Re Oscar - [2002] NSWSC 453

No judgment structure available for this case.

CITATION: Re Oscar [2002] NSWSC 453

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2517/02

HEARING DATE(S): 17 & 20 May 2002

JUDGMENT DATE: 21 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 by Children's Court for psychiatric examination and assessment - Children's Court Clinic not appointed to carry out examination and assessment - Whether orders within power - Whether Supreme Court can make orders.

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 ss 9(a), 53(1), 58, 71(1), 91, 99, 100 & 247
Children's Court Act 1987 Part 3A, s 15B
Family Law Act 1975 (Cth) ss 67ZC(1), 69ZK(1)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1)
Justices Act 1902 s 132

CASES CITED: B (M) v B (R) (Note) [1968] 1WLR 1182
Director General Department of Community Services v Houdek [1999] NSWSC 1031
Director General, NSW Department of Community Services v Y [1999] NSWSC 644
In re S (Infants) [1967] 1 WLR 396
L v Dalton (1988) 12 FLR 701
Re Jessica [2001] NSWSC 1207
Wilson v McDougall (1987) 11 NSWLR 241
Dickey, Family Law (3rd ed, 1997) 370

DECISION: Orders of Children's Court for psychiatric examination and assessment of child declared invalid. This Court should make orders in lieu.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 21 MAY 2002

2517/02 Re OSCAR

JUDGMENT

1 HIS HONOUR: In these proceedings there are two questions that arise for the consideration of the Court. The first is whether orders made by a Magistrate in the Children's' Court under s 53 of the Children and Young Persons (Care and Protection) Act 1998 ("the Act") are valid. If that is decided in the negative, then a question will arise as to whether this Court ought make an order replacing those orders, simply remit the matter to the magistrate, or follow some other course.

2 The following provisions of the Act are material. Section 53(1) provides:

(a) the physical, psychological, psychiatric or other medical examination of a child or young person, or

(b) the assessment of a child or young person,

or both.”

(a) it is unable or unwilling to prepare the assessment report, or

(b) it is of the opinion that it is more appropriate for the assessment report to be prepared by another person.

"The principles to be applied in the administration of this Act are as follows:

3 The history of the matter is as follows. The child concerned is for anonymity being called in these proceedings "Oscar". Oscar was born on 16 September 1990 and is therefore approaching 12 years of age. Oscar has one relevant sibling, who was born on 5 June 1989 ("the sibling"). Oscar’s parents, a married couple, separated in 1992. Substantially, after that time the children lived with the mother. Orders were made concerning their residence by Mullane J in the Family Court of Australia on 24 December 1997. However, over the years there were considerable problems with both the children and between their parents.

4 On 15 June 2001 the plaintiff made application in respect of each child for a care order under the Act. The application in respect of Oscar was for an order for the transfer "of parental responsibility of the child to the Director General for a period of three years or until a satisfactory assessment of a parents (sic) parenting ability favours the return of the child to one of the parents". The ground on which it was alleged in the application that Oscar is in need of care and protection is that "the child is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which [the child] is living": see s 71(1)(e) of the Act.

5 On 16 November 2001 the Children's Court made orders in respect of Oscar under s 53 of the Act. Those orders included an order or orders under s 53(1) of the Act. Unfortunately, there appear to be two conflicting records of the orders made by the Children's Court on that day. In one document, headed Interim Care Order, the relevant order is recorded as follows:

"That the matter be adjourned to ... 21/11/01 at 10am and the Matter is referred to the Children's Court (sic) for a Psychological Assessment".

specify names

“3 The Children's Court has appointed the Childrens (sic) Court Clinic to prepare and submit the required Assessment Report”

6 The report was in fact undertaken by Dr Glenda Schreiber, the Director of the Children's Court Clinic. Dr Schreiber's title “Dr” is attributable to the fact that she holds a doctorate of philosophy, not to the fact she is a medical practitioner. Her specialist qualification is as a psychologist. She prepared a report purporting to fulfil the Court's orders. In reality her report does not fulfil the Court's orders in so far as they are to be taken as ordering a separate assessment, on the one hand of the child, and, on the other hand of the parenting abilities of the parents. It may well be that that error arose from Dr Schreiber seeing only the Interim Care Order rather than the terms of the actual Assessment Order which I have referred to above. However that may be, it is plain from the terms of her report that, although Dr Schreiber necessarily interviewed the child as well as the parents and other people, she did not carry out what could be regarded as an assessment of the child rather than or in addition to an assessment of the parenting capacities of the mother and the father. It should be added that it would seem that her view on interviewing the child was that there was no indication that a psychiatric assessment of the child was necessary, nor did she feel that a full assessment of the child was necessary. However, it is certainly not clear that Dr Schreiber, being aware of the bipartite terms of the Court's order, deliberately declined or failed to carry out the order in full. Of Dr Schreiber's views it will be necessary to say more hereafter.

