Re Liam

[2005] NSWSC 75

CITATION:	Re Liam [2005] NSWSC 75
HEARING DATE(S):	7 and 8 February 2005
JUDGMENT DATE :	8 February 2005
JUDGMENT OF:	McDougall J at 1
DECISION:	See para [65] of judgment

CATCHWORDS:	FAMILY LAW - child welfare - parens patriae jurisdiction of Supreme Court - proceedings in the Children's Court - interim contact order made by Children's Court - interference by Supreme Court where impermissible delegation of question of supervision of contact order - nature of relief
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 Supreme Court Act 1970
CASES CITED:	Craig v South Australia (1995) 184 CLR 163 George v Children's Court of New South Wales [2003] 59 NSWLR 232 Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 Re Victoria [2002] NSWSC 647 Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436
PARTIES:	Director-General Department of Community Services (Plaintiff) Mother of "Liam" (Defendant)
FILE NUMBER(S):	SC 7001/04
COUNSEL:	M W Anderson (Plaintiff) P Singleton (Defendant) P J Braine (separate representative for Liam)
SOLICITORS:	I V Knight, Crown Solicitor (Plaintiff) Legal Aid Commission (Defendant)

LOWER COURT JURISDICTION:	Children's Court of New South Wales
LOWER COURT FILE NUMBER(S):	File 483 of 2004

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

Tuesday 8 February 2005 Ex tempore (Revised 9 February 2005)

7001/04 RE LIAM (CLOSED COURT)

JUDGMENT

1 HIS HONOUR: The child known in these proceedings as Liam was born on 1 July 2003. His short life has been marked by conflict between the Department of Community Services (DOCS) and his mother, the defendant. DOCS case workers took Liam from his mother on 25 October 2004. An emergency care and protection order was made as sought by the Director-General (see ss 45 and 46 of the Children and Young Persons (Care and Protection) Act 1998 (the Act)). The Director-General now seeks a final order allocating all aspects of supervision to the Minister (see s 79(1)(b) of the Act). This application is the fifth time in Liam's short life that a court has been required to consider the arrangements for his care.

Background

2 On 8 November 2004, the Children’s Court of New South Wales (Children’s Court) made an interim order:

(1) placing Liam under the parental responsibility of the Minister until further order; and
(2) upon the mother giving certain undertakings to the court, giving her supervised contact with Liam for one period of 1½ hours per week.

3 The undertakings given by the mother were as follows:

“(a) Not to consume alcohol 24 hours before contact.

(b) Not to be under the influence of alcohol or any other substance at contact.

(c) To behave towards the supervisor of contact or any Departmental officer in a courteous, non-aggressive manner.”

4 The orders of 8 November 2004 provided that contact was to be terminated if the mother breached any of the undertakings. The evidence (in the form "Access Reports" covering weekly contact over a period from 12 November 2004 to 25 January 2005) shows that she did not.

5 By application filed in the Children’s Court on 8 December 2004, the mother sought, relevantly, the following "interim orders" for contact:

“ …
(a) For a period of at least 1½ hours at a minimum of twice per week;
(b) That the contact referred to above be supervised by the Director-General of the Department of Community Services or an authorised officer or delegate of the Director-General;
…
2. That pursuant to section 73 of the Children and Young Persons (Care and Protection) Act 1998, the Court accepts the following undertakings by the mother:-
(c) To not consume alcohol 24 hours prior to contact;
(d) To not be under the influence of alcohol at contact;
(e) To behave towards the supervisor or departmental officer at contact in a courteous and non-aggressive manner.”

6 On the return of that application, 9 December 2004, the Children’s Court made an "interim order" that the mother have supervised contact with Liam for 2 sessions each of 1½ hours per week.

7 It appears that, during the hearing on 9 December 2004, a legal officer of DOCS, appearing for the Director-General, put to the Court that:

“The Department does not consent to the mother’s application to increase supervised contact with the child from one [sic] to twice a week. This is due to the mother’s history of aggressive and abusive behaviour towards Department staff. Also the extra costs that the Department would have to incur in having to arrange an external agency to supervise the visits”.

