Re Louise and Belinda

[2009] NSWSC 534

CITATION:	Re Louise and Belinda [2009] NSWSC 534
HEARING DATE(S):	02/06/09
JUDGMENT DATE :	16 June 2009
JURISDICTION:	Equity
JUDGMENT OF:	Forster J at 1
DECISION:	See paragraphs 66 and 67 of judgment.
CATCHWORDS:	Orders in the nature of certiorari - District Court - Error on the face of the record Children and Young Persons (Care and Protection) Act (1998) - Sections 9, 60, 71, 72 and 90 - care orders - paramount considerations
LEGISLATION CITED:	Children and Young Person (Care and Protection) Act 1998 (NSW) Supreme Court Act 1970 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 Moraitis Fresh Packaging (NSW) Pty Limited v Fresh Express (Australia) Pty Limited [2008] NSWCA 327 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
FILE NUMBER(S):	SC 1358/2009
COUNSEL:	Plaintiff- Mr G.W.Moore First Defendant- Ms K.M.Reynolds Third and Fourth Defendants-Mr S.P.Williamson
SOLICITORS:	Plaintiff-Catherine Samuels, Crown Solicitor's Office First Defendant- Dennis Chapman, D.J. Chapman Solicitors Third and Fourth Defendants-Paul Grant, Grant and Co. Solicitors

LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ
LOWER COURT DATE OF DECISION:	16/12/08

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

TUESDAY, 16 JUNE 2009

1358/09 RE LOUISE AND BELINDA

JUDGMENT

1 HIS HONOUR: This is an application by the Director General of the Department of Community Services for orders pursuant to section 69 of the Supreme Court Act 1970, quashing orders made by his Honour Judge Delaney of the District Court on 16 December 2008 and 4 February 2009, and for an order remitting the proceedings to the District Court to be heard and determined according to law.

2 The application relates to two children (“the Children”) who are respectively the third and fourth defendants. Their natural mother (“the Mother”) is the first defendant. The second and fifth defendants are not affected by the present dispute and it is conceded that they ought not have been joined as defendants. They took no part in the proceedings. The sixth defendant, being the District Court of New South Wales, was not represented and likewise took no part in the proceedings.

History and Nature of the Application

3 The Children were born on 27 February 2001 and 1 April 2002 respectively. On 4 November 2004, they were taken into care pursuant to an emergency care and protection order made under section 46 of the Children and Young Person (Care and Protection) Act 1998 (“the Act”). Shortly, thereafter the Woy Woy Children’s Court made a care order in relation to the children pursuant to section 71 of the Act which, so far as is relevant, provides as follows:

“71 Grounds for care orders
(1) The Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any of the following reasons:
(a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason,
(b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection,
(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,
(d) subject to subsection (2), the child’s or young person’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 or young person 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…”

4 So far as it is relevant, the term “care order” is defined by section 60 of the Act to mean an order for and with respect to the care and protection of a child.

5 The Children were originally removed from the care of the Mother in November 2004, and in August 2005 they were placed in the care of a foster mother (“the Foster Mother”) and her husband. The Foster Mother has since separated from her husband, but the Children still remain in her care. Parental responsibility was allocated to the Minister until each of the children attained the age of 18 years respectively, and orders were also made for maintaining contact between the Mother and the Children.

6 On 8 June 2006 the Mother applied pursuant to section 90(1) of the Act for leave to make an application for the rescission or variation of the said care order. That sub-section provides as follows:

“(1) An application for the rescission or variation of a care order may be made with the leave of the Children’s Court”

7 Sub-sections (2) and (2A) of the Act deal with the matters to be taken into consideration in determining whether such leave should be granted. In the case of the Mother’s application, Magistrate Ellis refused to grant leave to the Mother to apply for the rescission of the said care order.

8 The Mother appealed to the District Court from that refusal. The appeal came before his Honour Judge Christie, who reversed the decision of the Magistrate, granted the Mother leave to apply, and remitted to the Children’s Court the Mother’s substantive application to rescind or vary the care order.

9 The Mother’s application for rescission or variation came before Magistrate Skill at the Parramatta Children’s Court. On 9 November 2007 the learned Magistrate dismissed the Mother’s application.

