Re "Brett"

[2006] NSWSC 984

CITATION:	Re - Brett v Children's Court of NSW [2006] NSWSC 984 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17 August 2006, 18 August 2006
JUDGMENT DATE :	22 September 2006
JUDGMENT OF:	Sully J at 1
DECISION:	That the plaintiff be granted any extension of time necessary to permit of the hearing in this Court of the amended summons filed in Court by leave on 17 August 2006; That the order made by the first defendant on 23 February 2006 in the Children's Court sitting at Nowra be quashed; That the application of the second defendant filed on 17 February 2006 be remitted to that Children's Court there to be heard and determined accocrding to law; That the second defendant pay the costs of the plaintiff and of the third defendant of the hearing in this Court. No order as to the costs of the first defendant
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Judiciary Act 1903 (C'wealth) (as amended)
CASES CITED:	Re Liam [2005] NSWSC 75 Re Edward (2001) 51 NSWLR 502 Collins (alias Hass) v The Queen (1975) 133 CLR 120 S v Department of Community Services (2002) 29 Fam LR 144 Anderson v The Judges of the District Court of NSW (1992) 27 NSWLR 701
PARTIES:	Re "Brett" Children's Court of New South Wales
FILE NUMBER(S):	SC 11891/06
COUNSEL:	I. Bourke - Plaintiff S. Burchett - 2nd Defendant E. Ito - 3rd Defendant
SOLICITORS:	Shoalcoast Community Legal Centre - Plaintiff I. V. Knight - 2nd Defendant Charles Shirley - 3rd Defendant
LOWER COURT JURISDICTION:	Children's Court of NSW
LOWER COURT FILE NUMBER(S):	-
LOWER COURT JUDICIAL OFFICER :	Coombes CCM
LOWER COURT DATE OF DECISION:	23 February 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

22 September 2006

11891/06 – RE ‘BRETT’ v CHILDREN’S COURT OF NEW SOUTH WALES

JUDGMENT

HIS HONOUR:

[NOTE: This hearing was conducted in a closed Court ]

[NOTE: An order has been made prohibiting the publication of the name of, or of any material apt to identify, the persons known in these proceedings by the pseudonyms “the mother” and “Brett” ]

Introduction

1 By an amended summons filed in Court by leave on 17 August 2006 a plaintiff who will be referred to only as “the mother” seeks the following relief:

“1. An order granting leave to commence this appeal, pursuant to Uniform Civil Procedure Rules 50.3(1)(c).
2. An order that the decision to grant leave pursuant to section 90 of the Children and Young Persons (Care and Protection) Act 1998 by Coombes, Children’s Court Magistrate on 23rd February 2006 in the Children’s Court of NSW sitting at Nowra, be set aside.
3. A declaration that the learned Magistrate erred at law in his determination of an application for the granting of leave under section 90 of the Act
Particulars
a. The Magistrate erred in failing to apply the provisions section 90 (2A) of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”).
b. The Magistrate erred in failing to properly consider the provisions of section 90(2) of the Act and in doing so stated that there needed to be a “sufficient” change in circumstances.
c. The Magistrate erred in failing to grant an adjournment in circumstances where the child representative was not in receipt of all documents filed by the Department and had not had the opportunity to seek the child’s views, being a child above the age of 10 years.
d. The Magistrate erred in failing to grant an adjournment in circumstances where the Department had promised further material to support hearsay evidence in its initiating affidavits but had not yet provided that material.
e. The Magistrate erred in stating that the Department of Community Services case must be “taken at its highest” in making a decision as to leave.
f. The Magistrate erred in failing to allow the mother the opportunity to challenge, in any way, the evidence relied on by the Department.
g. The Magistrate erred in stating that the child had no right to have his views considered in relation to the leave question.
4. An order remitting the matter to the Children’s Court of NSW to be heard in accordance with the law.
5. Further order or orders as the Court considers appropriate.
6. Costs.”

The particulars thus stated are intended by the plaintiff to pertain to both of the claims numbered 2 and 3.

2 The summons cites three defendants. The first defendant is the relevant Children’s Court Magistrate. The second defendant is the Director-General of the Department of Community Services. The third defendant is the child who will be referred to only by the pseudonym: “Brett”. The first defendant filed a submitting appearance. The second defendant appeared by counsel and contested the plaintiff’s claims for relief. The third defendant appeared by counsel and supported the mother’s case.

3 It is convenient to dispose at once of the claim made in the first of the six numbered claims for relief.

4 In that connection it seems to me that R.50.3 of the Unified Civil Procedure Rules is applicable both to the summons as originally filed on 27 April 2006 and to the amended summons filed by leave on 17 August 2006. Both the summons and the amended summons were filed more than 28 days after 23 February 2006, the date of the relevant decision of the Children’s Court. Both pleadings are therefore out of time, and an extension of time is required in order that, in particular, the amended summons may now be dealt with by this Court. The hearing in this Court proceeded upon the basis that such leave, if needed, would be granted. In due course I will order formally that the necessary extension of time be granted.

