Re Sally

[2011] NSWSC 1696

Supreme Court

New South Wales

Medium Neutral Citation:

Re Sally [2011] NSWSC 1696

Hearing dates:

27 September 2011

Decision date:

27 September 2011

Jurisdiction:

Equity Division

Before:

Slattery J

Decision:

The child should be represented by a Direct Leal Representative.

Catchwords:

FAMILY AND CHILD WELFARE - orders in relation to the child previously made in the parens patriae jurisdiction of the Court - child turning eighteen soon - legal representative of the child seeks clarification of his role - role of a Direct Legal Representative or an Independent Legal Representative under the Children and Young Persons (Care and Protection) Act 1998, s 99D considered - role of the Independent Children's lawyer under Family Law Act 1975 discussed - neither of the statutory models binding on the Court in the exercise of its inherent parens patriae jurisdiction but the models useful as a template for the Court's decision - whether the child is capable of giving instruction to her representative - whether the child's access to some of the medical reports should be restricted in her best interests.

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998, ss 98, 99, 99D
Children's Court Act 1987, s 22A
Family Law Act 1975 (Cth), s 68LA
Family Law Amendment Shared Parental Responsibility Act 2006 (Cth)

Cases Cited:

Deputy Commissioner of Taxation v P [1987] 11 NSWLR 200
Director General, Department of Community Services, Re Jules (2008) 40 Fam LR 122
Director General, Department of Community Services v Thomas [2009] NSWSC 1490
Director General, New South Wales Department of Community Services (NSW) v Y [1999] NSWSC 644
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Marriage of Bennett (1990) 14 Fam LR 397
Re Campbell [2011] NSWSC 761
Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218

Category:

Interlocutory applications

Parties:

Applicant:- Director-General, Department of Family and Community Services and Minister for Family and Community Services

Respondent:- Child ("Sally")

Representation:

Counsel:
Director-General, Department of Family and Community Services and Minister for Family and Community Services:- G Moore

Child:- Mr Sperling
Solicitors:
Director-General, Department of Family and Community Services and Minister for Family and Community Services:- Kerri Phillips, Crown Solicitors

Child:- Lisa Robinson, Legal Aid NSW

File Number(s):

289331/09

Publication restriction:

Publication restricted in accordance with Order 4 made on 23 June 2009.

Judgment

1. An issue has arisen in these proceedings as to the precise nature of Sally's legal representation. Mr Sperling has represented Sally's interests since the time orders were first made in the proceedings. But as Sally now approaches her eighteenth birthday and as plans are being made for Sally's transition out of Sherwood House the nature of Sally's legal representation comes into closer focus. Mr Sperling seeks clarification as to whether his role is in the nature of that of a Direct Legal Representative or an Independent Legal Representative, roles that are respectively provided for under the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act"), s 99D. It is desirable that Mr Sperling's role be clarified because of the different duties and responsibilities of these two roles. This judgment gives directions about the nature of Sally's representation.

The Statutory Background

1. The distinction between a Direct Legal Representative and an Independent Legal Representative is one that the Care Act, s 99D makes for the purposes of proceedings before the Children's Court. These forms of representation created under the Care Act do not have direct application to cases heard by this Court in its parens patriae jurisdiction. Nevertheless, the statutory distinction has been applied in this Court by analogy with the statutory provisions under the 1987 predecessor to the Care Act: see for example Director General, New South Wales Department of Community Services (NSW) v Y [1999] NSWSC 644 at [2], Austin J.

1. Care Act, s 98, 99 and 99D provide the statutory provisions of immediate relevance. Care Act, s 98 provides for the child's legal representation in Children's Court proceedings relevantly in the following terms:-

"(1) In any proceedings with respect to a child or young person:

(a) the child or young person and each person having parental responsibility for the child or young person, and

(b) the Director-General, and

(c) the Minister,

may appear in person or be legally represented or, by leave of the Children's Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

(2) However, if the Children's Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A) If the Children's Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children's Court is to appoint a guardian ad litem for the person under section 100 or 101 (as the case may require).

