Re 'Emily

[2006] NSWSC 1009

CITATION:	Re 'Emily v Children's Court of NSW [2006] NSWSC 1009
HEARING DATE(S):	11 September 2006 14 September 2006
JUDGMENT DATE :	28 September 2006
JUDGMENT OF:	Sully J at 1
DECISION:	Summons dismissed; No order as to costs of any of the defendants
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 (NSW)
PARTIES:	Emily Children's Court of NSW
FILE NUMBER(S):	SC 2006/13303
COUNSEL:	K. M. Guilfoyle - Plaintiff Dr. M. McFadden - 2nd and 3rd defendants L. Rogers (solicitor) - 4th defendant
SOLICITORS:	Muggenthaler & Assoc. - Plaintiff I. V. Knight - 2nd and 3rd defendants L. Rogers - 4th defendant
LOWER COURT JURISDICTION:	Children's Court of NSW
LOWER COURT FILE NUMBER(S):	Z3203 192/06
LOWER COURT JUDICIAL OFFICER :	Mitchell CCM
LOWER COURT DATE OF DECISION:	30 March 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

28 September 2006

2006/13303 – RE ‘EMILY’ v CHILDREN’S COURT OF NSW

JUDGMENT

[NOTE: These proceedings were heard in a closed Court. ]


[NOTE: An order has been made prohibiting the publication of the name of the infant having the pseudonym “Emily”; or of the name of either of her natural parents; or of any other matter apt to identify either the child or the natural parents. ]
Introduction

1 By an amended summons filed in Court on 14 September instant one Leonie Miller as Tutor duly appointed to represent the natural mother of Emily claims the following relief:

“1. An order that these proceedings be styled “Re EMILY and”

2. An order that the record of the Children’s Court of New South Wales, St. James, the Care Matter of ….(Emily)…., Date of Birth 20 September 2005, be called up to this Court and the determination of such Children’s Court of 30th March 2006 be quashed.

3. An order declaring that the Children’s Magistrate erred in law in failing to afford procedural fairness to the mother of ….(Emily)…., ….(Emily’s natural mother)…., in proceedings concerning a Care Application in finding that the child ….(Emily)….was in need of care under s 71 of the Act and making an interim order of parental responsibility of her daughter to the Minister of Community Services.

4. An order that the Children’s Court of New South Wales be prohibited from acting in proceedings concerning the Application for Care of ….(Emily)…. .

5. An order that the Supreme Court of New South Wales assume wardship of the said ….(Emily)….pursuant to its parens patriae jurisdiction.

6. An order that no information be published except for the purpose of the proper conduct of these proceedings and for the proper execution of the orders made in these proceedings, that would allow the child the subject of these proceedings to be identified.

7. Such further or other orders as this Honourable Court deems fit.

8. An order for costs against the first, second, third and fourth defendant.”

2 A summons was originally filed on 11 July 2006. Some important formal matters excepted, there is no difference of substance between the original summons and the amended summons.

3 On 11 September instant I made certain interlocutory orders one of which gave the relief sought in the first and the sixth of the prayers for relief in the summons; and nothing more need now be said upon those topics.

4 The summons cites five defendants.

5 The first defendant is the Children’s Court of New South Wales. This defendant filed a submitting appearance in the usual form.

6 The second defendant is the Director-General of the Department of Community Services; and the third defendant is the Minister for Community Services. Both of these defendants appeared by the same Counsel and contested the plaintiff’s claims for relief.

7 The fourth defendant is Emily herself. Her interests were represented by a solicitor separately instructed in that behalf.

8 The fifth defendant is Emily’s natural father. A notice of appearance was filed by a solicitor then instructed to appear for this defendant; but on 11 September that solicitor sought, and I granted, leave to withdraw for want of proper instructions. There was, therefore, no appearance by or for the fifth defendant. I am satisfied that all appropriate attempts were made to locate him, but that all those attempts were fruitless.

