Re Oscar
[2002] NSWSC 466
•23 May 2002
CITATION: Re Oscar [2002] NSWSC 466 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 2517/02 HEARING DATE(S): 23 May 2002 JUDGMENT DATE: 23 May 2002 PARTIES :
Director General, NSW Department of Community Services (P)
Children's Court of NSW (D1)
Father (D2)
Mother (D3)
Paternal grandmother (D4)
Guardian ad litem (D5)
Legal representative (D6)
Maternal grandmother (D7)JUDGMENT OF: Hamilton J
COUNSEL : G W Moore (P)
L Phelps (by leave) (D1)
C O'Connor, Solicitor (D2 & 4)
D Patch (D5 & 6)
No appearance (D3 & 7)SOLICITORS: I V Knight (P)
I V Knight (D1)
Thomson Rich O'Connor (D2 & 4)
Liston & Loveband (D5 & 6)
No appearance (D3 & 7)CATCHWORDS: FAMILY LAW AND CHILD WELFARE [160], [161] - Child welfare other than under Family Law Act 1975 (Cth) - Children in care of State - Care and protection applications - Orders for psychiatric examination and assessment in assistance of Children's Court proceedings - Appointment of private child psychiatrist rather than Children's Court Clinic. LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 s 58 CASES CITED: Re Oscar [2002] NSWSC 453 DECISION: Private child psychiatrist appointed to carry out examination and assessment of child. Costs of proceedings determined.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 23 MAY 2002
2517/02 Re OSCAR
JUDGMENT
1 HIS HONOUR: In my judgment delivered on Tuesday 21 May 2002 (Re Oscar [2002] NSWSC 453) I came to the conclusion that this Court should make an order for the psychiatric examination and assessment of Oscar. At that stage I expressed the view that those procedures should be carried out by the Children's Court Clinic, but indicated that I should not make the order until the Children's Court Clinic was consulted. This was because, although this Court, unlike the Children's Court, is not bound by s 58 of the Children and Young Persons (Care and Protection) 1998 Act (“the Act”), I should not wish the Children's Court Clinic to be deprived of the opportunity of expressing a view as to its willingness and as to the appropriateness of it being appointed to carry out an examination and assessment where an order is to be made for use in the Children's Court. I also indicated that I should wish to know whom the Children's Court Clinic would appoint as the child psychiatrist to carry out the examination and assessment in satisfaction of the order, should the Clinic perform those functions, so that the other parties to the proceedings could have an opportunity to comment on their view as to the appointment of that person, particularly bearing in mind the embattled history of this matter.
2 The answer to the inquiry that was made of the Children's Court Clinic was that it would accept appointment under such an order and would nominate as the child psychiatrist a Dr Apler, who was on the small panel it maintains of child psychiatrists for the purposes of carrying out psychiatric examinations and assessments of children under its aegis. It reported that Dr Apler would be able to bring forward a report in six to eight weeks. In view of the delays that have already occurred in this matter, and the paramount importance to be accorded in these proceedings to the child's interests, I was alarmed by this further delay. I have caused inquiries to be made as to the time which Dr Brent Waters, the child psychiatrist originally engaged at the instance of the child's legal representative to carry out the examination under the orders now struck down, would take to examine the child and complete the report upon which he had already embarked. The answer this morning is that Dr Waters would examine the child next week and would be able to present a report to the Magistrate and to this Court by 7 June 2002, only about a fortnight off.
3 In these circumstances, in the interests of the child, I have decided that I should appoint Dr Waters. Objection was taken to the appointment of Dr Apler, and the appointment of Dr Waters was advocated, on behalf of the second and fourth defendants. The objection to Dr Apler, in reality, that he had been appointed by the Children's Court Clinic, and no doubt in effect by Dr Shreiber, the Director, I do not in any way accede to. I have already said that in my view there is no rational ground for regarding Dr Shreiber as biased or realistically having any appearance of bias in the matter. However, as I have said, the consideration of speed leads me to think Dr Waters’ appointment preferable. It is possible for this Court to appoint Dr Waters, as this Court, as I have said on a number of occasions, is not subject to the constraint of s 58 of the Act. The fifth and sixth defendants have not in any way opposed the appointment of Dr Waters. Dr Waters was originally selected by the sixth defendant. The fifth defendant has taken the view that the Children's Court Clinic, or alternatively Dr Waters, could be appointed. The plaintiff has taken the view that it could or would not, if it were appointed, nominate Dr Waters as the child psychiatrist, since its policy is to appoint only persons on its panel. It would not be appropriate for the Court to direct the Children's Court Clinic as to who should be nominated by it. On the other hand, the Director General and, as I understand it, the Children's Court Clinic have very properly conveyed to the Court through the plaintiff's counsel that there is no objection personally to Dr Waters, and have not continued to oppose his appointment by the Court. In view of the difference of the times in which the report can be produced, in the interests of the child I therefore propose to appoint Dr Waters to carry out the examination and assessment.
