Re Greta (No. 2)
[2012] NSWSC 856
•31 July 2012
Supreme Court
New South Wales
Medium Neutral Citation: Re Greta (No. 2) [2012] NSWSC 856 Hearing dates: 17 July 2012 Decision date: 31 July 2012 Jurisdiction: Equity Division - Protective List Before: White J Decision: Order that the balance of the claims for relief in the summons be dismissed.
Catchwords: ADMINISTRATIVE LAW - decision - natural justice - procedural fairness - whether declaratory relief appropriate - whether principles applicable to decision of Director-General for removal of children pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether hearing required prior to decision being made - urgency of situation as constraint on opportunity for a hearing - plaintiff provided with opportunity to remedy situation prior to children being removed - held no denial of procedural fairness
FAMILY LAW AND CHILD WELFARE - lawfulness of removal of children pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - satisfaction that on reasonable grounds children were at immediate risk of serious harm - whether making of an apprehended violence order would have been sufficient to protect children - no protective ally identified to enforce apprehended violence order - non-compliance with previous orders a legitimate matter to take into account when assessing the imminence of the risk of harm - held not irrational for caseworker to consider children at immediate risk of serious harm
PRACTICE AND PROCEDURE - parens patriae jurisdiction - interference with Children's Court proceedings only in exceptional circumstances - whether extraordinary circumstances exist - regardless no evidence adduced to satisfy the Court that best interest of the children to be immediately restored to care of plaintiff - no evidence of plaintiffs current circumstancesLegislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: Re Greta [2012] NSWSC 294
Neeta (Epping) Pty Limited v Phillips [1974] HCA 18; (1974) 131 CLR 286
Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 71 FCR 1
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Re Georgia and Luke (No. 2) [2008] NSWSC 1387
Marine Hull and Liability Insurance Co. Ltd v Hurford (1985) 10 FCR 234Category: Principal judgment Parties: Mother (Plaintiff)
Director-General of Department of Human Services (1st Defendant)
Minister for Family and Community Services (2nd Defendant)
Children's Court at Campbelltown (3rd Defendant)
Father (4th Defendant)
Children (5th Defendants)Representation: Counsel:
P Glissan (Plaintiff)
D Ward (1st and 2nd Defendants)
P Braine (5th Defendants)
Solicitors:
Crown Solicitor (1st & 2nd Defendants)
Rowley Associates (5th Defendants)
File Number(s): 2012/17168
Judgment
HIS HONOUR: These proceedings concern three children aged seven, six and two. For the purposes of these proceedings they have been given the names Greta, Isabella and Jack. The plaintiff is the children's mother. On 16 December 2010 final orders were made by the Children's Court in respect of the children. Sole parental responsibility was given to the Minister of Community Services for six months. After six months, joint parental responsibility for the children was given to their mother and to the Minister for a further six months. The second period of six months of joint parental responsibility commenced on 16 June 2011.
Between 3 and 4 am on Friday, 5 August 2011 the children were removed from their home in which they were residing with their mother. That action was taken by the Director-General of the Department of Family and Community Services acting through her delegate pursuant to s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
On 10 August 2011 an application was made by the Minister for Family and Community Services or the Director-General for leave to vary the care orders made on 16 December 2010 (s 90). On 15 August 2011 an interim care order was made pursuant to s 69 of the Act allocating parental responsibility to the Minister. That order expired on 7 September 2011, but has been continued from time to time.
On 24 November 2011 the Children's Court determined the Minister's or Director-General's application under s 90, which was amended to include an application for the rescission of the care orders made on 16 December 2010. Leave was granted to the Minister or Director-General to apply for rescission of those orders. That application is listed to be heard in the Children's Court on 12-14 September 2012.
On 17 January 2012 the plaintiff filed a summons in this court seeking the following orders:
"1. An order in the nature of certiorari that the orders made by the [Children's Court] on 24 November 2011 in respect of the Fifth Defendants [the children] in Application for Leave to Apply for Variation or Rescission of Care Order File No(s) ... be quashed.
