Re Frances and Benny

[2005] NSWSC 1207

CITATION:	Re Frances and Benny [2005] NSWSC 1207
HEARING DATE(S):	22/11/05
JUDGMENT DATE :	22 November 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Children to be made wards of Court; Plaintiff to have interim care, custody and control of the children.

CATCHWORDS:	FAMILY LAW & CHILD WELFARE [161]- Application to quash orders of Children's Court- Director-General applied to Children's Court for child care orders- Court not satisfied with sufficiency of evidence to make order- Dismissed application- Whether superior court should exercise its supervisory or inherent parens patriae jurisdiction to deal with care orders- Parens patriae jurisdiction used in exceptional circumstances where other curial processes inadequate- Whether Children's Court correct to dismiss application because evidence insufficient- Child's welfare paramount- Court's duty is to adjourn rather than dismiss proceedings.
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998, ss 9, 71, 72, 93
CASES CITED:	Attorney-General (NSW) v Wentworth (1991) 24 NSWLR 347 Australasian Performing Rights Association v Edmonds (Young J, 16.6.87, unreported) Re Evelyn (1998) 23 Fam LR 53 Re Morgan (1982) FLC 91-225 Re Victoria (2002) 29 Fam LR 157 Roberts v Balancio (1987) 8 NSWLR 436
PARTIES:	Director-General of the Department of Community Services (P) Mother (D1) Children (D2)
FILE NUMBER(S):	SC 5834/05
COUNSEL:	M W Anderson (P) P J Braine (Mother) K L Renshall (S) (Children)
SOLICITORS:	IV Knight (Crown Solicitor) (P) K L Renshall (Children)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 22 November 2005

5834/05 – RE FRANCES AND BENNY

JUDGMENT

1 HIS HONOUR: This is an application under the court’s inherent jurisdiction with respect to two children who have been referred to as Frances and Benny. Frances is three and Benny is one and a half.

2 The children came into the care of the Minister by virtue of an order made by the Children’s Court on 12 October 2005. In the year before that they had a rather unsettling existence, part of the time with their mother and part not. The mother has had a number of problems, not the least of which involves drug use and having a violent relationship with the father of the children.

3 On 11 November 2005 the application on which the learned magistrate had made his order on 12 October 2005 (being an application under s 71 of the Children and Young Persons (Care and Protection) Act 1998 for a care order), came before Senior Children’s Magistrate Mitchell. Section 71 of that Act provides that the Children’s Court may make a care order in relation to a child if it is satisfied that the child is in need of care and protection for any of the reasons set out in that sub-section.

4 Section 72 provides that such an order may only be made if the Children’s Court is satisfied on the balance of probabilities that the child is in need of care or protection, or even though the child or young person is not then in need of care and protection, that situation might be imminent.

5 Section 93 provides that proceedings before the Children’s Court are not to be conducted in an adversarial manner. They are to be conducted with as little formality and legal technicality and form as the circumstances permit and that the Children’s Court is not bound by the rules of evidence unless, in particular proceedings, it determines that the rules of evidence are to apply.

6 The proceedings were heard by the learned magistrate and the Department, described as prosecutor, appeared by counsel. There was an appearance for the children’s mother and a separate representative for the children. There was also an appearance in person by the father and the learned magistrate said to the father:

“Today is a very limited issue...I’m deciding first of all whether the children are in need of care and protection and secondly...I’m deciding on an interim basis where they should live and with whom they should live during the period it takes to complete this matter...”.

7 The Department provided the learned magistrate with various documents and reports, including a report from one Erin Fisher. Ms Fisher was not available for cross-examination and it has been pointed out to me that the practice of the Children’s Court was that it was an affidavit court and a document court and that there was no expectation of cross-examination unless arrangements were made. However, there was very little direct evidence before the learned magistrate of people supporting the prosecutor’s application, but the mother was present, she was called to give evidence and her evidence occupies pp 11 to 38 of a forty-nine page transcript. Thus, she was the only oral evidence before the magistrate.

8 The mother did make some concessions about the failures of her past life and it was apparent that the learned magistrate was not at all convinced that she had overcome problems that had come to her because of her, at least previous, drug use.