4 Two questions of costs remain. The first question is who should bear the costs of the examination and assessment by Dr Waters. As Dr Waters is to carry out the examination at a place close to where Oscar lives, the costs of attendance upon Dr Waters are inconsiderable and should simply be left to the parties to bear. Dr Waters’ own costs will be considerable. I do not think that the second and fourth defendants, nor indeed the third and seventh defendants, ought be ordered to bear any part of them. The realistic candidates are the plaintiff and the fifth defendant. Although there are doubts as to the powers of the Children's Court to make costs orders, including orders relating to the costs of the examination and assessment, in my view there are no doubts as to the powers of this Court to make an order. As I propose to order an examination and assessment, the costs of that examination and assessment, it seems to me, are part of the costs of the proceedings, which are within the very general powers of this Court to order costs. Although the summons prayed principally for the striking down of the Children's Court orders, which I have in fact struck down, it asked for further orders. The making of an order for examination and assessment by this Court is an order that falls clearly and naturally, in my view, within the ambit of these proceedings.
5 I was initially proposing to make an order that the plaintiff bear the costs. The necessity for this Court to make an unusual order in regard to this assessment and examination arose from the plaintiff’s feeling, however worthy the feeling may be, that it was necessary for the due administration of the Act for the Magistrate's orders to be impugned. Thus, the derailment of the process that was taking place in the Children's Court was at the instance of the plaintiff, however proper that instance may have been. Mr G W Moore, of counsel for the plaintiff, however, has drawn to my attention that, had the matter proceeded duly in the Children's Court, the costs of the examination and assessment would have fallen upon the Children's Court Clinic, which is within the Attorney General's Department and not within his client's Department. He says that, true it is that in one way or the other, the money would be coming out of the public purse, which as the examination and assessment is for the benefit of this disturbed child is not inappropriate, but in these days of economic rationalism, which pocket within the public purse it is coming out of, is a matter of importance. In this regard, he has pointed out that, had the matter proceeded duly, as I have said, it would have been the Attorney General's Department which would have borne the expense through the Children’s Court Clinic. This indicates that the costs should be ordered against the guardian ad litem. Mr Patch, of counsel for the guardian ad litem, puts to me that, however appointed, his client is a private individual. The costs of his representation are being provided for, but he has no assurance that any public fund will meet any part of the costs of Dr Waters if the guardian ad litem be ordered to pay them.
6 I certainly do not propose to make an order that would impinge upon the guardian ad litem personally. For the Court to make such an order would discourage persons such as the fifth defendant from coming forward in an altruistic spirit of public service to carry out the function which the fifth defendant is carrying out. If an order were to be made today in respect of these costs it would therefore have to be against the plaintiff. The costs must be provided for quickly for Dr Waters to enter upon his task straight away and with assurance that his costs will be met. Mr Moore has asked me for a short adjournment so that an inquiry may be made as to whether the Attorney General’s Department would meet these costs if the fifth defendant were ordered to pay them. I must say that it seems appropriate to me that the Attorney General's Department ought meet those costs if ordered against the fifth defendant.
7 It also does seem to me appropriate that costs should be divided 50/50 between the plaintiff and the fifth defendant since, as I have said, it would be the Attorney General's Department that would have met the whole of the costs of the assessment and examination had they been carried out directly in the first place by the Children's Court Clinic. I therefore propose to grant an adjournment to a convenient day next week to permit an enquiry to be made in that regard. However, if there is no assurance that the Attorney General's Department will meet costs of the examination ordered against the fifth defendant, I shall not order those costs against the fifth defendant. And, in those circumstances, I shall order the whole of Dr Waters’ costs against the plaintiff. It is therefore clear that an order will be made for the costs of Dr Waters’ examination and assessment to be met out of the public purse. The only matter remaining in doubt for the short time until next week being from which pocket, Dr Waters should be able to enter upon his task forthwith assured of the funding of his costs.
8 The costs of the proceedings generally have been debated before me. Quite different considerations apply in regard to these. In particular, there should be no adversion by the Court in determining this question to whether or not the parties are legally aided. As to the costs as between the plaintiff on the one hand and the second and fourth defendants on the other hand, I have come to the conclusion that there ought be no order as to costs. The reasons are as follows. There were two separate issues in contention between the plaintiff on the one hand and the second and fourth defendants on the other hand. The plaintiff impugned the Children's Court orders. The second and fourth defendants sought to have them upheld. Once the orders were struck down, the second and fourth defendants pressed the Court to order a psychiatric examination and assessment of Oscar. The plaintiff resisted this, and was unsuccessful. The issues were discrete. In those circumstances, as I have said, it is my view that there ought be no order as to the costs of the proceedings as between those parties.
9 At one stage I tended to the view that the same ought be the result as between the plaintiff on the one hand and the fifth and sixth defendants on the other hand. However, Mr Patch has forcefully put to me that his clients have in no way been unsuccessful in these proceedings. Although it was their view that an examination and assessment should proceed, they took the view that the orders impugned were legally insupportable and supported the plaintiff in that contention at all times. Once the orders were struck down, however, they as well as the second and fourth defendants contended against the plaintiff's opposition to a further order for examination and assessment, and were successful in their contention. I have come to the conclusion that Mr Patch's submission that in those circumstances the fifth and sixth defendants should have their costs against the plaintiff should be upheld, and I propose so to order.