2. A declaration that the removal of the Fifth Defendants from the care of the Plaintiff on 5 August 2011 was unlawful.
3. An order in the exercise of the Court's parens patriae jurisdiction that the Fifth Defendants be immediately restored to the parental responsibility and care of the Plaintiff.
4. Alternatively, an order that the proceedings be remitted to the [Children's Court] for further hearing according to law."
On 22 March 2012 Nicholas J dismissed the plaintiff's claim in paragraph 1 of the summons for an order in the nature of certiorari quashing the orders made by the Children's Court on 24 November 2011 (Re Greta [2012] NSWSC 294). The balance of the claims for relief were stood over. This judgment concerns the remaining claims.
Mr Glissan of counsel who appears for the plaintiff sought the declaration in paragraph 2 of the summons that the removal of the children from the care of their mother on 5 August 2011 was unlawful. He submitted that if that declaration were made, the children should be restored to their mother's care. Since 5 August 2011 the children have been in foster care. The authority for this is the exercise of the Minister's parental responsibility pursuant to the interim care orders that have been made from 15 August 2011. No challenge is made to those orders. The lawfulness of the children's removal from their mother's care on 5 August 2011 is not relevant to the legality of the existing arrangements for their care. Nor is it determinative, although it is said to be relevant, to what future care orders should be made. The application for the children to be restored to their mother's care, pending the further hearing in the Children's Court on 12-14 September 2012, is based on the exercise of the parens patriae jurisdiction preserved by s 247 of the Act.
Mr Glissan submitted that the removal of the children from their mother's care was unlawful because she was denied natural justice in not being told of the reasons for the children's removal nor given the opportunity to be heard as to why they should not be removed. He also submitted that the removal was unlawful because no reasonable person in the position of the Director-General could have made the decision for removal.
The issues are:
1. Whether any declaration should be made as to the lawfulness of the children's removal;
2. whether the Director-General is required to provide natural justice or procedural fairness to those affected by a decision to remove children from their parents' care, and if so, whether procedural fairness was accorded in this case;
3. whether the decision to remove was so unreasonable that no reasonable person in the position of the Director-General's delegate could have made it;
4. whether there are exceptional circumstances that warrant this Court intervening in the exercise of the Crown's parens patriae jurisdiction, notwithstanding that proceedings are pending in the Children's Court.
Section 43 relevantly provides:
"43 Removal of children and young persons without warrant
(1) If the Director-General or a police officer is satisfied, on reasonable grounds:
(a) that a child or young person is at immediate risk of serious harm, and
(b) that the making of an apprehended violence order would not be sufficient to protect the child or young person from that risk,
the Director-General or police officer may (without the need for any authority other than that conferred by this subsection) remove the child or young person from the place of risk in accordance with this section.
...
(4) For the purposes of this section, the Director-General or a police officer may (without the need for any authority other than that conferred by this subsection):
(a) enter any premises or place in which the Director-General or police officer suspects the child or young person (or the person suspected on reasonable grounds of being a child or young person) may be, and
(b) enter the premises or place (and any adjacent place, if the Director-General or police officer suspects on reasonable grounds that the person, having just left the premises or place, is in the adjacent place), and
(c) search for the person in the premises or place and in any such adjacent place."
Section 45 relevantly provides:
"(1) If a child or young person is removed from premises or a place under a power of removal conferred by or under this Act or the care responsibility of a child or young person is assumed by an order under section 44, the Director-General must make a care application in the Children's Court for one or more of the following care orders in respect of the child or young person:
(a) an emergency care and protection order,
(b) an assessment order (within the meaning of Division 6 of this Part),
(c) any other care order.
...
(2) On the hearing of the application, the Director-General must explain to the Children's Court why the removal of the child or young person without a warrant was considered to be necessary.