(3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children's Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children's Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings."

1. Care Act, s 99 provides that the Children's Court may appoint a legal representative for a child, it appears to the Children's Court the child needs to be represented in any proceedings before it. But Care Act, s 99 provides for a legal representative who has not been appointed by the Children's Court to appear only by leave which may be withdrawn. The provision is as follows:-

"(1) The Children's Court may appoint a legal representative to act for a child or young person if it appears to the Children's Court that the child or young person needs to be represented in any proceedings before it.

(2) A legal representative for a child or young person who has not been appointed by the Children's Court may appear only with its leave.

(3) The Children's Court may withdraw its leave at any time and for any reason (including the child or young person informing the Children's Court that he or she does not wish to be represented by the legal representative)."

1. Care Act, ss 99A to 99C are not of immediate relevance but are dealt with later in these reasons. The distinction between a Direct Legal Representative or an Independent Legal Representative is defined in s 99D, which provides:-

"Without limiting the role of a legal representative for a child or young person in proceedings before the Children's Court:

(a) the role of a direct legal representative includes the following:

(i) ensuring that the views of the child or young person are placed before the Children's Court,

(ii) ensuring that all relevant evidence is adduced and, where necessary, tested,

(iii) acting on the instructions of the child or young person, and

(b) the role of an independent legal representative includes the following:

(i) if a guardian ad litem has been appointed for the child or young person-acting on the instructions of the guardian ad litem,

(ii) interviewing the child or young person after becoming the independent legal representative,

(iii) explaining to the child or young person the role of an independent legal representative,

(iv) presenting direct evidence to the Children's Court about the child or young person and matters relevant to his or her safety, welfare and well-being,

(v) presenting evidence of the child's or young person's wishes (and in doing so the independent legal representative is not bound by the child's or young person's instructions),

(vi) ensuring that all relevant evidence is adduced and, where necessary, tested,

(vii) cross-examining the parties and their witnesses,

(viii) making applications and submissions to the Children's Court for orders (whether final or interim) considered appropriate in the interests of the child or young person,

(ix) lodging an appeal against an order of the Children's Court if considered appropriate."

1. Based upon Austin J's decision in Director General, New South Wales Department of Community Services (NSW) v Y [1999] NSWSC 644, a practice has developed in Supreme Court proceedings where the Court is exercising non Care Act jurisdiction, such as its parens patriae jurisdiction, that the children the subject of these proceedings have been represented by analogy to the way they would have been represented in Children's Court proceedings. The Care Act makes no reference to the status of the representative of the child in proceedings before the Supreme Court exercising its parens patriae jurisdiction or in the exercise of its jurisdiction to give prerogative or declaratory relief.

1. The Supreme Court has jurisdiction on appeal to deal with appeals from a Presidential Children's Court: Children's Court Act 1987, s 22A and Re Campbell [2011] NSWSC 761. In such cases the Supreme Court is exercising jurisdiction under the Care Act and the status of a child's representative would be governed by the direct application of Care Act, s 99D. But here, as my original reasons for decision in this matter on 20 October 2009 show, and in conformity with cases such as Director General, Department of Community Services, Re Jules (2008) 40 Fam LR 122, [2008] NSWSC 1193 and Director General, Department of Community Services v Thomas [2009] NSWSC 1490 per Brereton J, the Court is exercising its parens patriae jurisdiction.

Distinctions in the Two Roles

1. The distinction between a Direct Legal Representative and an Independent Legal Representative sometimes will not greatly matter. But given the issues that will potentially be faced in this case in the near term the distinction is one of growing importance.

