Re M; Application of YA

[2014] NSWSC 1736

Supreme Court

New South Wales

Medium Neutral Citation:	Re M; Application of YA [2014] NSWSC 1736
Hearing dates:	3 December 2014
Decision date:	03 December 2014
Jurisdiction:	Equity Division - Protective List
Before:	Lindsay J
Decision:	Summons dismissed
Catchwords:	FAMILY LAW AND CHILD WELFARE - Appeals - Procedure - Extension of time - Appeal from Children's Court orders relating to parental responsibility of young person - No adequate explanation for delay - Safety, welfare and wellbeing of young person paramount - Not in interests of young person to grant extension of time - Proceedings dismissed.
Legislation Cited:	Children's Court Act 1987 Children's Court Regulation 2009 NSW Children and Young Persons (Care and Protection) Act 1998 NSW Uniform Civil Procedure Rules 2005 NSW
Cases Cited:	-
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: Carer of the Young Person, M First Defendant: Secretary, Family and Community Services Second Defendant: Birth Mother of M Third Defendant: M, by her guardian ad litem, BR
Representation:	Counsel: Plaintiff: in person First Defendant: M Neville Second Defendant: K Stanford (solicitor) Third Defendant: T Allen Solicitors: First Defendant: The Crown Solicitors Office Second Defendant: Stanford Solicitors & Conveyancers Third Defendant: Rowley & Associates
File Number(s):	2014/00212307

Judgment - EX TEMPORE

1. Before the Court is an application (made by a summons filed on 5 November 2014) for an extension of time within which the plaintiff may appeal from orders made by the Children's Court of New South Wales (constituted by the President of that Court) on 12 September 2014.

1. The principal order of the Children's Court under appeal is an order that "all aspects of parental responsibility [for the young person, "M"] are allocated to the Minister".

1. An appeal, commenced within time, is ostensibly an appeal that the plaintiff would have "as of right" under s 91 of the Children and Young Persons (Care and Protection) Act 1998 NSW ("the Care Act"), read with ancillary legislation.

1. An appeal under s 91 of the Care Act does not require an appellant to demonstrate error in the reasoning of the decision maker whose decision is under challenge or in processes leading to the decision under challenge.

1. The principal order sought by the plaintiff, should she be granted an extension of time within which to appeal, is an order that, in lieu of the principal order made by the Children's Court, there be an order that the young person the subject of the proceedings (M) be placed in the parental responsibility of the plaintiff to the age of 18 years.

1. The plaintiff's application for an order that she be granted an extension of time within which to appeal is made pursuant to r 50.3(1)(c) of the Uniform Civil Procedure Rules 2005 NSW, read with s 91 of the Care Act; s 22A of the Children's Court Act 1987 NSW; and cl 5 of the Children's Court Regulation 2009 NSW. Such an order lies within the discretion of the Court. It is not available as of right.

1. Because the decision under challenge is that of the President of the Children's Court an appeal under s 91 of the Care Act is, notwithstanding the terms of s 91, to the Supreme Court rather than to the District Court: Children's Court Act 1987 NSW, s 22A

1. The plaintiff's proceedings in this Court, under s 91 of the Care Act, are twenty-six days out of time. In the abstract, that is not a long time. In the absence of material prejudice to a party to the proceedings, or a party affected by them, an order granting an extension of time of this dimension might routinely be made. However, the facts of the case counsel caution against too ready a grant of any extension. There is evidence before the Court that suggests that the interests of M militate against a grant of an extension of time.

1. The plaintiff is, or at least has been, a carer of M. She is self-represented, passionate and emphatic in presentation of her case.

1. M was born in 1998 and is now aged about 16 and a half years.

1. The plaintiff's contradictors are the Secretary, Department of Family and Community Services (the first defendant); M's birth mother (the second defendant); and M herself, represented by a guardian ad litem appointed by the Children's Court on 4 April 2014 (the third defendant).