9 The learned magistrate in discussion with counsel for the mother showed his concern. The transcript records:

“Your client is using methadone and for reasons, which I must say are entirely unexplained, has decided to reduce it. Now, she is on methadone because if she is not on methadone she will be using heroin. That is the reason you get on methadone. She has taken no steps at all, as far as I can tell, to address her heroin addiction. The mere fact of being on methadone does not address a heroin addiction because all it does is mask the desire for heroin. As soon as she gets off methadone, or indeed reduces to below a critical level, the need for heroin is rediscovered.
Now, I can’t understand why anyone in their right mind would reduce down from 100 to 70 in terms of their methadone without having first taken some steps in relation to heroin addiction. The whole point of methadone is to give you some opportunity to address your heroin problem. That has not happened.
So what we are dealing with is a lady who is reducing her methadone, very significantly it seems to me, with an unaddressed underlying heroin addiction, and I am supposed to find that the children aren’t in need of care and protection. And on top of that we are not dealing with a lady who has turned her back on drugs, are we? We are dealing with a lady who is still using marijuana and is using Valium”.

10 At that stage the father interrupted the Bench and after that intervention the learned magistrate said:

“But the heroin problem is unaddressed. Your client had a significant heroin problem … and she has bought time so that’s good, but now she’s even throwing that away and she’s left with an unaddressed heroin addiction.”

11 Her counsel then said:

“Your Honour, can I say, I think I’m sure my client has heard what your Honour has said about that and there is great wisdom in ...”

So that the learned magistrate made it quite clear to counsel for the mother his concern that these children would be in the control of a lady with an unaddressed serious drug problem. However, counsel for the mother said that the seriousness of the step being taken by the Department is to say that the children are in some way unsafe, but where have the children suffered? There is just not the evidence that would justify such a serious step.

12 However, when the learned magistrate came to give his decision he dismissed the application. The reason why the learned magistrate dismissed the application is that he was peeved that he had been given such a paucity of evidence on the part of the prosecutor. I will not read everything he said but page 47 of the transcript, in essence, records:

“The problem with it is this: that there’s lots of suggestions but very little that, even being really generous, very little that is proved.”

13 He then made some remarks about Ms Fisher’s evidence and continued:

"This is appalling. The Director-General has got more solicitors working for him than enough and he has got the resources of the profession but he just deliberately, it seems to me, puts up a case that is … almost impossible to deal with. No reason, just - I don’t think it is obtuseness. I don’t know if it is stupidity or what it is.”

He then said he did not consider there was any sufficient evidentiary material before him on which he could make the order that the prosecutor sought. However, he then cast doubt on the mother’s evidence and said:

“She gives an explanation or a description of her drug use. I have real doubts about that. I didn’t come down in the last shower of rain. I just think that it’s very, very dodgy to talk about having made a decision to turn one’s back on drugs and then be using marijuana, only socially and only once a week or twice a week, or whatever it is. I have no idea about that. She gives indications, to people who aren’t here to give the evidence, of appearing drug-affected on various occasions but I can’t take any notice of that because there is no evidence of it.”

14 Then he said:

“So with real trepidation I have no choice, it seems to me, but to dismiss the application. … I will say this to the mother: if I were Ms Simpson I would be very, very careful. I would make sure that I dotted every ‘i’ and crossed every ‘t’ because it is extremely unlikely that the Director-General will allow this to rest, and I hope he doesn’t, because it seems to me that at the very least the progress of these children should be monitored, but if the Director-General does bring an application in this case in the near future I would hope that he presents me with at least some evidence in proper form that I can hang my hat on.”

15 The learned magistrate was correct. The Director-General did not allow the matter to rest. He filed a summons in this court seeking to invoke the parens patriae jurisdiction as well as seeking prerogative orders that the learned magistrate’s decision be brought up to this court, quashed and sent back to the Children’s Court for redetermination.

16 The matter came before Barrett J on the same day and his Honour, for reasons he then gave, stayed the learned magistrate’s determination, made some interim provision and stood the matter over to today. Today all I have had before me is the material before the learned magistrate plus the transcript and very little else.

17 The parens patriae jurisdiction derives from the royal prerogative and although its origins probably go back to the time of Edward III, in more recent centuries the Chancery Division in England and the Equity Court in New South Wales have been responsible for exercising the Queen’s power to do good to all her subjects, particularly to those who are children or otherwise incapable of looking after themselves. In exercising that jurisdiction the court’s concern is predominantly for the welfare of the person involved. It is not a jurisdiction that is bogged down at all with any technicalities. It is a quite separate jurisdiction to the supervisory jurisdiction that is committed to this court by way of prerogative orders under which this court supervises inferior courts and tribunals to make sure that they do justice and right to all people before them.

18 I agree with respect to what was said by Palmer J in Re Victoria (2002) 29 Fam LR 157 that the parens patriae jurisdiction is only to be exercised in exceptional cases. However, one of those exceptional cases is where it is urgently required that some protective order be made and the court can see that other curial processes may not be able to provide instant relief.

