Re Katherine

[2004] NSWSC 899

CITATION:	Re Katherine [2004] NSWSC 899
HEARING DATE(S):	9-10 September 2004
JUDGMENT DATE:	29 September 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Studdert J
DECISION:	(1) Order that the interim orders made in the Children's Court on 2 July 2004 be set aside. (2) Order that the matter be remitted to the Children's Court to be heard and determined according to law by a magistrate other than the magistrate by whom the interim orders referred to in Order (1) were made. (3) Liberty to apply within forty-eight hours for any other orders appropriate to give effect to Orders (1) and (2) above. (4) Costs are reserved to afford the parties the opportunity to make appropriate submissions having considered this judgment, and the matter may be relisted for argument as to costs on a date to be arranged with my associate. My associate is to be approached for this purpose within seven days.
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	GPI Leisure Corp. Limited v Herdsman Investments Pty Limited (No. 3) (1990) 20 NSWLR 15 Johnson v Johnson (2000) 201 CLR 488 Kioa v West (1985) 159 CLR 550 The Marriage of C (1998) 22 Fam LR 776 Minister for Community Services v Children's Court of New South Wales [2004] NSWCA 210 Minogue v HREOC (1999) 84 FCR 438 R v The Department of Community Services [2001] NSWSC 419 Rajski v Scitec Corporation Pty Limited (unreported, NSWCA, 16 June 1986) Re Josie [2004] NSWSC 642 State of Queensland v J.L. Holding Pty Limited (1996-97) 189 CLR 146 Stead v State Government Insurance Commission (1986) 161 CLR 141 Talbot v Minister for Community Services 30 NSWLR 487
PARTIES :	Plaintiffs: "CS" and "KS" 1st Defendant: Children's Court of NSW 2nd Defendants: Minister for Community Services and Director General of Department of Community Services 3rd Defendant: "NR" 4th Defendants: "MB" and "ARB"
FILE NUMBER(S):	SC 12112/04
COUNSEL:	Plaintiffs: Ms M. Fraser 1st Defendant: Submitting appearance 2nd Defendants: Mr R Bromich 3rd Defendant: Ms D. Falloon 4th Defendants: Ms K. Reynolds
SOLICITORS:	Plaintiffs: Stanfords 1st Defendant: Crown Solicitor's Office 2nd Defendants: Crown Solicitor's Office 3rd Defendant:: Dignam and Hanrahan 4th Defendants: Shoalcoast Community Legal Centre Inc.

LOWER COURTJURISDICTION:	Children's Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Ms E. Ellis

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 29 September 2004

12112/04 Re KATHERINE

JUDGMENT

1 HIS HONOUR: At the centre of this litigation is an infant child who was born on 12 June 2003. Her mother died at the time the child was born and her father has not been identified. Proceedings are current in the Children’s Court seeking determination of parental responsibility pursuant to the Children and Young Persons (Care and Protection) Act 1998.

2 In the course of the proceedings in the Children’s Court interim orders were made by a magistrate on 2 July 2004 in the terms following:

“1. Pursuant to Section 79(1)(a) I allocate parental responsibility to the Minister.
2. Pursuant to Section 81(1)(a) I allocate the specific aspect of residence, day-to-day care, medical treatment and cultural requirements of the child to [MB and ARB].
3. Pursuant to Section 81(1)(b) I allocate all other aspects of Parental Responsibility to the Minister including Contact and travel.
4. Pursuant to Section 86 I set as a minimum Contact of the child to [KS and CS] each fortnight from 4pm Friday until 4pm Sunday.
5. Pursuant to Section 73, [MB and ARB] are to enter into Undertakings to (a) not denigrate [KS and CS] to the child; (b) accept the supervision of the Department; (c) to facilitate Contact with [KS and CS] including the handover of the child at the beginning and end of Contact; (d) to advise the Department of any issues with the health of the child including any hospitalisation; (e) to advise the Department 7 days prior to any move in residence; to note remove the child from the Jurisdiction.”