The Relevant Facts

5 ‘The third defendant, Brett, was born on 12 January 1996. As of 23 February 2006, the date of the relevant Children’s Court decision, he was aged 10 years and not quite 2 months. He is now aged 10 years and a little over 8 months. The plaintiff is Brett’s natural mother. On 23 March 2004 the Lidcombe Children’s Court made final orders pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW), (“the Care Act”). The orders dealt with the care and custody of Brett and of two younger siblings. The orders were expressed thus:

“That the children be placed under the parental responsibility of ……(the mother) …… and the Minister jointly until each child reached the age of 18 years.
That the children have reasonable contact to ….(their natural father) …..the frequency of which and the conditions of which are to be determined by the Director-General.”

6 On 16 February 2006 one Shirley Tate, a case work manager for the Department of Community Services, filed in the Children’s Court at Port Kembla a document headed: “Application for Leave to Apply for Recision/Variation of Care Order and Application for Recision/Variation of Care Order”.

7 An examination of the contents of the document discloses that the application actually intended was one to vary the orders earlier made in the Lidcombe Children’s Court. The variation sought was an order in this form:

“Parental Responsibility to the Minister until …… (Brett) …… attains the age of 18 years pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998.”

8 The application sets out a number of so-described “significant changes in relevant circumstances ……” since the making of the Lidcombe orders. They are stated thus:

“1. (The mother) has failed to comply with the expectations set out by the Magistrate in his judgment dated 23/3/2004 in support of his decision that Parental Responsibility be joint between the Minister and (the mother).
2. Brett has been out of (the mother’s) care for a period of 6 months and there has been significant change in his behaviours to that demonstrated in his mother’s care.
3. (The mother) recently had a new born child – (name) on 31/12/2005,”

9 The application, when filed, was made returnable at the Port Kembla Children’s Court at 10 a.m. on 17 February 2006.

10 The application was supported by a lengthy affidavit sworn on 16 February 2006 by Mr. Anthony Pollard the day-to-day Casework Officer assigned to deal with the cases of the mother and her children, including Brett. The affidavit details in graphic and disturbing detail various dysfunctional aspects of the living conditions of the mother and of the children.

11 On 16 February 2006 at about 4.50 p.m. Mr. Pollard served the application and its supporting affidavit by delivering them to the office at Nowra of the plaintiff’s solicitor.

12 On 17 February 2006 the application was listed, not before a Children’s Court Magistrate at 10 a.m. but before a Children’s Court Registrar at 9.30 a.m. That Registrar ordered the mother “to file and serve any material regarding leave issue by 12 noon on 22nd Feb 2006”; directed that the Registry notify the mother and her solicitor accordingly; and adjourned the further hearing of the application to the Nowra Children’s Court on 23 February 2006.

13 On 21 February 2006 the mother’s solicitor received from the Registry notification of the orders of 17 February.

14 Either on the afternoon of 22 February 2006 or on the morning of 23 February 2006 there were served upon the mother’s solicitor two further affidavits in support of the application. The deponent, on 22 February 2006, of one of those affidavits was Miss/Mrs. Bronwyn Watson, a day-to-day Departmental Casework Officer assigned to the care of Brett and his family. The deponent, again on 22 February 2006, of the other of those affidavits was Mr. Anthony Pollard.

15 On 23 February 2006 Mr. Alan Robinson, a local practitioner, was retained by the mother’s solicitor, who was a solicitor working with the Shoalcoast Community Legal Centre, to represent the mother at the hearing that had been set for that day. Mr. Robinson had previous experience of legal matters concerning the mother.

16 On 23 February 2006 the application of the Department of Community Services was listed before the first defendant in the Nowra Children’s Court. Mr. Hoskings appeared for the Department of Community Services; Mr. Robinson appeared for the mother; and Mr. Shirley appeared for Brett. It will be necessary to return to the detail of that hearing. The Court made orders as follows:

“Present Orders to continue. No adjourned date given in Court. Re-listing for 9th March for mention.”

Relevant Provisions of the Care Act

17 Chapter 5 of this Act deals with the topic of “Children’s Court proceedings”. Part 2 of Chapter 5, with the provisions of which the present proceedings are largely concerned, deals with the topic of “Care Applications”.

18 A Care Application is defined as meaning an application for a Care order.

19 A Care Order is defined as meaning:

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

20 Applications for a Care order are to made, as a general rule, only upon the application of the second defendant. Such an order may be made, as a general rule, as either an interim order or as a final order.