(3) Despite subsection (1), the Director-General is not required to apply for any order of the Children's Court if the Director-General considers that no order is necessary, but the Director-General must explain to the Children's Court at the first available opportunity why no care application was made.
(4) Sections 61, 64, 67, 68, 70 and 90A apply to an application for an emergency care and protection order. The other provisions of Part 2 do not apply to such an order.
Note. This section holds the Director-General accountable for the serious decision to remove a child or young person from his or her family suddenly.
If the Children's Court considers that the removal of the child or young person was not warranted in terms of the Act, or was conducted in an inappropriate manner, adverse comment could be made in court or other steps taken to draw the matter to the attention of the Minister. However, the making of an order should not be refused, or the child or young person discharged from the care responsibility of the Director-General, only because of the inappropriate manner of the removal. The paramount issue for the Children's Court is the safety of the child or young person and not the procedural failures of those with the statutory responsibility for the protection of children and young persons.
In the case of removal pursuant to a warrant issued by an authorised officer under section 233, the authorised officer who issues the warrant should first consider whether the child or young person could be adequately protected if an apprehended violence order were sought which might provide for the removal of the alleged perpetrator. The matter should be brought before the Children's Court at the first available opportunity and an emergency care and protection order sought if further protection is necessary."
The responsibility for the care of a child removed pursuant to s 43 does not depend upon the lawfulness of the child's removal. In the present case a care application was made pursuant to s 45(1) as a result of which interim care orders have been made conferring parental responsibility on the Minister. It is clear from the note to s 45, if it were not otherwise clear, that the Children's Court's assessment as to what care order is in the best interests of the child does not depend on the lawfulness of the child's removal under s 43. Whilst the circumstances of the children's removal will form relevant background to the decision of the Children's Court to be made on the Director-General's application for rescission or variation of the care orders pursuant to s 90, whether the Director-General's delegate acted lawfully or not in removing the children should not be a relevant consideration as to whether there should be a change, and if so, what change to the care orders of 16 December 2010 allocating joint parental responsibility between the plaintiff and the Minister.
In these circumstances I do not think it would be appropriate to make a declaration as to the lawfulness of the children's removal. Such a declaration should not have any effect on the determination of the matters that will be in controversy between the Minister or the Director-General and the plaintiff (Neeta (Epping) Pty Limited v Phillips [1974] HCA 18; (1974) 131 CLR 286 at 307). In Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 71 FCR 1 Kiefel J said that a declaration should not be made if it would have no practical consequence (at 31-33). That is this case.
Had I come to a different view as to the appropriateness of the relief sought, I would nonetheless have refused the declaration. The plaintiff has not made good her contention that the children's removal was unlawful.
The children had been returned to the plaintiff's care on 19 January 2011 (in the case of the two elder children) and 16 June 2011 (in the case of the son). At 12.50am on 5 August 2011 a child protection caseworker who was part of an "after hours crisis response team" received a risk of harm report from the New South Wales Police. The plaintiff had reported that the eldest child, Greta, had reported sexual abuse by the child's father. The mother had recently commenced a relationship with another man. Caseworkers from the Department of Family and Community Services had interviewed the plaintiff on 26 July 2011. In the course of the interview the plaintiff advised that she had met her new partner for the first time on Friday, 22 July 2011 having previously communicated with him over the internet. The plaintiff had taken her partner home with the children that day. The caseworkers expressed concern about the safety of the children and directed that the plaintiff's new partner not see the children until checks on the plaintiff's new partner had been carried out. The plaintiff had previously given an undertaking to the Children's Court to accept the guidance and directions of the Director-General.
The plaintiff did not comply with the direction of the caseworkers of 26 July 2011.
The plaintiff reported to the Police that Greta had reported sexual abuse by her father in the course of a contact visit. The information available to the caseworker on 5 August 2011 included information that the child had reported sexual abuse. There was also information that the plaintiff's partner, but not the child's father, had been with the children at the time of the reported abuse.
