappropriate for the Court so to deal with the matter where the error alleged against a judicial officer in a specialised jurisdiction is that, in the exercise of discretion, he or she failed to give due weight to all the relevant factual circumstances.

15. Faced with that conundrum, Mr Anderson submitted that the Magistrate had misdirected himself because he had regarded himself as bound by the evidence of the expert, the psychologist who had suggested that Alexa might suffer from Reactive Attachment Disorder. Certainly, when one looks at the reasons of the Magistrate, he expressed himself in ways that could be thought to suggest that. For example, he pointed out that the psychologist's evidence "comes as a package" so that if he accepted her as credible taking into account the criticisms of her methodology and the suggestion of bias, then "it seems I am bound to accept her conclusions, because there is no principled reason not to do so". The Magistrate expressed a similar view at a later point in his reasons, having gone through the evidence once more and in detail.

16. However, when one considers the reasons as a whole, rather than by extracting particular passages from them, it is clear that what the Magistrate is saying is that when he takes into account the whole of the written and oral evidence given by the psychologist, and when he considers the particular criticisms that were made of it, there is no principled reason to disregard the conclusions that she expressed. That does not seem to me to amount to an abdication of the responsibility of decision making to an expert. It is, with all respect to Mr Anderson's citation of the observations of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59], a long way indeed removed from acceptance of the mere unreasoned ipse dixit of an expert.

17. When one looks at the whole of the Magistrate's reasons, in my view, his Honour is seen to have displayed a thorough analytical approach to the evidence of the psychologist. He took into account the criticisms and the limitations in the evidence, but concluded nonetheless that her opinions were acceptable and that they were persuasive on the appropriate onus which, as he reminded himself, was the civil onus but bearing in mind the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336).

18. On that basis, the Magistrate was faced with a situation where there was not the probability, but, as he acknowledged, still the possibility, of sexual abuse to the boys if they were returned to the Thompsons. He was also faced with the position, which no-one criticises, that to keep the boys apart and to keep them away from the Thompsons would cause each of them actual psychological harm. Thus, as the Magistrate said, he was required to weigh the possibility of risk against the certainty of harm. That is a task which could well be said to involve the comparison of incommensurable factors. Nonetheless, it is a task that the Magistrate, I think correctly, saw himself as bound to carry out, and sought to carry out. He concluded that the appropriate course was to avoid the certainty of harm and thus made the orders in question.

19. In my respectful opinion, there is nothing in the Magistrate's reasoning process – nothing in his statement of the question to be answered, in his approach to answering that question, or in his analysis of the evidence overall – that entitles, let alone requires, this Court to intervene in the exercise of its parens patriae jurisdiction.

20. It is most important that a court exercising supervisory or prerogative jurisdiction confine itself to the powers that it has, and not stray into the area of review on the merits. That was expressed, although in a different context, in the reasons of the majority in the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at, in particular, [30] (French CJ), [66] (Hayne, Kiefel and Bell JJ), and [105] (Gageler J).

21. If I may say so, the beguiling submissions that Mr Anderson put to the Court today sought to induce that very error of approach.

22. The consequence, as I have said, is that the application must be dismissed.

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Decision last updated: 22 October 2018