7 Dr Schreiber's report was available when the matter again came before the Children's Court on 4 February 2002. It was on that day that the first of the orders impugned in these proceedings was made. On that day by the consent of all parties there was a finding by the Court that the child "is in need of care". That finding was made in terms of s 71(1) of the Act, which requires the Court's satisfaction "that the child or young person is in need of care and protection" before the Court can make orders as to who is to have parental responsibility for the child. The Court adjourned the matter until 16 April 2002 and made, relevantly, the following additional orders:

“1 Parents to undergo assessment as to parenting skills.

2 Child is to be psychiatrically examined by a Child psychiatrist.

...

8 The problem that arises with orders 1 and 2 is that there is no appointment of the Children's Court Clinic to make the assessment. Indeed, there is no appointment of any person at all. The parties thereafter did proceed on the basis that the child psychiatrist was not to be engaged by the Children's Court Clinic. The selection and engagement was in fact made by the child's legal representative in the interval between the making of the order and the appointment by the Attorney General's Department of the guardian ad litem. It is clear from the transcript of the proceedings before the Magistrate on 4 February 2002 that no adversion was made in this regard to the Children's Court Clinic and neither then nor thereafter did the Children's Court Clinic express the view which, by s 58 of the Act, is made a condition precedent to the appointment of any person other than the Children's Court Clinic to make the assessment. It may be an exaggeration to say that the parties, including the present plaintiff, consented to the making of an appointment in this fashion at the time. The truth of the matter is that nobody appears to have given any thought to the requirements of s 58 at the time the order was made or initially acted on.

9 The matter again came before the Children's Court on 16 April 2002, the child psychiatrist’s assessment not being available by that time. On that day the Court made the following further order:

“1 The child is to be psychiatrically examined by child psychiatrist - Dept of Community Services to pay the fee.”

10 It should be said that the child, during all this time, remained in the care of the mother. After the commencement of the application regarding the child in the Children's Court this was by virtue of interim orders of the Children's Court. Quite some time ago, as a result of proceedings commenced on the same day (15 June 2001) in the Children’s Court, the sibling left the mother's care and has since that time resided with the paternal grandmother, with liberal access to the father. The child has visited the sibling on a number of occasions during this period.

11 The present proceedings were commenced by summons issued on 2 May 2002. The plaintiff seeks declarations that the relevant orders of 4 February and 16 April 2002 are contrary to the Act, or contrary to the child's best interests. The Children's Court and all other parties to the Children's Court proceedings were named as defendants in these proceedings. They include the father, the mother, the paternal grandmother, the guardian ad litem, the legal representative and the maternal grandmother. The Children's Court, as is conventional, has submitted to any order except as to costs. All the other parties have to some degree participated in the proceedings before me, in the case of the third and seventh defendants by a solicitor’s letter indicating their attitude. The guardian ad litem consents to the declarations of invalidity, joining in the plaintiff's submissions that the learned Magistrate's orders were without power. The only parties who have contended that the orders were valid are the father and the maternal grandmother, represented by Mr O'Connor, solicitor. He has contended, in effect, that the provisions of s 58 are overridden, or may be overridden in appropriate circumstances, by or under the provisions of s 9(a). It is his submission that the challenged orders made by the Magistrate were in the child's best interests and that that justified the making of the orders whatever the provisions of s 58.

12 With this submission I cannot agree. Whilst s 9(a) requires various bodies, including courts, to treat the interests of the child as the paramount (although not the sole) consideration in coming to the decisions necessary under the Act, that does not mean that it is not necessary that the decisions be come to and the powers conferred exercised within the framework of the Act and within the statutory limitations laid down.

