Re Henry; JL v Secretary, Department of Family and Community Services
[2015] NSWCA 89
•13 April 2015
|
New South Wales |
Case Name: | Re Henry; JL v Secretary, Department of Family and Community Services |
Medium Neutral Citation: | [2015] NSWCA 89 |
Hearing Date(s): | 2 May 2014; last submissions received 23 May 2014 |
Decision Date: | 13 April 2015 |
Before: | McColl JA at [1]; Basten JA at [223]; Meagher JA at [270] |
Decision: | In Matter No. 2012/367923: |
Catchwords: | ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – judicial review – appeal from Children’s Court to District Court – application to Court of Appeal for relief pursuant to s 69, Supreme Court Act 1970 (NSW) – whether error of law on the face of the record or jurisdictional error established – whether District Court correctly construed and applied provisions of the Children and Young Persons (Care and Protection) Act 1998 – s 106A |
Legislation Cited: | Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 79, 81, 90, 91, 105, 106A |
Cases Cited: | Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 |
Texts Cited: | Children and Young Persons (Care and Protection) Miscellaneous Amendment Bill |
Category: | Principal judgment |
Parties: | JL (Applicant) |
Representation: | Counsel: |
File Number(s): | 2012/367923; 2014/73341 |
Publication Restriction: | Yes – see [6] of judgment |
Decision under appeal: | |
Court or Tribunal: | District Court |
Date of Decision: | 02 November 2012 |
Before: | Lakatos DCJ |
File Number(s): | DC 2011/410379 |
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
JUDGMENT
McCOLL JA: The applicant, JL, is the mother of five children, the youngest of whom, and with whom these proceedings are concerned, is known by the pseudonym “Henry”. JL seeks to challenge a decision of his Honour Judge Lakatos SC confirming orders of the Children’s Court entered on 1 December 2011 placing Henry under the parental responsibility of the Minister for Community Services, and allocating all aspects of parental responsibility to the Minister until he attains 18 years of age: Lxxx v Director-General, Department of Family and Community Services (District Court of New South Wales, 2 November 2012, unrep) (the “primary judgment”).
JL originally filed a notice of appeal in this Court on 26 November 2012 asking that Henry be returned to her responsibility. The notice of appeal was not competent as an appeal to the District Court from the Children’s Court does not lead to a “judgment in an action” within the meaning of s 127 of the District Court Act 1973 (NSW): Colquhoun v District Court of New South Wales [2014] NSWCA 460 (at [7]) per Leeming JA (Beazley P and Barrett JA agreeing). It should be dismissed.
On 18 December 2013 an order was made by the Registrar of the Court of Appeal referring JL for pro bono legal assistance. Instead, it appears, Ms L Goodchild of counsel was appointed as amicus curiae. Following that appointment Ms Goodchild prepared a summons (filed on 10 March 2014) seeking to invoke the Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) to grant an order in the nature of certiorari quashing the primary judge’s decision and also an order remitting the matter to the District Court to be heard and determined according to law.
The Supreme Court’s jurisdiction to grant prerogative relief pursuant to s 69 of the Supreme Court Act is preserved by s 247 of the Children & Young Persons (Care and Protection) Act 1998 (NSW) (the “Care Act”): Re M (No 5) [2013] NSWCA 253 (at [15]) per Sackville AJA (Macfarlan and Ward JJA agreeing). To obtain relief, JL must “establish an error of law on the face of the record of the court below, or jurisdictional error”: Re Felicity; FM v Secretary of Department of Family and Community Services (No 3) [2014] NSWCA 226 (at [8]) per Basten JA (Ward and Emmett JJA agreeing).
JL represented herself in the proceedings. She was assisted to some extent by Ms Goodchild. Mr T Allen represented the Secretary (formerly the Director-General and for the sake of consistency with previous judgments, referred to here as such) of the Department of Family and Community Services. It appears that in the course of direction hearings in the District Court, her Honour Judge Gibb made an order appointing Mr Reg Pollock as guardian ad litem to safeguard and represent Henry’s interests pursuant to s 100 of the Care Act. Mr P J Braine appeared for Mr Pollock. Henry’s father, the second respondent, took no part in the proceedings. He has signed a letter stating that he does not wish to have any responsibility for Henry.
At the commencement of the hearing of the proceedings, the Court gave the following directions:
“(1) Pursuant to s 71 of the Civil Procedure Act 2005, the business of the Court in relation to today’s proceedings be conducted in the absence of the public having regard to the fact that the proceedings concern the guardianship and custody of minors.
(2) Pursuant to s 7 of the Court Suppression & Non-publication Orders Act 2010, that there be no publication or disclosure of information tending to reveal the identity of the children who are respondents to the proceedings.”
For the reasons that follow, I am of the view that the summons should be dismissed.
Factual Background
JL is the biological mother of five children, GA (born on 29 May 1999), GI (born on 21 October 2003), AR (born on 26 July 2005), AA (born on 26 January 2007) and Henry (also known as “J” or “JL”) (born on 22 September 2010).
As I have said, these proceedings concern Henry. JL has commenced similar proceedings seeking prerogative relief in respect of orders made by her Honour Judge Olsson SC in relation to GI, AR and AA: L v Director General, Department of Family and Community Services & Ors (District Court of New South Wales, 31 January 2013, unrep). The two proceedings were listed for hearing on consecutive days. Judgment in that matter is being given contemporaneously with this judgment: JL v Director-General, Family and Community Services [2015] NSWCA 88 (“JLCA”).
GA, the eldest child, was adopted by her carers on 2 March 2012. She is not involved in either case.
GI, AR and AA (the “older children” unless the context dictates otherwise) have the same father, GK, who died in August 2008: primary judgment (at [5]). As is manifest, the initials used to “identify” the participants are pseudonyms. “Henry”, the “name” used to identify JL’s youngest child is also a pseudonym. Somewhat confusingly, Henry was referred to as “JL” in the primary judgment. At some stage an order was made directing that he be referred to as “Henry” in this Court.
Pseudonyms are used for the children both because of the order the Court made as set out in [6_Ref413012103] above and because s 105 of the Care Act prohibits the publication of names and identifying information of a child or young person with respect to whom proceedings before the Children’s Court are brought. A pseudonym is used for JL (including in the title of the proceedings before the primary judge) and GK (and for others in a family relationship to the children) because a reference to the name of a child or young person in s 105 includes a reference to any information, picture or other material that identifies the child or young person, or is likely to lead to the identification of the child or young person: s 105(4), Care Act.
On 4 March 2009 JL voluntarily entered into a temporary care agreement (s 151, Care Act) with the Director-General in relation to GA, GI, AR and AA who were then taken into care. On 9 May 2009 the temporary care agreement was extended for three months: s 152(2), Care Act. On 31 August 2009 the Director-General commenced care proceedings in relation to the four children. On 3 September 2009 pursuant to s 69 of the Care Act, an interim care order was made placing AR and AA in the parental responsibility of the Minister, pending final orders, until the age of 18 years: L v Director General, Department of Family and Community Services & Ors (at [5]). Interim care orders were presumably made at that time in relation to GA and GI although no party identified such orders in the papers before this Court.
On 21 December 2009 Ms Baptie, a Children’s Magistrate, found she was satisfied that the four children were in need of care and protection: L v Director General, Department of Family and Community Services & Ors (at [7]). Her Honour continued the interim care order allocating parental responsibility for the four children to the Minister.
Henry was conceived while his father, RN, a 26-year old Indian student, was in Australia on a two-year study visa. In early October 2010 RN signed a letter indicating that he did not wish to have any responsibility for Henry: primary judgment (at [7] and [8]).
Two days after his birth the Director-General took Henry into care, purportedly in exercise of the power to do so conferred by s 43(1) of the Care Act. That action was based upon JL’s incapacity to care for her other children, the subject of the December 2009 orders and upon concerns about her mental health: primary judgment (at [7]).
On 27 September 2010 the Director-General commenced care proceedings in respect of Henry in the Children’s Court seeking interim and final care orders allocating parental responsibility for him to the Minister: primary judgment (at [8]). The application was made on the grounds of s 71(1)(d) and s 71(1)(e) of the Care Act. The interim care order was made on 30 September 2010: primary judgment (at [8]). On 7 October 2010 JL consented without admissions (see Director-General, Department of Community Services v Dessertaine [2003] NSWSC 972; (2003) 31 Fam LR 55 at [61]-[62]) to findings under those provisions that Henry was in need of care and protection on the basis of those grounds, pursuant to which admission it appears the interim care order was continued.
On 15 November 2010 Marien P, the President of the Children’s Court, made final care orders allocating parental responsibility for all aspects (other than contact) to carers in respect of AR and AA until each child attains the age of 18 years. His Honour also made final orders allocating parental responsibility to the Minister in respect of GI until she attains the age of 18 years: JLCA (at [19] – [20]).
On the same day Marien P adjourned the proceedings concerning Henry: Transcript, Department of Human Services, Community Services v A, AA, GI, GA and Henry, 15 November 2010 (at 23).
On 25 November 2010 the Director-General sought an assessment order pursuant to s 53 and s 54 of the Care Act in relation to Henry. That order was duly made, although by whom does not appear from the papers.
In September and October 2011 a contested hearing concerning the restoration and placement of Henry took place in the Children’s Court before Mr Murphy, Children’s Magistrate (“CM”). The Director sought an order allocating parental responsibility for Henry to the Minister. JL opposed the order, contending there was a realistic possibility of Henry being restored to her. JL was represented by counsel. In the course of his reasons delivered on 29 November 2011, his Honour said:
“…I cannot conclude that [JL] is likely to be able satisfactorily to address the issues that led to the removal of [Henry] from her care and that it would be sensible or commonsensical [sic], real or practical for [Henry] to be returned to the mother.”
Accordingly, his Honour determined that there was no realistic possibility of restoring Henry to her care and made the final care order referred to at [1] above.
Legislative framework
The relevant legislative framework pursuant to which Henry was removed from JL, and placed under the parental responsibility of the Director-General and pursuant to which JL applied for his restoration and appeal is set out below as it appeared in the Care Act as in force at the time of the Children’s Court’s determination: “V V” v District Court of New South Wales [2013] NSWCA 469 (“V V”) (at [14]) per Barrett JA (Ward and Leeming JJA agreeing). Like his Honour, I have referred to those provisions in the present tense as if they are still operative, as, indeed, many still are.
The Act deals both with children and young persons. A child is a person who is under the age of 16 years: s 3. Henry falls within that description and I have, accordingly, omitted the statutory references to young persons.