3 Proceedings in this Court have been brought by way of summons and the plaintiffs seek to set aside the above stated interim orders. By order of this Court previously made, the child is to be referred to simply as “Katherine” and the plaintiffs are to be referred to only as “CS” and “KS”, the initials by which they are identified in the interim orders set out above. The Children’s Court has been joined here as first defendant; the Minister for Community Services and the Director General of the Department of Community Services have been substituted as second defendants; NR has been joined as third defendant as the separate representative of the child; and “MB” and “ARB”, so identified in the interim orders, have been joined as fourth defendants.

4 The basis of the application here made is:

(i) that the plaintiffs were denied procedural fairness in the Children’s Court;

(ii) that the magistrate so conducted the proceedings before the Children’s Court and made such findings as would give rise to an apprehension of bias.

5 A submitting appearance was filed on behalf of the first defendant. The second defendants support the plaintiffs’ application, although not necessarily all the submissions upon which the plaintiffs base that application. The third defendant does not oppose the orders sought by the plaintiffs. The fourth defendants do oppose the orders sought.

6 By way of background, an application was made by the Department of Community Services (DOCS) pursuant to Chapter 5 Part 2 of the Children and Young Persons (Care and Protection) Act for a care order for the child. What DOCS sought was an order placing the child under the parental responsibility of the Minister until the child reached the age of eighteen years, and an order for contact between the child and the fourth defendants, one of whom is her great-uncle. The first of the plaintiffs is also related to the child, being her second cousin.

7 In the event that the child was placed under the parental responsibility of the Minister, the exercise of parental responsibility would remain a matter of Ministerial discretion: see the judgment of Levine J in Re Josie [2004] NSWSC 642. As the application proceeded in the Children’s Court, DOCS had indicated the intention was to place the child with the plaintiffs. Until the magistrate made the order which prompts this summons, the child had been under the parental responsibility of the Minister pursuant to an interim order and had been placed by DOCS in the shared care of the plaintiffs and the fourth defendants. The plaintiffs and the fourth defendants were granted leave to appear in the Children’s Court proceedings under s 98 of the governing statute and it was recognised by those joined in the proceedings in the Children’s Court that the time had come for the child to have a permanent home.

8 The hearing in the Children’s Court commenced on 28 June 2004. The presiding magistrate was informed as to the orders sought by DOCS and as to the attitude of the plaintiffs and the fourth defendants. The plaintiffs were agreeable to the making of the orders sought by DOCS; on the other hand, the fourth defendants opposed the making of such orders, seeking instead an order placing the child under their parental responsibility but allowing contact to other family members including the plaintiffs.

9 It appears that as at the time that the Children’s Court hearing commenced five consecutive days had been set aside for it. That period proved to be insufficient to complete the hearing and on the fifth day, 2 July 2004, the magistrate handed down judgment making the interim orders:

(i) allocating parental responsibility to the Minister pursuant to s 79(1)(a) of the statute;

(ii) allocating the specific aspect of residence, day to day care, medical treatment and cultural requirements to the fourth defendants;

(iii) allocating all other aspects of parental responsibility to the Minister;

(iv) allowing contact to the plaintiffs from Friday at 4.00 pm until Sunday at 4.00 pm every second weekend.

10 I observe that the magistrate made those interim orders notwithstanding a submission by DOCS that there was no power to make an interim order derogating in any way from the sole responsibility of the Minister: see in this regard Re Josie (supra), in particular at para 39, where Levine J said:

“On my construction of the legislation and taking into account what I will describe as the important policy matters dealt with in George [George v Children’s Court of NSW, (2003) 31 Fam LR 218)], the Children’s Court, having even on an interim basis allocated sole parental responsibility to the Minister, cannot derogate in any way from the Minister’s power to exercise it.”

11 The effect of his Honour’s observations is clear, but the interim orders here, made shortly before the decision in Josie, did interfere with the manner in which parental responsibility was to be exercised by the Minister.

12 By the time that the orders here challenged were made by the magistrate, the magistrate had heard the evidence introduced by DOCS but had heard no evidence on behalf of the plaintiffs or the fourth defendants. A further four days had been set aside to complete the hearing and the dates allocated were 26 to 29 October 2004.