9 Emily’s natural mother was born on 26 February 1990. Emily was born on 20 September 2005, that is to say, when her mother was aged a little over 15-1/2 years. The mother is now aged a little over 16-1/2 years; and Emily herself is now aged a few days more than 12 months. The fifth defendant, Emily’s natural father, was born on 21 September 1988. He was aged, therefore, 17 years almost to the day when Emily was born; and he is now aged a few days more than 18 years. Both of Emily’s natural parents identify themselves as persons of Aboriginal extraction. That will become relevant in due course because of certain particular provisions of the relevant legislation.

The Background to the Relevant Proceedings in the Children’s Court on 30 March 2006

10 On 27 March 2007 an application was filed in the St. James Children’s Court. The application was made by one Tana Kacer, Emily’s Casework Manager, acting as delegate of the second defendant who was named as the actual applicant. The application gave the names of both of Emily’s parents, the address of each being stated as “Unknown”.

11 The application sought a final order, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW), (“the Care Act”), awarding parental responsibility for Emily to the third defendant until Emily attained the age of 18 years. The application sought additionally an interim order awarding parental responsibility for Emily to the third defendant until final orders were made.

12 The application sets out the following grounds for the making of the application:

“The mother and father of the child do not play a primary role in the care of ….(Emily)…. .

The mother and father have a domestic violent relationship when together.

The mother left the child in the care of her maternal grandmother and family in Waterloo and has not informed the maternal grandmother of her whereabouts or her future intent regarding the child.

The father has criminal charges including physical abuse, theft.”

13 The application was supported by an affidavit sworn on 23 March 2006 by one Claire Ridley, a Child Protection Case Worker having day-to-day case work responsibility for Emily. The affidavit details a distressing and troubling case history in connection with the proper parenting of Emily; and asserts that Emily is in need of care and protection as contemplated by section 71 of the Care Act. Two particular assertions are made in that connection: first, that there is a need pursuant to section 71(1)(a) in that:

“……. there is no parent available to care for the child as a result of the parents not being available or capable of being the primary carer for the child’;

and, secondly , that there is a need pursuant to section 71(1)(d) in that:

“… … . the child’s basic physical, psychological and educational needs are not being met, or are likely not to be met, by her parents.”

14 On 20 April 2006 Emily’s mother approached, in the precincts of the St. James Children’s Court, the Duty Solicitor then rostered to assist, and to represent if appropriate, parents who were parties to care proceedings in that Court. The mother asked the Duty Solicitor to act for her in connection with the second defendant’s application to which I have earlier referred. The Duty Solicitor was handed the aforesaid application and the supporting affidavit; and was given as well a Case Plan dated 13 April 2006 and signed by Miss or Mrs. Kacer and by Miss or Mrs. Ridley. It is unnecessary to canvass for the moment the fine detail of the Case Plan.

15 Emily’s mother told the Duty Solicitor that the care application had been before the Court on some earlier date; that she had not been present at that earlier hearing; that she had been visiting Emily’s father’s relatives in the country, having left Emily with her, that is Emily’s, grand-mother who was still caring for Emily; and that she wanted help in order to find out “what is going on”.

16 The inquiries thereupon made by the Duty Solicitor established that the second defendant’s application had come before the St. James Children’s Court, - (called, I presume incorrectly, the Local Court in the relevant transcript), - on 30 March 2006.

The Course of the Relevant Proceedings in the Children’s Court on 30 March 2006

17 The official transcript of the proceedings is in evidence. It runs to a bare page and a half of typescript. It appears from that record that a ”Ms Rowley” appeared for the second defendant; that a “Ms Rogers” appeared for the child; and that a “Ms Muggenthaler” appeared for the mother. I suspect that the reference to “Ms Rogers” should be a reference to Mr. Rogers, the solicitor who separately represented Emily before this Court. The reference to “Ms Muggenthaler” is a reference to the Duty Solicitor of whom I earlier spoke; and there is in evidence a note from the Registrar of the “Local Court St James/Family Matters” confirming that the reference is incorrect, and that there was in fact no such representation of the mother on 30 March.