The object of the Care Act is, relevantly, to provide “that children … receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them”: s 8(a). The Care Act is to be administered “under the principle that, in any action or decision concerning a particular child … the safety, welfare and well-being of the child … are paramount”: s 9(1). Other principles to be applied in the administration of the Care Act include s 9(2)(c) which provides:
“(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child … from harm, the course to be followed must be the least intrusive intervention in the life of the child … and his or her family that is consistent with the paramount concern to protect the child … from harm and promote the child’s … development.
Both sections 8 and 9 appear in Chapter 2 of the Care Act and are “intended to give guidance and direction in the administration of [the] Act … [and] do not create, or confer on any person, any right or entitlement enforceable at law”: s 7, Care Act.
Chapter 5 deals with Children’s Court proceedings. Part 1 deals with “Emergency Protection and Assessment”.
Section 43(1), which appears in Ch 5, Pt 1, Div 1 (Emergency removal), relevantly provides that if the Director-General is satisfied, on reasonable grounds, that a child “is at immediate risk of serious harm, and that the making of an apprehended violence order would not be sufficient to protect the child … from that risk, then the Director-General may (without the need for any authority other than that conferred by s 43(1)) remove the child … from the place of risk in accordance with” s 43.
Where a child is removed from premises or a place under a power of removal conferred by or under the Care Act, the Director-General must, within 3 working days after the removal, make a care application in the Children’s Court for, among others, a care order in respect of the child: s 45(1), (1A), Care Act. On the hearing of the application, the Director-General must explain to the Children’s Court why the removal of the child without a warrant was considered to be necessary: s 45(2). The Director-General has the care responsibility for a child removed from the care of his or her parent or parents under Ch 5, Pt 1: s 49(1)(b).
The Children’s Court may make an assessment order for the physical, psychological, psychiatric or other medical examination and/or the assessment of a child: s 53; Ch 5, Pt 1, Div 6 (Examination and assessment orders). For the purposes of an assessment order, the Children’s Court may appoint a person to assess the capacity of a person with parental responsibility for a child to carry out that responsibility: s 54(1). If the Children’s Court makes an assessment order, it is to appoint the Children’s Court Clinic to prepare and submit the assessment report concerning the child to it: s 58(1). An assessment report submitted to the Children’s Court under Div 6 is taken to be a report to the Children’s Court rather than evidence tendered by a party: s 59.
Care orders
Part 2 of the Care Act deals with Care Applications.
Section 60 (Definitions) in Ch 5, Pt 2 provides:
“‘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 proceeding’ means proceedings under this Chapter.”
A care order may only be made on the application of the Director-General: s 61(1). The care application must specify the particular care order sought and the grounds on which it is sought and be accompanied by a written report specifying such information as may be prescribed: s 61(2). A care order may be made as an interim order or a final order, except as provided by Part 5: s 62. In seeking an interim care order, the Director-General has the onus of satisfying the Children’s Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility: s 69(2).
Section 71 of the Care Act relevantly provides:
“71 Grounds for care orders
(1) 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 reason including, without limitation, any of the following:
…
(d) subject to subsection (2), the child’s … basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,
(e) the child … 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,
…
(2) The Children’s Court cannot conclude that the basic needs of a child … are likely not to be met only because of:
(a) a parent’s or primary care-giver’s disability, or
(b) poverty.” (Emphasis added)
Section 72(1) also contains provisions concerning the making of care orders in circumstances where the Children’s Court is satisfied that, even though the child is not then in need of care and protection, the child was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and would be in need of care and protection but for the existence of arrangements for the care and protection of the child made under s 49 (Care of child or young person pending care proceedings), s 69 (Interim care orders) or s 70 (Other interim orders).
The first requirement before a care order is made is that either s 71 or s 72 is satisfied, they being alternative bases for such relief: V V (at [20]). Satisfaction of one of these two bases for the making of a care order is commonly described as the “establishment issue” or “establishment phase”: Re Alistair [2006] NSWSC 411 (at [65]) per Kirby J, SB v Parramatta Children’s Court [2007] NSWSC 1297; (2007) 39 Fam LR 132 (at [44]) per Price J. The court retains a residual discretion whether to make a care order after a s 71 ground is made out: V V (at [17]).
If the Children’s Court finds that a child or young person is in need of care and protection, it moves to what has been referred to as the “‘welfare phase’ during which the Children’s Court can consider the final orders required to care for and protect the child or young person”: SB v Parramatta Children’s Court (at [44]) per Price J. The principal provisions governing this phase of the exercise appear in ss 73 – 87.
If “the Director-General applies to the Children's Court for an order, not being an emergency care and protection order, for the removal of a child … from the care of his or her parents, the Director-General must present a care plan to the Children's Court before final orders are made”: s 78(1).
The Children's Court must not make a final order “for the removal of a child from the care and protection of his or her parents”, or “for the allocation of parental responsibility in respect of the child, unless it has considered a care plan presented to it by the Director-General”: s 80.
A care plan is (s 3(1)):
“… [A] plan to meet the needs of a child … :
(a) that is developed through agreement with the parents of the child …, or
(b) that represents a set of proposals for consideration by the Children’s Court.”
The Children’s Court may make an order placing the child under the parental responsibility of the Minister: s 79(1)(b). It must not make an order allocating parental responsibility unless it has given particular consideration to the principle in s 9(2)(c) (that the course it follows must be the least intrusive) and is satisfied that any other order would be insufficient to meet the needs of the child: s 79(3).
If the Director-General applies to the Children’s Court for a care order (not being an emergency care and protection order) for the removal of a child, the Director-General must assess whether there is a realistic possibility of the child being restored to his or her parents, having regard, relevantly to, the circumstances of the child and the evidence, if any, that the child’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care: s 83(1). If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child and submit it to the Children’s Court for its consideration: s 83(3). The Children’s Court is to decide whether to accept the assessment of the Director-General: s 83(5). The Children’s Court must not make a final care order unless it expressly finds that permanency planning for the child has been appropriately and adequately addressed: s 83(7).
Insofar as the “realistic prospects of restoration” in s 83(7) that may result in an order approving a permanency plan involving restoration are concerned, the court takes into consideration in relation to the “circumstances of the child” (s 83(7)(b)(i)), “the whole of the child’s situation”, including “any aspects of the situation in which a child is placed, the setting in which he or she is living and the influences bearing upon his or her wellbeing” and “potential harm”: V V (at [67] – [69]).
The court must assess at the time the application is before it whether there is a “realistic possibility of restoration”, that is to say, whether the “possibility of restoration is real or practical [and not] … fanciful, sentimental or idealistic, or based upon ‘unlikely hopes for the future’”: In the matter of Campbell [2011] NSWSC 761 (at [55]).
A party to proceedings who is dissatisfied with an order of the Children’s Court (other than an interim order) may appeal to the District Court against the order. Such an appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal: s 91(2). The Director-General accepted that the effect of s 91(2) is that once an appeal is lodged, the Director-General becomes the applicant and bears the burden of proof.
In addition to any functions and discretions that the District Court has apart from s 91, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under Chapter 5 or Chapter 6: s 91(4). The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly: s 91(6). The provisions of Chapter 6, which deal with Children’s Court procedure, apply to and in respect of the hearing of an appeal under s 91 in the same way as they apply to and in respect of the hearing of a care application under Chapter 6: s 91(8).
The effect of these provisions is that, as Barrett JA said in V V (at [23]), s 91 “makes it clear that … an appeal from the Children’s Court to the District Court is by way of a new hearing and that the District Court has all the functions and discretions at the disposal of the Children’s Court under Chapters 5 and 6 of the Act”.
Children’s Court procedure
Chapter 6 deals with Children’s Court procedure.
Proceedings before the Children’s Court are not to be conducted in an adversarial manner, but, rather, with as little formality and legal technicality and form as the circumstances of the case permit: s 93(1) and (2), Ch 6. The Children’s Court is not bound by the rules of evidence unless it determines they should apply: s 93(3). In any proceedings in the Children’s Court the standard of proof is proof on the balance of probabilities: s 93(4). Without limiting s 93(4), any requirement under the Care Act that the Children’s Court be satisfied as to a particular matter is a requirement that the Children’s Court be satisfied on the balance of probabilities: s 93(5).
Section 106A (Admissibility of certain other evidence), which appears in Chapter 6, relevantly provides:
“(1) The Children’s Court must admit in proceedings before it any evidence adduced that a parent or primary care-giver of a child … the subject of a care application:
(a) is a person:
(i) from whose care and protection a child … was previously removed by a court under this Act or the Children (Care and Protection) Act 1987 … and
(ii) To whose care and protection the child … has not been restored …
(2) Evidence adduced under subsection (1) is prima facie evidence that the child … the subject of the care application is in need of care and protection.
(3) A parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2) by satisfying the Children’s Court that, on the balance of probabilities:
(a) the circumstances that gave rise to the previous removal of the child … concerned no longer exist …”. (Emphasis added)
Section 106A was inserted into the Care Act by Sch 1[3] of the Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2006. It became effective on 1 January 2007: Government Gazette No 189 of 22 December 2006 (at 11540). In the Second Reading Speech for the Children and Young Persons (Care and Protection) Miscellaneous Amendment Bill, by which s 106A was inserted into the Care Act, Ms Reba Meagher, the Minister for Community Services and Minister for Youth, said (New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 24 October 2006 (at 3273 - 3274)):
“[Section 106A] will remove any technical obstruction to the court considering the evidence of a parent or carer’s past history in relation to the removal of children.”
…
[Such a parent or caregiver] must rebut the presumption that, on the balance of probabilities, the child in their current care is not at risk of harm and in need of care and protection either because the previous factors that put a child at risk of harm are now no longer present or because they were not personally involved in causing harm in the previous case. This suite of amendments will go a long way towards strengthening child protection by ensuring that prenatal reports may provide opportunity for support and early intervention to a newly born child as envisaged by the Act. This is by requiring the court to consider and give sufficient weight to similar fact evidence concerning past child abuse or neglect by a parent or caregiver. It is critical that the Children’s Court be able to consider all available evidence when ordering preventative and protective measures for children.”
Section 107, which also appears in Ch 6, deals with the examination and cross-examination of witnesses. Relevantly the Children’s Court must forbid the asking of, or excuse a witness from answering, a question that it regards as offensive, scandalous, insulting, abusive or humiliating, unless the Children’s Court is satisfied that it is essential in the interests of justice that the question be asked or answered, must forbid an examination of a witness that it regards as oppressive, repetitive or hectoring, and must excuse a witness from answering questions asked during such an examination, unless the Children’s Court is satisfied that it is essential in the interests of justice for the examination to continue or for the question to be answered: s 107(2) and (3).
