Re Frances and Benny

[2005] NSWSC 1154

CITATION:	Re Frances and Benny [2005] NSWSC 1154 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11/11/05
JUDGMENT DATE :	11 November 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Order of Children's Court temporarily stayed

CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - application to stay order of Children's Court having the effect of returning children to mother - invocation of Supreme Court's inherent jurisdiction - assessment of children's best interests - serious question to be tried - balance of convenience favours children remaining in Minister's care pending final determination
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998, ss.9, 72, 93
CASES CITED:	Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 Re David and Ewen [2003] NSWSC 279 Re Victoria [2002] NSWSC 647
PARTIES:	Director-General of the Department of Community Services - Plaintiff Mother - First Defendant Children - Second Defendant
FILE NUMBER(S):	SC 5834/05
COUNSEL:	Mr M.W. Anderson - Plaintiff Mr P.J. Braine - Mother Mrs K.L. Renshall, Solicitor - Children
SOLICITORS:	I.V. Knight, Crown Solicitor - Plaintiff Mrs K.L. Renshall - Children

LOWER COURT JURISDICTION:
LOWER COURT FILE NUMBER(S):	627-628/05
LOWER COURT JUDICIAL OFFICER :	Magistrate Mitchell

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 11 NOVEMBER 2005

5834/05 RE FRANCES AND BENNY

JUDGMENT

1 The Director-General of the Department of Community Services has this evening sought to invoke the parens patriae and supervisory jurisdiction of the court by way of application for a stay of an order made earlier today by the Children’s Court at St James. The order relates to two children who have been given the pseudonyms Frances and Benny. They are aged 3 years 5 months and 1 year 4 months. The proceedings are to be known as “Re Frances and Benny”.

2 The order in question is an order of dismissal in respect of an application made to the Children’s Court by the Director-General which had at its heart the question arising under s.72 of the Children and Young Persons (Care and Protection) Act 1998, that is, whether the court was satisfied on the balance of probabilities that the child (or here the children) are in need of care and protection. The children have been in the care of the Minister. The result of today’s order in the Children’s Court is that the regime under which they have been in the Minister’s care is at an end and they are to be returned to their mother. The Director-General submits that the children are in need of care and protection and that that need will not be met if they are returned to the mother. The mother (who is the first defendant) makes the opposite submission. The position taken by the Director-General (that the existing care arrangements should continue) is strongly supported by the separate legal representative appointed for the children.

3 I have before me notes of the magistrate’s observations or reasons given at the time of dismissing the application. The notes were made by a departmental officer. They of necessity brief but it is reasonably clear that the magistrate discounted, from a weight perspective, evidence given in affidavit form by the Director-General’s principal witness, Ms Fisher, a departmental officer. I have before me a copy of Ms Fisher’s affidavit and a copy of the affidavit of the mother that was read in the proceedings in the Children’s Court. I am told from the bar table that the mother was cross-examined for two hours but, on one version of what I was told, this was only on issues she put in dispute by way of her affidavit, being issues going to drug use, domestic violence and unfavourable financial circumstances.

4 The magistrate’s remarks, in so far as I am able to draw any conclusions about them from the material before me, refer to the fact that Ms Fisher’s affidavit, as to a great deal of its content, is of hearsay nature, referring to things done and said by departmental officers other than the deponent and dealings between those other departmental officers and the mother and the children. The affidavit also quotes from departmental records and files in a second hand and hearsay way. The magistrate, on the sketchy information I have, referred to the fact that people mentioned in Ms Fisher’s affidavit were available and that no proper attempt at proof had been made. His ultimate conclusion appears to have been that he could not decide the matter on the evidence before him, so he dismissed the Department’s application.

5 I was taken through Ms Fisher’s affidavit. If one ignores for the moment its hearsay nature and goes to the matters it reports, albeit largely in second hand form, there would be material on which, in my opinion, a finding of need for care could comfortably be made. I need not go into all the details. It is sufficient to say that, if one accepts at face value what is said, there were two occasions this year when the mother herself entered into agreements for respite care for the children in the light of her own perceived inability to cope and her fear that she might harm one of the children. One of these occasions was in March and the other in June. There is evidence that the mother was convicted of cannabis possession in May of this year; that she has been required to submit to urine testing for drugs; that she did so in June of this year when a positive finding as to cannabis resulted; and that she has thereafter not complied with the requirement to submit to testing, or at least no test results are available. There is evidence of domestic violence involving the children’s father who does not live with the mother but is in contact with her and the children. There is evidence that the mother is having great difficulty coping financially and that the Department of Housing has taken steps to evict her and the children from the home. When I have said, as to each of these matters, that there is evidence, it is largely evidence in the unsatisfactory form to which the magistrate referred.