18 Because of the brevity of the transcript, it is convenient to reproduce it rather than to paraphrase it. The transcript reads:

“HIS HONOUR: How old is ….(Emily)?

ROGERS: She was born September last year so she is six months.

HIS HONOUR: Her mother is ….(name given).

ROWLEY: Her whereabouts are unknown to the department.

HIS HONOUR: The father is ….(name given)…. Is he engaged?

ROWLEY: We’re not expecting an appearance by or on behalf of either of the parents. This is a position situation where ….(Emily)….is with her maternal grandparents, her maternal grandmother. My case worker thinks that she may have seen the grandmother here this morning.

HIS HONOUR: What’s the maternal grandmother’s name?

ROWLEY: ….(name given)…., the maternal grandmother.

HIS HONOUR: And there’s a maternal great grandmother too. I met ….(Emily)….so that’s fine, so which is the grandmother and which is the great grandmother. You’re the great grandmother are you?

GREAT GRANDMOTHER: Do I look that old?

HIS HONOUR: No you don’t, but the grandmother doesn’t look old enough either. What is happening in this matter?

ROWLEY: It’s a fresh care application. The affidavit deposes to the history of the mother leaving ….(Emily)….with her mother and not engaging in her care. The difficulty is between the mother and the father’s court appearances requiring the attendance of the mother at Bidura Court and her disengagement from her family home.

We would be asking for an indication as to whether the matter can be established, if not a short adjournment with the making of an interim order. We’re not seeking to disturb the placement of ….(Emily)….from her grandmother’s care.

SPEAKER: I have no objection to the interim order, nor -- would seem to me on ground A at least we could make a finding.

HIS HONOUR: I think that’s right. The case is established, now you’re asking for an interim order placing ….(Emily)….in the PR of the minister.

ROWLEY: Yes and not to move her from the care of her grandmother.

HIS HONOUR: The minister is not going to disturb the present placement. Plans I suppose, how long do you nee-, three weeks? So plans by 20 April, is the mother and father likely to participate do you think, it’s unlikely we could find them.

ROWLEY: On the present information we’ve got it’s wholl- unlikely they will participate.

HIS HONOUR: I will bring it back on 20 April. Stand ov-- to 20 April for mention or ex parte orders. There’s liberty to apply on short notice and I think that’s all. She is very lucky to have you ladies too because you obviously love her and are looking after her, so that’s terrific. We will see you back here on 20 April and try and sort this out very quickly.”

[Note: The concluding portion of the above transcription commencing with the word “Speaker” is taken from the second page of the official transcript. The photocopy which is available to the Court has been carelessly copied in that the page to be copied has not been correctly inserted into the copier. The result is that the right-hand margin of the copied page has been truncated in the copy made available to the Court. What is reproduced above is what can actually be read on the page as it stands in the evidence produced to this Court. The sense of what is thus conveyed is, I apprehend, sufficiently clear for present purposes. ]

19 The orders thus pronounced were formalised in the form of an interim order phrased thus:

“that the child be placed under the parental responsibility of the Minister, (Minister does not intend disturbing present placement), pending further order.”

The Plaintiff’s Submissions

20 These are helpfully summarised, as follows, in paragraph 22 of the written submissions put in for the plaintiff:

“(a) The application itself contained a logical internal inconsistency which, of itself, was evidence against the application.

(b) The application did not comply with the requirements of the Act.

(c) The grandmother, ….(name inserted)….at all material times, was present in Court, and available to be questioned. She was never questioned about the matter by his Honour or by the legal representatives.

(d) The mother ….(full name supplied)….was never contacted. The application was made ex parte, without the application of rigour that is ordinarily demanded in such applications; there was no proof of attempted service, and there was no inquiry by the Court as to service.”

21 I shall return presently to consider individually these four stated grounds.

The Submissions of the Second and Third Defendants

22 These submissions are helpfully summarised in the following portions of paragraph 43 of the written submissions put in for the second and third defendants:

“2. The application for prerogative relief is premature as the finding and interim order can be reviewed by the Children’s Court.