The District Court proceedings
On 21 December 2011 JL filed a summons commencing an appeal, or seeking leave to appeal, from Murphy CM’s orders of the Children’s Court pursuant to s 91 of the Care Act. The summons was varied on a number of occasions, the final occasion being on 19 June 2012. As finally formulated, the grounds of appeal before the primary judge were that Murphy CM failed to give JL time to commence therapy, that relevant insight was demonstrated by JL signing over her four other children to temporary care, that a recommendation made by Ms Greta Goldberg, a Children’s Court clinician, that JL undertake therapy was “unethical” and was to “change my personality” and that her psychiatrist’s report did not recommend the need for any therapy: primary judgment (at [12]).
The appeal was heard over 10 days, between 10 September 2012 and 27 September 2012. JL represented herself. The Director General and the guardian ad litem, Mr Pollock, also represented on that occasion by Mr Braine, were also parties.
In the course of setting out the background I have recounted, the primary judge said (at [3]) that the Children’s Court concluded that Henry was “in need of care and protection” by reason of the matters set out in s 71(1)(d) and s 71(1)(e) of the Care Act. This statement appears to be based on Murphy CM’s reasons in which he noted that the finding on 7 October 2010 was “on grounds D and E in the Act” (which must be a reference to the provisions to which the primary judge referred as they deal with grounds for care orders) and his conclusion that JL had not demonstrated she could address the issues that led to Henry’s removal from her care.
The primary judge referred (at [9]) to the hearing on 15 November 2010 when JL “conceded … there was no realistic possibility of the restoration of GI, AA and AR”. On that occasion, Marien P had made certain observations which, in his Honour’s view, remained applicable:
“There are serious and real issues [JL] has to address. Whilst the whole question of whether she suffers from a diagnosed mental disorder is … not conclusive … there are clear issues as to whether the mother is able to focus her attention on the whole important exercise of raising her children, in particular raising … [Henry] … There are some very troubling and worrying parts of the evidence … about [her] past behaviour.”
The primary judge then set out the facts of the hearing before Murphy CM and also of a hearing before Hogg CM in which JL unsuccessfully sought leave pursuant to s 90 of the Care Act to rescind the final care orders made by Marien P in relation to the older children. His Honour noted that the transcript of the latter hearing showed “that [JL] raised substantially similar arguments to those … agitated on this appeal”, adding:
“[11] … Adopting the words of his Honour, the appellant submitted in those proceedings, that it was ‘a result of all of the corrupted information that the court made the original decisions, that indeed, she was an entirely appropriate parent to these children’. His Honour declined to grant leave stating: ‘there is a real rejection (by the appellant) of any reason that these children were taken into care … she does not accept that the risk of harm reports led to these children being taken into care.’”
The primary judge then set out (at [12]) the grounds of JL’s summons seeking leave to appeal by which the proceedings came before him and said:
“[14] … Even allowing for the fact that the appellant was self-represented, these grounds demonstrate a fundamental misunderstanding of Ms Goldberg’s recommendations, and hence confirm that the appellant does [sic, “does not”] recognize or understand the problems associated with her parenting capacity.
[15] It is important to recognise the basis on which the Children’s Court made the orders that it did. The orders were not based on any interaction between the appellant and [Henry], because he was removed some days after his birth. The case was based upon the demonstrated incapacity of the appellant to care for her older children in the period preceding the birth of [Henry]. That position was in turn based upon a number of risk of harm reports relating to the appellant and her older children and the appellant’s subsequent interaction with departmental officers and other reporters. Consequent upon that, significant deficiencies in the appellant’s capacity to care for their children were identified and she was duly assessed by Ms Goldberg.
[16] The appeal was contested by the Department and the Guardian ad litem on the basis that the deficiencies which were identified, had not been sufficiently remedied so as to ensure that [Henry’s] best interests would be catered for by the appellant. Counsel for those parties submitted that the appeal should be dismissed and the orders of the Children’s Court confirmed. The legal basis of the reliance by the Children’s Court on these earlier matters, is to be found in s 106A of the Act.
[17] The appellant asserted in these proceedings (and in other associated proceedings involving her older children) that the risk of harm reports were either false or exaggerated and/or motivated by mala fides of the various reporters and departmental officers. She further argued that the Children’s Court clinician’s opinion was grounded on this false or inaccurate information and was thus not a valid opinion. In support of her case, she relied upon a number of psychological and psychiatric reports, which she argued, demonstrated she had no mental illness, and consequently had appropriate capacity to care for JL.”
The primary judge (at [18]) then turned to the “Case for the Department”. Pursuant to what his Honour described as the “mandatory direction in s 106A(1) of the [Care] Act”, he said he had admitted 34 risk of harm reports relevant to JL and her older children. The first of the reports was made on 29 March 2005, and the majority between August 2007 and February 2009. According to the primary judge:
“[19] The reports disclose the following matters over that period of time: the appellant lacked insight into the appropriate hygiene or care for her daughters; she did not receive adequate support from her deceased husband; yelling, screaming and fighting were often heard between adults and children within the home, mainly directed towards the two female children and in the presence of the other children; on a number of occasions, the appellant was reported to be paranoid in presentation and often subject to fluctuating moods from calm to very angry; she was reported to be erratic and experiencing a breakdown for a six-week period; there were reports that the children had witnessed domestic violence between the appellant and her husband; reports by police officers and others confirmed mental health concerns relating to the appellant and observations were made about the premises being in very poor condition with clothes, rubbish and soiled nappies throughout the premises.
[20] The reports indicated that on 7 November 2007, the appellant was admitted to hospital, reportedly suffering from psychosis; at that time there were hygiene concerns in relation to the family home, as there was faeces and urine present; a further report was received on 8 November 2007 that the appellant had been admitted to the Prince of Wales Hospital with paranoid ideation and was subsequently scheduled under the Mental Health Act.
[21] Further reports in early 2008 indicated that there was constant crying and screaming coming from [sic, the] residence, and the children were constantly being yelled at by the appellant. A number of reports throughout 2008, commented on the inadequate clothing worn by the children, the fact that the apartment “stank” like urine and off-food and there was sparse or no furniture in the apartment. Similar reports were received in early 2009, culminating in a home visit by case workers on 18 February 2009. There were a number of visits in February 2009, which in large measure confirmed the earlier impressions relating to the unhygienic nature of the premises and the children, and the generally erratic behaviour of the appellant.
[22] On 3 March 2009, case workers transported the appellant to undertake a mental health assessment. The appellant was assessed by Dr Susan Iland, who ultimately concluded that the appellant suffered from paranoid schizophrenia. Concern was expressed for the well-being of the children if left in the care of the appellant. The appellant agreed on that day to have the children placed in temporary care of the Department. The reports indicate that the children have generally thrived with their foster carers. Provision was made for the continued contact of the appellant with her children and with each other. That contact has been largely positive and uneventful.”
The primary judge also referred to three reports made by Ms Goldberg, dated 18 March 2010, 24 February 2011 and 16 August 2012. The 2010 report related to JL’s older children, and the other two to Henry: primary judgment (at [23]).
In her report of March 2010, Ms Goldberg noted that “in relation to the issues raised in the risk of harm reports, the appellant only acknowledged perceived problems relating to household difficulties [and] was fully expecting that all her children would be quickly restored”: primary judgment (at [24]). Ms Goldberg expressed the opinion that that optimism reflected what seemed to be “characteristically impracticable and unrealistic perceptions about her own resources and parenting skills, which the current assessment indicates are very poor”. Ms Goldberg assessed JL following psychometric testing, as being “markedly emotional and mentally unstable, with a high vulnerability to stress and in particular to parenting stress”: primary judgment (at [24]).
Ms Goldberg also observed JL’s interaction with her older children. In this respect, she expressed the opinion, among other matters, that JL’s efforts “to remain warm, gentle and calm towards [them] ‘imposed extreme emotional stress upon her, (and she) was overall ineffectual when it came to communicating with or controlling with’ [and] ‘the perceived total commitment and determination to restore all of them can be seen as a function of her own identity needs’”: primary judgment (at [25]).
Ms Goldberg described JL’s bonds towards her various children as “ambivalent – avoidant, at best, ‘shallow’, ‘ambivalent and insecure’, ‘highly resistant and … unreachable’ and ‘accustomed to having less attention’.” The primary judge observed that “if these observations are correct, unfortunately they reflect adversely upon the appellant’s parenting capacity”: primary judgment (at [26]).
Ms Goldberg concluded (primary judgment (at [27])):
“[JL’s] … extreme actions seem consistent with other evidence of poor reality testing and poor ability to control. She portrays a quite limited self-reflective capacity and empathetic [sic] attunements to the children’s needs and her determination to have all four restored is not only unrealistic but likely to also reflect her co-dependent need to hold onto her identity as the mother.
In this sense, and particularly under conditions of stress, she is likely to have repeated difficulty in prioritising the children’s needs.
The current assessment also indicates a very high future risk of recurring psychological and physical abuse and neglect of the children.”
Ms Goldberg also concluded that JL “has been unable to meet the children’s needs – physical, emotional and psychological – and this has caused significant emotional and other impacts upon those children [and] that the appellant minimised all or denied the child protection risks” … [her] explanation always tended to attribute cause or responsibility to others [and] it was not then realistic to expect the appellant to be able to cope with the restoration of all of those children to her care”: primary judgment (at [28]). (The language of Ms Goldberg’s opinion to some extent reflects s 71(1)(d) of the Care Act).
In her March 2010 report, Ms Goldberg recommended that JL would benefit from ongoing individual psychotherapy: primary judgment (at [28]).
In her report of 23 February 2011 Ms Goldberg noted that JL “showed little insight into her own emotional limitations and needs” and opined that restoration of Henry “should only be considered if appropriate recommendations and supports had been in place for a minimum period of 12 months”: primary judgment (at [29]). She concluded (primary judgment (at [30])):
“… [JL] does have difficulty sustaining this considerable effort (to make a good impression) particularly when she is exposed to pressure or threat [sic, “threats”] that overwhelm her with anxiety. At such times, she would be more likely to retreat into denial/dissociation defences rather than to experience anxiety or panic attacks.
In addition, there appears to be a disordered thought process, which involves emotional denial based on impaired reality testing as a way of coping with recent difficulties. There is also an extreme reliance upon rationalisations that are overly positive and optimistic, as a way of coping with feelings of loss/grief/depression that have recently threatened to overwhelm her.
In addition, her disordered thought process also portrays a tendency to subtly externalise blame and responsibility rather than owning it, although she does this cautiously and seems to be aware that such comments could be interpreted as paranoid.”
Ms Goldberg concluded that if JL did undertake therapy, the specific area of psychological difficulty was “her inability to accept emotional ownership or to accept any need for personal change”, without which, Ms Goldberg opined, “the possibility of such restoration of [Henry] failing, would potentially expose him to more instability, and therefore restoration did not seem viable at that time”: primary judgment (at [31]).