10 The Mother then appealed to the District Court from the decision of Magistrate Skill. That appeal came before Judge Delaney in August 2008, and on 16 December 2008 his Honour delivered his judgment. He made interim orders providing for parental responsibility to be shared between the Minister and the Mother and directed the plaintiff to prepare a care plan providing for the Children to be restored to the care of the Mother. The proceedings were adjourned so as to enable the plaintiff to prepare the care plan as directed.

11 On 4 February 2009 Judge Delaney made final orders allocating to the Mother full parental responsibility for the Children, effective as at 4pm on that day, and made directions for the Children to be transferred to the Mother by that time.

12 The proceedings before me were instituted by the plaintiff on the same day, that is to say on 4 February 2009, by filing a summons. The plaintiff claims declarations that Judge Delaney made errors of law that appear on the face of the record, that his Honour denied procedural fairness to the plaintiff, and that his Honour’s orders were also flawed on the basis of jurisdictional error. On the same day, this court stayed the orders of Judge Delaney until the final hearing of these proceedings or until further order of this court. It is that summons that is presently before me for determination.

Grounds of Challenge

13 In the course of the hearing application, I asked Mr G. Moore of Counsel, who appeared for the plaintiff, to identify the respects in which he submitted that the judgment of Judge Delaney suffered from the various flaws alleged. Mr Moore then provided me with a list of the matters on which he relied, which list I reproduce hereunder:

“1. His Honour erred in considering Section 71 of the Children and Young Persons (Care and Protection) Act 1998 when the proceedings related to Section 90 of the Act.

2. His Honour failed to consider Section 9(a) of the Act.

3. His Honour failed to consider the competing applications for parental responsibility that were argued before him.

4. His Honour erred in making a Care Order where he had found that the children were not in need of care and protection.

5. His Honour erred in taking into consideration Court delays when considering Section 90(6)(c).

6. His Honour denied the Plaintiff procedural fairness by determining the issue of “in need of care” without first notifying the Plaintiff, thereby denying the Plaintiff the opportunity to make submissions and call evidence.

7. His Honour failed to give any reasons or adequate reasons as to why the children should be removed from the care of the foster Mother”.

14 Mr Williamson of Counsel, who appeared for the Children, adopted the submissions of the plaintiff, similarly submitting that Judge Delaney fell into jurisdictional error, made errors of law on the face of the record and denied the plaintiff procedural fairness.

15 Ms K. Reynolds of Counsel, who appeared for the Mother, opposed the relief sought.

16 The plaintiff submitted that if he was successful, the proceedings should be remitted to the District Court to be heard and determined by a judge other than Judge Delaney. In the alternative, the plaintiff sought an order that in the exercise of the court’s parens patriae jurisdiction, it order that the Minister for Community Services have sole parental responsibility for the Children until they each attain the age of 18 years respectively. Mr Williamson adopted the same position.

17 Ms Reynolds submitted that if the plaintiff did establish his grounds, it would not be appropriate for this court to exercise its parens patriae jurisdiction by making an order of the kind sought by the plaintiff, as there are no exceptional circumstances to warrant this court’s intervention on that basis. She submitted that in those circumstances the proceedings should be remitted to the District Court to be determined by Judge Delaney.

18 The plaintiff did not submit that there were any exceptional circumstances to warrant the court’s intervention on a parens patriae basis. In fact, the submission that this court should make that determination was only faintly, if at all, advanced by the plaintiff, and the only real dispute in that respect between the plaintiff and the Children on the one hand and the Mother on the other, was whether in the circumstances, if the proceedings were to be remitted to the District Court, they should be remitted to be heard by Judge Delaney or by another judge.

19 As the various grounds relied upon by the plaintiff do, to a certain extent, overlap with each other, and as a number of those grounds are said to support more than one of the bases upon which Judge Delaney’s judgment is challenged, I propose to deal with those grounds either individually or in groups of bases more closely related to each other.

