NEW SOUTH WALES COURT OF APPEAL
CITATION: RE JAYDEN [2007] NSWCA 35
FILE NUMBER(S):
40045/07
HEARING DATE(S): 21/02/07
JUDGMENT DATE: 2 March 2007
PARTIES:
Mother of children (Appellant)
The Children's Court of New South Wales (First Respondent)
Minister for Community Services (Second Respondent)
Director-General of the Department of Community services (Third Respondent)
Kim Rowley (as legal representative) (Fourth Respondent)
Ross Clarke (as legal representative) (Fifth Respondent)
JUDGMENT OF: Beazley JA Hodgson JA Ipp JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC16157/06
LOWER COURT JUDICIAL OFFICER: Simpson J
LOWER COURT DATE OF DECISION: 21/12/06
LOWER COURT MEDIUM NEUTRAL CITATION:
Re Jayden [2006] NSWSC1428
COUNSEL:
M. Anderson (Appellant)
Submitting appearance (1 Respondent)
G.W. Moore (2,3 Respondents)
L. Goodchild (4 Respondent)
D.L. WARD (5 Respodnent)
SOLICITORS:
S.E. O'Connor (Appellant)
I.V. Knight - Crown Solicitor (1 Respondent)
I.V. Knight - Crown Solicitor (2,3 Respondents)
Rowley & Associates (4 Respondent)
Ross A Clarke & Associates (5 Respondent)
CATCHWORDS:
CHILDREN – care and responsibility – review of interim care responsibility orders – interim order conferring parental responsibility of children on Minister for Community Services – serious issue to be tried as to whether final order should be made – Director-General of the Department of Community Services obtaining discharge of contact order to enable Minister to send children to New Zealand prior to final order – whether this amounts to an abuse of process – ss 69, 70, 70A and 72 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) considered
LEGAL PRACTITIONERS – parties to proceedings – whether legal practitioners appointed by the Children’s Court of New South Wales pursuant to s 99 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to represent children the subject of proceedings should be named as parties to proceedings in the Supreme Court
LEGISLATION CITED:
Children and Young Persons (Care and Protection) Act 1998 (NSW)
CASES CITED:
Foukkare v Angreb Pty Ltd [2006] NSWCA 335
Grovit v Doctor [1997] 1 WLR 640
Jayden, Re [2006] NSWSC 1428
M v M (1988) 166 CLR 59
Reynolds v Reynolds [1977] 2 NSWLR 295
Rogers v The Queen (1994) 181 CLR 251
State Bank of New South Wales Limited v Stenhouse Limited (1997) Aus Torts Reports 81-423
Walton v Gardiner (1993) 177 CLR 378
DECISION:
(a) The appeal is upheld.
(b) The orders made by Simpson J dismissing the appellant’s summons and notice of motion are set aside and in lieu thereof an order is made setting aside the order of the Children’s Court made on 8 December 2006 whereby the orders made on 13 October 2006 for interim contact were discharged.
(c) The Court notes, for the purposes of clarity, that orders 3 and 4 of the orders made by the Children’s Court on 13 October 2006 remain in force.
(d) The Minister and the Director-General are to pay the appellant’s costs of appeal.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40045/07
BEAZLEY JA
HODGSON JA
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- Re Jayden [2007] NSWCA 35
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- [2007] NSWCA 35
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CaseChat Overview and Summary
The central legal issues were whether the discharge of interim contact orders by the Children's Court, to enable the removal of children from New South Wales to New Zealand, was an abuse of process, and whether legal practitioners appointed to represent children in the Children's Court should be named as parties in Supreme Court proceedings. The court also examined the distinct requirements for making interim care orders versus final care orders, particularly concerning the necessity of a care plan.
The Court held that the discharge of the interim contact orders was an abuse of process. It reasoned that the *Children and Young Persons (Care and Protection) Act 1998* (NSW) distinguishes between interim and final orders, with specific procedural requirements for each. Notably, a care plan is mandatory before a final order for parental responsibility can be made, but not for an interim order. The court found that the Director-General's actions, by seeking to remove the children from the jurisdiction before a final determination and without a care plan, circumvented the statutory protections afforded to children and the procedural safeguards in the Act. The appeal was upheld, the orders dismissing the appellant's summons and notice of motion were set aside, and the order discharging the interim contact orders was also set aside. The Minister and Director-General were ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
(a) The appeal is upheld.; (b) The orders made by Simpson J dismissing the appellant's summons and notice of motion are set aside and in lieu thereof an order is made setting aside the order of the Children's Court made on 8 December 2006 whereby the orders made on 13 October 2006 for interim contact were discharged.; (c) The Court notes, for the purposes of clarity, that orders 3 and 4 of the orders made by the Children's Court on 13 October 2006 remain in force. ; (d) The Minister and the Director-General are to pay the appellant's costs of appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 70A provides:“Consideration of necessity for interim care orderAn interim care order should not be made unless the Children’s Court has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a final order or an order dismissing the proceedings”. Relevantly to the present inquiry, it is to be noted from ss 69(2), 70 and 70A that the requirements for the making of an interim care order are variously expressed. The Children’s Court is required to be satisfied, according to the requisite standard (which I discuss below), that: It was common ground between the parties that s 72 applies to the making of final orders (and I think that is correct). Section 72 provides:“Determination as to care and protection A care order in relation to a child or young person may be made only if the Children’s Court is satisfied, on the balance of probabilities, that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection:(a)the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and(b)the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under s 49 (Care of child or young person pending care proceedings), s 69 (Interim care orders) or s 70 (Other interim orders).” Significantly, by s 78, a final order (not being an emergency protection order) for the removal of a child or young person from the care of his or her parents cannot be made unless the Director-General presents a care plan to the Children’s Court. Section 80 contains like provisions and also provides that the Children’s Court must not make a final order 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. The differences between interim orders and final orders The reference in s 72(1)(b) to “the existence of arrangements for the care and protection of the child” made under s 69 or s 70 indicates that s 72 only applies after an interim order has been made under s 69 or s 70. A clear distinction between an interim order and a final order is seen in s 78(1) which provides that, if the Director-General applies to the Children’s Court for an order removing 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. There is no such requirement for the making of an interim order to like effect. Section 80 expressly provides that a final order for the allocation of parental responsibility can only be made after the Children’s Court has considered a care plan. The inference is that the Children’s Court may make an interim order for the allocation of parental responsibility without considering a care plan. Thus, s 80, too, distinguishes between an interim order and a final order.