13 The Children's Court Clinic was created in 1998 by amendment of the Children's Court Act 1987 (“the Children's Court Act”) which inserted Part 3A, and in particular s 15B, into the Children's Court Act. Section 15B provides as follows:

“(1) The Attorney General is to establish and maintain, in accordance with the rules, a Children's Court Clinic.

(a) making clinical assessments of children;

(b) submitting reports to courts;

(c) such other functions as may be prescribed by the rules.”

14 In my view, the requirement of s 58 is not overruled by, nor could it be construed as being in conflict with, the paramountcy provision in s 9(a). It is absolute in its terms and must be complied with in the appointment of a person other than the Children's Court Clinic. An appointment without compliance with the provisions of that section is in my view beyond the power of the Children's Court. As I propose to declare the assessment orders invalid, the order made on 16 April 2002 for the Department to pay the costs falls to the ground and there need be no independent consideration of its validity. There has been a deal of debate as to whether the Children's Court, a statutory court which does not have conferred on it by statute a power to award costs, has not an inherent but an implied power to grant costs in certain circumstances: see Wilson v McDougall (1987) 11 NSWLR 241; Director General Department of Community Services v Houdek [1999] NSWSC 1031. However, there is no need for the Court on this occasion to enter that territory.

15 As I have already said, a question now arises as to whether this Court should itself make an order replacing the Magistrate's order, whether the matter should simply be remitted to the Magistrate, or whether some other course should be taken.

16 I should at this stage say something about the Court's power to deal with both the questions raised in these proceedings. There is an appeal from the Children's Court in matters under the Act to the District Court created by s 91 of the Act. It is an appeal by way of a completely new hearing, as is not uncommon in New South Wales in the case of appeals from magistrates to the District Court: see Justices Act 1902 s 132. However, the appeal under s 91 is limited to "an order (other than an interim order)" and, therefore, the present orders cannot be dealt with by the District Court by way of appeal. On the other hand, the Act specifically provides by s 247 that the Act in no way limits the jurisdiction of the Supreme Court. That means that this Court's power to make prerogative orders is undisturbed. It seems to me that the making by the Children’s Court of an order beyond power, being an order which has not been carried out, clearly attracts this Court's jurisdiction to grant prohibition. I imagine it will not be necessary to make a prohibition order in this case, and it will be quite sufficient if the Court declares the orders to have been made without power and therefore invalid.

17 So far as the power to make an order replacing the Magistrate's order is concerned, s 247 makes it equally clear that the jurisdiction of the Court to act as parens patriae in respect of infants is undisturbed by the Act. Whether it is otherwise undisturbed in circumstances such as the present was discussed in detail by Austin J in Director General, NSW Department of Community Services v Y [1999] NSWSC 644. It was also adverted to by me in Re Jessica [2001] NSWSC 1207. There is no need to walk down the convoluted constitutional pathways referred to by Austin J. It may be that when the power to exercise parens patriae jurisdiction was in effect conferred on the Family Court of Australia (see now s 67ZC(1) of the Family Law Act 1975 (Cth) (“the FLA”)), it was at that time rendered exclusive of the exercise of jurisdiction by the Supreme Courts of the States: see generally Dickey, Family Law (3rd ed, 1997) 370. But there is no doubt that that jurisdiction of the Family Court is conferred on this Court by the provisions of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Although that is not the only means by which the parens patriae jurisdiction may still subsist in this Court in the present circumstances (see s 69ZK(1)of the FLA), the conferring of cross-vested jurisdiction leaves no doubt that this Court is invested with the relevant jurisdiction.

18 This Court may in the exercise of parens patriae jurisdiction order the psychiatric examination of a child: L v Dalton (1988) 12 FLR 701. But it will be most reluctant to exercise its jurisdiction in that or any way in relation to matters that are before and for decision by the Children's Court except in exceptional circumstances. It does seem to me that, if there be a case for the psychiatric examination and assessment of Oscar, then what would lead this Court to the unusual exercise of its jurisdiction in that regard is the fact that the matter relating to this child has been going on for so long. On top of the complication and protraction of the care proceedings, the child has now become enmeshed in these supervisory proceedings as to the incidence of the Act. References are made in the evidence to, and it does not really need evidence for the Court to understand, the disadvantages of the protraction of proceedings such as this in respect of a fragile child, particularly a child tugged in different directions over a long period, as the evidence shows that Oscar has been. It is unfortunate that in my judgment the well intended orders of the Children's Court have gone amiss, but as they are contrary to law they must be struck down. It is unfortunate that Oscar's case has been further bedevilled by this legal error, but it is understandable that the plaintiff, who has a duty not only to individual children, but to ensure that the law relating to the care of children generally is duly administered, has thought it necessary to take these proceedings. What this Court can do to minimise the impact of these matters on Oscar is to make an order forthwith, if the order is thought justified, to set the matter back on track and have it back before the Magistrate as soon as possible with the order that his Worship thought necessary. These circumstances are in my view unusual and grave enough to attract the unusual exercise of jurisdiction by this Court.