Ground 4

20 The plaintiff submitted that his Honour erred in making a care order despite the fact that he found that the Children were not in need of care and protection. As I understand this submission, it was that the order made by Judge Delaney on 4 February 2009, giving the Mother full care and responsibility in relation to the Children, was itself an order rescinding or varying the care order originally made by the Woy Woy Children’s Court. As such, it was submitted that the order rescinding or varying the original care order was itself a “care order” within the meaning of section 60 of the Act, to which I have already referred. It was submitted that his Honour’s order was an order “for or with respect to the care and protection” of the Children, and that accordingly, his Honour had no jurisdiction to make the orders that he made.

21 My attention was then drawn to section 72(1) of the Act which provides as follows:

“72. Determination as to care and protection
(1) A care order in relation to a child or young person may be made only if the Children’s Court is satisfied 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 section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders)”

22 I was then referred to his Honour’s judgment of 4 February 2009, at the end of which there was an exchange between his Honour and Ms Samuels, who then appeared for the plaintiff, in the following terms:

“SAMUELS: Your Honour, may I make one submission?
HIS HONOUR: Of course you may.
SAMUELS: Just in relation, you raised an issue of legal impediment just - and again I haven’t been in this case all the way through, but just from reading your Honour’s judgment I just wanted to raise a question. If your Honour has found that the children are not in need of care and protection--
HIS HONOUR: I have.
SAMUELS: --I just wondered whether there’s any basis to make any care order at all?
HIS HONOUR: Sorry?
SAMUELS: If the children are not in need, if your Honour finds that the children are not in need of care and protection then there’s, it appears to me no basis for making any care order that--
HIS HONOUR: I’m making that order to make sure nobody makes any mistake about it.
SAMUELS: But I’m just, under the act I’m not sure that a care order can be made.
HIS HONOUR: I think you’re being too legalistic by far. You may sit down”.

23 It was therefore submitted by the plaintiff that once Judge Delaney found that the Children were not in need of care and protection, then by reason of the provisions of section 72(1), he had no power to make a “care order”. Accordingly, it was submitted that the order that his Honour made purportedly pursuant to section 90 was made without jurisdiction in that the conditions precedent to the existence of jurisdiction had not been satisfied. In addition to submitting that this constituted jurisdictional error, it was also submitted that this constituted an error of law on the face of the record.

24 In support of the plaintiff’s submissions, both in respect of this ground and in respect of the others, Mr Moore drew to my attention what the High Court had said in Craig v South Australia (1995) 184 CLR 163 at 175, namely that:

“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 of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and "error of law on the face of the record". 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 13 . 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.”

25 Mr Moore also took me to a further passage in that decision, at page 177 in the following terms:

“An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern”.

26 Despite the apparent attractiveness of the plaintiff’s submission, I cannot accept that it is correct. If it were correct, it would have the absurd consequence that once a care order had been made, it could never be rescinded or varied so long as the child in question was no longer in need of care and protection. It would mean that once a child was placed in the care of a foster parent, he or she could never be returned to his or her natural parents so long as he or she was being cared for by the foster parents. The example that I put to Mr Moore in the course of submissions as a way of illustrating the absurd consequence of that submission was the hypothetical situation of a child, both of whose parents were seriously injured in a car accident, and who was placed in foster care while the parents were hospitalized. Assuming that both parents recovered in a short period of time and were able to resume their normal and otherwise perfectly satisfactory parental duties, the construction of the Act contended for by the plaintiff would mean that so long as the child was no longer in need of care and protection (in the sense that he or she was perfectly properly looked after by the foster parents), such child could never be returned to his or her natural parents.

27 Such a consequence would, in my view, be absurd, and unless I was compelled to reach such a conclusion, I would not do so: see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 especially at [321]; see also Moraitis Fresh Packaging (NSW) Pty Limited v Fresh Express (Australia) Pty Limited [2008] NSWCA 327 at [116].

28 In my view, the flaw in the plaintiff’s submission is that on its true construction, the requirements of section 72 need only be met where a care order is sought pursuant to an initial care application provided for in section 61 of the Act. Section 72 accompanies section 71, which sets out the circumstances in which a care order may be made, and relevantly provides that unless the child is in need of care and protection, a care order cannot be made. In my opinion, section 72 was never intended to restrict or qualify the circumstances in which an order under section 90(1), rescinding or varying an existing care order, could be made. Accordingly, I reject that ground.