8 It remains the Director-General's position that he does not consent to supervised contact for more than 1½ hours once per week (subject to the undertakings given to the Children’s Court by the mother).

9 By application apparently filed on 23 December 2004 and heard that day, the Director-General sought, relevantly, the following "interim order":

“1. An order that the interim orders made on 9 December 2004 be vacated.
2. Alternatively to Order 1 a stay or variation of the interim orders made on 9 December 2004.
3. Alternatively, that pursuant to s.86 of the Children and Young Persons (Care and Protection) Act 1998, the mother have contact with [Liam] born 1 July, 2003 for a period of one and a half hours per week supervised by the Director-General of the Department of Community Services or an authorised officer or delegate of the Director-General.
4. That pursuant to s.73 of the Children and Young Persons (Care and Protection) Act 1988 the court accepts the following undertakings by the mother:
Not to consume alcohol 24 hours prior to contact;
Not to be under the influence of alcohol at contact;
To behave towards the supervisor or departmental officer at contact in a courteous and non-aggressive manner.”

10 These orders were sought on the basis that the mother give to the Children’s Court the undertakings to which I have already referred.

11 The Director-General argued that the Children’s Court had no power to impose a condition of supervision on the Director-General without his consent (see s 86(2) of the Act). As I have said, it was and remains the Director-General's position that he would only consent to supervising one weekly period of access.

12 On 23 December 2004, the Children’s Court made the following "interim order":

“THAT THE ORDER IN RELATION TO CONTACT DATED 9/12/2004 BE VACATED AND VARIED TO THE MOTHER HAVING CONTACT TO THE CHILD FOR 1 ½ HOURS TWICE PER WEEK SUCH CONTACT TO BE SUPERVISED IF THE DIRECTOR GENERAL SO WISHES, PENDING FURTHER ORDER.”

13 On 24 December 2004, Barrett J in this Court made orders that, among other things, stayed the operation of the orders of 23 December 2004.

14 In these proceedings, the Director-General moves for an order that the "interim order" of 23 December 2004 be set aside.

The legislative scheme

15 It is necessary to bear in mind a number of provisions in the Act.

16 Section 9(a) specifies as "the paramount consideration", in proceedings and decisions under the Act, "the safety, welfare and well-being of the child or young person".

17 Subject to that paramount consideration, s 9(d) says that the course to be followed, in protecting a child or young person from harm, is to be "the least intrusive intervention in the life of the child or young person and his or her family" consistent with the safety, welfare and well-being of the child or young person.

18 I have already noted that this is the fifth occasion on which a Court has been required to intervene in Liam's life. It will not be the last.

19 Sections 69 and 70 deal with the making of interim care orders and other interim orders. They provide as follows:

“69 Interim care orders
(1) The Children’s Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined.
(2) The Director-General, in seeking an interim care order, has the onus of satisfying the Children’s Court that it is not in the best interest 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.
Note. Section 49 makes provision for the care of children and young persons pending care proceedings.
70 Other interim orders
The Children’s Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings.”

20 By s 60, a "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.”

21 Section 73 deals with undertakings. It provides as follows:

“ 73 Order accepting undertakings
(1) If the Children’s Court, after inquiring into a care application in relation to a child or young person, is satisfied that the child or young person is in need of care and protection:
(a) it may make an order accepting such undertakings (given by a parent of the child or young person) as it thinks fit with respect to the care and protection of the child or young person, or
(b) it may make an order accepting such undertakings (given by the child or young person) as it thinks fit with respect to the child’s or young person’s conduct, or
(c) it may make an order accepting undertakings under both paragraphs (a) and (b).
(2) An undertaking referred to in this section:
(a) is to be in writing signed by the person giving it, and
(b) remains in force for such period (expiring on or before the day on which the child or young person attains the age of 18 years) as may be specified in the undertaking.
(3) The Children’s Court is to cause a copy of an undertaking referred to in this section to be served on the person giving it.
(4) The Director-General or a party to proceedings in which an order accepting an undertaking was made may notify the Children’s Court of an alleged breach of an undertaking.
(5) The Children’s Court, on being notified of an alleged breach of an undertaking:
(a) must give the parties an opportunity to be heard concerning the allegation, and
(b) is to determine whether the undertaking has been breached, and
(c) if it finds that the undertaking has been breached, make such orders as it considers appropriate in all the circumstances.
(6) An application for further orders under this section is not a variation application under section 90 (Rescission and variation of care orders) and the Children’s Court may make any orders that it could have made when the order for undertakings was made.”