21 Section 64 of the CareAct makes extensive provision for the notification of Care applications. The section provides:

“(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.
Note: The participation of children and young persons in decisions made under or pursuant to this Act that have a significant impact on their life as referred to in section 10 requires information, if appropriate, about a care application to be provided to the child or young person.”

22 The group of sections comprising sections 69-72 inclusive are all of potential significance for present purposes. They provide:

“ 69. Interim care orders
(1) The Children’s Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined.
(2) The Director-General, in seeking an interim care order, has the onus of satisfying the Children’s Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility.
Note: Section 49 makes provision for the care of children and young persons pending care proceedings.
70. Other interim orders
The Children’s Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings.
70A Consideration of necessity for interim care order
An interim care order should not be made unless the Children’s Court has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a final order or an order dismissing the proceedings.
Note: Sections 63 and 72 deal with the power of the Children’s Court to dismiss proceedings and section 94 deals with adjournments.
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) 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) 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.
Note: The Children’s Court cannot make a care order in circumstances to which section 75 (2) applies.
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).
(2) If the Children’s Court is not so satisfied, it may make an order dismissing the application.”

23 Section 78 provides for the making, in certain circumstances, of care plans. The provisions are:

(1) If the Director-General applies to the Children’s Court for an order, not being an emergency protection order, for the removal of a child or young person from the care of his or her parents, the Director-General must present a care plan to the Children’s Court before final orders are made.
(2) The care plan must make provision for the following:
(a) the allocation of parental responsibility between the Minister and the parents of the child or young person for the duration of any period for which the child or young person is removed from the care of his or her parents,
(b) the kind of placement proposed to be sought for the child or young person, including:
(i) how it relates to permanency planning for the child or young person, and
(ii) any interim arrangements that are proposed for the child or young person pending permanent placement and the timetable proposed for achieving a permanent placement,
(c) the arrangements for contact between the child or young person and his or her parents, relatives, friends and other persons connected with the child or young person,
(d) the agency designated to supervise the placement in out-of-home care,
(e) the services that need to be provided to the child or young person.
(3) The care plan is to be made as far as possible with the agreement of the parents of the child or young person concerned.
(4) The care plan is only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children’s Court.
(5) Other requirements and the form of a care plan under this section may be prescribed by the regulations.”

24 Those provisions interact with the provisions of section 80:

“ 80 Requirement to consider care plan
The Children’s Court must not make a final order:
(a) for the removal of a child from the care and protection of his or her parents, or
(b) for the allocation of parental responsibility in respect of the child,
unless it has considered a care plan presented to it by the Director-General.”

25 Provision is made, in a very particular and detailed way, for the rescission and variation of care orders. The relevant section is section 90:

“ 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) Before granting leave to vary or rescind the care order, the Children’s Court must take the following matters into consideration:
(a) the nature of the application, and
(b) the age of the child or young person, and
(c) the length of time for which the child or young person has been in the care of the present carer, and
(d) the plans for the child, and
(e) whether the applicant has an arguable case.
(3) An application may be made by:
(a) the Director-General, or
(b) the Children’s Guardian, 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, or
(e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person.
(3A) If:
(a) an application is made to the Children’s Court by a person or persons (other than the Director-General) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and
(b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and
(c) the Director-General is not a party to the proceedings,
the applicant must notify the Director-General and the Children’s Guardian of the application, and the Director-General and the Children’s Guardian are entitled to be parties to the application.
(4) The Children’s Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (3)(e) unless it considers the person to have a sufficient interest in the welfare of the child or young person.
(5) If:
(a) an application for variation of a care order is made or opposed by the Director-General, and
(b) a ground on which the application is made is a ground that has not previously been considered by the Children’s Court,
the ground must be proved as if it were a ground of a fresh application for a care order.
(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration:
(a) the age of the child or young person
(b) the wishes of the child or young person and the weight to be given to those wishes,
(c) the length of time the child or young person has been in the care of the present caregivers,
(d) the strength of the child’s or young person’s attachment to the birth parents and the present caregivers,
(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,
(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.
(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) On the making of an order under subsection (7), the Children’s Court must cause notice of the order to be served on the Director-General.”

26 The following section, section 91, makes particular and detailed provision as to appeals:

“ 91 Appeals
(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.
(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.
(3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.
(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.
(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.
(6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly.
(7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.
(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.”

27 The provisions of section 91 must be read in conjunction with section 247 which provides, simply:

“Nothing in this Act limits the jurisdiction of the Supreme Court.”

28 It is relevant to note, finally, the provisions of s 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) However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.
(3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

The Relevant Jurisdiction of this Court

29 This topic is examined precisely in the reasons of McDougall J in Re Liam [2005] NSWSC 75. Since I propose to proceed conformably with his Honour’s analysis and reasoning, it is expedient to quote as follows the relevant paragraphs of his Honour’s reasons.