3. The finding that the child was in need of care and protection can be re-agitated before the Children’s Court without the intervention of the Supreme Court.

4. The interim order for parental responsibility to the Minister can be revisited before the Children’s Court without the intervention of the Supreme Court.

5. On 30 March 2006 the Magistrate had available to him evidence that the parents were not available to care for the child or capable of meeting the child’s basic needs.

6. On all subsequent occasions the matter has been before the Children’s Court, the mother has been present and/or legally represented and at no time has sought to revisit either the finding of need of care or the interim order of 30 March 2006.

7. No objection has been raised regarding Magistrate Mitchell continuing to hear the matter in the Children’s Court.

8. There has been an unexplained delay in bringing the summons.

9. The parens patriae jurisdiction should only be exercised in exceptional cases and this is not such a case: the evidence does not disclose an urgent need for a protective order or the need for the provision of instant relief.”

The Relevant Provisions of the Care Act

23 It is convenient to begin this survey by referring, in general terms, to section 9 of the Care Act. That section states in seven successive and discursive paragraphs the principles that are to be applied in the administration of the Care Act. It is necessary, for present purposes, to notice in particular only the first of them which is 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.”

24 Sections 11 through 14 add to section 9 certain additional principles that are to be borne in mind in connection with Care applications concerning persons of Aboriginal or of Torres Strait Islander extraction. It is not necessary to say more about these sections than that they are crafted so as to ensure: first, that such persons are not patronised or subjected otherwise to inappropriate discrimination; and secondly, that due regard is had to the normal availability to such people of particular community and extended family ties and support.

25 Section 3 of the Care Act is a definition section. It is relevant for present purposes to note that the definition of parental responsibility is “….. all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children”.

26 Chapter 5 of the Care Act deals with the topic of “Children’s Court proceedings”. Part 2 of that Chapter deals with “Care applications”. It is within this Part 2 that there are to be found the provisions of the Care Act that bear in a particular way upon the present proceedings. Those relevant provisions are:

“ 60 Definitions

In this Act:

care application means an application for a care order.

care order means 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.

care proceedings means proceedings under this Chapter.

61 Applications for care orders

(1) A care order may be made only on the application of the Director-General, except as provided by this Chapter.

(2) A care application must specify the particular care order sought and the grounds on which it is sought.

(3) The order sought may be varied, but only with the leave of the Children’s Court.

Note. Section 34 requires the Director-General to consider a variety of alternative means to provide for the safety, welfare and well-being of the child or young person before commencing proceedings in the Children’s Court.

Section 71 sets out the various grounds that enable the making of a care order.

62 Interim and final orders

A care order may be made as an interim order or a final order, except as provided by this Part.

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.

…………………………………………………

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 of 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 ………………. .”

27 Chapter 6 of the Care Act deals with the topic:

“Children’s Court procedure”

Of the sections which constitute Chapter 6, three in particular are of present relevance. They are:

“ 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.
94 Expedition and adjournments
(1) All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person.
(2) For this purpose, the Children’s Court is to set a timetable for each matter taking into account the age and developmental needs of the child or young person.
(3) The Children’s Court may give such directions as it considers appropriate to ensure that the timetable is kept.
(4) The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that:
(a) it is in the best interests of the child or young person to do so, or
(b) there is some other cogent or substantial reason to do so.
97 Effect of failure of attendance
If a parent of a child or young person who has been given notice under section 64 does not attend the Children’s Court on the hearing of the application, the Children’s Court may proceed in the absence of the parent.”

The plaintiff’s submission that “the application itself contained a logical internal inconsistency which, of itself, was evidence against the application”.

28 Paragraph 13 of the written submissions of the plaintiff put with complete clarity the gravamen of this proposition:

“…………… An interim order was sought whereby the child was to be placed with the maternal grandmother; the basis of the application for the interim order being that the child had been placed by the mother with the maternal grandmother.”

