Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons)
[2013] NSWCA 97
•29 April 2013
Court of Appeal
New South Wales
Case Title: Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) Medium Neutral Citation: [2013] NSWCA 97 Hearing Date(s): 29 April 2013 Decision Date: 29 April 2013 Before: Ward JA at [1] Decision: Dismiss application for interlocutory relief.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: EQUITY - parens patriae jurisdiction - application for injunctive relief to prevent restoration of children (RM and HM) to custody of second defendant Legislation Cited: Children's and Young Persons (Care and Protection) Act 1998
Court Suppression and Non-Disclosure of Orders Act 2010Cases Cited: Director General of the Department of Community Services v Priestley [2004] NSWSC 639
Druett v Director-General of Community Services (2001) NSWCA 126
Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79
Re Felicity v Director-General Family and Community Services (2012) NSWCA 272
Re Liam [2005] NSWSC 75
Re Victoria [2002] NSWSC 647Category: Interlocutory applications Parties: BM (Applicant)
Director-General, Family & Community Services (First Defendant)
MB (Second Defendant)
MS (Third Defendant)
RM (Fourth Defendant)
HM (Fifth Defendant)
ZM (Sixth Defendant)Representation - Counsel: Applicant (self represented)
A J Allen (First Defendant)
Ms Rowley (solicitor) (Second Defendant)
Ms Dart (solicitor) (Third Defendant)
C M Wilson (Fourth to Sixth Defendants & DM, not a party)
Mr Hobb (solicitor) (JM, not a party)File Number(s): CA 13/129799
JUDGMENT (EX TEMPORE) (REVISED)
WARD JA: This is an application that has been referred to me by the Registrar of the Court of Appeal in the referrals list this morning. The application is brought by Ms BM, the mother of the fourth, fifth and sixth named defendants (RM, HM and ZM). (I note that in these reasons I have anonymised the parties and others to whom reference has been made, in order to protect the identity of the children the subject of this application. I also made an order, after delivering these oral reasons pursuant to s 7 of the Court Suppression and Non-Disclosure of Orders Act 2010 (NSW) prohibiting the publication and disclosure of information that might identify the fourth to sixth defendants, on the ground set out in s 8(1)(e) of the Act and directed that the proceedings be titled "Re M (No 4)".
Ms BM filed a Notice of Motion on 26 April 2013 in which she has sought urgent and interim relief in relation to those children. The first defendant named in the Notice of Motion is the Department of Community Services. The second defendant is Mr MB, the father of two of Ms BM's children (RM and HM). The third defendant is Mr MS (the father of ZM, the third of the children that have been named in the application).
There have been appearances for each of the parties other than Ms BM, who is self-represented and who has appeared by way of telephone. There has also been an appearance by a legal practitioner (Mr Hobb) on behalf of another of Ms BM's children (JM), who is not named as a party to the proceedings. (No submissions have been made by Mr Hobb.)
It has been a little complicated to ascertain precisely what Ms BM's present application is (and I say that without any criticism of Ms BM who is self-represented) and so it is necessary to outline the background to the current application.
In summary, in November 2011 all five of Ms BM's children were removed from Ms BM's care and control and placed in temporary foster care. The children range in age currently from fifteen years down to two years. The three who are joined as parties to the present proceedings are aged five, four and two years, respectively. The two eldest children (DM and JM) have lived with their father in Perth since June 2012. The middle two children (RM and HM) are presently in foster care at Cootamundra. The youngest child (ZM) has been in his father's care, in Junee, since 21 December 2011. (I add that a finding was made by the Children's Court at Wagga Wagga on 12 December 2011, by consent and without admission, that all 5 children were in need of care.)
Sole parental responsibility of ZM was awarded to Mr MS (ZM's father) by orders of the Children's Court (made in December 2012) and confirmed in the District Court (in April 2013). The District Court orders were made accepting certain undertakings by Mr MS (including not permitting unsupervised contact by Ms BM with ZM) and there was an order made pursuant to s 90A of the Children's and Young Persons (Care and Protection) Act 1998 (NSW), prohibiting Mr MS from, amongst other things, permitting Ms BM to stay overnight or live in any premises occupied by Mr MS and ZM at any time until ZM attains the age of eighteen years. (I add that at the same time all aspects of parental responsibility for RM and HM were allocated by the District Court solely to Mr MB, to the exclusion of Ms BM, until each child attained the age of eighteen years.)