“ The role of the Supreme Court
[25] It is apparent from the Act that the legislature intended that the Children’s Court should be the primary court for the hearing and determination of applications under the Act, and, more generally, for applications relating to the safety, welfare and well-being of children or young persons (in so far as the Act makes provision for such applications). It is equally clear that the legislature intended that the District Court should be the primary court of review of decisions made by the Children’s Court under the Act.
[26] Nonetheless, as s 247 of the Act makes clear, this court retains all its powers. On what basis should those powers be exercised?
[27] In Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79, Hodgson CJ in Eq dealt with that question at [20]-[22]. His Honour concluded that, although the traditional limitations and interference with discretionary decisions might not be strictly applied, nonetheless some justification must be demonstrated for this court to interfere. His Honour said:
[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.
(28) It is apparent that the parens patriae power to intervene is wider than the power of the court under the common law remedy of certiorari. The scope of, and limitations upon, that remedy were stated by the High Court of Australia in Craig v South Australia (1995) 184 CLR 163 at 163-76; 131 ALR 595 at 595-600; [1995] HCA 58. Their Honours noted the limited basis on which certiorari was available. They said that it was not an appellate procedure or some general means of administrative review, but that it would be available on distinct grounds including jurisdictional error, failure to convey the appropriate measure of procedural fairness, fraud, or error of law on the face of the record. They said:
“Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.
[29] In my judgment, it follows that if sufficient justification to intervene were established according to the Re Anna test, then the relief available would include that otherwise available by way of certiorari. That would be so even if, having regard to the restrictions on the availability of certiorari established by the High Court in Craig , that remedy itself were not in terms available. That is because the parens patriae jurisdiction is part of the inherent equitable jurisdiction of this court. The grant of relief in the exercise of that jurisdiction is, like all equitable relief, to be moulded according to the circumstances of the particular case. If, in the particular case, the proper exercise of the parens patriae jurisdiction requires orders in the nature of certiorari, then in my judgment those orders might be made notwithstanding at common law they could not be.
[30] In Re Victoria (2002) 29 Fam LR 157; [2002] NSWSC 647, Palmer J emphasised at [36] the statutory scheme establishing a specialist court, and providing an appeal process with particular mechanisms and powers. His Honour stated at [37]-[39] that although this court’s jurisdiction remained untrammelled by the scheme established by the Act, parties should be discouraged from bypassing the statutory appeal mechanism and, in effect, exploiting this court’s parens patriae jurisdiction as an alternative kind of appeal.”

The Course of the Hearing in the Children’s Court on 23 February 2006

30 The hearing began with a call-over before the Registrar. Mr. Robinson and Mr. Shirley protested against the extreme brevity of the time that each had had in which to consider the affidavit evidence put forward in support of the application; to take appropriate instructions respecting that material; and to file evidence in response. Mr. Robinson sought a one month adjournment.

31 Mr. Hoskings, for the applicant, objected to any adjournment. The basis of the objection was articulated as follows:

“Firstly, it’s a section 90 application. I can hand you a Supreme Court authority which says there’s no other party to the proceeding except the application: ( sic, but read “applicant”) . The other parties have no right to file any material at all and I’d seek the matter go before the Magistrate for a decision today.”

32 The Registrar referred the whole matter to the Children’s Court Magistrate then sitting, that being the first defendant in the present proceedings.

33 When the first defendant commenced the hearing of the application for leave, Mr. Robinson led off with an application for “an extension of time in which to file material on behalf of the mother”.

34 The first defendant responded: “Well is the issue of leave going to be a big issue in any event?”. Mr. Robinson answered affirmatively. He was invited to explain why; and he responded to the effect that the application was but the latest in a lengthy series of applications, and that “when you cut the wheat from the chaff and look at the material that relates purely to … (Brett) ….. there has been no change in the situation other than that the department, and I’m saying this quite purposely, stood over for (sic) ….the mother ….. to have …. (Brett) placed into care”.

35 The first defendant responded thus:

“But we need to progress the matter. I mean if I were to adjourn to allow the filing of documents it would have to be the next time I’m here.”