13 The evidence before the magistrate was introduced in affidavit form. A number of deponents were required for cross examination. Before the hearing began directions had been given by the Children’s Court concerning the times for filing and service of the various affidavits, and the affidavits themselves were introduced into evidence in the hearing in this Court as Exhibit A. The other evidence on this appeal consisted of two affidavits of a formal nature sworn by the plaintiffs’ solicitor, a transcript of proceedings in the Children’s Court and the reasons for judgment delivered by the magistrate on 2 July 2004.

14 I turn now to record the various grounds of appeal as expressed in the summons and as pursued on the hearing.

Particulars of denial of procedural fairness :

“(a) finding that Counsel for the Plaintiffs acted in ‘the same interest’ as the Second Defendant;
(b) striking out large parts of evidence which had apparent credibility and to which no party objected, including the Fourth Defendants after receiving advice from the learned Magistrate as to the admissibility of such evidence;
(c) prohibiting Counsel for the Plaintiffs from cross examining in respect of matters the subject of evidence which was not admitted because of formal or other defects;
(d) limiting Counsel for the Plaintiffs cross examination of witnesses, including the Court Clinician, to subject areas not traversed by the Second Defendant;
(e) requiring Counsel for the Plaintiffs to hand back a document informally produced by the Second Defendant, being a document referred to in a report tendered by the Second Defendant, and refusing a call for the formal production of the said document;
(f) rejecting the tender of further affidavit evidence in circumstances where no party objected to the tender of such evidence and no prejudice was identified in respect of any party to the proceedings.”

Particulars as to apprehension of bias :

“(a) the Plaintiffs repeat particulars of paragraph 2 herein [that is the particulars as to denial of procedural fairness];
(b) the following findings of fact were not open or available on the evidence and evidenced bias on the part of the learned Magistrate:
(i) that the Second Defendant exerted pressure on the Fourth Defendants;
(ii) that an officer of the Second Defendant had taken a particular bent against the Fourth Defendants;
(iii) that the Plaintiffs meekly did as directed by the Second Defendant and for that reason were preferred by the Second Defendant;
(iv) that the Plaintiffs are unable to ensure that the Second Defendant acted in the best interests of the subject child;
(v) that the Plaintiffs were unable to ensure that the best interests of the subject child were maintained when it came to dealing with the extended family;
(vi) that the fourth defendants have the strength to stand up to the extended family.”

The issue of procedural fairness

15 The expression “procedural fairness” was observed by Mason J, as he then was, in Kioa v West (1985) 159 CLR 550 at 585 as an expression conveying “the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.” Whether procedural fairness is afforded is to be considered in context having regard to the nature of the proceedings. In the present case it is relevant to heed the statutory provisions referable to care applications to be found in Chapter 5 Pt 2 of the Children and Young Persons (Care and Protection) Act. Section 93 provides:

“(1) Proceedings before the Children’s Court are not to be conducted in an adversarial manner.
(2) Proceedings before the Children’s Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.
(3) The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts.”

16 However, the proceedings are not in the nature of an inquiry, but are proceedings involving an action between parties resulting in a hearing and determination by the court: see Talbot v Minister for Community Services 30 NSWLR 487.

17 Section 107 provides for the examination and cross examination of witnesses, but sub-ss (2) and (3) restrict the form that questioning should take:

“(2) Offensive or scandalous questions

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.

(3) Oppressive or repetitive examination

The Children’s Court must forbid an examination of a witness that it regards as oppressive, repetitive or hectoring, or 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.”

18 Of course the paramount objective in the administration of the statute is the safety, welfare and well-being of the child. Hence s 9(a) provides:

“(a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.”