At 2.25 am on 5 August 2011 on the application of the Police, an ex parte apprehended domestic violence order was made against the father. The order required that the father not enter the premises at which the children and the plaintiff resided. Two caseworkers from the after hours crisis response team attended at the police station at about that time and were told that the AVO against the father had been granted.
At 3.10am the two caseworkers in the company of two police officers attended the plaintiff's home. The door was answered by the plaintiff. Her new partner was also present. A caseworker expressed concern for the safety of the elder daughter and the possibility that the plaintiff's partner might pose a risk of harm toward her daughter. The plaintiff informed her that her partner had done nothing wrong and would never hurt her children. The caseworker said that it would be best if the partner were not in the home until further investigation could occur. The plaintiff disagreed and said that she had joint parental responsibility with the Department for her children and as their parent, if she wanted to invite her partner over she could make that decision and the Department could not stop her. At about 3.30am the caseworker informed the plaintiff that she would be removing the children from her care and placing them with carers. This was done about 15 minutes later.
The caseworker as delegate of the Director-General signed an order under s 43(1) stating that the three children had been removed on the grounds that the Director-General was satisfied on reasonable grounds that they were at immediate risk of serious harm and that the making of an apprehended violence order would not be sufficient to protect them. The stated reason for this concern was that "the mother is not appearing protective of the children in relation to her partner ... ".
The caseworker who made the decision deposed that she considered the children to be at immediate risk of serious harm. The mother refused to require her partner to leave the home or prevent his further contact with the children, notwithstanding that a direction had been given that he not have contact with the children until further investigation had occurred. There was no responsible or protective adult able to care for the children at the time. The plaintiff was deemed not to be capable of providing such care and protection. An apprehended violence order, it was said, would not have been sufficient to protect the children from immediate risk of serious harm as no protective ally had been identified to enforce an apprehended violence order.
Mr Glissan for the plaintiff emphasised that the reported abuse was abuse of the eldest child not by the plaintiff's partner, but by the child's father. No apprehended violence order had been sought in respect of the plaintiff's partner. It is doubtful whether there would have been sufficient grounds to make such an order against him. The fact that the plaintiff may have been in breach of the undertaking she had given to the Children's Court that she would comply with directions of the Director-General was not a sufficient ground for removal of the children. There was no rational basis, so it was submitted, on which the Director-General's delegate could have formed the view that either paragraph of s 43(1) was satisfied. Mr Glissan also submitted that before the removal order was made, the plaintiff was entitled to be given the opportunity of being told of the reasons it was proposed the order be made, and be given the opportunity of replying (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582, 584-585).
The plaintiff disputes the facts as to when, according to the report made by her daughter, the alleged abuse by the father is said to have occurred. According to the plaintiff, her daughter's report was of abuse that occurred on 2 August, not 3 August. Her partner, and not the child's father, was present on 3 August. Counsel for the plaintiff submitted that no reasonable person would have decided to remove the children from the plaintiff's care at 3.30 am before making further investigation and the Director-General's delegate did not inform the plaintiff of how her partner might pose a risk of harm towards Greta, or what the nature of that harm was, and did not afford the plaintiff an opportunity to answer the case sought to be made against her or to obtain legal advice. He said that the delegate was aware that the plaintiff had behaved responsibly and properly by reporting to the police Greta's complaint that her father had sexually abused her. It was submitted that the circumstances were analogous to those considered by Palmer J in Re Georgia and Luke (No. 2) [2008] NSWSC 1387 where his Honour found that the Departmental officer in that case abused her power in removing the children.