22 Section 86 deals with contact orders. It provides as follows:

“86 Contact orders
(1) If a child or young person is the subject of proceedings before the Children’s Court, the Children’s Court may, on application made by any party to the proceedings, do any one or more of the following:
(a) make an order stipulating minimum requirements concerning the frequency and duration of contact between the child or young person and his or her parents, relatives or other persons of significance to the child or young person,
(b) make an order that contact with a specified person be supervised,
(c) make an order denying contact with a specified person if contact with that person is not in the best interests of the child or young person.
(2) The Children’s Court may make an order that contact be supervised by the Director-General or a person employed within the Department only with the Director-General’s or person’s consent.
(3) An order of the kind referred to in subsection (1) (a) does not prevent more frequent contact with a child or young person with the consent of a person having parental responsibility for the child or young person.
(4) An order of the kind referred to in subsection (1) (b) may be made only with the consent of the person specified in the order and the person who is required to supervise the contact.”

23 Section 91 deals with appeals. The only express right of appeal is, by subs (1), to the District Court, and that right expressly excludes appeals from interim orders. Section 91(1) provides as follows:

“ 91 Appeals
(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.
… “

24 However, s 91 does not limit this Court's jurisdiction: see s 247, which provides that nothing in the Act limits the jurisdiction of this Court. That must mean not only this Court's "parens patriae" jurisdiction, but also its inherent and statutory powers to review and where necessary correct, or send back for further hearing, decisions of inferior courts (see ss 23 and 67 of the Supreme Court Act 1970).

The role of the Supreme Court

25 It is apparent from the Act that the legislature intended that the Children’s Court should be the primary court for the hearing and determination of applications under the Act, and, more generally, for applications relating to the safety, welfare and well-being of children or young persons (insofar as the Act makes provision for such applications). It is equally clear that the legislature intended that the District Court should be the primary court of review of decisions made by the Children’s Court under the Act.

26 Nonetheless, as s 247 of the Act makes clear, this Court retains all its powers. On what basis should those powers be exercised?

27 In Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79, Hodgson CJ in Eq dealt with that question at paras [20] to [22]. His Honour concluded that, although the traditional limitations and interference with discretionary decisions might not be strictly applied, nonetheless some justification must be demonstrated for this Court to interfere. His Honour said:

“20 In this matter, the Court is being asked to make an order that displaces a considered order made within jurisdiction by another judicial officer. The usual principle that applies when the Court is asked to do this is that the Court will not interfere with such an order, particularly an order made in exercise of a discretion, as this is, unless the Court is satisfied that the decision is plainly wrong, or unless some error appears in the process leading to that decision, such as failure to give a proper hearing, error of law, or failure to give reasons.
21 No one has referred me to any authority in which that approach has been strictly applied to cases of this kind. Indeed, it was submitted by Mr Singleton that, because of the nature of the Court’s traditional jurisdiction, which is expressly preserved by s.247 of the 1998 Act, and because of the paramountcy of the interests of the children, this Court would not regard itself as strictly limited by that approach.
22 I think that submission is correct. However, I think the principles I have mentioned are still relevant, and that this Court would approach the matter on the basis that justification has to be shown for overriding the decision of another judicial officer.”