6 The mother’s affidavit concedes past drug use but emphasises that she is now on a methadone programme. She says that she has not had contact with the father since 20 September 2005 except in the court context, having acknowledged however that there was on that day a verbal but not physical altercation between her and the father in the presence of the children. I have no evidence of what transpired in cross-examination today but I am informed from the bar table that there was reference by the mother to her having allowed contact between the children and the father between 6 and 12 October despite there being in force an order under s.47 of the Act precluding such contact. As I say, this is merely what I am told from the bar table.

7 The basis on which the magistrate made his decision is not fully illuminated at this stage. The Children’s Court is not bound by the rules of evidence and is to proceed with as much informality as the circumstances allow. This is the effect of s.93 of the Act. The fact remains that, while hearsay evidence may be received, its weight may be thought to be affected by its hearsay quality. To the extent that the magistrate appears to have been concerned about the unavailability of Ms Fisher, the deponent, the evidence before me would not support any finding that she had been required for cross-examination, even thought there was communication yesterday between the solicitors for the Director-General and the barrister for the mother on that subject. Two letters on that subject have been tendered. There was therefore no apparent barrier from that point of view to the receipt of Ms Fisher’s affidavit evidence and indeed it was received, albeit with apparent expressions of concern by the magistrate as to the unavailability of the deponent which, on the scanty material before me, was a concern that he himself appears to have raised.

8 Under s.9 of the Act, the interests of the child are the predominant consideration for the Children’s Court. They must likewise be the predominant consideration upon any exercise of the jurisdiction that this court is now asked to exercise. For reasons given by Palmer J in Re Victoria [2002] NSWSC 647, it is only in unusual situations that the parens patriae jurisdiction should be exercised in what is in substance a review of or appeal from a decision of the Children’s Court, there being statutory avenues of appeal expressly created by way of appeal to the District Court. And as Campbell J said in Re David and Ewen [2003] NSWSC 279, following the approach of Hodgson CJ in Eq in Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79, this court should not approach the matter as an appeal but rather as a direct exercise of an aspect of its independent inherent jurisdiction.

9 Taking that approach, I see the relevant issue in the first instance to be whether there is serious question to be tried on the issue of return of the children to (or, as it would in a de facto sense, retaining of) the children in the care of the Minister. On the evidence before me, hearsay as much of it is (although that is not an issue of great concern on an interlocutory application), there is a clear and serious question to be tried on that matter. The circumstances of the mother to which I have referred regarding drug use, domestic violence, financial insecurity, inability to cope and, earlier in the year, a concern that she might harm one of the children, warrant such a finding. To the extent appropriate to the present interlocutory context, the matters raised seem to me to represent an unusual situation warranting exercise of this court’s jurisdiction even though an appeal lies to the District Court.

10 That being so, an appropriate interim order should be made if the balance of convenience favours the position for which the Department contends (that is, that the children should, for the time being, remain in the care of the Minister). Having regard to the overwhelming importance of the predominant consideration regarding the interests of the children, I am satisfied that, in the immediate term, it is preferable that they remain where they are under the care of the Minister rather than that that care regime should now come to an end and that the children should be returned to the mother, when there is the distinct possibility that, in due course upon a final hearing, they might again be placed with the Minister. Such disruption of children of that age would be quite unjustified and something against which the court would wish to protect them.

11 I of course do not overlook the mother’s strong wish to have the children with her. A final decision on the matter should be made as promptly as possible. There will be an interim order but it should not be the order sought, that is, an order until further order with liberty to apply. It should, in accordance with principle, I think, be for as short a period as is practicable and on the basis that the Directr-General, having obtained it, must come back at some appointed time in the near future ready to argue for its continuation.

12 One major need, identified during the course of this hearing, is for a transcript of today’s proceedings in the Children’s Court to be put into evidence here. Whilst, as I have said, this is not an appeal or review as such but rather an exercise of this court’s independent inherent jurisdiction, it is obvious that the matter for ultimate decision will be assisted by a proper appreciation of the proceedings in the Children’s Court.

13 I will make an order now preserving the status quo until early in the week after next. The order is that the order of Magistrate Mitchell in the Children’s Court at St James made today in the proceedings relating to the children named in these proceedings as Frances and Benny be stayed up to and including 5 pm on Tuesday, 22 November 2005. I direct that the summons be stood over to the Duty Judge’s list on Tuesday, 22 November 2005 at 10 am.

[Counsel addressed on consequential matters]

14 I shall make some directions as to further evidence. I direct that any further evidence to be relied on by the plaintiff be filed and served by Friday, 18 November 2005. I direct that any further evidence to be relied on by the first defendant be filed and served by Monday, 21 November 2005.

15 I note the undertaking of the plaintiff, given by its counsel to the court, that supervised contact arrangements in accordance with order 2 made by the Children’s Court on 12 October 2005 will continue up to and including 22 November 2005 subject to the parent concerned giving notice to the contact supervisor on the day preceding the day of the desired contact.

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16/11/2005 - Plaint number - Paragraph(s) Headings