The Children's Court had heard the matter over three or four days in late 2012 and in December 2012 final orders were made by Magistrate Sbrizzi in the Children's Court placing the children in the care of their respective fathers. There were restrictions made on contact arrangements in relation to the mother. Ms BM then appealed that decision and there was a nine day hearing before Olsson DCJ in the District Court. Judge Olsson dismissed the appeal. I have been provided with a copy of Olsson DCJ's reasons.
The District Court appeal was brought pursuant to s 91 of the Children and Young Persons (Care and Protection) Act1998. In that proceeding, Ms BM sought to appeal both the finding that the children removed from her care were in need of care and protection and also the finding that there was no realistic possibility of restoration of any of the children to her care.
Judge Olsson considered the evidence that was put before her. Her Honour formed an adverse view as to the credit of Ms BM and, in particular, formed the view that various of the assertions that had been made by Ms BM in relation to Mr MB had been tainted by prejudice and ignorance. Her Honour noted in relation to other allegations had been made regarding Mr MB (relating to use of pornography) that Mr MB had not been convicted or charged with any offence and that the police, having been notified of Ms BM's complaint, had not taken any action against him.
Judge Olsson formed the view that, as of 30 November 2011, the children were in need of care and protection. Her Honour was satisfied that although the majority of the evidence in the relevant period pertained to the older children, the finding ought to be made in respect of the younger children as well for the reasons that were set out in her judgment. Her Honour considered that there was not a realistic possibility of restoration to the mother. Her Honour considered the issue (which is one of the concerns Ms BM has expressed on her application this morning) as to the geographical separation of the various siblings from each other as a necessary consequence of the allocation of parental responsibility to their respective fathers (but was of the view that all interests were best served by the making of the orders).
As to that issue, I note that some of the half-siblings are already geographically separated but it is accepted that if Mr MB exercises his parental custodial responsibilities in relation to the middle children the position will then be that those children will reside in Adelaide; that the youngest child will continue to reside with his father in Junee and that the oldest two will reside with their father in Perth. Certain undertakings were given by Mr MB at the time of the District Court orders in relation to maintenance of contact between the siblings and the Court there noted the intention of the children's respective fathers regularly to communicate with each other for the purpose of arranging and facilitating regular contact between the children.
Prior to the hearing before Judge Olsson there was an application by Ms BM for relief in this Court in the parens patriae jurisdiction in July 2012. In December 2012, White J made orders to the effect that any order by the registrar placing RM and HM with their father should be stayed pending the hearing of Ms BM's District Court appeal. That was a self-discharging order in the sense that once the appeal was dismissed there was no further stay on any order placing RM and HM with their father.
Judge Olsson in her reasons for judgment made reference to allegations having been made before White J by Ms BM in order to secure a stay of proceedings that were "entirely unfounded and untrue" and known by Ms BM to be untrue "and yet matters that she was prepared to perpetuate". Her Honour considered that that reflected very poorly on Ms BM's credit. I refer there to what was said at p 18 of her Honour's reasons. (I should also add that there was also an application before Slattery J for injunctive relief in relation to overnight contact between Mr MB and RM and HM, to which Judge Olsson referred in her reasons.)
The matter came before Rein J in the Equity Division last Friday (26 April 2013). In her Notice of Motion, Ms BM sought a series of orders: an urgent stay of all previous proceedings in relation to RM and HM pending determination of an appeal to the Court of Appeal; interim orders to restore RM and HM into her care (accepting any undertakings deemed necessary by the Court of Appeal); final orders that RM and HM be restored into her care (accepting any undertakings deemed necessary by the Supreme Court); interim orders for ZM to have a minimum of five hours of contact per week with Ms BM under the terms and conditions that Mr MS should allow and to the exclusion of the Director General; and both interim and final orders for Ms BM and Mr MS to have equal shared care responsibility for ZM.
When the matter came before Rein J on an interlocutory basis in the duty list last week, his Honour noted that the Children and Young Persons (Care and Protection) Act 1998 does not provide for an appeal from the District Court to the Supreme Court in matters of this kind and that it has long been recognised that the protective role of the Supreme Court in relation to children is exercised only in the very restrictive circumstances in the Court's parens patriae or wardship jurisdiction. Reference was made by his Honour (and I have been taken today) to the decision of this Court in Druett v Director-General of Community Services (2001) NSWCA 126 where Hodgson JA (with whom Giles and Ipp JJA agreed), noted that no appeal to this Court lies from a decision of the District Court (on an appeal brought under s 81 of the predecessor legislation to the 1998 Act) but that this would not prevent the Supreme Court making an order in the nature of certiorari.