19 Varying submissions have been put to me as to the desirability of the order. The plaintiff has put the case that it is undesirable that there be any order for psychiatric examination. The solicitor for the father and the paternal grandmother is in favour of a further examination, but says that the matter should go back to the Magistrate to determine that, or that the private psychiatrist selected and engaged by the legal representative should be appointed to continue the work that that doctor commenced. The mother and maternal grandmother support the plaintiff's submission that there should be no further assessment. The guardian ad litem and legal representative ask this Court to make an order for a psychiatric assessment and to appoint the Children's Court Clinic to carry that out. It should be added that the plaintiff submits that if there is to be an assessment it should not be by a psychiatrist but should be by Dr Schreiber. That is, that she should now be engaged to carry out the portion of the originally ordered assessment which she omitted to carry out as discussed above.

20 The case against any further assessment is that Dr Schreiber, a highly skilled psychologist, recorded herself as seeing, on her interviews with the child, no indication that a psychiatric assessment was necessary, together with the fact that this child has over a long period undergone many interviews and assessments, and that it is clear, both as a matter of common sense and a matter of medical expertise that excessive intervention of this sort may be harmful to children. However, it should be added that Dr Schreiber, although of the view that a psychiatric assessment of the child is unnecessary, fairly records that she does not foresee harm to the child from a psychiatric assessment if one were ordered, especially if the need for it is properly explained to the child.

21 There are a number of indications in the material before me in favour of there being an assessment focussed on the child rather than the parents, and that being a psychiatric assessment. One is that the learned Magistrate himself, being the very person charged with the decisions concerning Oscar and who has been engaged in this matter for some considerable time, clearly formed the view that a psychiatric assessment of Oscar may well be of assistance to him in his deliberations. Another is the evidence of Dr Gilandas, who has not seen the child but has surveyed the material, that a psychiatric assessment is indicated. Dr Gilandas is also a specialist psychologist, so there is conflict in the psychological evidence as to whether a psychiatric assessment is necessary or not. Another indication is that there has not been for a couple of years an assessment focussed on the child rather than the parents and a great deal of change has occurred in that time. The mother's behaviour patterns seem to have changed during that period. More importantly, the child, who until comparatively recently expressed dislike of the mother and apparently desired to live elsewhere, now expresses a strong desire to remain with her mother. The evidence suggests that a factor in this change may be the departure of the sibling to live with the paternal grandmother. The evidence also makes it clear that there are substantial indications of sexual molestation of Oscar in the past (not, may it be said for the record, by either of the parents) and that issues arising from that sexual molestation have not been properly resolved or professionally attended to. Furthermore, there have been extreme pressures placed on the child over a long period. It seems to me that it is important to know, in the light of all these circumstances, whether there are any psychiatric issues in relation to the child that need to be attended to in relation to the child’s further management, in addition to which it must be borne in mind that there has been no assessment focussed on the actual child in the last two years. A most important consideration is that it is the view of the guardian ad litem that a psychiatric assessment is desirable. This gentleman has reviewed the material and has had a chance to conduct some interview with the child. The views of the guardian ad litem, unless there is some reason to think they are not well founded, should be accepted by the Court: see In re S (Infants) [1967] 1 WLR 396 per Cross J at 407; B (M) v B (R) (Note) [1968] 1WLR 1182 per Willmer LJ at 1184 - 1185.

22 I therefore propose to ensure that this matter returns to the Magistrate as soon as possible with the assessment which was, I think, rightly required by his Worship. I propose to order that in the exercise of the Court's parens patriae jurisdiction that there be a psychiatric assessment of the child.