19 Against the above background I consider the plaintiffs’ various assertions of denial of procedural fairness.

(a) DOCS and the plaintiffs acting in the same interest

20 It is plain that the magistrate, having been informed at the outset that DOCS, whilst seeking the order as to parental responsibility mentioned earlier, sought the placement of the child with the plaintiffs and that the plaintiffs agreed with the approach being taken by DOCS, determined that the plaintiffs and DOCS were acting in the same interest. Having so decided (T 5), the learned magistrate referred to the decision of Young J in GPI Leisure Corp. Limited v Herdsman Investments Pty Limited (No 3) (1990) 20 NSWLR 15. That was a case in which his Honour considered how witnesses ought to be examined and cross examined and one of the principles there expressed was where parties were acting in the same interest the judge would not permit more than one counsel to cross examine the same witness.

21 It does not seem to me to be strictly correct to identify DOCS and the plaintiffs as having the same interest bearing in mind the nature of the proceedings before the magistrate. True it is that the plaintiffs were happy to go along with DOCS for so long as DOCS intended to place the child with them, but it by no means followed from this that their interests were identical and in my opinion the application of the regime prescribed by Young J in GPI Leisure Corp. Limited to the circumstances of this case was not appropriate. The second defendants, identifying them by reference to the summons presently before me, had statutory responsibilities not shared by the plaintiffs.

22 It seems to me that the magistrate went astray in her perception of identity of interests and in her consequential rulings which were too restrictive in the definition of the role of plaintiffs’ counsel.

23 Her Honour here ruled that DOCS should first cross examine witnesses and counsel for the plaintiffs would be permitted to cross examine only on matters not covered by DOCS. Her Honour ruled that no cross examination on a matter “canvassed by” DOCS could be the subject of further cross examination on behalf of the plaintiffs. I consider that ruling to be unduly restrictive.

24 Her Honour then addressed the position of the fourth defendants who were unrepresented, saying (T 7-8):

“Fourthly, I will at times be obliged to, in essence, come close to being seen as being an advocate for [the fourth defendants] but retaining my independence so that there will be no bias and no view as to me favouring one side or the other. That is as I see my obligations in this case.
Now, [fourth defendants], I will at times have to speak law, I will, as much as I possibly can, ensure that you have a sound understanding of what I am saying. In essence I do have to provide information to you and to remind you of your rights and obligations that if you were represented by a solicitor or barrister he or she would be respecting and challenging things so that your rights are protected. I will not be giving you legal advice, I will not be running your case, I will, however, at times say that this is what is the law, this is what your rights are, what do you want to do?…”

25 No exception could be taken to what the magistrate said to the fourth defendants having regard to what was said in Rajski v Scitec Corporation Pty Limited (unreported, NSWCA, 16 June 1986) by Samuels JA at 14 and by Mahoney JA at 27. See also Minogue v HREOC (1999) 84 FCR 438.

26 Whilst the magistrate stated the position correctly when addressing the fourth defendants, it is submitted that intervention by her Honour from time to time did favour the fourth defendants, particularly in rulings as to the content of the affidavits placed before the court.

27 The effect of the ruling restricting the cross examination that could be conducted by the plaintiffs denied the plaintiffs the opportunity of introducing evidence favouring their cause which was to establish that it was in the interests of the child that they should have her day to day care. If, in the manner in which the evidence emerged before the magistrate, DOCS did not ultimately perceive it to be in the interests of the child that her day to day care should be undertaken by the plaintiffs, then it would have become the responsibility of DOCS to fashion final submissions to the magistrate in a manner which sought to advance the paramount consideration of the welfare of the child and what was in the child’s best interest.

28 Hence it seems to me the failure of the magistrate to distinguish between the positions of DOCS and of the plaintiffs and the consequential ruling restricting the opportunity for the plaintiffs to cross examine was in error and did produce procedural unfairness as illustrated by consideration of the particulars below.