36 Thereupon, Mr. Hoskings, (incorrectly identified in the transcript as Mr. Robinson), at once intervened as follows:

“Your Honour before you do that I’d have to object to that happening because this a leave application so that there’s no other party to the matter until leave is granted and other parties can’t file and you can’t consider other people’s evidence. I can hand you up a Supreme Court authority that says that. It’s a matter of R v Edward 2001 Supreme Court and it says that. It’s an application between the applicant and the court and no one else is a party until leave is granted and once they’re a party then they can file material. So your Honour just has to be satisfied taking the Department’s case as high as that there has been a significant change in circumstances and in this place the evidence is quite immense. When you look at the judgment by Magistrate Crawford. He actually stipulates near the end of that decision a list of circumstances which he said would be significant change in circumstances that would warrant leave being granted. That starts at the bottom of page 17 of the judgment which is annexed to the first affidavit and they’re referred to in the original DOCS affidavit as well. When you read the judgment you’ll see that the whole issue regarding the mother was whether or not she could keep up a proper standard of care for the children. Now all the expert reports provided say that she hasn’t done that. One of the conditions that his Honour said would be a significant change in circumstances was that she continue to provide a satisfactory standard of care for the children on a sustained basis. Well all the reports say she hasn’t done that and in fact one of the boys hasn’t been in the house for six months and she’s admitted that he has been assaulting her and the other children and she was unable to cope. Now if that isn’t a significant change in the circumstances regarding to Brett, I don’t know what is. I mean that alone your Honour would be enough for you to grant leave over this. There’s plenty of other issues in there that would justify the granting of leave based on all those reports from the agencies that have been working with the mother in the home and so forth. It would be a fairly simple matter and you could come to that conclusion very easily on the material the Department’s filed.”

37 The first defendant said thereupon to Mr. Robinson:

“I think Mr. Robinson that’s probably right.”

38 It is clear from the transcript that the emotional atmosphere became thereupon highly charged. Mr. Robinson made a very spirited rejoinder which led to a sharp exchange at the Bar table as to whether Mr. Robinson was attempting impermissibly to give evidence from the Bar table. Mr. Robinson appears to have been unperturbed by the exchange, submitting in terms that “……… the Department has not been full and frank in its affidavit about the circumstances that led to ….(Brett) …being taken into care”.

39 The first defendant responded:

“But that’s what you do once section 90 is brought into play. I have to take material from the Department at its highest. I’ve read the affidavit and I think that this is probably one of the circumstances that Mr. Crawford anticipated might be the case and you will have an opportunity to contest the issues once I grant the application. I meant I’m happy to bring it back as soon as you like.

40 Mr. Robinson returned unbowed to the charge. He protested yet again about what he asserted to be an ongoing departmental campaign of essentially unsubstantiated applications; and he raised the question whether Brett, now aged 10 years, should be consulted as to his wishes even upon the threshold issue of leave to proceed.

41 The first defendant was unperturbed, responding:

“Well at the moment Mr. Robinson I think I’m against you. I think the matter needs to be addressed and you will have an opportunity to put the views that you want to put.”

42 Mr. Robinson persisted in his protests and in his application for some adjournment. He drew attention to what he described as “an ample amount of hearsay” in the affidavits filed thus far in support of the application; and to the foreshadowed provision by the applicant “within the next two weeks” of additional reports.

43 The first defendant was unmoved, responding:

“Well I think you see all of that is really post me granting leave.”

44 This provoked Mr. Robinson into a submission leading to the following exchange:

“ROBINSON: Basically what your Honour is doing is muzzling my friend and me, my friend Mr. Shirley and me by saying I’m going to pause through this application for leave, I’m going to make a decision about this application for leave when the other parties --
HIS HONOUR: That’s the way these applications work.
ROBINSON: -- with respect your Honour Edwards makes it clear.
HIS HONOUR: I have to consider the application from the applicant and at its highest decide whether in all the circumstances it seems as though there has been a sufficient change to warrant.”

45 Mr. Robinson, still unbowed, put some brief further submissions upon the proper application of section 90 (2) and (2A) of the Care Act and threw down this gauntlet:

“I’m allowed to say to your Honour that leave should not be granted. Is your Honour seriously saying that other parties have got no right to be heard in respect of an application for leave. Is that what your Honour’s saying?”

46 The first defendant replied:

“Well, what I am saying is I have to take the application at its highest and that’s what I propose to do. So I grant leave and when do you want to bring it back?”

47 There followed some further submissions upon another topic not now relevant.

48 As is apparent from the foregoing summary, the solicitor for the mother made the running, so to speak, during the proceedings before the first defendant. The solicitor then appearing for Brett took, according to the transcript, no active part; although Mr. Shirley had said to the Registrar much earlier in the piece that he understood that the application then pending was “….. a s 90 application and that’s all it is at this stage”.

An Examination of the Hearing on 23 February 2006

49 The submissions of Mr. Hoskings drew attention to the decision of Kirby J in Re Edward (2001) 51 NSWLR 502, and I think that it is a fair inference that the first defendant acted in accordance with certain of the propositions that are advanced in that decision.