29 The first thing to be said about that submission is that it is not the case that the interim order which was sought was an order placing the child with the maternal grandmother. The interim order that was sought and granted was an order giving interim parental responsibility for Emily to the third defendant until such time as final orders could be made. The orders actually made by the Children’s Court in respect of that interim care application provide, precisely, that Emily’s parental responsibility be vested in the third defendant pending further order. It is true that the form of the interim orders as actually perfected includes a parenthetical reference to the intent of the Minister, which had been conveyed to the Children’s Court in connection with the application for an interim care order, that it was the third defendant’s then intention not to disturb the then current placement of Emily with her maternal grandmother. If it be assumed that the parenthesised material is, on a strict view, part of the interim care order, - and I am not at all sure, as at present advised, that such is necessarily the correct way of reading the formal engrossment of the order, - then, even so, it would not follow, in my opinion, that the application for the interim care order contained within itself a vitiating inconsistency of the kind for which the plaintiff now contends. The prime purpose of the making of the interim care order was not so much to deal with Emily’s immediate placement, but to deal with the immediate provision of appropriate parental responsibility in connection with Emily’s care and protection. When one looks carefully at what is said in the affidavit put forward in support of the application, it seems to me to be a fair inference that the objective which was really sought by the interim care order application was the objective of ensuring that the formal, legal parental responsibility of Emily was moved to the third defendant in order that there might be some proper and lawful brake placed upon what would have been otherwise the arguable lawful entitlement of either or both of the natural parents to move Emily, as the whim might take them or either of them, from person to person or place to place. The relevant point sought to be made by the supporting affidavit, - and in my opinion the point is made with complete clarity and convincingly, - was that while formal, lawful parental responsibility remained with the natural parents or either of them, then there could be no guarantee that Emily would have that firmly established domestic stability which was, for Emily as for every newly born baby, an essential feature of a responsible and socially acceptable regime of care and protection.

30 In my opinion this particular ground has not been established.

The Plaintiff’s Submission that “the application did not comply with the requirements of the Act”

31 This attack is mounted upon two distinct, albeit related, bases.

32 The first basis put forward is that the grounds stated in the body of the application, being the grounds which I have quoted at paragraph 12 above, did not show any basis, consistent with the requirements of the Care Act for the making of the application.

33 It is undoubtedly the case that the grounds as thus stated do not in terms reproduce any of the terms of any of the paragraphs constituting section 71(1). There is, I would accept, room for the view that what are described in the application as the grounds of the application are more correctly understood as being further and better particulars of such of the section 71(1) grounds as it is intended to put forward in support of the application. It seems to me, however, that if one were to take the stated propositions, even treating them as particulars of the intended section 71(1) grounds, it would be at once apparent to a reasonable reader that, of the grounds which are established by section 71(1), it is the grounds more particularly established in paragraphs (a) and (d) which are apt to be covered by the stated particulars. Any doubt on that score is, in my opinion, completely resolved by the concluding paragraph of the affidavit put forward in support of the application; that material making crystal clear that the grounds of the application, stated strictly in the terms of the Care Act itself, are the grounds itemised in section 71(1)(a) and (1)(d).

34 The second basis upon which this submission is put is that the relevant portions of the affidavit supporting the application did not disclose material which, even were it to be accepted as truthful and reliable, was sufficient to establish with reasonable cogency a state of affairs coming within the criteria established by section 71(1)(a) and (1)(d) of the Care Act.

35 In my opinion a fair reading of the entirety of what is contained in paragraphs 11 through 25 of the supporting affidavit is to the contrary of that submission. That material, if accepted, shows a course of conduct on the part of Emily’s parents, and not least of all on the part of Emily’s mother; and, as well, a general domestic environment, that were ample to establish, at least prima facie, a case coming within both of the criteria (a) and (d). That affidavit evidence established that the natural parents were in a relationship that was not only as unstable as water, but was, at least intermittently and not infrequently, a violent and abusive relationship. The material established also a course of conduct on the part of Emily’s mother that was capricious on the most favourable view , and wilful on the most unfavourable view. I repeat, because the point seems to me to be a very important one needing to be kept carefully in mind, that the point of the application and of the supporting affidavit material was not so much the immediate placement of Emily, but rather the immediate reassignment of parental responsibility in the statutory sense for Emily’s care and protection. I need not repeat what I have said earlier herein upon that topic.