1. It should be observed that neither the Direct Legal Representative nor the Independent Legal Representative has direct parallels with the role of a tutor. There are important differences. A tutor is personally liable for costs ordered against an incapable person but a separate representative is not liable for costs in proceedings under the Act: Care Act, s 99. A guardian ad litem in proceedings is often someone with a family relationship with the person for whom the appointment of a tutor is made, although there are examples of independent persons being appointed: see for example Deputy Commissioner of Taxation v P [1987] 11 NSWLR 200. But where the Court is exercising parens patriae jurisdiction such a family member will more likely than not be in a position of conflict of interest with the child and so would not be available for such an appointment. The practical difficulties of finding and paying an independent professional person to act as a tutor for a child in proceedings makes it clear that the statutory procedure of the appointment of an Independent Legal Representative or a Direct Legal Representative is likely to provide a quicker and far less troublesome procedure.

1. The Court is being called upon here to exercise a part of its inherent jurisdiction to allow Sally to appear either by what is conveniently described as an Independent Legal Representative or a Direct Legal Representative. I agree with respect with the approach taken by Austin J in Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644 at [2] that allowing Sally to appear in these proceedings is an exercise of the Court's inherent jurisdiction. It is not an exercise of jurisdiction under Care Act, s 99D, because these are not care proceedings. Nevertheless, Care Act, s 99D and some observations of the Family Court in relation to similar legislative provisions in the Family Law Act 1975 (Cth) are useful guides to the two roles. And it is convenient to consider the differences between the roles by reference to the existing statutory template that defines those roles. The Court is not bound in its inherent jurisdiction by one precise model or the other. But some clarity of understanding between the Court and the legal representative of Sally is necessary. The statutory template gives that clarity and that is why I am using it in this judgment. Should in this case circumstances require Mr Sperling or the legal representatives that follow him to vary the role he (or they) proposes to take on behalf of Sally then application for such variation can be made in the future. The important thing is that the legal representation of Sally be in her best interests and that there be clear understanding between the Court and Sally's representative as to the duties of that representation. I will now deal with the differences between the two roles and then indicate the form of representation which is appropriate in Sally's case at the present time.

1. Using Care Act, s 99D as a model, there is an important distinction between the role of a Direct Legal Representative and the role of an Independent Legal Representative. Both forms of representation have a common obligation to ensure that all relevant evidence is adduced and when necessary tested: Care Act, s 99D(a)(ii) and (b)(vi). The role of a Direct Legal Representative will closely approximate that the role of a legal representative in ordinary civil litigation representing a person of full capacity, because the role includes "ensuring that the views of the child or young person are close before the Children's Court" (Care Act, s 99D(a)(i)) and "acting on the instructions of the child or young person" (Care Act, s 99D(a)(iii)).

1. With an Independent Legal Representative there is no precise equivalent to the role of acting on instructions. The closest the role of an Independent Legal Representative comes to acting on the instructions of a child or young person is the role to make "applications and submissions to the Children's Court for orders...considered appropriated in the interest of the child or young person": Care Act, s 99D(b)(viii). The legislation is somewhat unclear as to who has the initial duty to determine what is "considered appropriate" in the interest of the child or young person. But it is reasonably clear that it is the person acting in the role of Independent Legal Representative. But the critical difference between the two roles thus is that the Direct Legal Representative acts on instructions of the child but the Independent Legal Representative exercises a degree of independent judgment about what is in the child's or young person's best interests in setting the course on behalf of the child before the Court.

1. The Family Law Act 1975 (Cth) provided early models for what has become an Independent Legal Representative under the Care Act. It is not necessary to discuss these early Family Law Act models in any detail. For many years under Family Law Act, s 65 the Court could appoint a "separate representative", then changed by the Family Law Reform Act 1995 to the new terminology of a "child representative". Now the role is that of "Independent Children's Lawyer", an appointment made under Family Law Act, s 68L, a provision inserted into the Act by the Family Law Amendment Shared Parental Responsibility Act 2006 (Cth). The Family Law Act now makes the same distinction that appears in s 99D. The Independent Children's Lawyer must form an independent view of what is in the best interest of the child or young person: Family Law Act, s 68LA(2). The Independent Children's Lawyer is not the child or young person's legal representative and is not obliged to act on instructions: Family Law Act, s 68LA(4).