23 It is my view that the Children's Court Clinic ought be appointed to carry that out. There was a submission on the part of the father and the paternal grandmother that there has been some unwillingness on the part of the Children's Court Clinic to act. This is said to be evidenced by Dr Schreiber's omission to make an assessment of the child in the report she prepared pursuant to the orders of 16 November 2001, and to a remark made by the present plaintiff's solicitor before the Magistrate on 16 April 2002 attributing some view or attitude to Dr Schreiber. The latter I decline to take into account, as the solicitor who made the remark was not acting upon Dr Schreiber's instructions, and the remark as reported was in any event vague and general. I have already adverted to the circumstances in which it appears to me that Dr Schreiber omitted to make the assessment. In the light of her view that no great harm would come from an assessment it seems to me that she does not have any rooted objection to one and there are no rational grounds for believing that the Children's Court Clinic will not carry out its functions in this regard in a proper and impartial fashion. In any event, the carrying out of the order, as it is an order of this Court, will remain under the supervision of the Court pursuant to liberty to apply which will be granted.

24 It seems to me I should not today make the order for the Children's Court Clinic to be appointed to carry out the assessment. Whilst s 58 does not in terms govern the actions of this Court, it seems to me that the Children's Court Clinic should be approached before an order is made to ascertain that the views of the Clinic are that it is appropriate for the Clinic to carry out the assessment by the appointment of a suitable child psychiatrist, rather than for the assessment to be carried out by some other person. I propose to stand the matter over until tomorrow morning so that orders can be brought in to give effect to my decision and the Children's Court Clinic's view concerning the appropriateness of the appointment may be ascertained.

25 I should add that, because of the peculiarly embattled nature of these proceedings, I should ask the Children's Court Clinic to nominate a child psychiatrist or child psychiatrists who it deems appropriate to carry out the assessment, so that any objection may be raised by any party to the appointment of any particular psychiatrist. I invite the parties to confer among themselves as to any specific provisions concerning the scope or ambit of the assessment to be incorporated in the orders. And I repeat that I propose to grant liberty to apply not only to the parties, but to the Children's Court Clinic and to the psychiatrist nominated so that, if any problem arises in the course of the assessment, application may be made to the Court relating to it. As it is my intention that this matter not be protracted, I require the necessary consultations and inquiries to be made by the parties as a matter of the utmost urgency and I ask that a child psychiatrist be found if at all possible who can carry out the assessment speedily.

26 I should add that, as I have said, this Court is not governed in terms by the Act in exercising its jurisdiction. However, it seems to me desirable, particularly as the assessment is for the purposes of the conduct of proceedings under the Act, that the terms of the Act be followed. I should make it quite plain that the order that I propose to make is to follow the terms of s 53(1) and I propose that there be orders for both the psychiatric examination of the child within paragraph (a) and the assessment the child within paragraph (b) of that subsection. My order will be that the report be forwarded to the Magistrate, since I am ordering it to facilitate proceedings in his Worship's court. However, I do propose to order that a copy of the assessment be lodged with this Court so that this Court may exercise supervision of its orders by ensuring that those orders have been carried out.

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Last Modified: 05/29/2002

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Citations

Re Oscar [2002] NSWSC 453

Most Recent Citation

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CITATION:	Re Oscar [2002] NSWSC 453
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 2517/02
HEARING DATE(S):	17 & 20 May 2002
JUDGMENT DATE:	21 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 by Children's Court for psychiatric examination and assessment - Children's Court Clinic not appointed to carry out examination and assessment - Whether orders within power - Whether Supreme Court can make orders.
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 ss 9(a), 53(1), 58, 71(1), 91, 99, 100 & 247 Children's Court Act 1987 Part 3A, s 15B Family Law Act 1975 (Cth) ss 67ZC(1), 69ZK(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1) Justices Act 1902 s 132
CASES CITED:	B (M) v B (R) (Note) [1968] 1WLR 1182 Director General Department of Community Services v Houdek [1999] NSWSC 1031 Director General, NSW Department of Community Services v Y [1999] NSWSC 644 In re S (Infants) [1967] 1 WLR 396 L v Dalton (1988) 12 FLR 701 Re Jessica [2001] NSWSC 1207 Wilson v McDougall (1987) 11 NSWLR 241 Dickey, Family Law (3rd ed, 1997) 370
DECISION:	Orders of Children's Court for psychiatric examination and assessment of child declared invalid. This Court should make orders in lieu.