36 In my opinion this ground has not been established.

The Plaintiff’s Submission that “the grandmother …… at all material times was present in Court, and available to be questioned. She was never questioned about the matter by his Honour or by the legal representatives”

37 In my view the first thing to be said about this submission is that it is not surprising that nobody asked the maternal grandmother any questions. Neither the applicant nor the separate legal representative of Emily herself had any apparent interest to do so. Their interest was not to interfere with the current placement, but to engage the different and fundamentally important question of whether the proper care and protection of Emily justified an interim care order assigning parental responsibility for Emily to the third defendant. The maternal grandmother was not a party to the proceedings, but her presence in Court was acknowledged simply and respectfully by the learned Magistrate; and I have no doubt that if the maternal grandmother had thought that she had anything useful to say about the application which she was then witnessing, then she both could and would have spoken up. The impression that I have from reading the transcript, brief though it is, is that the maternal grandmother and maternal great grandmother were not simply sitting in the Courtroom tongue-tied and over-awed.

38 In my opinion this ground has not been established.

The Plaintiff’s Submission that “the mother …… was never contacted. The application was made ex parte, without the application of rigour that is ordinarily demanded in such applications: there was no proof of attempted service, and there was no inquiry by the Court as to service”

39 It is convenient to deal first with the aspect of service upon Emily’s mother of the application.

40 One of four affidavits read in support of the case put forward jointly by the second and third defendants is an affidavit of one Julie Minion sworn on 10 August 2006. Miss/Mrs Minion is a Court Liaison Officer employed by the Department of Community Services at the St. James Children Court. The deponent speaks in her affidavit of having inspected the Court Liaison file in relation to the care proceedings respecting Emily. Reference is made by the deponent to an Affidavit of Service affirmed by Miss/Mrs Claire Ridley on 28 March 2006. The affidavit is in a prescribed Form. Under the heading “Service Details” the affidavit deposes to the steps taken to serve the relevant documents. The relevant portion of the affidavit refers to section 256 of the Care Act as to the statutory requirements respecting service of notices. Section 256 provides:

“(1) A notice or other instrument required or authorised by this Act to be served on a person is sufficiently served if the notice or other instrument is:
(a) delivered personally to the person, or
(b) left with a person who is apparently of or above the age of 16 years at, or sent by pre-paid post to, the address last known to the Director-General of the person on whom the notice or other instrument is to be served, or
(c) if no address of the person is known to the Director-General, published or otherwise dealt with as may be prescribed by the regulations.
(2) If such a notice or instrument is:
(a) sent by post as referred to in subsection (1)(b), it is taken to have been served at the time it would be delivered in the ordinary course of post, or
(b) published or otherwise dealt with as referred to in subsection (1)(c), it is taken to have been served at such time as may be prescribed by the regulations.
(3) Subsection (1) does not affect any other provisions of this Act relating to the service of notices or other instruments.”

41 As to service on Emily’s mother, the deponent of the affidavit affirms that on 28 March 2006 she served the documents on the maternal grandmother. She says, more particularly:;

“I handed the documents to ….(the maternal grandmother) ….and she stated that if …..(Emily’s mother)…..does return to Sydney she will give them to her as ….(the grandmother)….does not know the exact whereabouts of ….(the mother). I contacted Redfern Police and was advised by Sergent (sic) Thompson that ….(the mother)….was due in court at Inverell on Thursday 30 March.”

42 As to service upon Emily’s father, the deponent states that she effected service, again on 28 March 2006, in a way that she describes as follows:

“I posted the documents to ….(the father)….at Cobham Youth Detention Centre by express post CN 3366473. I was advised by Sergent(sic) Thompson from Redfern Police that …..(the father)….is in custody and due to appear at Bidura Court on 10 April as bail was refused.”