28 It is apparent that the parens patriae power to intervene is wider than the power of the Court under the common law remedy of certiorari. The scope of, and limitations upon, that remedy were stated by the High Court of Australia in Craig v South Australia (1995) 184 CLR 163 at 163-176. Their Honours noted the limited basis on which certiorari was available. They said that it was not an appellate procedure or some general means of administrative review, but that it would be available on distinct grounds including jurisdictional error, failure to convey the appropriate measure of procedural fairness, fraud, or error of law on the face of the record. They said:

“Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing (55) of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly jurisdictional error (56), failure to observe some applicable requirement of procedural fairness (57), fraud (58) and “error of law on the face of the record” (59). Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it (60). In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.”

29 In my judgment, it follows that if sufficient justification to intervene were established according to the Re Anna test, then the relief available would include that otherwise available by way of certiorari. That would be so even if, having regard to the restrictions on the availability of certiorari established by the High Court in Craig, that remedy itself were not in terms available. That is because the parens patriae jurisdiction is part of the inherent equitable jurisdiction of this Court. The grant of relief in the exercise of that jurisdiction is, like all equitable relief, to be moulded according to the circumstances of the particular case. If, in the particular case, the proper exercise of the parens patriae jurisdiction requires orders in the nature of certiorari, then in my judgment those orders might be made notwithstanding at common law they could not be.

30 In Re Victoria [2002] NSWSC 647, Palmer J emphasised at para [36] the statutory scheme establishing a specialist court, and providing an appeal process with particular mechanisms and powers. His Honour stated at paras [37] to [39] that although this Court's jurisdiction remained untrammelled by the scheme established by the Act, parties should be discouraged from bypassing the statutory appeal mechanism and, in effect, exploiting this Court's parens patriae jurisdiction as an alternative kind of appeal.

31 I propose to proceed in accordance with what was said by Hodgson CJ in Eq and Palmer J.

The Director-General’s challenges

32 Mr Anderson of Counsel for the Director-General submitted that:

(1) The order of 9 December 2004 was beyond power, because the Director-General had refused to consent to the supervised contact specified by that order.

(2) The order of 23 December 2004 was flawed because the learned magistrate had not given effect to the paramount considerations specified in s 9(a) of the Act.

The opposing submissions

33 Mr Singleton of Counsel for the mother submitted that:

(1) Any defect in the order of 9 December 2004 was irrelevant because it had been vacated (I interpose that the summons sought no relief in relation to that order).

(2) The order of 23 December 2004 was within power because it gave the Director-General the right, but not the obligation, to supervise contact.

(3) Alternatively, relief should be refused because exactly the same result could have been achieved by making the order for contact conditional upon the mother giving an undertaking to accept such supervision as the Director-General chose to require.

(4) No error of the requisite kind has been demonstrated in the order of 23 December 2004.

(5) Alternatively, the order of 20 December 2004 was clearly open on the evidence, so that as a matter of discretion this Court should not intervene.

(6) No error of the kind necessary to ground certiorari had been shown.

34 Mr Braine of Counsel, who had been appointed Liam's representative in the Children’s Court pursuant to s 99 of the Act, and who appeared in that capacity before me, submitted that, consistent with s 9(a), the order of 23 December 2004 should not be set aside.

35 Mr Braine submitted further that continuation of the contact regime established by the order of 23 December 2004 was clearly in the best interests of Liam.

The order of 9 December 2004

36 The Director-General's submission as to the order of 9 December 2004 should be accepted. Section 86(2) is clear. In the face of the Director-General's stated (and repeated) position, the Children’s Court had no power to make the order. See George v Children’s Court of New South Wales (2003) 59 NSWLR 232. But that is not dispositive of these proceedings. The order has ceased to have effect (in as far as an order of an inferior court made without or beyond power can ever have effect). On no view does it now regulate, or has it since 23 December 2004 regulated, the mother's entitlement to access. On no view can it be said that the order of 23 December 2004 is invalid because of the invalidity of the antecedent order.

The order of 23 December 2004

37 This order is more problematic. The written submissions for the Director-General sought to persuade me, in substance, to review the learned magistrate's decision on the merits. I do not propose to do so. That is because I have come to the conclusion, for reasons that I shall give, that the decision should be quashed and the matter remitted to the Children’s Court to be considered according to law. In those circumstances, it is inappropriate that I deal with the merits of the mother's application.