50 A submission had been put to Kirby J based upon a passage taken from the joint reasons of Barwick CJ, Stephen, Mason and Jacobs JJ in Collins (alias Hass) v The Queen (1975) 133 CLR 120 at 122. Of that submission Kirby J says:

“36. The Minister, relying upon this passage, submitted that an application for leave was not inter partes. They were proceedings between the mother and the court. They were not, as such, proceedings about Edward.
37. This is a narrow view. However, I believe it to be the correct view. I accept that an application for leave under s 90(1) may be described as an application for an order under Ch5. However, it cannot be described as an application “for” the care of the child. The granting of leave does not, as such, affect the child. As counsel for the Minister said, in helpful written submissions, “the effect upon the child is potential (dependent on the making of a later order), not actual”.
38. However, the definition of a “care order” is significantly broadened by the inclusion of the words “with respect to the care and protection of a child or young person” (s.60). Can an application for leave be so described? In Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110, Mann CJ said this, commenting upon a similar expression (at 111) “……..The words ‘in respect of’ are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer”.
39. The expression, of course, appears in The Constitution, s 51. It will have a wide or narrow meaning, depending upon its context (R v M [1980] 2 NSWLR 195 at 223). I do not believe that a leave application can be described as an application “with respect to the care and protection of a child …”. …….. .”

51 I respectfully agree with what Kirby J says in paragraph 37; but I respectfully and reluctantly part company with his Honour upon the construction of the words “with respect to the care and protection of a child”. It seems to me, indeed, that the reason why the words “or with respect to” have been added as an alternative statutory nexus to the bare description “for” is precisely for the reason that without the alternative nexus a section 90(1) leave application would be in every practical sense a bare ex parte application untested as to its intrinsic merits by any conventional and legitimate method.

52 The submissions put in the present proceedings for the second defendant propound this proposition:

“……. An application for leave to bring an application under s 90 is not a proceeding ‘with respect to a child or young person’; it is an application with respect to the procedure for bringing care proceedings which, if permitted to be made, would be proceedings with respect to a child.”

53 I am unpersuaded by this submission. The making of a leave application is, no doubt, in one sense and from one point of view a procedural step taken in aid of a projected substantive application either to rescind or to vary current arrangements for the care and protection of some particular child or children. I do not see, however, why that consideration has the effect of depriving the leave application itself of any substantive character as a process, the precisely intended effect of which is an effect with respect to that current regime of care and protection. In so far as a correct understanding of the ratio decidendi of Re Edward suggests otherwise, then in my respectful opinion that ratio is erroneous.

54 There are other considerations which seem to me to support what I have said in the preceding paragraph. I can summarise them thus:

[1] As I have earlier herein explained, the originating process filed in the Children’s Court on 16 February 2006 was titled both as an application for leave and, (that word being italicised and underlined in the document), a substantive rescission/variation application. The document is, on its face, an officially prescribed “Form No. 3”. On page 3 of the document there appear, in a boxed area at the foot of the page, a table of so-described “Notes” . One of them reads:

“Applicant to serve copy of application upon interested parties”.
There is nothing to suggest that a party so served is to understand that the document served is to be regarded as notionally divided into two independent parts, one only of which, the projected substantive application, is being served “upon interested parties” .


[2] The occasion for the foregoing note about service “upon interested parties” is, in my opinion, readily understood; and is to be found in the provisions of section 64 and of section 98, as earlier herein set out. In other words, the prescription contained in the note itself recognises that the natural mother of the child in care, and the child itself if aged 10 years or more, are interested parties in the leave application as well as in the projected substantive application.

[3] There is, in my opinion, nothing in any of section 90(1), (2), or (2A), whether they are read individually or, and more appropriately, as a connected group of provisions, apt to indicate that the prescribed application for leave is to be regarded in any particular case as a mere formality, the end result of which can be taken more or less for granted. Even if a “significant change” as described in section 90(2) be found as a fact, then leave “may” , not “must” as in section 90(2A) for example, be granted. That wording seems to me to be intended to leave open at least some measure of residual discretion to grant or to refuse leave in a given case. The considerations which are itemised in section 90(2A) are mandatory and not optional.

The combined effect of those three sub-sections seems to me to be that it is recognised as an incident of the leave procedure that, at least in some cases, there will be room for the appropriate hearing of a contradictor, who has relevant standing, on the threshold section 90 issue of leave to apply for the rescission or variation of current care orders.

55 The hearing was, as previously noted, fairly brief, not to say peremptory. The repeated references by the first defendant to an obligation to “take the application at its highest” do not convey, with respect, a precise proposition. That language is conventionally used when an accused person who is facing a criminal prosecution submits at the close of the prosecution case that there is no case for him to answer. That submission made in that context calls for a ruling of law which has no element of residual discretion.

56 My impression is that the first defendant was of the view, influenced by his understanding of the consequences of the decision in Re Edward, that what he had to do was to look at the evidence in the affidavits supporting the leave application; assume that what they said was credible and accurate; and then to ask, upon the basis of that assumption, whether the affidavit evidence established that there had been “a significant change in relevant circumstances since the care order was made or last varied”.