Ground 5

29 The plaintiff also submits that Judge Delaney erred in taking into consideration court delays when considering section 90(6)(c) of the Act. Sub-section (6) of section 90, provides as follows:

“ 90(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration:
(a) the age of the child or young person;
(b) the wishes of the child or young person and the weight to be given to those wishes;
(c) the length of time the child or young person has been in the care of the present caregivers;
(d) the strength of the child’s or young person’s attachments to the birth parents and the present caregivers;
(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person;
(f) the risk to the child or young person of psychological
harm if present care arrangements are varied or rescinded ”.

30 In paragraph 37 of his judgment of 16 December 2008, his Honour said:

“I now turn to a consideration of the matters in section 90(2A)”.

31 His Honour then proceeded to do so, and when reaching paragraph (c) of that subsection, said:

“The length of time the Children have been in care. This exceeds three years”.

32 It seems to me that in that paragraph, his Honour misdirected himself in that there was no need for him to consider section 90(2A). That sub-section sets out the matters that the court is required to take into consideration before granting leave to apply to rescind or vary a care order. In this case, leave had already been granted by Judge Christie. However, I do not consider that anything turns on this, as his Honour then proceeded also to consider section 90(6).

33 It was in the next paragraph, namely in paragraph 38 of his judgment that his Honour turned to the relevant issue, namely the matters that he needed to take into consideration before making an order to rescind or vary the original care order. In relation to the matter listed in section 90(6)(c), his Honour found:

“ That the Children have been in the care of the present carer for three years. I have taken this into account but I have also considered that since mid-2006 the appellant has sought to regain the parental responsibility for the [Children] and the court processes have delayed the ultimate decision on this issue”.

34 The plaintiff submits that his Honour erred in taking into consideration the delays caused by the court processes when considering section 90(6)(c).

35 I do not consider that his Honour erred in the manner alleged. He addressed the issue objectively and correctly found that the Children had been in the care of the present carer for three years. That conclusion was factually correct, whatever may have been the reason for it. Indeed, it would have been factually incorrect, and his Honour would have been in error, had he attempted to reduce the period for which the Children had been in the care of the present carer by deducting from the factually correct three year period such lengths of time as may have been attributable to court delays.

36 In my opinion, his Honour did not err in the way in which he answered the issue raised in section 90(6)(c). However, I do refer below to the significance of the explanation that his Honour proffered as the reason why the Children had been in care for that period of time.

Grounds 1 and 6

37 The plaintiff also submitted that Judge Delaney had erred in considering section 71 of the Act in proceedings under section 90, and that he also denied the plaintiff procedural fairness by determining that the Children were not “in need of care and protection” within the meaning of section 71(1), without first notifying the plaintiff of his intention to consider that section. This is said to have resulted in his Honour denying the plaintiff the opportunity to make submissions and to call evidence on the issue. In particular, it was submitted that although his Honour had noted in paragraph 2 of his judgment of 16 December 2008 that in order to determine the appeal before him, he was required to consider the provisions of section 90 of the Act (which his Honour set out in full), and to which section he returned at the end of his judgment, his Honour’s reasoning rested not on section 90 but on section 71. It was submitted that in doing so, his Honour addressed the wrong issue. In particular, the plaintiff’s submission relies on the second sub-paragraph of paragraph 32 of his Honour’s judgment in which his Honour said:

“The court has to consider the provisions of section 71 and determine whether there are grounds for a care order to be made. I am satisfied on the balance of probabilities that no such grounds exist under any of the subclauses in section 71(1). I find that the appellant is capable of caring for the two children the subject of this application and on present evidence is not likely to have any serious difficulties caring for them. I find that it is unlikely that they will be physically or sexually abused or ill-treated if returned to her. I find that it is likely that, with appropriate family and community support, the children’s basic physical, psychological and emotional needs will be met by the appellant. I note that the court cannot conclude that the basic needs of the child are likely not to be met because of the parent’s disability or poverty”.

38 It is clear that what his Honour was doing in that passage was to perform a checklist of the requirements of section 71(1) of the Act.