In her 22 August 2012 report, Ms Goldberg referred to the 34 risk of harm reports and the documented hospitalisation report that JL was engaged in fortnightly treatment with a Dr Tanveer Ahmed. She expressed the opinion that a review of JL’s feelings and ideas about Henry revealed “limited self-reflection or ability to think about his emotional world”. She doubted JL could maintain a stable long-term intimate attachment with Henry unless supported interventions could be provided and recommended cognitive behaviour therapy: primary judgment (at [32]).
The primary judge recorded (at [33]) Ms Goldberg’s opinion in her August 2012 report that JL “continued to rationalise previous failures in her efforts for restoration on the basis that the court did not know all the facts, information was kept hidden and for these reasons, she wished to represent herself in the appeal” and, furthermore, told Ms Goldberg that she believed “in retrospect that she was set-up, probably by hostile neighbours who wanted her to be thrown out of the units because of the children’s noise.”
Ms Goldberg concluded that JL had “adequate parenting skills in a physical care sense and if given proper support in a low-stress secure environment … could give consistent emotional caring as well” but noted that “if there is no such support, there was likely to be a recurrence of increased emotional and social withdrawal”: primary judgment (at [34]).
Ms Goldberg gave evidence in the appeal. She said she had had limited opportunity to speak with Dr Ahmed by telephone, but understood that he was providing a combination of clinical assessment and supportive counsel to JL. She did not believe JL was engaged in a long-term therapeutic relationship with him, nor that JL believed that she should be: primary judgment (at [35]). The primary judge recorded the substance of Ms Goldberg’s evidence as follows:
“[36] The appellant had difficulty in accessing her own emotions and therefore difficulty in accessing the emotions of [sic, the] children. Furthermore, Ms Goldberg said that it was not her impression that she accepted the facts concerning the risk of harm reports, or that there had been any other significant change in that regard since her earlier reports. Because of this, she thought it too early to consider restoration of [Henry] to his mother’s care. She accepted that the appellant’s non-acceptance of these facts, presented a considerable obstacle to her engaging in therapy in a productive way. Based on the material before the Court, Ms Goldberg was of the view that the appellant’s therapeutic relationship with Dr Ahmed was in its early stages, and hence there was no realistic prospect of success for any application based upon a significant change in circumstances.
[37] In relation to the present contact arrangements between [Henry] and the appellant, which has been once per month, Ms Goldberg stated that there was no recommended formula for the increase in that contact. She considered that the important question was the quality of the contact and in particular, whether it had a negative impact on [Henry]. Variations in the frequency of the contact needed to be attended by degree of flexibility in her view.” (Emphasis added)
The primary judge then turned to JL’s case. His Honour noted (at [38]) that she had filed affidavits before Murphy CM and on the appeal “generally refuting the assertions made by the departmental witnesses” to which she had annexed a number of reports from psychiatrists and psychologists. His Honour also noted (at [38]) that JL said she had completed numerous courses “to help make her a better parent” and, too, that she claimed “that some or all of the case workers who have dealt with her case, have exaggerated the problems and/or relied [sic, “lied”] in the reports regarding the state of her home.”
His Honour observed (at [39]) that the opinions in the reports annexed to JL’s affidavit shared common features in that they focussed on her psychological/psychiatric condition between March 2009 and March 2011, concluded that there was no evidence of current major psychiatric illness, nor any clear-cut evidence of her being psychotic and then concluded there was no basis on psychiatric or psychological grounds preventing JL from taking care of her children and many suggested it would be preferable for them to be returned as soon as possible.
The primary judge observed (at [40]) that none of these experts gave evidence before him. Further, to the extent the reports referred to the information the expert based his opinion upon, it “was substantially less than that, before the Children’s Court or this Court”. His Honour expressed “considerable doubt that [they] have been supplied with the full factual basis leading up to the consensual removal of the older children from the appellant” and “it appears [they] were supplied with selective material, and I would infer that very little of the material which [JL] contended was false or exaggerated, was provided to them.”
His Honour observed (at [41]) that “many of the experts conceded that their expertise did not encompass opinions about [JL’s] competence as a parent”, a concession his Honour observed “appears to be justified”. His Honour added that many of these experts “have consulted with [JL] on an ad hoc basis, as opposed to in the course of any long-term therapeutic relationship.”
The primary judge recorded (at [42]) that JL’s evidence proceeded on the basis that “she accepted the child protection issues raised in the case against her [and] stated by reference to courses which she has done, and the changes that she has made, including engaging in therapy, this indicated that she had insight into her previous deficiencies and those deficiencies have been remedied.” The primary judge observed that “as the evidence proceeded, it became clear that [JL] had not significantly changed her earlier position.” His Honour said:
“[43] A reflection of the appellant’s position is to be found in her evidence in this appeal, when dealing with an affidavit of a senior departmental officer which had been served late. The appellant was provided with the opportunity to reply to any matters in that affidavit, and she gave the following answer:
‘ … the point I’m trying to make your Honour, is that I tried to show insight, but … they are only allegations, criticisms … we don’t know exactly who, but I think most of it was the risk of harm reports, and there is really little evidence to prove the allegations of some degree of neglect and my inability to care for the basic needs of the children. I disagree that the state of the apartment was – I’m saying that … (the departmental officer) alleged that my apartment was unhygienic … she says faeces, now, she says she can’t remember faeces … I have provided photo evidence … (of matter that was not faeces).
… there is no compromise between me and … (the departmental officer) and … I’m saying she’s exaggerating, she’s lying, Lisa Shapiro, at the same time raised none of those concerns … .’”
The primary judge then referred (at [44]) to JL’s questioning of the motives of the reporters of alleged harm to her children on the basis that they had “ulterior motives for making false or inaccurate reports” and observed that JL’s cross-examination of a departmental officer “demonstrated her over-optimistic and unrealistic view of her parenting capacity and lack of a willingness to change”. In turn, his Honour recorded (at [45]) that JL “referred to the unrealistic expectations of the Department”. She “claimed that the departmental officer was threatening, hostile, violent and making many demands”: primary judgment (at [46]).
JL said that Dr Ahmed’s treatment “provided therapy … in a psychotherapy sense”. She had only had a brief opportunity to discuss cognitive behaviour therapy with him, and was unable to say whether he had suitable expertise to provide it, however asserted that she would be prepared to follow Ms Goldberg’s recommendations: primary judgment (at [47]).
The primary judge then referred to JL having been asked about observations Ms Goldberg made concerning AR’s behaviour and JL’s “ineffectual attempts to stop” conduct “involving fighting, biting and screaming”. JL’s response was that “it was totally exaggerated, parts of it were false and she could not remember any of those events occurring.” JL attributed any misconduct, in effect, to Ms Goldberg’s manner and “the situation of her children having come from different placements”: primary judgment (at [48]). The primary judge observed (at [49]) that “at times, [JL] attributed feelings and emotions to others which in my view, plainly had no rational basis.”
Next, his Honour dealt (at [50] – [51]) with JL’s reliance on the evidence of a Ms Shapiro, a social worker employed by Jewish Care as a family support domestic violence caseworker. Ms Shapiro said she had maintained regular contact with JL since December 2008 and concluded that her “children would not be at risk of harm, if restored to her care [and] that [JL] was capable of meeting their physical, psychological, emotional and educational needs.” His Honour observed that Ms Shapiro did not give evidence in the appeal nor in the Children’s Court proceedings, that it was unclear whether she was aware of the full extent of the factual material in expressing her opinion (none of which was referred to in her affidavit), that it was not clear how much contact with JL was face-to-face as opposed to by telephone nor how much time Ms Shapiro spent with JL and her children. The departmental caseworkers gave evidence that Ms Shapiro rarely entered JL’s home and accordingly was not in a position to observe its state. In those circumstances, his Honour concluded (at [51]) that it was difficult to give full weight to her opinion.
The primary judge next referred (at [52] – [54]) to evidence given by the appellant’s brother who he found to be an honest witness “attempting to provide support for his sister”. His Honour recorded (at [53]) the brother’s evidence that “in the time up to 2009, the appellant was under a lot of stress and had little support [and] …he did not observe that there were faeces or urine in the appellant’s apartment when he was there, but did not have any specific recollection in the period in early 2009”. His Honour concluded (at [54]) that while her brother “would be available to provide support on an ad hoc basis and in urgent situations, it remains unclear whether he could provide the consistent and time-consuming support [JL] might need from time to time when in stressful situations”. This finding was, it appears, relevant to Ms Goldberg’s recommendation in her 2012 report that if, in the future, Henry was restored to JL, her brother should be assessed for suitability as a support person: see [71_Ref414198506] above.
Next the primary judge referred (at [55] – [62]) to Dr Ahmed’s report of 29 May 2012 which, his Honour recorded, was “specifically not said to be a formal medico-legal report, but a brief note offering support to [JL].” In that document, Dr Ahmed said he “did not consider that [JL’s] broader hope to regain access to her children was unrealistic”, an opinion confirmed by an email from him of 17 September 2012 to the effect that JL was “compliant … with treatment which was focused on insight-based psychotherapy” (a therapy for which Dr Ahmed provided no explanation). The email concluded by saying JL was “competent to look after her children unsupervised”.
His Honour concluded (at [58]) that Dr Ahmed had not been supplied with the extensive information provided to Murphy CM or to his Honour and that it was not clear whether he had any expertise in the area of parenting capacity. An examination of email correspondence between JL and Dr Ahmed revealed, according to the primary judge (at [60]), that JL had “provided Dr Ahmed with an incomplete account of the facts and then only a view of the facts favourable to her position.” The primary judge concluded that many of the “emails are self-serving”. Of concern to any future therapeutic relationship, according to the primary judge (at [61]), was an email from Dr Ahmed of 18 September 2012 in which he stated that JL was resisting “a longer and more thorough report … and she was placing him in ‘a genuine reputational risk through your reluctance to have proper legal representation’.” He suggested that she either find such representation or “find a new psychiatrist.”
The primary judge accepted (at [62]) that counsel for the Department and the Guardian ad litem had “made good their submissions that Dr Ahmed’s expertise in relation to parenting capacity is untested and unknown” so that “the weight to be attributed to Dr Ahmed’s views, must be limited.” To the extent that Dr Ahmed differed from Ms Goldberg, his Honour preferred her opinions “because she is suitably qualified and has based her opinion on a full consideration of the relevant facts.”
The primary judge then turned to the legal framework in which he was required to determine the appeal. After referring to Re Tracey [2011] NSWCA 43; (2011) 80 NSWLR 261, the primary judge noted (at [68]) that pursuant to s 72(1) of the Care Act, he was required to be satisfied that “the child is presently in need of care and protection or … was in need of care and protection when the circumstances that gave rise to the care application occurred or existed even though the child’s need of care and protection, do not subsist.”