38 I should, however, make two points. The first is that both Mr Singleton and Mr Braine invited me to consider the matter on its merits. (In fairness to Mr Singleton, that was for the dual purposes of demonstrating what he said was error in the Director-General's analysis of the facts and, more importantly, to make good his primary case that the Director-General had shown no justification for this Court to interfere.)

39 The second point is that the relief I have indicated I will give is relief in the nature of certiorari. I have already dealt with this Court's power to give that relief and the source of that power. Such relief was not claimed in terms in the summons. However, neither Mr Singleton nor Mr Braine submitted that, because the relief had not been claimed in terms in the summons, I should not grant it if otherwise I felt it were appropriate. In particular, Mr Singleton's submissions were directed to the unavailability of relief, at least on common law grounds, and to whether a case for relief was established. That I may grant relief in an appropriate case, and if satisfied that to do so would not occasion procedural unfairness to any party, is shown by SCR Pt 40 r 1.

The error in the Children’s Court’s approach

40 In dealing with this, I reiterate that it is necessary for some justification to be shown before this Court should interfere with an order made by another judicial officer.

41 I do not think that the learned magistrate fell into error for the reasons propounded in the written submissions for the Director-General. However, I think, analysis of the order of 23 December 2004 in context does show that the learned magistrate exercised his powers under s 86 without taking into account, in an appropriate way, the need for supervision of contact. In that way, I think, the learned magistrate failed to consider in an appropriate way the paramount consideration specified in s 9(a).

42 When one reads s 86 as a whole, it is clear that, in substance, it requires the Children’s Court not only to consider whether any contact, and if so of what nature, should be ordered, but also whether any such contact should be supervised. The Director-General's first application was for supervised contact. So too was the mother's application. The only relevant distinction between the applications was that the mother sought two periods each of 1½ hours of contact each week.

43 The order made on 9 December 2004 required contact to be supervised. Clearly on 9 December 2004, the Children’s Court thought that attending to the safety, welfare and well-being of Liam required that supervision. There was material before the Court to justify that view, and, as I have noted, the mother did not seek any other order.

44 There was no relevant change in circumstances, as far as the evidence discloses, between 9 and 23 December 2004. The application on the latter date was necessitated by the defect that I have found to exist in the earlier order, not by any new factual material.

45 The evidence does not disclose what, if any, reasons the learned magistrate gave on either 9 or 23 December 2004 for the order pronounced on those days. This Court is therefore required to deal with the Director-General's application on the basis of the orders made and their context so far as it is shown by the evidence. In saying this, I do not mean, and should not be taken to suggest, any criticism of the learned magistrate. Common experience would suggest that the period immediately before Christmas is "peak hour" for a court having the jurisdiction of the Children’s Court. I have no doubt that the lists were busy, and the pressure to get through them intense. Particularly in circumstances where, it may be, the reasoning on each occasion could be ascertained from a perusal from the transcript of argument (which was not in evidence before me), I do not think that any criticism should be made of any failure to give lengthy formal reasons (see Ross v Internet WinesPty Ltd (2004) 60 NSWLR 436, 453 [108] (Giles JA, with whom Spigelman CJ and McColl J agreed)).

46 The consequence is, however, that there is no present explanation of why the learned magistrate came to the view on the latter date that supervision was a matter to be left to the discretion of the Director-General rather than to be imposed by the Children’s Court. That is particularly significant where, on a proper construction of the order, not just the second weekly period of access but both periods were to be supervised only if the Director-General so wished, and in a context where all prior access had been supervised and where the applications were for access to be supervised.

47 If the learned magistrate made the order in the form that he did because the Director-General had refused to agree to supervise both sessions of contact then, in my judgment, he took into account in an inappropriate way that consideration. The Director-General had not submitted that supervision was not required. His case was he would not provide it beyond one occasion per week. There was nothing in the evidence or (as far as is known) the submissions for the Director-General that could have indicated to the learned magistrate that he had no objection to some period of unsupervised access.