(b) Striking out the content of affidavits to which no objection had been taken

29 The transcript of the first day of the hearing reflects that much of the first day was occupied in considering the admissibility of evidence. This occurred not because any of the parties objected to the content of the affidavits but because the magistrate considered certain evidence ought not to be received. The transcript reveals that the magistrate considered herself bound to adopt the course taken because of the judgment of Hulme J in R v The Department of Community Services [2001] NSWSC 419. In that case his Honour said, addressing the evidentiary material then under consideration (at paras 18-19):

“18 But I should not leave my reference to paragraphs 7 and 8 without saying something further about them. In a report by the same authors dated 20 March it is said that the information contained in paragraph 7 had been checked with police and the authors had been informed that the information "was an information report only and not confirmed by the police". Even without this revealing further evidence, I would have taken the view that no Court should have placed reliance on statements of the nature of those contained in paragraph 8 and that except in extraordinary circumstances where there was a reasonable explanation given for doing so, no report in those terms should ever be put before a court. I say that notwithstanding the terms of section 93 of the Children and Young Persons' Care and Protection Act which require that proceedings before the Children's Court are to be conducted with as legal formality and legal technicality and form as the circumstances of the case permit, and that the Children's Court is not bound by the rules of evidence.
19 The Children and Young Persons' Care and Protection Act is not the first Act which has directed particular courts not to be bound by the rules of evidence. Nevertheless, the authorities going back to the beginning of this century, if not earlier, are clear that for material to be relied upon it must have some apparent credibility. Nothing is stated as to the source or sources of the information referred to in paragraphs 7 or 8. It is highly damaging if accepted and, given that fact, should not have been stated or acted upon without some, at least moderate, indication of reliability. There is absolutely none. I can appreciate that there may well be times when information comes to the attention of DOCS and it is undesirable that the sources of that information be stated, but the generality of expression in paragraph 8 is such that I am led to the conclusion which I have expressed.”

30 In the above passage in R, his Honour was concerned to stress the necessity for evidentiary material to have some apparent credibility. It did not follow, of course, that no departure from the rules of evidence was permissible when considering questions of admissibility of evidence, particularly in the absence of objection. Whilst much time was spent on the hearing in this Court in addressing the many rulings that the learned magistrate made striking out passages in the various affidavits, I do not find it necessary to deal with those rulings seriatim having regard to the nature of the issue here, namely whether the plaintiffs were denied procedural fairness. Her Honour undertook a most detailed consideration of the affidavits but it is from what followed from the rulings rejecting passages in these affidavits that I conclude there was a denial of procedural fairness.

31 This brings me immediately to particular 2(c).

(c) Refusal to allow cross examination

32 Her Honour adopted this course, namely to refuse to permit counsel for the plaintiffs to cross examine in relation to matters addressed in passages in the affidavits which had been rejected as hearsay or on some other basis. The effect of this ruling was to preclude the plaintiffs from introducing any evidence in relation to a matter which DOCS had sought to introduce evidence of in a form considered by the magistrate to be inadmissible. In short, the plaintiffs were prevented from addressing any matter sought earlier to be covered by DOCS but covered inappropriately.

33 There are many examples to be found as to this, but I record two examples. I instance what occurred in relation to para 73 of the affidavit of Vanessa Fuller-Lewis affirmed on 18 May 2004. In para 73 this witness, a child protection case worker, deposed:

“Because of the hostility between the [Bs] and the [L] family, contact between [the child] and the [Ls] would be difficult if she was placed in the [B’s] care.”

34 The learned magistrate rejected that paragraph in the affidavit upon the basis that it was opinion evidence. The effect of that ruling was to prevent counsel for the plaintiffs from asking any questions on the topic covered in the paragraph. The ruling was stated thus (T 42):

“In other words, Ms Fraser, you’re in cross examination, you aren’t able to cross examine on any material which I have ruled as inadmissible.”

35 A case worker, Bronwyn Watson, affirmed an affidavit on 18 May 2004 and counsel for the plaintiffs sought to cross examine in relation to its content. When counsel sought to cross examine the witness concerning the resolve of CS to pursue custody in the face of adverse pressure (a topic covered in para 20, which paragraph the magistrate had ruled inadmissible), her Honour intervened (T 183):