39 There is, in my opinion, force in the plaintiff’s submission. It is submitted on his behalf that what his Honour ought to have been considering in dealing with the application before him was section 90, and in particular sub-section (6) of that section, rather than section 71(1). As I have already noted, in my opinion section 71(1) is applicable where the Court is considering the fate of an application for care orders under section 61 or section 62. It is not applicable where the application is made under section 90 for the rescission or variation of an existing care order. It is true, as Ms Reynolds for the Mother points out, that his Honour did return to section 90(6) of the Act in paragraph 38 of his judgment and that there is a significant overlap between the matters required to be considered under section 71(1) and those required to be considered under section 90(6), but it does appear that his Honour’s real focus was section 71 and not section 90(6). In paragraph 38 of his judgment, he merely formally satisfied the requirements of that section. By way of further example, even when considering section 90(6)(c), his Honour found it necessary to refer back to section 71(2).

40 What his Honour appears to have done was to approach the issue before him as if it were an application for a care order under section 61 or 62, and concluded that there is now no such need, and hence the Children could be returned to the Mother. However, that is not the issue that his Honour was required to address. Events had moved on, a care order had been made and the question before his Honour was whether it should be rescinded or varied. It was not to the point to consider whether, if an application under section 60 were made now, having regard to the circumstances of the Mother, a care order of the kind previously made would still be made. To do so ignores the intervening period, as well as the effect that the care order and the lapse of time had had on the Children. In approaching the matter as he did, I consider that his Honour fell into error.

41 That being the case, it is probably unnecessary to decide whether his Honour denied the plaintiff procedural fairness by determining the issues raised by section 71(1) without first notifying him of his intention of doing so, thereby denying him the opportunity to make submissions and call evidence. If I am correct in the view that I have expressed, it does not matter whether or not the plaintiff was given an opportunity to address his Honour on that issue, as the issue addressed by his Honour was irrelevant. If, on the other hand, I am wrong in the view I have expressed, and section 71 was a relevant consideration, then it follows that his Honour did deny the plaintiff procedural fairness by not giving him an opportunity to deal with the issue before his Honour pronounced judgment on it.

Grounds 2, 3 and 7

42 These three grounds are probably most conveniently considered together as they all come under the general submission that his Honour gave primacy to the interests of the Mother rather than to the interests of the Children.

43 So far as it is relevant, section 9 of the Act provides as follows:

“9 What principles are to be applied in the administration of this Act?

The principles to be applied in the administration of this Act are as follows:
(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.
…
(d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.”

44 A review of his Honour’s reasons make good the said submission. In particular, I note that:

(a) In paragraph 11 of his judgment, his Honour outlined the impressions he formed and the conclusions he reached from observing the Mother in the witness box;
(b) in paragraphs 12 and 13, his Honour noted the evidence of Dr Jones who gave favourable evidence of the Mother and of her “constitutional resilience and a strong motivation for a relationship” with the Children;
(c) in paragraphs 15 and 16 his Honour noted, and seemingly accepted, the evidence of Dr Jones and evaluated the psychological and psychiatric presentation of the Mother;
(d) similarly in paragraphs 17 to 22, his Honour gave consideration to the report of Helen Carney, a psychologist who also made an assessment of the Mother;
(e) in paragraph 23, his Honour considered the affidavit of the Foster Mother, but did so negatively, pointing out that the Blue Mountains, where the Foster Mother had to move after her divorce, “is a long way from the Central Coast” where the Mother resided, and simply left up in the air the fact that the Foster Mother did not explain in her affidavit how she supports the Children now that she is divorced;
(f) again in paragraphs 24 to 28, his Honour dealt with various reports relating to the Mother and evaluated her ability to care for the Children. By comparison, in paragraph 29, his Honour paid little heed to the report of Dr Lennings, who had interviews with the foster parents and the Children and had concluded that the Children seemed to have bonded with the foster parents and appeared happy and settled with them. His Honour’s reasons for placing little reliance on what Dr Lennings had said was that according to his Honour, Dr Lennings had not seen much of the material (referring, presumably, to material relating to the Mother) and had not spoken to the Mother and that accordingly much of Dr Lennings’ opinion was one sided and had to be weighed with all the other evidence. Significantly, his Honour appears to have placed little emphasis on Dr Lennings’ acknowledgement of “the risks that existed in changing the placement”;
(g) In paragraph 30, his Honour noted the evidence given by Mr Brown, a psychologist from the Children’s Court Clinic, to the effect that if the Children were restored to the Mother they would test boundaries more than children of their age, that that would be an additional stressor that the Mother would have to deal with, and that the period of separation that had occurred would cause problems in readjustment. However, his Honour sought to minimise the significance of the period of separation of the Mother from the Children by reference to court delays and said that in his opinion it was not a reasonable approach to the determination of the case before him for the plaintiff to argue “that the foster placement has been there for so long now that it should be confirmed merely because of its longevity”; and
(h) Similarly, in paragraphs 32 to 34 of his judgment, his Honour focused on the condition of the Mother, finding that while during 2004 and 2005, the Mother was suffering from a number of problems, her position had changed significantly, and “that she will do her best to avoid falling into the same trap as in the past” and concluded that “she will put the interest of her children at the forefront of her thinking”.