48 In any event, the form of the order makes it tolerably clear that the learned magistrate did not determine whether or not supervision was necessary. He left it to the discretion of the Director-General. In my judgment, that is not within the power granted by s 86, or otherwise authorised by any provision of the Act to which I have been referred in argument. It is for the Children’s Court, taking into account, among other things, the paramount consideration referred to in s 9(a), to decide whether supervision is required. If it is, the Court should, with the consent of the proposed supervisor, order it. If the supervisor does not accept the requirement then contact should not be given. But the Court should not delegate its duty to consider, and if necessary (and with consent) impose, a requirement for supervision on the Director-General, or for that matter, on anyone else.

49 To put the matter slightly differently: the learned magistrate was required, in the context that I have described, to consider both what period or periods of contact should be available, and whether any or all of those periods should be supervised. In leaving the question of supervision as he did by the order of 23 December 2004, the learned magistrate failed to consider a matter of real significance to the paramount consideration described in s 9(a).

50 It follows, in my judgment, that there is a justification for this Court to intervene.

Relief

51 The conclusion to which I have come raises the question whether this Court should decide the matter for itself or send the matter back to the Children’s Court.

52 No party submitted that, if I came to the conclusion to which I have come, I should determine the matter for myself.

53 In my judgment, the latter of the two courses is appropriate. The Children’s Court is a specialist court; this Court is not. Further, it is apparent from the history that there are likely to be further applications to the Children’s Court in relation to Liam's care. I do not think that the Children’s Court should be put in the position of having to consider the merits of a care order made by this Court, even if on an interim basis. Indeed, unless the order made by this Court is expressed to operate only up until the making of a further order by the Children’s Court, there is a real question as to whether an application to terminate or vary an order made by this Court should be brought to this Court or the Children’s Court. I do not think that it is appropriate for the parties to be required to return to this Court unless there is a real question of principle involved.

54 I am also conscious that the application was heard from the duty judge's list as a matter of urgency. The evidence is limited, with one exception, to events that occurred prior to 9 January 2004. The exception relates to the Access Reports which have been tendered, which cover a period up to 25 January 2005. The evidence has not been tested; indeed, the pressure of business means that it has not been the subject of sufficiently considered reflection as to the merits of the competing positions as to contact.

Other issues

55 Before I make orders to give effect to what I have said, I will deal with three matters.

56 The first is that (as I hope I have made clear) nothing in these reasons should be taken to suggest that it is not open to the Children’s Court, on the facts that may be proved before it, to order two weekly contact periods of 1½ hours each, with one supervised and one not, or for one to be supervised and one also supervised if the Director-General should so decide. As Mr Singleton submitted, the latter course could be accommodated by requiring and receiving an appropriate undertaking pursuant to s 73. But the Children’s Court must decide whether Liam's safety, welfare and well-being require either or both (or all) periods of access to be supervised; and to mould its order accordingly and taking into account the Director-General's attitude under s 86(2).

57 Specifically, I do not accept the submission for the Director-General (if it were put so high) that an order to the substantive effect of that made by the Children’s Court - ie, for two weekly periods of access, each of 1½ hours, one supervised and one perhaps not - could not on the facts be made consistent with s 9(a). Whether or not that (or any other) is an appropriate order is a question for the Children’s Court.

58 The second matter is that I do not find it necessary to decide a question raised in argument, namely whether s 86 is a freestanding source of power to make contact orders, or whether ss 69 and 70 must also be invoked. In the latter case, there would seem to be no right of appeal to the District Court. In the former case there would - at least arguably - be such a right. Since the matter was not fully argued, and since it does not arise on the view to which I have come, I will do no more than note and then leave this point.

59 The third matter is one that has caused me some concern. The Director-General's evidence before the Children’s Court included an affidavit affirmed on 2 December 2004 by a child protection care worker, Ms Louisa Roberto. That affidavit was also put into evidence in this Court as an annexure to the affidavit of Ms Danielle Audsley, a child protection case worker specialist, affirmed on 24 December 2004.