1. The first defendant's formal position is that the first defendant neither supports nor opposes the plaintiff's application for an extension of time. The second defendant takes a similar position and, in doing so, adopts the first defendant's submissions.

1. Although the first defendant neither supports nor opposes an extension of time, it is not irrelevant to note that, should the proceedings be the subject of a grant of an extension of time, the first defendant will strongly oppose the plaintiff's appeal on the merits.

1. In the Children's Court the second defendant ultimately supported the first defendant's successful contention that all parental responsibility should be allocated to the Minister even though, earlier in the proceedings, she had sought restoration of M to her.

1. The third defendant, as represented by her guardian ad litem, forthrightly opposes the plaintiff's application for an extension of time within which to appeal, and foreshadows opposition to any appeal should an extension of time be granted.

1. This is not a case in which the Court can be confident of any personal expression of views by M. The parties before the Court accept, as common ground, that M currently lacks the mental capacity to make important decisions about her welfare, and that she has a continuing tendency towards self-harm and suicide. She is plainly a disturbed young lady in need of protection.

1. In his reasons for judgment the President of the Children's Court remarked upon the importance to M's welfare of all proceedings relating to her being determined expeditiously as their pendency had had an adverse impact on her well-being.

1. The proceedings in the Children's Court occupied eighteen hearing days. If the plaintiff were granted leave to appeal to this Court out of time, the prospects for a short hearing of the appeal might be thought slim. However, it is not presently possible to form a clear view about how much hearing time would be required.

1. During the course of today's hearing the plaintiff expressly abandoned an earlier foreshadowed application for assessment orders under ss 53 and 54 of the Care Act. Nevertheless, in the nature of the case sought to be advanced by her, a considerable amount of time would be likely to be required in analysis of evidence adduced before the Children's Court and in the receipt of fresh evidence.

1. An appeal under s 91 of the Care Act is an appeal by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which an order under appeal was made, may be given on appeal. The Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings.

1. The Court, in this case at least, could not confidently proceed on the basis that the evidence on the hearing of the s 91 appeal would be limited to the Children's Court transcript and exhibits. That is because, apart from anything else, the case sought to be advanced by the plaintiff focuses upon events of recent origin which are said by her to constitute a change of circumstances since the date of the judgment under appeal.

1. The Care Act requires that, in any action or decision concerning a particular child or young person, the Act is to be administered on the basis that the safety, welfare and well-being of the child or young person are paramount: s 9(1).

1. The objects of the Care Act include, as a principal object, the provision to children and young persons of such care and protection as is necessary for their safety, welfare and well-being having regard to the capacity of their parents or other persons responsible for them: s 8(a).

1. The Act also requires that all matters before the Children's Court are to proceed as expeditiously as possible, in order to minimise the effect of the proceedings on the child or young person and his or her family the subject of the proceedings, and to finalise decisions concerning the long term placement of the child or young person: s 94(1).

1. There is no dispute between the parties to these proceedings that, if the plaintiff were permitted to appeal to this Court out of time, the appeal proceedings would need to be, and should be, conducted expeditiously in order to minimise the effect of the proceedings on M, in particular.

1. Although other parties to the proceedings accept that, had she filed her summons within time, the plaintiff would have had an appeal as of right, it is accepted, all round, that an exercise of discretion on the part of the Court is required given that the summons was filed out of time.

1. Upon a consideration of what should be the proper order, bearing in mind the discretionary nature of the Court's jurisdiction on an application for an extension of time, it is important to bear in mind the statutory framework (of the Care Act) within which a decision must be made. Of particular importance is the need to place the safety, welfare and well-being of M to the fore.

1. The plaintiff's appeal, or more accurately prospective appeal, has not been pursued with consistent diligence. Prior to filing her summons on 5 November 2014 she invoked the inherent jurisdiction of the Court in an attempt to challenge interlocutory steps taken in the Children's Court, and ancillary decision making of the first defendant.

1. That earlier phase of the proceedings came to an end at about the same time as the current phase, commenced by the plaintiff's filing of her summons on 5 November 2014.