45 While it is true that in the preceding paragraph I have been selective in noting this emphasis in my review of his Honour’s judgment, in my opinion his Honour did place undue emphasis on the needs and condition of the Mother, and less on the interests of the Children. His Honour appeared to see the issue before him as a contest between the Mother and the carer. In paragraph 36 of his judgment, his Honour said:

“As I mentioned above, I find there to be no present reason why the interests of the carer should be preferred over the interests of the [Mother]”.

46 His Honour ultimately found in paragraph 38(d) that the Children were attached both to the Mother and to the Foster Mother and that there was nothing one way or the other on this issue to make it a factor concluding the decision in favour of or against the Mother’s application. He continued in paragraphs 38(e) and 38(f) to say that he was satisfied that either the Mother or the Foster Mother could provide an adequate standard of care for the Children and that he was satisfied that the Children would not suffer any psychological harm if the present care arrangements were varied or rescinded.

47 In my opinion, where his Honour erred in relation to these grounds is that his focus was on the Mother’s needs and on her ability to care for the Children. In doing so, he failed to comply with the provisions of section 9(a) of the Act, which imposed on the Court the overriding obligation to regard the safety, welfare and well-being of the Children as the paramount consideration.

48 The conclusion ultimately reached by his Honour was that both the Mother and the Foster Mother were capable of looking after the safety, welfare and well-being of the Children. In those circumstances, he chose to restore them to the Mother notwithstanding his finding, in paragraph 36 of his judgment, that there was evidence of bonding and attachment to the carer, while he was only in a position to find that he was satisfied that if parental responsibility were transferred to the Mother, then “more likely than not”, appropriate bonding and attachment to her would occur within a short time.

49 I have already set out the provisions of section 9(d) of the Act. Although that sub-section talks in terms of protecting a child from “harm”, the term “harm” is not defined by the Act. However, some indication as to the meaning of the word may be found in section 23 which, albeit for the purposes of different sections of the Act, provides the child is “at risk of harm” if current concerns exist for his or her “safety, welfare or well-being”. The phrase “safety, welfare or well-being” is of course the same phrase as that used in section 90(a) of the Act and accordingly I would construe the meaning of the word “harm” in section 90(d) as including an adverse effect on the safety, welfare and well-being of a child.

50 The plaintiff before me submitted that the effect of section 9(d) was that as his Honour found that both the Mother and the Foster Mother could equally protect the Children from harm, the appropriate course would have been to leave the Children where they were, that action being “the least intrusive intervention in the life” of the Children that was “consistent with the paramount concern to protect the [Children] from harm and promote the [Children’s] development”. It was submitted on behalf of the plaintiff that his Honour had erred in taking the opposite course.

51 By contrast, it was submitted by Ms Reynolds on behalf of the Mother that the least intrusive intervention consistent with the abovementioned paramount concern was to do precisely what his Honour did, namely to return the Children to their natural mother.