There is no analogy between the facts of the present case and those dealt with by Palmer J in Re Georgia and Luke (No. 2). There, it was found that the DOCs officer had no real concern for the safety of the children and there was no rational basis on which DOCs officers could have apprehended any risk of harm to the children. Instead it was found that the DOCs officer abused her power by removing the children as a gross overreaction to the parents' hostility towards DOCs. In the present case it was not irrational for the caseworker to consider that there was an immediate risk of serious harm to the children. Nor was it irrational to think that an apprehended violence order would not be sufficient to protect the children from the risk of harm. There was a rational basis to fear that the child who had reported that the alleged abuse had occurred at the hands of her father was being coached in what she said. (There was a report that this had been observed at an earlier meeting.) There was a rational basis for thinking that the child had reported the alleged abuse to have occurred on 3 August at a time when the child's father was not present, but the plaintiff's partner was. There was a rational basis for fearing that even if an apprehended violence order could be obtained, it would not be sufficient to protect the children from the risk of harm because the plaintiff and her partner had already ignored a direction with which the plaintiff had undertaken to the Court to comply, namely, that her partner not have contact with the children until background checks on him had been carried out. There was legitimate concern that immediately on having met her partner in the flesh, the plaintiff had taken him home. There was concern that the plaintiff had not truthfully described her partner to Departmental caseworkers. It was not submitted in this case (as it was in Re Georgia and Luke (No. 2)) that the decision maker made her decision for an improper purpose, namely to punish the plaintiff for not complying with the previous directions. Non-compliance with those directions was however a legitimate matter to take into account when assessing the imminence of the risk of harm.
The power of removal under subs 43(1) will have to be exercised in circumstances of urgency. The Director-General or her delegate, or a police officer, must be satisfied that there is an immediate risk of serious harm. No-one contended that this fact, plus the hearing provided for in s 45, by necessary implication excluded the obligation to allow those who would be affected by the exercise of the power of removal to be heard before the power was exercised. Accordingly, I express no view on that question. However, it is clear that if there is an obligation to provide a hearing by those affected by the exercise of the power, the content of that obligation will be limited by the circumstances of the case and need for urgent action. The Director-General or the police officer must be satisfied of the matters in paras (a) and (b) on reasonable grounds. It may often be the case that for there to be reasonable grounds for reaching a state of satisfaction, an opportunity will have to be given to those having custody of children to be heard on the concerns that the Director-General or a police officer has. Nonetheless, the urgency of the situation may well severely constrain the opportunity for a hearing (Marine Hull and Liability Insurance Co. Ltd v Hurford (1985) 10 FCR 234 at 241). The power under subs 43(1) is to be exercised having regard to the principles in s 9 where the safety, welfare and wellbeing of the child or young person is paramount. In the present case, the caseworker considered that immediate action had to be taken, even though it was in the early hours of the morning. She did explain to the plaintiff that she was concerned for the children's safety and welfare because of the presence of the plaintiff's partner in the house. She gave the plaintiff and her partner the opportunity to have her partner leave. In the circumstances, there was not a denial of procedural fairness.
For these reasons I would not have made the declarations sought even if it would be proper to make a declaration even though no legal consequences would attach to it.
In his opening and closing submissions Mr Glissan contended that the children should be restored to the plaintiff's care in the exercise of the parens patriae jurisdiction, because the children's removal was unlawful. He made no submissions that the children should be restored to the plaintiff's care in the exercise of the parens patriae jurisdiction whether or not I found their removal to be unlawful. Where there are pending proceedings in the Children's Court the parens patriae jurisdiction is only to be exercised in exceptional circumstances. The circumstances in this case are not exceptional.
Even had I found that the children's removal was unlawful and that there were exceptional circumstances that warranted the exercise of the parens patriae jurisdiction, the plaintiff did not adduce evidence that would satisfy me that it was in the interests of the children for them to be immediately restored to her care. No evidence was led as to the plaintiff's present circumstances, except that I was told that she is due to give birth to another child in August. The evidence of Departmental caseworkers raises a number of issues that will doubtless be considered at the hearing in the Children's Court in September which go to the plaintiff's ability to provide appropriate care. Those matters were not addressed in the plaintiff's evidence.
For these reasons I order that the balance of the claims for relief in the summons be dismissed. I will hear the parties on costs.
Decision last updated: 31 July 2012
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