57 That impression, if in fact correct, would indicate, in my opinion, an erroneous approach on the part of the first defendant. That would be so because in my opinion the first defendant was required to do significantly more than conduct a mere ex parte leave application. What was required was a discerning assessment of all of the criteria that are laid down by section 90(2) and (2A). Such an assessment could not be made except upon the basis of relevant findings of fact, clearly articulated. In so far as the first defendant was on notice that the mother, who was undoubtedly an “interested party” served as such with the leave application, wished to challenge the suggested facts put forward in support of that application; and to raise as well an issue of oppression that was relevant to the exercise of a discretionary power; then the first defendant had to resolve in the proper way those disputed issues of fact.

58 Whether the impression of which I have spoken is in fact correct, it is not possible to say with a proper confidence. That is so because what the first defendant said, as recorded in the transcript, at various points during the brief hearing does not expose, as I respectfully think, any process of reasoning beyond the repeated test of taking “at its highest” the evidence put forward in support of the leave application.

59 The importance of that deficiency is pointed up by the decision, referred to in argument in this Court, of the Court of Appeal, (Hayden and Hodgson JJA and Davies AJA), in S v Department of Community Services (2002) 29 Fam LR 144. The Children’s Court Magistrate who had originally dealt with that particular leave application had delivered a judgment which was described as “careful and considered”, and which permitted a precise review of a clearly articulated process of reasoning. The primary decision, thus reviewed, was held to have been faulty in law.

60 That it is not possible thus to review the decision of the first defendant cannot be laid at the door of the present plaintiff. If what little has been said in explanation of the decision to grant leave is apt to raise a reasonable impression that the decision is flawed in law, then that is a strong reason for concluding that some proper intervention by this Court in the exercise of its own jurisdiction as previously herein discussed is warranted.

61 In addition to the foregoing matters, the way in which the first defendant dealt with the adjournment application was, also, in my respectful opinion erroneous.

62 It is the case that the grant or refusal of an adjournment involves the proper exercise of a judicial discretion which ought not to be lightly disturbed by another Court. It is equally trite, however, that the refusal of an adjournment upon a basis that is misconceived or plainly inadequate is susceptible of proper correction.

63 At the brief hearing before the first defendant nobody suggested that Mr. Robinson’s remonstrances were frivolous or captious. That being so, the first defendant was required to consider any competing prejudices likely to flow from either the grant or the refusal of a short adjournment; and to consider as well any other relevant utilitarian factors.

64 Speaking, once again, necessarily in terms of impression and inference from the bare transcript, it seems to me that the first defendant’s reasoning was to this effect: that the mother and Brett were not entitled to test the evidence supporting the leave application or to be heard in opposition to that application; that the supporting evidence, wholly untested but “taken at its highest”, presented a fairly cut and dried prima facie case of “significant change” and on all the other section 90(2A) criteria; that any putative prejudice to the mother or to Brett could be cured at the projected substantive hearing; and that an adjournment of the leave application had, therefore, no utility and should be refused.

65 For the reasons earlier herein explained, I am of the opinion that such a process of reasoning was unsound; first, because the mother was entitled to be heard; secondly, because the grant of leave, precisely because it opened up another in what seems to have been a lengthy series of substantive applications, prejudiced the mother because it peremptorily deprived her of a fair chance to dispute the facts upon which the leave application was proceeding, both as to necessary foundational findings and as to relevant residual discretion.

66 The decision in S stands as authority for, inter alia, the propositions that:

“In some cases, it would not be inappropriate for the Children’s Court to consider both the leave application and the substantive application together, if the court announced at the commencement of the proceedings that that was what it was doing. However, in that event, the court would need to fully consider all aspects of the application.”

67 The course of argument before the first defendant raised matters which ought to have engaged some proper consideration of the desirability of adopting that expedient. No assistance in that connection appears to have been given by anyone to the first defendant; but it ought to have been given. The hearing together of the leave application and of the projected substantive application ought to have circumvented arid and wasteful preliminary debate about standing in the leave application; and ought to have ensured an efficient disposal, in one hearing, of all matters in issue.

68 It is appropriate to round off the present discussion by dealing with two further matters. The first matter concerns the stance taken by the then solicitor for Brett at the hearing before the first defendant. Mr. Shirley does not seem, judging of course only from the transcript, to have taken any active part in the debate about standing. In this Court, Brett has appeared by counsel and has supported the mother’s application. If Brett were a co-plaintiff with the mother, nice questions might well arise as to whether he should be given discretionary relief. As it is, Brett is not a co-plaintiff. If, therefore, the mother gets some such discretionary relief as she now seeks, then it is inevitable that the benefit of that relief will flow to Brett.

69 The second matter concerns part of the reasoning of Kirby J in Re Edward. His Honour refers, as I have earlier pointed out, to a passage in the joint judgment in Collins (alias Hass) v The Queen.