The primary judge referred (at [69]) to the s 83 requirements that upon an application for a care order the Director-General must assess whether there is a realistic possibility of restoration of the child to his or her parents (s 83(1)(a)) and the evidence that the child’s parents are likely to be able to satisfactorily address the issues that led to the removal of the child: s 83(1)(b). His Honour then said (at [70]) that the central issue was “whether there is a realistic possibility of restoration of [Henry] to [JL], in the context of s 83(7).”
His Honour then referred to the principles Slattery J identified as to the meaning of this expression in In the Matter of Campbell (at [55] ff). After summarising those matters, his Honour added (at [71]) “that the ‘realistic possibility’ of restoration must exist at the time of the application and not be merely a future possibility.” His Honour observed (at [74]) that the applicable burden of proof was on the balance of probabilities, referring to Sackville AJA’s judgment in Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 (at [68]).
Next, his Honour (at [75]) set out s 106A(1) of the Care Act. He referred to SB v Parramatta Children’s Court in which Price J concluded (at [47]) “that the object of [s 106A] is to mandate the admission of evidence of a kind specified in sub-section (1) and not to provide an additional ground for a care order” and (at [49]) “that the legislative intention behind that provision is to enable the Children’s Court to consider and give weight to evidence that a parent or care-giver has previously had a child removed and not restored to their care and it is intended to overcome obstacles which might be considered to arise from the application of the rules of evidence by the Children’s Court to the proceedings before it”: primary judgment (at [77]).
The primary judge noted (at [80]) that in her closing submissions JL “argued that she had undertaken the requisite psychotherapy, and had provided the report of Ms Goldberg to Dr Ahmed” and that “this showed that she did have insight into the issues which led to the children being removed”. Next, that “the cause of the problems relating to the unhygienic household, was because she had no time to organise spring cleaning” and, “any problems that were identified, were the product of the hardships that [JL] was subject to in 2009 including limited finances, having to care for grieving children (in relation to the loss of their father), hostile neighbours and her 2007 marriage breakdown.” JL submitted that the caseworker’s evidence was “exaggerated and wrong” that she could not “admit to something I did not do” and that “she had insight into the fact that [a caseworker] had lied”: primary judgment (at [81]). As to Ms Goldberg’s opinions, JL “submitted that she knew too much of the ‘false information’ and suggested therefore, that her opinion was thereby invalid”: primary judgment (at [82]).
The primary judge then said:
“[83] The appeal turns upon whether it has been established on the balance of probabilities that there is no realistic possibility of restoration of the child- [Henry] – to the care of his mother? Put another way, whether such restoration is a real, practical or sensible possibility which might be achieved within a viable time frame.”
[84] As the appeal has proceeded, the crucial issue was the capacity of the appellant to provide an adequate standard of care. The oral and documentary evidence in these proceedings discloses that whilst the appellant has made some attempts to gain assistance in respect to her problems, no significant steps have been taken nor has any extensive therapy been commenced”. (Emphasis in original)
The primary judge noted (at [85]) that JL’s submissions focused upon the “proposition that a child deserved to be with his mother and his mother was best placed to look after his needs”, a proposition his Honour observed was “often right … [b]ut unfortunately not in every case as this case demonstrates.”
His Honour referred to Slattery J’s observations in In the Matter of Campbell (at [40]) where his Honour reaffirmed the long-standing policy of the law to preserve the interests of the children to the rights of those seeking to litigate custody disputes. His Honour then said:
“[86] … It is difficult to avoid the conclusion that a driving motivation of the appellant in the present case, is her own need to fulfil the role of mother to JL. As Ms Goldberg observes, the appellant has exhibited difficulties in relating to her children in an appropriate way and in understanding their emotional and other needs.
[87] Ms Goldberg’s opinions, which I accept, indicate that the appellant suffered and continue [sic, “continues”] to suffer from a significant lack of insight into deficiencies in her parenting capacity. Notwithstanding some attempts to take remedial steps, the fundamental underlying problem, which in Ms Goldberg’s opinion requires cognitive behaviour therapy, has not been addressed in any significant way.”
His Honour continued:
[88] In my opinion, [JL’s] failure to undergo appropriate therapy has resulted in the appellant’s continuing deficiencies in her parenting capacity. Her personal presentation in the course of the appeal was passionate, disordered and often unrealistic. She was aware enough to see the need to at least superficially accept the facts, underpinning the risk of harm reports. However, as the above analysis of the evidence demonstrates when pressed on any of the issues, the appellant resorted to the views that she had expressed from the beginning of this and connected litigation i.e. that the facts in the risk of harm reports were either false, exaggerated or provided as a result of mala fides. The attitude of departmental officers was hostile and unreasonable, and their requirements could not reasonably be met in the time provided. She assessed her capacity as a mother as outstanding, and the only deficiencies were that at times of stress, she failed properly to attend to the house work.”
The primary judge concluded (at [89]) that the evidence demonstrated JL had attended a variety of psychiatrists and psychologists “but never in any long-standing relationships, which would have allowed useful therapy to have occurred”. He opined that “her relationship with Dr Ahmed, demonstrates that any contact with professionals is superficial and short lived [which] also suggests that as a relationship develops, the difficulties that [JL] exhibits, serve to undermine any trusting therapeutic relationship.” He also concluded (at [89]) that despite JL’s “constant claims that she has insight and is prepared to do all that is required of her by … Ms Goldberg, there have been no demonstrated concrete steps of her commencing the recommended therapy.”
His Honour next noted (at [90]) that Ms Goldberg’s “most optimistic opinion” in her August report was based on the fact that JL was in a better position to provide for Henry’s needs because her four older children had either been adopted out or placed in care thus reducing the potential stressors on JL and allowing her “greater opportunity to focus specifically on [Henry’s] needs”. However, his Honour concluded that the fact that JL had commenced proceedings for the return of the older children “taken in conjunction with her failure to pursue the recommended therapy, serves to underscore her significant and continuing lack of insight as to her parenting deficiencies.”
His Honour found:
“[91] … [T]he appellant has failed to rebut the prima facie evidence admitted pursuant to section 106A, because no sufficient material was advanced that the circumstances that gave rise to the previous removal of the appellant’s children, no longer exist. I further conclude that at the present time there is no realistic possibility of [Henry] being restored to the appellant. I am of the view that the appellant has not genuinely acknowledged the deficiencies in her parenting capacity, nor has she gained insight into the actual and potential harm that those deficiencies have caused to her older children, and more significantly for the present case, pose if she were to regain the care of her son [Henry].
[92] I further conclude that the care plans placed before the Children’s Court and this Court are appropriate to the needs of [Henry], especially having regard to the evidence of the departmental officers and more particularly, of Ms Goldberg. I pause to note that Ms Goldberg agreed that [Henry] was a well-settled child with his foster carers, he has reached all relevant milestones and was a settled and intelligent young child.”
The primary judge therefore dismissed the appeal and confirmed the orders of the Children’s Court of 1 December 2011.
Grounds for relief
The grounds for relief in the summons prepared by the amicus curiae after consideration of and by reference to the applicant’s affidavit filed 26 November 2012 are (omitting references to the paragraphs of the affidavit):
“A. Lakatos J failed to give sufficient weight to the following:
The positive changes that the applicant had made including engaging in therapy, attending parenting courses and training in fitness and massage …
The evidence of the applicant’s brother … who observed a safe and happy environment in which the children lived …
The information produced by Dr Ahmed on 29 May 2012, which indicated an ongoing commitment to therapy and that the applicant was competent to look after her children unsupervised …
The medical evidence supplied by the applicant from psychologists and psychiatrists that confirm the applicant is not suffering from a mental illness and that she is a capable parent ...
B. Lakatos J failed to have sufficient regard to the following:
The intention of the Department in September 2011 to provide a Care Plan for restoration of the child pursuant to Section 80 of the Children and Young Persons (Care and Protection) Act 1998. The intention was expressed orally to the applicant by caseworker Elizabeth Fairfax ...
The evidence of caseworker Elizabeth Fairfax who is the child’s current caseworker and who supported restoration. Further evidence was that the child is currently in foster care five days a week and the department have concerns for his health ...
The contact supervision reports made during the applicant’s visits with her children that state that the applicant is a caring and attentive mother ...
C. Lakatos J placed too much weight on the following:
The Risk of Harm reports made between March 2006 and February 2009. These reports are out of date and do not reflect the current situation of the applicant.
The report produced by the Children’s Court Clinician Ms Greta Goldberg dated 18 March 2010. This report was out of date, did not take into account the positive changes made by the applicant and was relevant only to the applicant’s three children in separate proceedings.”
JL’s submissions
JL’s written and oral submissions were lengthy and not always precisely focused or specifically directed to the grounds set out in the summons or the affidavit on which it was based. It was at times, difficult to discern any legal issue in them. To say that JL’s submissions were diffuse is not to criticise her, but rather to record the disadvantageous position she occupied in presenting a case without legal representation.
I accept that the amicus curiae did her best to assist the Court and JL in formulating the summons. However as shall become apparent as I set out JL’s submissions, underlying the grounds enumerated in the summons is JL’s complaint that the primary judge was biased and/or denied her procedural fairness – a complaint which does not explicitly appear in the summons.
Ms Goodchild’s assistance was welcome, but was limited by virtue of her status as amicus curiae, a role in which a “person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted” (Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 (at 604) per Brennan CJ), but does not take a partisan position: Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 (at 397 – 398) per Hutley JA (Reynolds and Glass JJA agreeing).
Nevertheless, the thrust of JL’s submissions can sufficiently be discerned from both the written and oral submissions. Although, unless in the form of a quotation, the following attempt to distil her complaints is not in precisely as JL stated (whether in writing or orally), it states the substance of her case. As will be apparent, JL’s complaints extend beyond the grounds for relief identified in the summons. All parties had an opportunity to deal with JL’s complaints both in writing and orally. It is appropriate in those circumstances, in my view, to deal with the substance of her case, rather than that confined to the summons.
At the forefront of JL’s submissions is a complaint that the primary judge showed bias and prejudgment in favour of the Director-General by ignoring or giving insufficient weight to evidence that reflected positively on her and by relying instead on out-dated or inaccurate reports about her. She asserted his Honour had denied her procedural fairness as he had not acted “fairly in the making of decisions affecting rights, interests and legitimate expectations”.
Turning to the particular, under the heading “Bias and pre-judgment shown by Judge Lakatos in favour of the Department of Community Services”, JL complained that the primary judge failed “to give weight to evidential rules as set out in the [Care] Act”. Orally she submitted his Honour placed little or no weight “on important factual evidence and failed to put weight on relevant considerations”. Thus, she contended that his Honour had ignored reports of supervised contact visits, presumably with the older children which reported “shine was [sic] superior child care brilliance and expertise” and were evidence that she was “highly capable to meet the needs of all four children.”