“HER HONOUR: Just a moment.
FRASER: Page 4.
HER HONOUR: That’s not admissible.
FRASER: I’m aware that it’s not admissible, your Honour, and I wasn’t going to repeat it, I was just saying you’re recounting some of your observations so I was going to ask the witness what her actual observations were rather than the conclusion which your Honour objected to.
HER HONOUR: Well you’re not the solicitor for the department, Ms Askew chose to not do that. On what basis should I allow cross-examination on inadmissible material?
FRASER; All right, your Honour. The other parts which are admissible is there was a meeting and that this witness was at it. Now I can phrase the question of what were your observations of Uncle Keith at that meeting but I just thought I’d take the shortcut quickly because we are pressed for time and take her straight to that paragraph.
HER HONOUR: Ms Fraser.
FRASER: Yes, your Honour.
HER HONOUR: It’s very simple. It’s not admissible. Don’t cross-examine on it.
FRASER: Your Honour, I’m entitled--
HER HONOUR: If its admissible ask your question and we will see how we go.
FRASER: Your Honour, I’m entitled to cross-examine at large. I’m not restricted to exactly what appears--
HER HONOUR: Ms Fraser, I’ll just say once more.
FRASER: Yes, your Honour.
HER HONOUR: You are not allowed to cross-examine on material that has been ruled inadmissible.”

36 In effect then, what occurred was that the magistrate would not allow evidence to be introduced by the plaintiffs on any topic which had been introduced by DOCS in affidavit material in an inadmissible form. Ms Reynolds, who appeared for the fourth defendants, very properly acknowledged that the approach adopted by the magistrate was incorrect and I consider it unfairly limited the plaintiffs’ right to cross examine witnesses. Whether ultimately the plaintiffs would have been successful in introducing evidence that bore upon the outcome of the proceedings, I cannot determine, but the plaintiffs were entitled to a fair opportunity of presenting evidence and it seems to me that the rulings repeatedly made to the effect above set out frustrated this objective.

(d) Limiting counsel’s cross examination of witnesses, including the court clinician, to subject areas not traversed by the second defendant

37 I referred earlier to this ruling based upon the magistrate’s perception that the interests of the plaintiffs and of DOCS were the same. The procedural unfairness that resulted from this ruling is well exemplified considering what happened when the witness described as the court clinician gave evidence. Clearly the magistrate was much influenced by what the court clinician said when deciding on the interim orders here challenged. Her Honour ultimately found herself “most persuaded” by the report of this witness who recommended the placement of the child with the fourth defendants rather than with the plaintiffs. Before counsel for the plaintiffs commenced to cross examine the witness, the transcript records the following exchange:

“HER HONOUR: Now, Ms Fraser, for the record I remind you of my decision based on the binding precedent of GIP Leisure Corp Limited v Herdsman Investments Proprietary Limited. That includes the finding that ordinarily the Court show [sic] only permit one counsel in the same interest to cross-examine. Specifically at page 23 that decision state[s] ‘Whether a party is in the same interest the judge will apply the rule that it will not be permitted any more than one counsel to cross-examine the same witness’.
Bearing in mind that both you and the department have the same orders that you are seeking, that is parental responsibility to the Minister to age 18, what areas of cross-examination do you say I should allow that haven’t already been canvassed in the very extensive questioning by Ms Askew?
FRASER: Your Honour I’ve got a whole series of matters to put on instructions, specifically starting with matters which my clients deny were said or have been misquoted or what have you. Now, none of that has been put, obviously not, Ms Askew can’t put that, and for that purpose I did call for Ms McIvor’s notes and I renew that call.
HER HONOUR: But she was being cross-examined, of course she would have the right to use those.
FRASER; Yes, your Honour, and I--
HER HONOUR: What areas other than your instructions as to what wasn’t or was said?
FRASER: Well, I don’t intend to duplicate my friend’s questions.
HER HONOUR: And that’s why I require you now to indicate to me what areas so that I will not be interrupting you saying ‘This has already been covered’.
FRASER: Well, I intend to ask the question, put to her that – no, I think she’s amended that, I don’t need to put that. I intend to pick a matter my friend has touched upon which was Ms Smith’s expression when she was speaking about the stepchildren, and I don’t intend to repeat the question, I just intend to take it a bit further. I intend to put – I don’t need to, that’s one of the other matters. I intend to ask a little bit more about what Ms McIvor saw as being the particular political attitude of the [fourth defendants]--
HER HONOUR: No, I think that’s been covered adequately, extensively in fact.
FRASER: I intend to ask the question, basically just to confront the witness with something in her statement concerning the order in which the children became ill and it seemed to be contradicted with the evidence she gave in court. I intend--
HER HONOUR: Well that’s been covered.”