43 I am, as at present advised, unclear about the precise curial status of this Affidavit of Service. The copy of the affidavit which is annexed to Miss/Mrs. Minion’s own affidavit of 10 August 2006 does not bear a Court filing stamp; and I am not clear from Miss/Mrs. Minion’s affidavit whether or not she is to be understood as conveying that the original of the Affidavit of Service does in fact form part of some particular Children’s Court file. Be all of that as it may, no challenge was mounted in this Court to any part of the contents of the Affidavit of Service. I can see, as at present advised, no reason to disbelieve any part of what is said in the Affidavit of Service. That being so, it seems to me that what is there deposed satisfies the requirements of both section 64 and section 256 of the Care Act.

44 It is, I apprehend, correct to say that there was no proof of attempted service in the sense that, in so far as one can judge from the very brief transcript, there was no tender of the Affidavit of Service to which I have previously referred. It is, I apprehend, correct also to say that there was, judging once again from that same transcript, no inquiry by the Court as to service.

45 It was not submitted, however, that what is recorded as having actually transpired in the Children’s Court deceived or misled the learned Magistrate as to the reality of the likelihood, or even the possibility, of an appearance by either or both of the natural parents. In any event, it is completely clear from the terms of section 64(6) that a failure to comply with the other provisions of section 64 does not invalidate a particular application or any decision of the Children’s Court upon that application.

46 In my opinion this ground has not been established.

The Further Submission of the Plaintiff in Paragraph 23 of the Written Submissions

47 Paragraph 23 submits:

“It is submitted that it is essential that the interim orders of 26 March 2006, (sic): but read 30 March 2006 , do not remain on the Court record. The orders were made without the accordance of natural justice and in disregard of the provisions of the Act.”

48 The learned Magistrate was required by the explicit terms of the Care Act to deal with the matter before him in the manner for which express provision is made in, relevantly, sections 93, 94 and 97 of the Care Act. It is no doubt the case that those sections, broadly expressed though they are, do not empower a Children’s Court Magistrate to take some sort of free-wheeling approach to an application, proceeding in virtually complete disregard of what ordinary common-sense fairness might be thought to require in the particular case. The Magistrate is, however, both empowered and required to proceed with an informality and a wide-ranging flexibility that might be thought not entirely appropriate in a more formally structured Court setting and statutory context.

49 What the learned Magistrate was then required to do was to ask a number of related questions, answering each of those questions upon the basis of the material put forward in support of the particular application. The questions can be summarised as follows:

[1] Does the evidence show prima facie a state of affairs satisfying the Court, on the balance of probabilities, that Emily is in need of care and protection? (Section 72(1))

[2] Before giving an affirmative answer to Question [1], is it possible to find a prima facie case coming within any one or more of the criteria established by section 71(1) of the Care Act ?

[3] If each of questions [1] and [2] be answered affirmatively, and if there be on foot an application for an interim care order, has the Director-General satisfied the Court that it is not in Emily’s best interests, having regard to the reasonable requirements of her safety, welfare and well-being, that she remain with her parents, they being the only persons having current parental responsibility in the particular sense contemplated by the Care Act ? If so, then:

[4] Has the Court satisfied itself that it is preferable to proceed to the making of an interim care order rather than to undertake at once an enquiry into the different question whether a final order or an order dismissing the proceedings should be made?

50 The learned Magistrate, in dealing with each of those questions, was obliged to have regard at every stage of the proceedings to the imperative requirements of section 9 of the Care Act as to the paramountcy of the proper interests of Emily herself.

51 It seems to me that the learned Magistrate had before him affidavit evidence which, if accepted, was ample to support an affirmative answer to each of the questions previously postulated. The paramount interest of Emily was to have her parental responsibility stabilised until all other interested parties, the natural parents included, could be engaged fruitfully, in so far as such a thing might prove to be possible, in hammering out an appropriate overall Care Plan adequate to provide responsibly for Emily’s future care and protection. In my opinion the evidence placed before the learned Magistrate was ample to justify the making of an interim care order and to do so conformably with the precise requirements in that behalf of the Care Act.