There, his Honour noted (at [16]) that the remedy of certiorari is available on narrower grounds, and is more difficult to obtain, than a remedy of appeal and that the remedy could be granted only if it were shown that there was either a lack of jurisdiction in the District Court or a denial of natural justice or an error of law on the face of the record (and that the only relief that could be given by certiorari would be the quashing of the District Court decision, leaving standing the Magistrate's decision, such that there would need then to be a further District Court hearing in those circumstances if the Magistrate's decision were still to be the subject of challenge).
Rein J noted that the relief sought by Ms BM was in the Court's parens patriae jurisdiction and in the nature of certiorari. His Honour set out in his reasons various complaints that had been made by Ms BM as to the conduct of the proceedings in the District Court and matters going to the exceptional circumstances that Ms BM sought to establish for the exercise of the parens patriae jurisdiction.
His Honour was not satisfied that exceptional circumstances had been established. His Honour proceeded on the basis that there was power for a judge in a division of the Supreme Court to hear and determine an application for prerogative relief in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 and appears not to have been of the view that any such application was made out or was likely to be made out.
It is not apparent on the material that has been filed on 26 April 2013 (that being the same in substance, as I understand it, as was before Rein J) whether what is now sought to be brought before this Court is an appeal from the refusal by Rein J to make orders in the parens patriae jurisdiction of the Court or whether what is sought, having regard to the assertions as to errors or lack of procedural fairness and the like, is relief by way of judicial review of the decision of the District Court seeking relief in the nature of certiorari of the kind to which I have already referred.
If what is being sought to be done is to appeal from the decision of Rein J then an application for leave to appeal would need to be made and in the absence of leave being granted the appeal would not be competent. Reference was made by Mr Allen appearing for the Director-General of the Department to the decision in Re Felicity v Director-General Family and Community Services (2012) NSWCA 272. There, in circumstances where leave to appeal had neither been granted nor sought, Barrett JA considered that the application should be struck out.
Ms BM does not appear (from what she has said to me) to be seeking to appeal from Rein J's decision. Rather what she appears to be seeking that there be an exercise by this Court of the parens patriae jurisdiction on an interlocutory basis to restrain RM and HM from being restored to their father's parental care and custody. (Insofar as the Notice of Motion also seeks interim relief in respect of an amendment to the contact conditions or arrangements for contact between Ms BM and ZM, or his restoration to her care, it is not apparent to me that there is any jurisdiction in this Court to make such orders. Those orders do not seem to me to fall within the orders that might be made in the parens patriae jurisdiction of this Court.)
In exercising the parens patriae jurisdiction there are various cases (such as Re Victoria [2002] NSWSC 647, to which Rein J referred, Re Liam [2005] NSWSC 75, Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79), which make it clear that exceptional circumstances are required for this Court to interfere with orders that have been made by judicial officers exercising specialist jurisdiction such as those in the Children's Court.
(As I indicated during my oral reasons I would do, I note the above cases as making clear that the Court will not interfere with a considered order made within a specialist jurisdiction by another judicial officer 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. In Re Victoria, Palmer J noted the statutory scheme establishing a specialist court in relation to Children's Court matters and that parties should be discouraged from bypassing the statutory appeal mechanism and exploiting the Court parens patriae jurisdiction. See also what was said in Director General of the Department ofCommunity Services v Priestley [2004] NSWSC 639 by Young CJ in Eq as his Honour then was, that it is inappropriate in almost all cases for the Supreme Court to be asked to deal with a matter in the parens patriae jurisdiction when the only errors alleged against a specialist Magistrate in a specialised jurisdiction were that he, or she, in the exercise of discretion failed to give due weight to a number of factual circumstances, or disproportionate weight to others, or where there is an error of fact that did not go to the fundamentals of the case.)
Ms BM bases her claim for interim relief effectively on two matters. First, her concerns as to the safety for her middle children and, second, her concerns as to the effect of the separation of those children from their younger sibling, ZM (which will, as I say, be inevitable if the middle children are removed from their current foster care arrangements and placed with their father who, as I understand it, resides in Adelaide). Ms BM has referred to matters that were before Rein J and in material that I understand was placed before the Court when the matter came before White J in December 2012.