19 I am really exercising both jurisdictions, but I think that this case should best be dealt with under the parens patriae jurisdiction. Under the Children and Young Persons (Care and Protection) Act 1998, s 9, the purpose of the Act is to ensure that the welfare and wellbeing of the children is the paramount consideration. So it is in this court. Under s 93 of the Act the Children’s Court may act on material which is not, strictly speaking, evidence. So may this court (see Roberts v Balancio (1987) 8 NSWLR 436).

20 It is very galling for a judicial officer to see a case before him or her in which it appears that a particular order should be made, but there is not the evidence that one would hope should be presented so that the order can be made. However, it is wrong as a matter of law to dismiss a case just because the judicial officer comes to that viewpoint. There is a rule which applies to all courts that if a judge, particularly a judge dealing with a matter involving children, comes to the view that he or she does not have sufficient material, it is the court’s duty not to dismiss the case but to adjourn it, making very clear what the court’s concerns are: see Re Morgan (1982) FLC 91-225; Australasian Performing Rights Association v Edmonds (Young J, 16 June 1987, unreported); Attorney-General (NSW) v Wentworth (1991) 24 NSWLR 347 at 350 and Re Evelyn (1998) 23 Fam LR 53 at 65. That is what should have happened in this case if the learned magistrate thought that the material placed before him was insufficient.

21 The matter is complicated by s 72 which requires an adjudication on the balance of probabilities. Mr Braine, for the mother, says that these were adversarial proceedings, and they were, in the sense there was a prosecutor. There was a requirement to prove the case on the balance of probabilities, but s 93 itself says that the proceedings were not actually adversarial and s 9 says that the welfare of the children was paramount and so the rule that applies that I have set out should have been applied by the learned magistrate.

22 I can well understand him being peeved, though it is not really the fault of the Department alone. Unfortunately, in this area, case officers spend a very, very short time with the Department and one tends to find a large number of them in any particular case. There are a tremendous number of children in need in New South Wales. Unfortunately, those who have to attend to their problems and the courts can well understand why every witness is not available on every occasion and why the evidence presented by the Department would not necessarily be in a perfect state. However, that is no reason why proceedings involving children should be dismissed.

23 Again, one finds cases involving motor vehicles where the judge finds he just has no confidence in any of the oral evidence. The Court of Appeal has held that that is no reason to dismiss the proceedings. The judge must still look at the evidence of the surrounding circumstances, the debris on the road, et cetera, to see if one can determine on the balance of probabilities where the truth lies.

24 Mr Anderson, who appears for the Department, says in this case that if the learned magistrate had not got carried away with his displeasure of the way the case was presented and if he had actually looked at the evidence of the mother, he would have given weight to the great problems there were with this mother having unsupervised custody of the children, particularly the problems that he fairly and squarely addressed to counsel for the mother and which, with great respect, were not really answered. However, by dismissing the proceedings he was really putting out of the Department’s control what he thought would be the wisest thing to happen and that was that the children should be monitored.

25 Before me, even though this court ultimately is concerned with the protection of the children, I mainly heard arguments as to the alleged injustice of what happened below, what should have happened below and what the technicalities were, rather than what was best for these children. It would appear that the mother did take a subsequent drug test to the tests whose results were put before the learned magistrate, but no one knows what the result was. It would seem there is some possibility that the children’s grandmother might be able to assist. The Department has some suspicion about that, but the matter has not yet been fully canvassed.

26 In my view, it would not be in the best interests of the children to go back to their mother at this stage. However, it may well be that if I were given the appropriate material which satisfies me, and of course a fortiori, if it satisfied the Department as well, that on an interim basis the children might have greater contact with their mother than they currently have.

27 One way of dealing with this matter is for me to quash the learned magistrate’s determination and send it back to the Children’s Court. However, the Children’s Court is a very busy court and I am not too sure just how soon they could deal with it. It seems to me a better way of proceeding is to make these children wards of the court, to commit them to the care and control of the Director-General of the Department of Community Services and to stand the matter over to Thursday 15 December 2005. At that time both sides will have an opportunity to put before this court material which can form the basis for some interim order as to what is to happen in the meantime. At that stage it may well be appropriate to quash the learned magistrate’s order and to send the matter back to the Children’s Court for final determination - it probably not being able to be heard before June 2006 - on the basis that when the Children’s Court makes its final determination the wardship order will be released.

28 Barrett J in his order provided for an undertaking in paragraph 6 for the monitoring of the mother's relationship with the children and that should continue.

29 I make orders in accordance with the short minutes and stand the matter over to Thursday 15 December 2005 at 10am before me. This order may be taken out forthwith.

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