52 A deal of additional affidavit material, other than that to which I have hitherto referred, was put before this Court on behalf of the second and third defendants. It is not necessary to canvass its precise detail. It is sufficient to understand that that additional affidavit evidence was in no way challenged as to its veracity and reliability. If the whole of that evidence be accepted, and I do accept it, then there is in hand evidence demonstrating that, in the wake of the making of the interim care order by the Children’s Court, there has proceeded a steady progression of attempts to negotiate long-term arrangements appropriate to provide properly and responsibly for Emily’s care and protection. It is clear from that additional material that both natural parents have been actively engaged throughout, and legally assisted and represented throughout, the on-going procedures. It does not appear that either of the natural parents has challenged the continuing involvement in the case of the learned Magistrate who made the interim care order. There does not appear to have been any attempt to have the interim care order rescinded or to have its terms re-fashioned by the Children’s Court.

53 I am comfortably satisfied upon the basis of the material placed before me that the interim care order was made properly and in conformity with the requirements of the Care Act. I am similarly satisfied from that same evidence that the making of the interim care order did not offend the principles of natural justice as now claimed by the plaintiff.

54 I am not satisfied that the ground taken in paragraph 23 of the written submissions has been established.

Additional Aspects of the Particular Relief Claimed in the Summons

55 The second and third prayers for relief essentially over-lap. The declaration sought in the third prayer for relief would be otiose were an order in the nature of certiorari, as sought in the second prayer for relief, to be made. It will be apparent from what I have earlier herein written that in my opinion cause has not been shown for the making of an order in the nature of certiorari. The relief claimed in the second and third prayers for relief will not be granted.

56 The order claimed in the fourth prayer for relief is in the nature of the prerogative writ of prohibition. It is, surely, trite that this Court would not simply prohibit the Children’s Court from dealing further with Emily’s matter unless there were clear and cogent evidence of intractable bias or of some other egregious impropriety on the part of the Children’s Court such as would justify the taking by this Court of so drastic a step. It will be apparent from what I have earlier herein written that I see no cause shown for the making of so draconian an order.

57 The relief sought in the fifth prayer for relief invokes a jurisdiction which this Court undoubtedly possesses, and no submission to the contrary was made by any of the present defendants. It is, however, trite that this Court will not take the step of making a wardship order, thereby excluding a specialist Court such as the Children’s Court, unless a quite exceptional case for doing so is first established by the applicant for the wardship order. I repeat in this further connection what I have earlier said: it would take clear and cogent evidence of some egregious and otherwise irremediable impropriety or irregularity in the Children’s Court proceedings, to justify the making by this Court of a wardship order. It suffices to say that for the reasons which will be apparent from what I have earlier written, I do not believe that a case of any substance has been made in that connection.

58 It follows from the foregoing that, in my opinion, the plaintiff has not established an entitlement to any of the forms of relief claimed in paragraphs 2, 3, 4 and 5 of the Summons. As I have earlier indicated, the relief sought in paragraphs 1 and 6 is in the nature of interlocutory relief and has already been granted by earlier interlocutory orders. There is no utility, therefore, in now making further formal orders in accordance with paragraphs 1 and 6 of the Summons. There are no other appropriate orders apt to be made in answer to the claim for relief advanced in paragraph 7 of the Summons.

59 That leaves only the question of costs. The ordinary rule is that costs follow the event. That would ordinarily entail that the unsuccessful plaintiff would pay the costs of the three defendants who actually appeared and contested the plaintiff’s claims for relief. Given the nature of the proceedings, and given also the personal circumstances of the plaintiff, I am of the opinion that it would be appropriate to depart from the normal rule and to make no order as to the costs of any of the defendants.

Orders

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

(1) The Summons is dismissed.

(2) There is no order as to the costs of any of the defendants.

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