As to the first, the concerns that Ms BM raise relate to what I understand to be a diagnosed bipolar condition of Mr MB and as to allegations of inappropriate sexual conduct or other inappropriate behaviour by Mr MB. The allegations of inappropriate conduct, as I understand it, relate to allegations of the children sleeping naked in the same bed as their father and as to their father permitting those children or his older children to review pornographic material. As I have said, those assertions were found by Olsson DCJ either to be unfounded or (in the case of the bipolar condition) based on prejudice and ignorance.
I am not satisfied that there is any material before me that warrants the conclusion that the children will be in danger if they are to be restored to the care of their father. I note that a number of judicial officers have now considered allegations and assertions of that kind in the proceedings before them. There have been two hearings in relation to the matter, first before the Children's Court and then the District Court, in which allegations of that kind have been raised and those have not been accepted as established by the judicial officers hearing those matters.
As to the effect of separation on the children it is noted by the legal practitioner appearing for ZM that ZM has been separated from ZM's siblings (or half-siblings) since November 2011 and that, while the removal of RM and HM to their father's care will separate them from the ability to have regular contact with ZM, the converse would be that RM and HM would be separated from the children that are already in the care of their father in the household in which RM and HM will be placed if effect is given to the care orders.
Insofar as this is an application for interlocutory interim relief in the parens patriae jurisdiction I am not satisfied that Ms BM has established a basis on which this Court should intervene (on an interlocutory basis) to prevent the restoration of RM and HM to their father's care.
I note that Mr Wilson, Counsel appearing for each of RM, HM and ZM has pointed out that the Independent Children's Solicitor appointed both in the course of the Children's Court proceedings and the District Court proceedings has recommended that the children should live with their respective fathers and has formed the view that that would be in their best interests. The Department of Community Services, which no longer has parental custody or responsibility for these children, is, as I understand it, of the same view.
I am therefore dismissing the application for interim relief to restrain the restoration of RM and HM to their father's care. (As already noted, interim relief of the kind that is sought in the Notice of Motion for restoration of those children into the care of their mother, or for amendment to the contact conditions for ZM, is not relief that would in my view fall within the scope of the parens patriae jurisdiction in the circumstances. It would be tantamount to an appeal from the orders made by the District Court on the appeal brought from the magistrate's decision and no appeal lies to this Court in that regard.)
Insofar as Ms BM may seek, or be advised to seek, judicial review of the decision made in the District Court on the basis of denial of natural justice or procedural fairness (being matters of the kind which Ms BM has raised in her affidavit), it seems to me that Ms BM should seek legal advice in order to ascertain what avenue for relief she may have and to constitute any proceedings seeking such relief properly. At the moment the summons does not appear to me to do so. The summons appears to be seeking reviews of errors in due process by the Department of Community Services and makes allegations of failure to comply with laws or errors of law or lack of procedural fairness by the Department of Community Services of a kind that suggests that what is being sought is judicial review of administrative decisions made by the Department, and would be dealt with in a different kind of application from an application for judicial review of the District Court's decision dismissing Ms BM's appeal from the magistrate's decision or any application for leave to appeal from Rein J's refusal to make orders in the parens patriae jurisdiction.
Ms BM has indicated that she wishes to obtain legal advice and legal representation and I have indicated to Ms BM that there are associations that may be in a position to provide pro bono assistance to her and that she may also be in a position to make an application for referral by the Registrar for pro bono referral as provided for in the Uniform Civil Procedure Rules but no such application is before me on the present occasion. Referred to me on this occasion is simply what I understand to be the application for interim urgent relief, which I have dismissed. In the circumstances I think the appropriate course would be to refer the matter back for directions in the Registrar's list.
Orders
The following orders were made in accordance with the above reasons:
1.Dismiss the application by BM for interlocutory orders to restrain RM and HM being restored into the care of their father or the exercise by the second defendant of his parental custodial rights as ordered by the District Court.
2.Direct that the proceedings be listed before the Registrar in Court of Appeal for directions in two weeks.
3.Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that there be no publication or disclosure of information tending to reveal the identity of the fourth-sixth defendants and that the proceedings be titled "Re M (No.4) - BM v Director-General, Department of Family and Community Services & ors", on the grounds set out in s 8(1)(e) of the Act.
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