70 Collins dealt with the alleged unconstitutionality of an Order of the High Court Rules requiring an application for leave, or special leave, to appeal to be made by counsel. The question to be decided was whether such a Rule could stand with the provisions of section 78 of the Judiciary Act 1903 (C’wealth) (as amended); that section providing that in every court exercising Federal Court jurisdiction “the parties” may appear, inter alia, in person. It was held that in that particular context an applicant for leave or special leave is not a “party” within the meaning of section 78.

71 It seems to me that such a context is, on its face, quite different from the context of Part 2 of Chapter 5 of the Care Act; and that the construction given to section 78 of the Judiciary Act affords, therefore, no true guide to the construction properly to be given to section 90 of the Care Act.

72 For the whole of the foregoing reasons, I have reached the provisional conclusion that the plaintiff has established a prima facie entitlement to an order in the nature of certiorari, bringing into this Court and quashing the order of the first defendant granting the second defendant leave to apply for a rescission/variation order.

73 That makes it necessary to consider whether such relief, discretionary as it undoubtedly is, should in fact be ordered.

74 It is convenient to begin that discussion by quoting the relevant submission of learned counsel for the second defendant:

“Prerogative relief is discretionary and it is necessary to show, in addition to legal error, that there is utility in the making of the orders sought. It is submitted that, in this instance, there is no apparent utility; the Mother seeks to disturb the current arrangements for the care of her son and in practical terms that will require a review of the Care Plan proposed by DOCS and the provision by her of an alternative to the proposed Care Plan or other form of statement of proposed care. Furthermore given the patently significant change in circumstances by reason of the assumption of sole care for Brett by the Department with the agreement of the Mother (if not the deplorable domestic situation reported by the Department), there can be no doubt of the result of any further leave application. Despite the passing of almost 6 months since the decision, there is no evidence before this Court of any contrary case or argument diminishing the overwhelming strength of the application for leave. Any error in granting leave alleged may in any case be raised on appeal from the ultimate determination of the application to vary the care orders.”

75 The contrary submission of learned counsel for the plaintiff, as I followed it, is that if the first defendant did in fact misconceive what was lawfully required in connection with the application for leave, then ex debito justitiae that erroneous decision should not be allowed to stand.

76 It must be said, in my opinion, that there is some force in the submission of the second defendant. There is undoubtedly a legitimate and powerful public interest to have any proceedings under the Care Act dealt with expeditiously and without interruption caused by interlocutory applications. There is, however, a no less legitimate and powerful public interest to “….. uphold the fundamental purpose of relief prerogative in nature. This is to ensure compliance with the law and due procedure”: Anderson v The Judges of the District Court of NSW (1992) 27 NSWLR 701 per Kirby P (Meagher and Sheller JJA concurring), at 719B; and I have come to the conclusion that the latter consideration ought to prevail. I can see no reason why a fresh leave application and any projected consequential substantive application could not be heard simultaneously, expeditiously and efficiently. That would at least minimise, and with a little good sense and good will on all sides it ought in fact to avoid, further arid, wasteful and unfocused technical debate.

77 I will not grant relief in the form of a declaration such as is sought in the third prayer for relief in the amended summons. I do not see that there is any added utility to be had from doing so. I see no reason why costs should not follow the event, at least as between the plaintiff and the second defendant. I have considered whether it would be fair to order that the second defendant pay, also, the costs of the third defendant. The third defendant, Brett, has as lively an interest in the proceedings as the mother; and did in fact appear by counsel to support the claim of the mother against the second defendant. The practical upshot of that state of affairs seems to me to be that the second defendant has been unsuccessful not only as between himself and the plaintiff but as between himself and his co-defendant. On balance, therefore, I think that it is fair to order that the second defendant pay the costs of the third defendant of the hearing in this Court.

Orders

78 For the whole of the foregoing reasons I make the following orders:

(1) That the plaintiff be granted any extension of time necessary to permit of the hearing in this Court of the amended summons filed in Court by leave on 17 August 2006.

(2) That the order made by the first defendant on 23 February 2006 in the Children’s Court sitting at Nowra be quashed.

(3) That the application of the second defendant filed on 17 February 2006 be remitted to that Children’s Court there to be heard and determined according to law.

(4) That the second defendant pay the costs of the plaintiff and of the third defendant of the hearing in this Court. No order as to the costs of the first defendant.

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16/09/2009 - Cover page - typographical errorPar 64 - section 90(A) changed to section 90(2A) - Paragraph(s) 64Cover page - 'Decision' - 'third defendant' changed to 'first defendant', second last lineLower Court Date of Decision changed to 23 February instead of 22 February - Paragraph 36 - amended name to "Brett" - Paragraph(s) 36