38 I will not record the balance of the exchange between the learned magistrate and counsel for the plaintiffs before the cross examination on behalf of the plaintiffs proceeded, but ultimately a number of areas of possible cross examination were identified as being impermissible:

(a) the documents relied upon by the court clinician and her knowledge of them;

(b) the criticism made by the fourth defendants to the court clinician concerning the plaintiffs;

(c) the fourth defendants’ concerns with their own rights rather than issues of the child;

(d) the failure of the court clinician to answer questions she was asked to report upon (T 102-103).

39 In allowing any cross examination on behalf of the plaintiffs, her Honour observed at T 103:

“There is no reason that I should allow any cross examination on the basis of the Supreme Court decision to which I refer [a reference to GPI Leisure]. As a courtesy I am allowing you to explore areas that you can justify as being not covered by the Department cross examination.”

40 I consider that the magistrate was in error in restricting cross examination of this witness in the manner in which it was restricted and that the error resulted in procedural unfairness. I observe that once procedural fairness has been denied, the need for intervention is established unless the Court is satisfied that had there been no procedural unfairness the outcome would have been no different: Stead v State Government Insurance Commission (1986) 161 CLR 141. In my view, it is not possible to conclude that had counsel for the plaintiffs not been unduly restricted in her cross examination, the outcome may not have been different.

41 Counsel for the plaintiffs cross examined on a document that had been produced informally by one of the DOCS’ officers. The magistrate inquired as to how counsel had come into possession of the document, and was apparently concerned about the informal manner in which it had been produced. The document in question was a request for assessment reports. The reports themselves were tendered by DOCS. The learned magistrate ruled that the document should be returned to its source and no further cross examination was permitted on that matter.

42 However, I am not persuaded by any submission made by Ms Fraser that the ruling concerning this document might have altered the outcome in these proceedings.

(f) Rejecting the tender of further affidavit evidence

43 DOCS sought to file an affidavit out of time. So also did the plaintiffs wish to file further material. The magistrate ruled on the issue as to whether the introduction of further evidence should be allowed on 1 July 2004. Having referred to The State of Queensland v J.L. Holding Pty Limited (1996-97) 189 CLR 146 and Minister for Community Services v Children’s Court of New South Wales [2004] NSWCA 210, her Honour determined that leave to introduce the further material should be refused, stating:

“I am therefore of the opinion that both parties have been given ample opportunity to seek the legal support to file material. I am further of the opinion that to allow so at this late juncture would be a denial of the child’s rights to a speedy hearing of these matters. I therefore affirm my earlier ruling that it is not appropriate for the material that leave is not sought and granted to the Department to file and further that I do not grant leave for the filing of further material on behalf of the Smiths.” (T 223)

44 By the time her Honour made this ruling, it must have been apparent that the hearing could not conclude on the following day and that inevitably it must be adjourned until the later dates allocated in October. The introduction of the material would not have meant delay in the completion of the hearing and would have afforded to the court the opportunity to consider further material that may have assisted in achieving the objective expressed in s 9(a) of the statute (see para 18 above).

45 Viewed alone, the ruling against allowing further affidavit evidence would not, in my view, have warranted the granting of the relief sought in the summons.

46 However, the plaintiffs have established procedural unfairness in the respects I have identified. This being so, and since I cannot and do not find that had the proceedings been conducted without procedural unfairness a different result could not possibly have resulted, the interim orders cannot be permitted to stand.

The issue of apprehension of bias

47 In the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson (2000) 201 CLR 488 at para 11, their Honours stated the relevant test as follows:

“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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 the judge is required to decide eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.”

48 An apprehension of bias may be created by an accumulation of matters, and may only become apparent after judgment has been pronounced: see the dicta of Callinan J in Johnson at para 79.