52 Ms Reynolds submitted that separation from natural parents caused children to have problems that other children were less likely to have, such as seeing themselves as “different” from other children, and having problems with self image and identity. Ms Reynolds further submitted that upon its true construction section 9(d) was intended to promote children living with their natural parents, rather than with carers.

53 While in an ideal world, it may well be best for a child to be cared for by his or her natural parents, in my opinion, that submission states the role of section 9(d) too broadly. As I see it, section 9(d) is not intended to promote either living with natural parents or living with carers. Absent considerations to the contrary, it promotes stability, absence of change and the maintenance of the status quo.

54 In my opinion, the section is ambulatory. In the case of a care application made under section 60 of the Act, it has the effect of requiring the court to be reluctant to remove a child from its natural parents unless there is a compelling reason to do so. On the other hand, where an application is made not under section 60, but under section 90, for the rescission or variation of a care order, the sub-section has a different effect. In that case, the least intrusive form of intervention would normally mean not interfering with existing care arrangements. Needless to say, the force of the requirement imposed by section 9(d) will vary from case to case, and a court will undoubtedly have regard inter alia to the strength of the respective bonds that a child may have with his or her natural parents and his or her foster carers.

55 In the present case, his Honour failed to apply the principles required to be applied by section 9(d) of the Act, to which section he makes no reference in his judgment, either expressly or by inference. Instead, his Honour appears to have discounted the significance of the length of time during which the Children were in the care of the Foster Mother by attributing part of that period to delays in the court system, stressing that such delays were not the fault of the Mother. That misses the point. It is not a question of fault on the part of the Mother, nor does it matter why the period was as long as it was. What matters (at least in this particular respect) is the length of the period as a fact. Here it was over three years.

56 Accordingly, I find that in determining the appeal before him, his Honour fell into error of law on the face of the record. In the circumstances, I propose to make declarations and orders in accordance with paragraphs 1, 2, 4 and 5 of the Summons (with the exception that in paragraph 5 the reference should be to 4 February 2009, rather than to 4 January 2009). I also propose to make an order in accordance with paragraph 6 of the Summons, remitting the proceedings to the District Court to be heard and determined according to law.

Remittal to whom?

57 There is one further issue that requires determination. It was submitted on behalf of the plaintiff that if the proceedings were to be remitted to the District Court, I should direct that the proceedings should be heard by a Judge other than his Honour Judge Delaney. By contrast, counsel for the Mother submitted that in those circumstances, the proceedings ought to be specifically remitted to his Honour for determination by him. I could of course simply remit the matter to the District Court and leave it to that Court to determine who should hear the matter, but I consider that that would be an abdication of the responsibilities of this Court.

58 There is much to be said of the submissions on behalf of the Mother. Given his Honour’s familiarity with the matter, I would expect that the number of hearing days would be less than if the proceedings had to be determined by a Judge who had no familiarity with the issues. I am more than conscious of the enormous amount of judicial time that this application has already absorbed, to say nothing of the costs undoubtedly incurred by both parties.

59 However, on balance I consider that I should not accede to the Mother’s submissions. Counsel for the plaintiff has drawn my attention to the decision of the Court of Appeal in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208. In that case, Mason P said the following at paragraph [12]:

“[12] The power to direct a hearing by other than the original judicial officer is used sparingly and only when it appears to the appellate court that it is appropriate in the interests of justice (see Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 538[62], 556[123] and authorities there cited). Something more than error, to which all are prone, must be demonstrated. Where the proceedings below have been conducted in such a manner as to give rise to a reasonable apprehension of bias this will usually ground such an order. But the power is not limited to such a situation”.

60 Ipp JA said the following in relation to this matter:

“[141] I have read Mason P’s judgment on this issue and agree with it.

[142] I have also read what Basten JA has written at [239]. It is not an extraordinary occurrence for this Court to order that the case be heard afresh by a different judge. Mason P has referred to examples of cases where this has occurred. Where a judge has made credibility findings and has indicated a preference for a particular witness or witnesses or has failed to accord a party procedural fairness, the proper administration of justice may require the making of such an order. The need to do so will then arise not because of any established or presumed bias on the part of the judge but simply because of the public interest in providing the appearance of impartial justice. Often, the Court will make such an order of its own motion without hearing the parties. This practice recognises that the identity of the judicial officer who is to hear a particular case should not be regarded as a matter that could benefit or prejudice a particular party”.