JL also complained his Honour’s bias was evident in his failure to consider, or place any weight on, the “evidence of [her] innocence and capability to parent from [her brother], Dr Ahmed, Dr Goldberg, general practitioner, Dr Bereny, paediatrician Dr Campbell”, that of a Mr VB or on her brother’s evidence, that in November 2007 “after I had been soft drink spiked … he was present when the police were and viewed a hygienic home”. She contended that his Honour’s omissions in this respect were contrary to s 91(2) of the Care Act. Insofar as the November 2007 incident was concerned, she contended that a police officer apparently connected with this incident prepared “‘malice’ police report but failed to attend to give his differing view”. I infer she said the police officer had failed to attend the hearing before the primary judge. She argued that this showed “great Insight by me getting the ‘TRUTH’ exposed to prove ‘MALICE’”.
Secondly, JL submitted that the primary judge was biased because he relied on the evidence of Ms Sarah Morris, a caseworker, who had had no connection with her while she was pregnant with Henry or after his birth. In contrast, JL contended, his Honour ignored evidence from Ms Elizabeth Fairfax, the caseworker who was involved with her after Henry was born who, she argued, gave relevant evidence recommending Henry’s restoration to her care after observations on monthly contact visits. She also complained that his Honour failed to consider evidence from Ms Fairfax to the effect that she had concerns for Henry’s welfare in foster care.
Thirdly, JL complained that the primary judge interfered with her conduct of her case by preventing her from asking questions, by failing to prevent a witness from giving irrelevant information and, in short, “was siding with [the witness] which proves pre-judgment”. She contended that his Honour’s inappropriate interventions in the case prevented her from her attempt to prove “malice”, I infer, on the Director-General’s part.
Fourthly, JL complained about the conduct of the case before the primary judge. There were a number of complaints, including that she was surprised by the witnesses who appeared for the Director-General. She also contended that had she known the Department had arranged witnesses she would have asked Ms Shapiro to appear as a witness, but that she was denied that opportunity due to procedural unfairness. Another complaint was that the primary judge did not ask her if she objected to these witnesses. A third was that his Honour did not limit the cross-examination of the Department’s witnesses. Further, she complained that the primary judge failed to assist her in understanding her rights as a lay person and was “extremely critical and impatient as [she] cross-examined for the first time.”
Fifthly, JL contended that the primary judge was biased as evidenced by his intervention during the course of her cross-examination to ask the relevance of questions, pointing out that she had asked the same question a number of times and that it had been answered and asked her to turn to a new subject, interfering with “my rhythm of my cross-examination, giving the witness time to think and remember and get an answer” and taking over her cross-examination as well as in rejecting questions. In contrast, she complained, his Honour did not intervene when counsel asked inappropriate questions. The effect of his Honour’s interventions, JL complained, was to disrupt her attempts “to prove that the whole thing was malice and the malice is continuing”.
Sixthly, JL contended that her evidence concerning contact supervision reports with Henry over two years demonstrated that she had the capacity to meet Henry’s “basic physical, psychological or educational needs”. She complained that the primary judge failed to refer to these reports at all. He also failed to refer to medical reports stating that she “is a capable and competent mother”, to the positive reports of her current caseworker, Elizabeth Fairfax, who recommended restoration of Henry to her care. Instead, she submitted, his Honour relied on out-dated reports, such as those by Ms Goldberg, or of a caseworker, Sarah Morris.
Seventhly, JL also complained that the primary judge was biased in focusing on allegations made three years before the hearing which related to her deceased partner and their children. She contended that, in effect, his Honour took in account irrelevant considerations arguing that his Honour’s focus should have been on the present, rather than on matters of history. Alternatively, JL contended that, to the extent the primary judge referred to reports from Ms Goldberg which pre-dated Henry’s conception, his Honour had relied on irrelevant material whereas the situation with Henry was a “whole new circumstance.” JL contended orally that the primary judge erred in failing to find that she had rebutted the s 106A prima facie evidence and that she had established that “the circumstances that gave rise to the previous removal of the child or young person concerned no longer exist”: cf s 106A(3)(a).
Eighthly, JL complained that the primary judge was biased to the extent he pointed to negative aspects of her parenting and gave no weight to matters demonstrating she had proved her competency as a mother.
Ninthly, JL submitted that the primary judge had erred in concluding she had not established in accordance with s 83(1)(b) that she was “likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care”, such that there was a “realistic possibility of [Henry’s] restoration”.
Other complaints included his Honour’s failure to refer to an affidavit or statutory declaration of a Mr Victor Berger saying he had never seen her late partner be violent, the numerous courses she had undertaken in demonstrating her willingness to change and be a better parent, the fact that she undertook the therapy recommended by Ms Goldberg, alternatively that she could not realistically have been expected to start cognitive behavioural therapy when the report requesting that she do so was given only shortly before the trial commenced.
Insofar as the primary judge referred (at [44]) to her being over-optimistic and unrealistic, JL complained that his Honour failed to understand that “I am innocent, that the ROH [report of harm] reports are not true evidence” and that insofar as those reports state that she “mistreat[s] children and are mentally unwell [sic]” she contended that she had produced a number of medical reports which excluded any mental health concerns and that contact with the reports and current caseworkers gave evidence that she treated children with love and respect consistently.
JL also criticised the primary judge for not considering what she contended were relevant Articles in the United Nations Convention on the Rights of the Child (1989) (“CROC”). She contended that the Articles set out in the Schedule to these reasons were capable of being relevant to the exercise of the primary judge’s discretion to rescind the care order in relation to Henry. She emphasised the right of the child to be cared for by his or her parents, the importance of a parental relationship to a child’s safety, welfare and well-being (the latter as relevant to the paramountcy principle in s 9(1)(c) of the Care Act and the weight to be given to maintaining the bond with the natural parent).
Finally, JL complained about aspects of the adoption of GA which she contended his Honour wrongly failed to refer to in his reasons, thus again, demonstrating his bias.
Amicus Curiae’s Submissions
Ms Goodchild’s submissions set out the relevant background to the proceedings and the applicable legislative provisions and legal principles which are set out above. She also submitted that any inquiry by the Court in a care application must be undertaken in the context of the legislative imperative that the safety, welfare and well-being of the child are the paramount considerations. She pointed out that the Children’s Court applies the ‘unacceptable risk’ test in this regard and drew attention to the High Court’s formulation of the “unacceptable risk” principle in the context of risk of sexual assault in M v M [1988] HCA 68 (at [25]).
Article 29
1. States Parties agree that the education of the child shall be directed to:
…
(c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; …”
BASTEN JA: This matter involves the judicial review of a decision concerning a child of the applicant mother, the original proceedings having been brought by the respondent Secretary under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Children Act”).
Pursuant to s 105 of the Children Act, there is a statutory prohibition on publication of the name or any other information or material which may identify the child. As that provision does not apply to proceedings in the original jurisdiction of this Court, a non-publication order was made in similar terms at the commencement of the hearing, pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), s 7. To avoid inadvertent contraventions of that order, it is convenient to refer to the child by the pseudonym already given, “Henry”, and the mother as “the applicant”. (In other proceedings she is identified by the initials JL, which have, confusingly, also been adopted as a pseudonym for one of her children.)
Procedural background
Very shortly after his birth in late 2010, Henry was taken into the care of the Director-General (now known as the Secretary), on the basis of an opinion that the mother lacked capacity to care for her children and based upon concerns about her mental health. On 30 September 2010 an interim care order was made by the Children’s Court.
Over the following year a care plan was prepared and, on 29 November 2011, Children’s Magistrate Murphy made orders which were entered on 1 December 2011. The orders placed Henry under the parental responsibility of the Minister until he (Henry) attained 18 years of age, with all aspects of parental responsibility being allocated to the Minister, pursuant to the Children Act, ss 79(1)(b) and 81(1)(b). The orders of the Court also contained “notations” as to contact between Henry and his siblings and with his mother, based on a care plan prepared by officers of the Department.
From those orders in the Children’s Court, the applicant exercised a right of appeal to the District Court, pursuant to s 91 of the Children Act. Such an appeal is by way of a new hearing and fresh or additional evidence could be given on the appeal: s 91(2). However, the District Court was also empowered to admit into evidence the transcript of the proceedings before the Children’s Court and was to exercise “all the functions and discretions” of the Children’s Court under Ch 5 and Ch 6 of the Children Act: s 91(4).
The appeal was heard by Judge Lakatos, and determined on 2 November 2012. Lakatos DCJ had before him a significant volume of evidence which post-dated the hearing in the Children’s Court. Nevertheless, he dismissed the appeal and confirmed the orders of the Children’s Court.
Proceedings were brought to this Court by way of a notice of appeal filed on 26 November 2012. The right of appeal from judgments in the District Court arises only with respect an “action” in that Court.[1] It was held in Druett v Director-General of Community Services[2] (and confirmed in Muldoon v Church of England Children’s Homes Burwood[3]) that no right of appeal lies from the District Court to this Court with respect to proceedings which had been brought to the District Court by way of appeal from a lower court or tribunal. Objection being raised to the competency of the appeal, the applicant then brought proceedings by way of summons in the supervisory jurisdiction of this Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). The appeal should be dismissed as incompetent.
[1] District Court Act 1973 (NSW), s 4(1) action and s 127(1).
[2] [2001] NSWCA 126.
[3] [2011] NSWCA 46; 80 NSWLR 282 (Campbell JA and Young JA, Macfarlan JA agreeing).
The supervisory jurisdiction of this Court thus invoked requires identification of either error of law on the face of the record of the District Court or jurisdictional error on the part of the District Court. The scope of the grounds available in this jurisdiction are not amenable to precise delineation, although in broad terms they may be said to require identification of legal error which, if it is not jurisdictional, must be revealed by the record of the court below. For this purpose “the record” includes the originating process, the orders and the reasons for judgment.[4]
[4] Supreme Court Act, s 69(3) and (4) and, except so far as expanded by those provisions, Craig v South Australia [1995] HCA 58; 184 CLR 163 at 182-183.
The grounds for relief set out in the original form of the summons stated succinctly in nine paragraphs matters to which it was said Lakatos DCJ “failed to give sufficient weight”, “failed to have sufficient regard” or gave “too much weight”. Whilst it is fair to say, on the basis of her subsequent submissions, that these grounds encapsulated the real complaints the applicant had with the judgement of the District Court, those formulations did not identify legal errors.
A far more discursive “amended summons” identified further errors, some of which were said to demonstrate “bias” and “denial of procedural fairness”. These grounds, if made out, could constitute jurisdictional error: however, as will be explained below, neither the factual nor the legal bases of those complaints was made good.