60 In para 52 of her affidavit, Ms Roberto said:

“On 12/11/04, [the mother] had contact with [Liam] as supervised by Wesley Dalmar. [The mother] was recorded as being “visibly upset and tried to control her tears. She started talking to [Liam] … She tried to cuddle him but he seemed more interested in the toys in the room”. [The mother] was recorded as being “upset that [Liam] didn’t seem to need her. She was worried he had forgootten [sic] her but I said not to worry”.”

61 The clear impression from this is that the contact session described was, for want of a better phrase, of no interest to Liam. However, the Access Report from which Ms Roberto extracted those comments reads in full (relevantly) as follows:

“[The mother] was upset that [Liam] didn’t seem to need her. She was worried he had forgotten her but I said not to worry. He played with things in the room, [the mother] played with him. She had bought [sic] him one of his toys from home, clothes and a tin of apple. After about ½ an hr [Liam] started to laugh and play hide and seek with his mother. She played on the floor with [sic] and made sure he played with the age appropriate toys. [A third party] had packed some biscuits, [the mother] gave him some biscuits and a drink. He wanted to drink her water and she gave him a bit. [Liam] kept hiding behind a chair and popping his head [sic] and laughing at [the mother]. She gave him a cuddle and a kiss, he lay in her arms. He seemed relaxed and to enjoy it. He played with the chalkboard and [the mother] helped him with the chalk. Towards the end of the visit [the mother] changed [Liam’s] nappy, he tried to get away [the mother] was in control of the situation. [Liam] had a texta, [the mother] draw [sic] a heart on his hand and hers and told [Liam] she loved him. [The mother] started to get teary again at the end of the visit. [Liam] doesn’t know how to handle this sort of situation and just looks at her. The visit ended well [the mother] gave [Liam] a kiss and left the interview room.”

62 That account - of what was, overall, a happy and apparently mutually satisfying interaction between Liam and his mother - was confirmed in subsequent Access Reports prior to 10 December 2004, when Ms Roberto affirmed her affidavit.

63 I regret to say that I find paragraph 52 of the affidavit misleading. It may be that Ms Roberto failed to appreciate that she had taken the material out of context or that she had given a misleading account of the contact session on 12 November 2004; although I find it difficult to understand how one in her position could have done either of these things. But the problem should have been seen and corrected when the relevant Access Report (which was tendered in these proceedings by the mother, having been provided to her as on notice to produce by DOCS) was read. No correction was made. On the contrary, Mr Anderson, in submissions in chief, referred to and relied upon para 52 in support of a submission that it was not shown that further contact would be in Liam’s best interests.

64 I draw attention to this in the hope that, in future, care will be taken to ensure that when employees of DOCS summarise or extract from documents that are not otherwise in evidence (as the relevant access report was not in evidence before the Children's Court) they do so accurately, fairly and impartially. In my view, any other approach is inconsistent with the paramount consideration specified in s 9(a) of the Act.

Orders

65 In argument, the Director-General indicated that an undertaking would be given, were I to come to the conclusion that I should quash the order of 23 December 2004, to provide supervised contact to the mother for one 1½ hour session per week. I therefore make the following orders:

(1) I note the undertaking of the Director-General that he will, until the further order of the Children's Court of New South Wales, permit the mother to have supervised contact with Liam for 1½ hours, once per week, upon the basis of the mother's undertaking given to the Children’s Court of New South Wales and set out in that court's orders made on 8 November 2004.

(2) I order that the order of the Children's Court of New South Wales made on 23 December 2004 in file 483 of 2004 be removed into this Court and quashed.

(3) I order that the mother's application to the Children’s Court of New South Wales filed on 8 December 2004 and the Director-General's application to that court filed on 23 December 2004 be remitted to the Children's Court of New South Wales to be further heard and dealt with according to law.

(4) I make no order as to costs.
******