61 The third member of the Court, namely Basten JA came to a different conclusion on the facts before him, but as a matter of principle, he appears to have taken a similar view. His Honour said:

“[239] Although it is no doubt true that orders as to the constitution of administrative tribunals have often been made in the past, in my view a court should be slow to make such an order, in the absence of circumstances which clearly demonstrate that such an order is appropriate and necessary, in the interests of justice. That reticence should increase in relation to the constitution of a statutory tribunal created as a court of record. Such orders demonstrate a lack of confidence on the part of the Court in the ability of the Tribunal properly to organise its own affairs. Such an approach requires the articulation of sufficient reasons. If the test of the appropriateness of such an order is the need to do justice between the parties, it is also relevant that neither party sought such an order. To make such an order where the significant error on the part of the Tribunal was its failure to accord procedural fairness, is not without irony.”

62 Reference was also made to what Kirby J said in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [123]:

“Seventhly, it was conceded by the Minister (correctly in my view) that it was competent for the Federal Court, in making an order under s 481(1)(b), upon returning a judicially reviewable decision to the Tribunal, to give directions to the effect that the application should be reheard before a differently constituted Tribunal. Such a direction is not uncommon in the exercise of appellate or judicial review jurisdiction where a conclusion is reached that a rehearing by the same decision-maker would be unlawful (where a decision is set aside for reasons of actual or apparent bias) or otherwise undesirable (in the interests of justice). In the exercise of its appellate and review jurisdiction under the Constitution, this Court does not hesitate to so provide” (Emphasis in the original)

63 I was also referred by the plaintiff to the transcript before his Honour Judge Delaney on 4 February 2009, where his Honour was particularly critical of the plaintiff’s conduct of a particular aspect of the proceedings and acquiesced in a suggestion by Counsel for the Mother that the conduct of the plaintiff may have amounted to contempt. My attention was also drawn to a particular passage which appears at page 3 of the transcript of that day where his Honour said:

“ I mean quite frankly in view of what’s occurred here I feel very much inclined to order as and from today that the children be returned to [the Mother] immediately. And, that [the plaintiff] have absolutely have no further connection with this matter whatsoever from today at 4 o’clock”

64 His Honour did order that as and from 4pm the same day the Mother have full care and responsibility in relation to the Children, and that the responsibility be no longer shared between her and the plaintiff. As I have already noted, the transcript of that judgment shows that when the solicitor acting for the plaintiff made a submission to the effect that his Honour could not make the order as proposed by him, his Honour’s reaction was summarily to dismiss the point by saying to the solicitor:

“ I think you’re being too legalistic by far. You may sit down.”

65 In the circumstances, in my opinion it would be appropriate in the interests of justice for this Court to remit the matter to the District Court with a direction that the proceedings be heard afresh by a different Judge. I do not decide that there is any established or presumed bias on the part of his Honour Judge Delaney. However, his Honour’s comments do give rise to a reasonable apprehension of bias and there is a public interest in providing the appearance of impartial justice. In the present case, his Honour’s attitude to the plaintiff was such that in my opinion justice would be better served if a different judicial officer dealt with the proceedings when the same are remitted to the District Court. I do note the submission on behalf of the Mother to the effect that on that particular occasion his Honour was upset with the plaintiff and that it was reasonable for him to do so having regard to the plaintiff’s conduct in the relevant respect. Reasonable or not, the application of a fresh judicial mind is desirable.

66 Accordingly, I make declarations and orders as sought in paragraphs 1, 2, 3, 4, 5 and 6 of the Summons (with the exception that in the order sought in paragraph 5, the reference will be to 4 February 2009, rather than the 4 January 2009) and I direct that the proceedings be heard by a judge other than the judge whose judgment is the subject of the application before me.

67 The plaintiff has not sought, at least expressly, an order for costs, and I have made no such order. It is hoped that given the sad history of this matter this is the result of a conscious decision on his part not to seek such costs. However, I grant leave to the plaintiff to apply for costs, any such application to be made within 7 days.

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