Before addressing the specific issues raised by the applicant, a further difficulty should be noted in relation to her complaints with respect to findings of fact. As was explained by Glass JA in Azzopardi v Tasman UEB Industries Ltd,[5] the failure by the party bearing the burden of proof to establish a particular fact cannot constitute an error of law because the fact will only be established if the evidence is accepted and the party bearing the onus “cannot assume in [her] favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence.” There may be a qualification required in circumstances where the tribunal has affirmatively accepted the relevant evidence, but declined to draw from that evidence the only reasonably available inference. However, that was not this case. As will be seen below, the applicant bore a statutory burden of proof; a complaint that the primary judge wrongly concluded that she had fulfilled that burden cannot, of itself, constitute an error of law on the part of the primary judge. Although this Court was taken to various evidential matters raised in the District Court, it is neither necessary nor appropriate to review the evidence, except to identify jurisdictional error.
[5] (1985) 4 NSWLR 139 at 156.
Grounds of review: bias
The concept of bias as a basis for setting aside a judgment of a court is not always readily appreciated by litigants. Bias is not established simply on the basis that the judge preferred the witnesses for the opposing party. Rather, the applicant must demonstrate that the judge failed to deal with the case impartially and without pre-judgment, animus or by reference to extraneous matters. Usually it is not necessary for a complainant to establish actual bias; it is sufficient to establish an apprehension of bias, the test for which is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question to be decided.[6]
[6] Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
There are various ways in which such an apprehension may be made out. However, it is rare that such an apprehension can be made good merely by reference to the judgment delivered at the end of a case. Where reliance is placed upon the reasoning in the judgment, it may be possible to identify legal error if there is some gross unreasonableness revealed, if the judge has failed to deal with a critical element in the applicant’s case, or if the judge has in some other way mistaken the legal framework within which the decision is to be made.
In written submissions, the applicant primarily relied upon the way in which the judge assessed the evidence. In oral submissions, the Court was also taken to passages in the transcript where, it was said, the judge intervened in a manner which demonstrated bias in the form of pre-judgment. Reference to such matters is permissible because a reasonable apprehension of bias will constitute a failure to exercise the jurisdiction of the court within the limits fixed by the law. It is convenient to deal first with the various matters about which complaint is made in the reasoning of the trial judge, in outlining the manner in which the appeal to the District Court was disposed of.
Judgment of District Court
Henry was taken into care two days after his birth. At that stage the applicant had four other children, with ages varying from five years to 11 years, each of whom had been taken into care before Henry’s birth. It was thus apparent that any finding that the applicant was not able to look after Henry must have been based upon her history of caring for her other children. The applicant resisted “undue weight” being given to adverse reports of her competency as a carer (some reports being several years old) and invited the Court to take into account and give proper weight to positive evidence of her capabilities. However, she did not set out to prove that she had at all stages properly cared for the other children; rather, her case focused on ways in which she had changed prior to the birth of Henry (and thereafter). She also sought to address allegations that she suffered from mental illness. Those allegations were of particular concern in circumstances where she was seeking to demonstrate behavioural change, in that an underlying mental illness might cast doubt upon both the existence and the durability of such change.
At the outset of his reasons, the primary judge noted three matters of background. The first concerned separate proceedings before the Children’s Court in November 2010, approximately two months after Henry’s birth. Those proceedings concerned the possible restoration to the mother’s care of three children aged five, seven and 13. The primary judge noted that the President of the Children’s Court (Judge Marien) had made certain observations which the primary judge considered remained applicable on the evidence before him:[7]
“There are real and serious issues that [the applicant] has to address. Whilst the whole question of whether she suffers from a diagnosed mental disorder is … not conclusive, … there are clear issues as to whether the mother is able to focus her attention on the whole important exercise of raising children, in particular raising … [Henry]. … [There are] some very troubling and worrying parts of the evidence… about [her] past behaviour ….”
[7] Judgment at [9].
The second matter concerned an application made before Magistrate Murphy in the proceedings relating to Henry. In the course of a contested hearing, counsel for the applicant had sought an adjournment for a period of three to six months to allow her to commence psychiatric counselling.[8] The application was refused, but, the primary judge noted, the proposed counselling had not, on the evidence before him, yet occurred. (It was the judgment of Magistrate Murphy from whom the appeal was brought to the District Court.)
[8] Judgment at [10].
Thirdly, the primary judge noted an application to the Children’s Court in August 2012 seeking to rescind the care orders made by the President with respect to the older children. In those proceedings, Magistrate Hogg made observations to the effect that the applicant lacked insight into the reasons for which the children had been removed in the first place. Foreshadowing findings made later in the judgment, and by reference to a psychologist, Ms Greta Goldberg, who had given evidence before him, the primary judge noted that the applicant suffered from a “fundamental misunderstanding of Ms Goldberg’s recommendations” which confirmed her continuing inability to “recognize or understand the problems associated with her parenting capacity.”[9]
[9] Judgment at [14]. (The word “not” is omitted, but the sense of the passage is clear: see also at [90].
The remainder of the judgment was structured in four parts, namely (a) setting out the case for the Secretary;[10] (b) setting out the case for the applicant;[11] (c) identifying the relevant legislation and legal principles,[12] and (d) giving reasons for rejecting the appeal.[13]
[10] Judgment at [18]-[37].
[11] Judgment at [38]-[62].
[12] Judgment at [63]-[79].
[13] Judgment at [80]-[94].
Given the limitations already noted, it is significant that little complaint was raised in this Court with respect to (c), the statement of legal principles. In the course of oral argument the applicant submitted that the primary judge had not correctly applied the provisions of s 91 of the Children Act, which relevantly provided:
“91 Appeals
(1) A party to proceedings who is dissatisfied with an order … of the Children’s Court may ... appeal to the District Court against the order.
(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.
There is no doubt that the primary judge was alert to the scope of the appeal, expressly referring to the fact that he was conducting a new hearing and that fresh evidence or further evidence might be given.[14] Indeed, a new hearing had been conducted and evidence which had not been before the Children’s Court had been admitted. The gravamen of the complaint appeared to be that “no weight was placed on all this new evidence, so the rule was disobeyed”.[15] Thus, even that complaint related, not so much to any legal error, as to the way in which the judge assessed the evidence.
[14] Judgment at [73].
[15] Tcpt, 02/05/14, p 3(40).
In the District Court, the Secretary relied on the three reports provided by Ms Goldberg. The applicant took objection to the use made of Ms Goldberg’s report dated 18 March 2010, which related to the applicant’s older children, who, it appeared, had been taken into care under an order of Magistrate Baptie made on 21 December 2009. The applicant submitted that the report was an “irrelevant consideration” which, if true, would have demonstrated an error of law in placing reliance upon it. However, that characterisation was not correct. As the primary judge noted[16] the Children Act provides that the Children’s Court “must admit” evidence that a parent is a person from whose care and protection a child had previously been removed under the Act.[17] It is not prohibited from having regard to such material: arguably, it is mandatory to have such regard. This ground of challenge must be rejected.
[16] Judgment at [16].
[17] Section 106A(1)(a).
The applicant also submitted that “too much weight” had been given to that report. However, s 106A further provides that such evidence is “prima facie evidence” that the child the subject of the care application “is in need of care and protection.”[18] The Act then provides that the parent may rebut that prima facie evidence by satisfying the Court on the balance of probabilities that, for example, “the circumstances that gave rise to the previous removal … no longer exist”.[19]
[18] Section 106A(2).
[19] Section 106A(3)(a).
In the final part of his reasons, the primary judge noted that “the crucial issue was the capacity of the [applicant] to provide an adequate standard of care.” He noted that the evidence “discloses that whilst the [applicant] has made some attempts to gain assistance in respect to her problems, no significant steps have been taken nor has any extensive therapy been commenced.”[20] In reaching this conclusion, it is clear that the primary judge placed significant weight on the evidence of Ms Goldberg:[21]
“Ms Goldberg’s opinions, which I accept, indicate that the [applicant] suffered and continue[s] to suffer from a significant lack of insight into deficiencies in her parenting capacity.”
[20] Judgment at [84].
[21] Judgment at [87].
The judge also noted a “more optimistic opinion” expressed in Ms Goldberg’s latest report, but said it was premised on the fact that the applicant would be better able to look after Henry given that she did not have the stresses which would arise if she had care of the other children. The significance of that assessment was downplayed on the basis that the applicant was continuing to seek the return of the older children.[22]
[22] Judgment at [90].
The precise operation of s 106A may be unclear, particularly as to the circumstances in which the Court might be minded to reject the evidence of prior incapacity. Nevertheless, in this case the Court was entitled to accept Ms Goldberg’s evidence and it did. In that event, the burden rested on the applicant to rebut that evidence by establishing that the circumstances giving rise to the previous removals no longer existed. The evidentiary effect of those reports was mandated by the section.
Furthermore, given the statutory burden of proof placed on the applicant, and for the reasons explained in Azzopardi,[23] the factual complaints that the judge failed to give sufficient weight to her evidence of positive changes and supportive evidence from her brother and Dr Tanveer Ahmed as to her capacity, cannot give rise to an error of law. None of the findings, nor the process of reasoning, of the primary judge reveal any basis from which an apprehension of prejudgment may arise.
[23] Discussed at [233] above.
Before leaving the question of bias, it is necessary to refer to certain passages relied upon by the applicant in the transcript of the hearing before the primary judge.
Apart from the manner in which the primary judge dealt with the evidence in his reasons, the applicant drew attention to passages in the transcript which were said to illustrate bias. She also asserted a failure to provide assistance to her as a self-represented litigant and “ambushing” her by allowing unexpected evidence on the day of the hearing.
The appeal proceeded before the primary judge over 10 days. A perusal of the transcript, and in particular the passages drawn to the Court’s attention by the applicant, reveals the judge seeking to undertake the kind of balancing exercise commonly required with litigants in person. These include: (a) giving guidance to the litigant as to what is required of her during the proceedings; (b) allowing her to present her case with the least possible intervention, and (c) maintaining the orderly and expeditious conduct of the hearing. The existence of tensions between these purposes makes it inevitable that there will be no clear answers as to how to proceed. A judge is duty bound in conducting the proceedings to facilitate the just, quick and cheap resolution of the real issues, and to ensure that the parties also apply the overriding purpose.[24] If the judge erred in the present case, the length of the hearing indicates that the parties, and particularly the applicant, had too great a degree of leeway in presenting their cases. That the applicant was not treated unfairly may be illustrated by reference to a number of examples raised by the applicant in this Court.
[24] Civil Procedure Act 2005 (NSW), s 56.