1. The plaintiff seeks to explain her delay in filing the summons by reference to delay in her receipt of the written reasons for judgment of the President of the Children's Court. However, she was personally present in his Honour's Court when he delivered oral reasons for judgment on 12 September 2014, in the course of which he expressly adopted the substance of written submissions made to him on behalf of the present first defendant. The plaintiff was contemporaneously aware, if she needed to be specifically aware, of the nature of the findings made by the President. She was also aware, I am sure, that section 91 of the Care Act provides for an appeal by way of a new hearing rather than an appeal based upon proof of error affecting the decision under appeal.

1. On 17 September 2014 the plaintiff sent an email to representatives of other parties involved in these proceedings in which she recorded, apparently with formal intent, that she did not "propose to continue with any further litigation, including the Supreme Court matter". On 7 October 2014 a registrar recorded that the plaintiff did not intend to continue with the litigation. A statement to similar effect may have been made on another occasion.

1. The plaintiff explains statements of this nature by saying that they related to the first phase of her Supreme Court proceedings, not the current one. That is a possible, but strained, interpretation. At the very least, it seems to me, the plaintiff has vacillated from time to time in her resolve to engage the first defendant (in particular) in litigation concerning arrangements for care of M.

1. What the record shows, at least, is that the plaintiff was, from an early stage, aware of the availability of an appeal to the Supreme Court and the need for expedition in any decision making about an appeal.

1. I am not satisfied that the plaintiff's delay in seeking to appeal has been adequately explained.

1. Given the nature of the section 91 appeal, it is not necessary, or even helpful in a case such as the present one, to analyse the reasons or processes of the Children's Court upon a consideration of whether the plaintiff has an arguable case.

1. A greater question, it seems to me, is one which focuses upon the safety, welfare and well-being of M as the person whose interests are most directly affected by these proceedings and for whose protection such proceedings can be contemplated.

1. I am satisfied, on the evidence that has been adduced and having had the benefit of full submissions, that it would not be in the best interests of M to allow these proceedings to continue in the light of the history they have had to date. The evidence points to substantial trauma and distress experienced by M in her subjection to litigation and in her subjection, also, to formal processes of assessment.

1. The particular decision I am called upon to make is whether there should be, upon an exercise of the Court's discretion, an extension of time within which the plaintiff might be permitted to appeal against the order made by the Children's Court for the allocation of parental responsibility for M to the Minister.

1. Having regard to the course of the proceedings, and more especially to the particular circumstances of the young person, I am satisfied that the proper order is that the application for an extension of time within which the plaintiff might appeal be dismissed.

1. Section 90 from the Care Act provides, subject to safeguards, an avenue within which the plaintiff might make a fresh application to the Children's Court for the rescission or variation of the order sought to be challenged in these proceedings.

1. The plaintiff is not without a remedy, if it be correct to characterise her (rather than M) as a person in need of a remedy.

1. The form of order made by the Children's Court, allocating parental responsibility for M to the Minister, is also consistent with the plaintiff having an opportunity to make representations to the Minister about ongoing care of M.

1. I take into account, also, that the Children's Court order under present challenge has only a limited time for operation, given that it will cease to have effect when M attains the age of 18 years.

1. A grant of an extension of time within which the plaintiff might appeal the decision of the Children's Court would be likely, on the evidence that has been adduced in this Court, to cause problems of a fundamental kind for M in terms of her life management. The fact that all the parties to these proceedings accept that she presently lacks mental capacity to make important decisions about her welfare, and that she is prone to self-harm and suicidal conduct, is a significant factor, allowing disputes about particular historical facts that might be the subject of litigation to be put to one side.

1. For the reasons I have articulated, I am not only not satisfied that a case has been made out for the grant of an extension of time within which to appeal, but I am satisfied, affirmatively, that it would not be in the best interests of M to grant an extension of time.

1. Accordingly, I order that the plaintiff's summons be dismissed.

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Decision last updated: 08 December 2014