1. In 1990, the Family Court usefully considered the role of a Separate Representative in terms that, although the legislation has since changed, also applied to the role of an Independent Children's Lawyer under the Family Law Act and to the Independent Legal Representative under Care Act, s 99D(b). The full Family Court in the Marriage of Bennett (1990) 14 Fam LR 397 at 405 as follows, "The Separate Representative must form a view as to the child's welfare based on proper material and act somewhat like counsel assisting the Royal Commission but always impartially in the best interests of the child but not bound by the child's instructions, although bound to inform the Court of the child's wishes."

The Choice of an Independent Legal Representative or a Direct Legal Representative

1. The choice in this case of Direct Legal Representative or an Independent Legal Representative is informed by the policy expressed in Care Act, s 99A which provides:

"(1) A legal representative for a child or young person is to act as a direct legal representative if:

(a) the child or young person is capable of giving proper instructions, and

(b) a guardian ad litem has not been appointed for the child or young person.

(2) A legal representative for a child or young person is to act as an independent legal representative if:

(a) the child or young person is not capable of giving proper instructions, or

(b) a guardian ad litem has been appointed for the child or young person.

Note. Section 100 (4) provides that a legal representative of a child or young person for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem."

1. In Children's Court proceedings Care Act, s 99 requires a legal representative to act as a Direct Legal Representative if the child or young person is capable of giving proper instructions. Care Act, s 99B expresses the statutory presumption that a child under 12 is incapable of giving proper instructions. Care Act, s 99C expresses a statutory presumption that a child over the age of 12 is capable of giving proper instructions. These provisions express the important standard that a child should have the benefit of a Direct Legal Representative so soon as he or she is capable of giving proper instructions.

1. In my view, the same standard should be applied when the Court is exercising its parens patriae jurisdiction. Here, unless it is demonstrable that Sally is not capable of giving proper instructions, in my view she should be represented by either Mr Sperling or other persons in the future who act in the role of a Direct Legal Representative.

1. In my view there is little contest on the evidence that Sally is capable of giving instructions. Sally's psychiatrist, Dr Dullar, has not at any stage in his psychiatric assessment of her suggested that her capacity to provide instructions is impaired. The reports he has provided show that her general cognitive capacity is not in issue although many of her cognitive skills are in the low average ranges. Her specific difficulties are in relation to impulse control and self regulation. The psychologist's analysis of Sally are consistent with these findings.

1. If the application of a standard beyond Care Act, s 99A by analogy is required, in my view, Sally is, on the evidence, "Gillick competent" in the sense that she is a child who has attained the capacity to make an informed decisions and is capable of giving instructions: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. After the decision of the High Court in Department of Health & Community Services v JWB & SMB ("Marion's case") (1992) 175 CLR 218 a child with sufficient intelligence and understanding to instruct a solicitor in Court proceedings concerning the child, may be allowed to do so.

1. Other circumstances also support this conclusion. Sally is now 17. She will turn 18 in May next year. The issues now under consideration relate to her transition out of Sherwood House where she has been confined for therapeutic reasons into a situation to prepare for her young adult life. Direct Legal Representation is appropriate whilst she makes such choices.

1. But there are currently restrictions on Sally's access to material including medical reports, full access to which it is thought that may do her harm. The Director General submits that such a regime is not compatible with Direct Legal Representation, and therefore Sally should be represented through someone in the role of Independent Legal Representative.

1. I do not agree with the Director General's submission on this issue. The restriction on giving some material to Sally, can be justified notwithstanding Direct Legal Representation. It is not uncommon in commercial litigation for parties not to be given access to material which is commercially sensitive to other parties in proceedings. Consistent with her direct representation the denial of some material to Sally, even about herself, can be justified, if its being withheld is in her best interests.

1. The Director General has also submitted that the nature of the orders originally made on 23 June 2009 in respect of Sally were orders for the appointment for an Independent Legal Representative. I do not think this is correct. Those orders were made without full argument and Mr Sperling long ago reserved his position to have this issue clarified.

1. Therefore I conclude that Sally should be represented by a Direct Legal Representative.

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Decision last updated: 03 February 2014