First, the applicant drew attention to passages in the cross-examination of Ms Sarah Morris, who had been a child protection caseworker with responsibility for the older children. An affidavit by her filed in the Children’s Court on 25 November 2009 was amongst the material tendered before the primary judge. She affirmed a second affidavit filed in the Children’s Court on 29 March 2010. The affidavits contained some information provided by Ms Morris herself, and annexed other material, including a number of contact reports prepared by other caseworkers. She gave evidence on 12 September 2012 before the primary judge, describing her involvement in the case as being from February 2009 to roughly March 2010.[25] She was briefly questioned by counsel for the Secretary and at some greater length by the representative of Henry. The applicant then cross-examined her over some 70 pages of transcript on 12 and 13 September and over a further 50 pages on 17 September. Shortly before the morning tea break on 13 September, the judge inquired of the applicant as to how long she expected the cross-examination to continue. She indicated that she still had “a lot to come.”[26] The judge responded:
“HIS HONOUR: All right. If I can remind you please, to focus upon what the issues are in this case, and more particularly, it is not helpful to me, if you ask Ms Morris her opinion about what other people have done or not done, generally speaking. Those are matters you can put arguments to me about, but with due respect to Ms Morris, and her expertise, matters of legality, and what other people have done, are really not for her, they’re for me. So, if you could keep that in mind, I understand it’s hard, and you’re under pressure. I accept that, it’s not easy, but we don’t have an unlimited amount of time. We have a reasonable proper time to devote to this case, but we cannot sit here for weeks and weeks and weeks, for example, talking about smell. At some point you must draw a line under the topic, and say, look, I’ve asked as many questions as I can. If you disagree with a witness, you put it to her – what you say is wrong, and the witness will give an answer one way or another. But we have to draw a line under topics one by one.”
[25] Tcpt, p 116.
[26] Tcpt, p 189.
A little later in the day counsel for the Secretary intervened stating:
“We are going over the same areas repeatedly to the point where it is harassing for the witness, in my submission. It’s getting to the point of impeding her ability to calmly and reflectively answer questions.”
The judge then said that he thought the witness was coping, but invited the applicant to focus upon the major issues. The following exchange occurred:[27]
“APPELLANT: It’s very hard, your Honour. Because Sarah Morris isn’t – hasn’t been my case worker for so many years. We’re going back four years here.
HIS HONOUR: I understand that but you know that you ask her things she may be able to help you with. You disagree with her. Put a proposition, let her say that she agrees or disagrees. But, let’s move along. We’ve been over the positives. We’ve been over the negatives. We’ve been over that area. If we can just move along just a little bit so, if you have other areas you want to investigate, please do so. But, as I say, this is not limitless. We will take what is reasonable to deal with this case. But, it’s not going to go on forever and you need to understand that as well. So, please proceed.
[27] Tcpt, p 199.
This passage was identified by the applicant as demonstrating a failure to provide appropriate assistance. In her written submissions she said “I asked focused questions sarah would take any opportunity to give irrelevant information with judge lakatos failing to intervene or limit this. He has a duty to ensure fairness but continually fails too [sic].”
In fact, much of the questioning was, as counsel had submitted, repetitive; it was also argumentative and many questions were open ended, inviting a discursive answer. The complaint as to the conduct of the primary judge is quite without foundation.
Perhaps inconsistently with the complaint of failure to intervene to control the witness, the applicant also complained of inappropriate interference with the applicant’s attempts at cross-examination. The following exchange was referred to in this regard:[28]
[28] Tcpt, pp 207-208.
“Q. That reminds me of something. Okay. Do you remember ticking a form that was given to the Sydney Children’s Hospital to say that either mother was intellectually disabled, mentally ill psychosis, and domestic violence; do you remember ever ticking those three boxes?
A. I would have to look at the initial referral to confirm that, but I remember you and I completed the referral together.
A. No. I’ve no recall of that. Absolutely no recall. So, are you – did you tick the three boxes that stated that I was intellectually disabled, mentally ill psychosis and domestic violence; please answer the question, ma’am.
HIS HONOUR: Ms [L], she has been, if I might say, quite patiently.
Q. Have you signed any form where you’ve ticked boxes which indicated intellectually disabled, mentally – I’ve forgotten the other one.
HIS HONOUR: Can you just repeat those for me, Ms [L], intellectual?
APPELLANT: The first one was --
HIS HONOUR: Intellectually disabled.
APPELLANT: Mentally ill psychosis.
HIS HONOUR: Yes.
APPELLANT: The second one was domestic violence, and the third one was intellectual disability.
HIS HONOUR: All right.
Q. Have you ever signed any form anywhere --
APPELLANT: Ticked the three boxes, it was.
HIS HONOUR: All right.
Q. Ticked any form with those boxes relevant to Ms [L]?
A. There was a referral form to the Sydney Children[‘s] Hospital out of home care clinic for each child which Ms [L] assisted me filling out. I can’t recall the exact boxes that I ticked. I’d have to look at that referral. It’s possible.
…
APPELLANT: Q. Do you remember when you handed me the 18 year care plan in the DOCS office, Cleveland Street, that you had tears in your eyes?
HIS HONOUR: What’s the relevance of that?
APPELLANT: Q. Why were you teary-eyed when you handed me the 18 year plan of the children?
HIS HONOUR: I reject the question.”
This passage was proffered as evidence of bias on the part of the primary judge. In fact, it demonstrated an attempt to clarify the scope of the questions being put, combined with the rejection of what might readily be accepted to be an irrelevant question.
The applicant then asked two questions covering six or seven lines of transcript. The first was answered, the second was interrupted and the following passage appears in the transcript:[29]
“HIS HONOUR: Ms [L], just pause there. This is about the second or third time you’ve asked Ms Morris that question. She’s given her answer, can we please proceed with some other matter.
APPELLANT: I am looking for evidence, your Honour, of her actions. On what basis did she form that opinion.
HIS HONOUR: She’s indicated that she says she sat down with you, and filled in the form with you, together.”
[29] Tcpt, p 209.
This was not an inappropriate intervention: it was an attempt to limit repetitive questioning. It did not demonstrate bias on the part of the primary judge.
It is, of course, impossible to give the full flavour of proceedings which are recorded in over 570 pages of transcript. The examples are the principal ones relied upon by the applicant in the course of argument in this Court.[30] Read either in isolation or in context, they do not establish a complaint of procedural unfairness or an apprehension of bias.
[30] Other passages referred to in the District Court transcript were at pp 361(25) (question rejected) ; 487(10) (relevance queried); 490(40)-(50) (repetition); 495 (re-examination of brother); 497(40) (repetition); 502(35) (repetition).
There remains a complaint that the applicant was “ambushed” by the calling of witnesses for the Secretary. While the complaint was raised in written submissions, it was not elaborated upon orally. It is not apparent from the transcript of the District Court proceedings that the applicant was in any way caught by surprise; certainly no objection was raised, nor adjournment sought. According to the Secretary, only one witness, Tina Gilliard, was called without proper notice.[31] The applicant was asked if she required more time to prepare her cross-examination and stated without equivocation, “I’m all ready.”[32]
[31] Tcpt, 11 September 2012, p 22.
[32] Tcpt, p 22(42).
Convention on the Rights of the Child
The applicant complained that the primary judge had not taken into account the UN Convention on the Rights of the Child[33] (“the Convention”) in his reasons. It was true that he did not: however, the error is not apparent. The applicant did not rely upon the Convention in the District Court, nor did she explain in this Court how it would assist her case.
[33] [1991] Aust Treaty Series 4.
The high point of the application of the Convention in this jurisdiction is Re Tracey.[34] In that case, also involving a challenge in the supervisory jurisdiction of this Court to a decision of the District Court on an appeal in a care proceeding, Spigelman CJ identified as a “jurisdictional error” a “positive statement” of the District Court judge “in effect, that none of the provisions of the [Convention] were capable of constituting a relevant consideration.”[35] In the absence of a “positive statement” of the kind identified by the Chief Justice, that proposition raises no principle applicable in the present case.
[34] [2011] NSWCA 43; 80 NSWLR 261.
[35] Re Tracey at [32].
Furthermore, the proposition should be applied with caution for two reasons. First, the concept of “a relevant consideration” is slippery. In administrative law terms it refers to a mandatory consideration.[36] However, it is doubtful that Spigelman CJ was using the phrase in that sense: in the previous paragraph he had referred without demur to the statement of accepted principle by French J in Le v Minister for Immigration and Multicultural and Indigenous Affairs[37] that “an international obligation is not a mandatory relevant consideration attracting judicial review for jurisdictional error.”[38] Rather, the statement in Re Tracey should be understood as identifying error on the part of the primary judge in rejecting as impermissible (or prohibited) reliance upon any provision of the Convention. In the result, reliance on provisions in the Convention might be permissible in particular circumstances, including the somewhat unusual circumstances in Re Tracey itself. (Tracey had been brought to Australia by her Cambodian mother who had been arrested and imprisoned for drug offences; Tracey had been placed with foster parents during her mother’s imprisonment; her mother was to be deported to Cambodia on completing her sentence.)
[36] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J).
[37] [2004] FCA 875.
[38] Re Tracey at [31].
The second reason for approaching the statement in Re Tracey with caution is the need to identify the subject matter to which reference may be had. The fact that Australia has entered into an international convention on a particular subject is not, of itself, likely to be relevant. Rather, relevance must derive from the particular provisions of the convention which may be relied upon in the circumstances of the particular case. If provisions add nothing to domestic law, it is unlikely that they will be material to the outcome in the domestic court. If the provisions are inconsistent with domestic law, they should be disregarded. Between those positions, it is possible that the provisions of a convention may affect the weight to be given to a permissible (or even a mandatory) consideration under domestic law; they may also assist in construing domestic law. Speaking generally, for a party to proceedings to rely upon provisions of an international convention not incorporated into domestic law, it will be necessary for that party to indicate with some precision how the provision is relied upon. It will then be necessary to demonstrate that there is some legal requirement in Australian law that the international provision be given work to do in the exercise, for example, of a discretionary judgment, and that it was not applied, in order to demonstrate legal error.
None of these elements was satisfied in the present case and there is therefore no merit in the applicant’s complaint.
Conclusion
The applicant not having made good a challenge to the District Court judgment on grounds available in the supervisory jurisdiction of the Court, the summons must be dismissed. The other parties did not seek costs in this event and accordingly no order should be made as to costs.
MEAGHER JA: In this application I have had the benefit of reading in draft the judgments of McColl JA and Basten JA. I agree that the summons should be dismissed. My reasons for doing so are sufficiently stated in the judgment of Basten JA.
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Amendments
08 April 2016 - [142] Case reference added and cross reference updated.
[148] Minor typographical error amended.
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