49 I have set out earlier the particular matters upon which the plaintiffs rely in seeking to establish an apprehension of bias (see para 14). The plaintiff relies upon the matters I have already considered in respect to the issue of denial of procedural fairness. The plaintiff relies additionally upon findings expressed in the reasons for making the interim orders made on 2 July 2004. It is submitted that the findings particularised as findings of fact not open on the evidence are to be found in the following passage from the judgment of the learned magistrate:

“Upon the [fourth defendants] is the pressure exerted by the Department. From the time the Department took the view that it favoured Placement with the [plaintiffs] there appears in the material filed a determination to see only the negative. This was particularly so of the evidence filed by Bronwyn Watson, who seems to have taken a particular bent against the [fourth defendants].
I am of the opinion that one reason the Department favours placement with the [plaintiffs] is that they will meekly do as directed by the Department. I have concerns as to their individual ability and that as a couple, to ensure not only what the Department wants is done, but more importantly, that all requirements are in the best interests of [the child].
I also have concerns that the [plaintiffs] would be unable to ensure [the child’s] best interests were maintained when it came to dealing with the extended family. Pressure abhorrently brought to bear by person or persons in that family led to the [plaintiffs] buckling to that pressure. I have concerns this may again occur.
The [fourth defendants] on the other hand have indicated strength to stand up to the extended family, either due to (in particular) [MB’s] robust personality, and/or due to the support from the fractious extended family.”

50 Ms Fraser has submitted that the evidence that had been adduced before the magistrate did not support the findings particularised in the summons (see para 14 above). Ms Reynolds, for the fourth defendants, submitted that there was evidence supporting the findings. I do not find it necessary to resolve that dispute. It seems to me that what is important is that the magistrate has made findings that favour the fourth defendants at a stage in these proceedings when the court has not heard from the plaintiffs or from the fourth defendants. None of these witnesses has given any evidence. None of these witnesses has had the opportunity of addressing the matters the subject of the findings of the learned magistrate.

51 It is desirable at this stage of the plaintiff’s life that the child’s placement be stabilised so that appropriate bonding may occur. Doubtless the magistrate appreciated this to be so. However, by the end of October it is to be expected that the magistrate would have had the opportunity of hearing from the plaintiffs and from the fourth defendants, at which time the court would have been better placed to make a decision concerning placement.

52 Ms Falloon, for the third defendant, referred to the decision of the Full Family Court of Australia in The Marriage of C (1998) 22 Fam LR 776 in which their Honours said (at para 22):

“Third, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.”

53 Accepting as I do the correctness and the wisdom of what their Honours said, it seems to me that in proceeding to make the interim orders on 2 July 2004, the magistrate has acted in such a manner as may give rise to a reasonable apprehension that the court has already made up its mind as to where the child ought ultimately to be placed. Had effect been given to the magistrate’s interim orders, it would have been more difficult to make an order for their disturbance at the time when final orders were to be made. No doubt the magistrate would have appreciated this, but in any event it seems to me that the test for the apprehension of bias as expressed in Johnson is met in this case.

54 Notwithstanding all that Ms Reynolds has put to the contrary in her able submissions, I am persuaded by the evidence that the plaintiffs have made out apprehension of bias. I emphasise that actual bias has neither been established nor asserted.

55 What ought now to be done? Whilst it is regrettable that delay may be occasioned by the matter commencing de novo before another magistrate, it seems to me that this is the course that must be adopted. The matter should be remitted to the Children’s Court for hearing before a different magistrate.

Formal orders

56 1. Order that the interim orders made in the Children’s Court on 2 July 2004 be set aside.

2. Order that the matter be remitted to the Children’s Court to be heard and determined according to law by a magistrate other than the magistrate by whom the interim orders referred to in Order 1 were made.

3. Liberty to apply within forty-eight hours for any other orders appropriate to give effect to Orders 1 and 2 above.

4. Costs are reserved to afford the parties the opportunity to make appropriate submissions having considered this judgment, and the matter may be relisted for argument as to costs on a date to be arranged with my associate. My associate is to be approached for this purpose within seven days.

**********

Last Modified: 09/30/2004