Re Timothy

[2010] NSWSC 524

CITATION:	Re Timothy [2010] NSWSC 524 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12 May 2010
JUDGMENT DATE :	19 May 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Rein J
DECISION:	1. Orders made on 10 November 2009 by Hannam CCM be removed into this Court and quashed, and orders made on 3 December 2009 by Baptie CCM be removed into this Court and quashed. 2. Pending further order of the Children's Court, parental responsibility for the children be allocated to the Minister for Community Services. 3. Pending further order of the Children's Court, the children have minimum contact with the plaintiffs as follows: (a) Unsupervised (b) On 3 days per week the parents pick the children up from school and/or kindergarten (c) Return the children to Nowra CSC by 5.00pm. 4. First defendant to pay the plaintiffs' costs of these proceedings as agreed or assessed. 5. Exhibits to be returned on the expiry of 28 days in the absence of an appeal.
CATCHWORDS:	ADMINISTRATIVE LAW - judicial review - grounds of review - jurisdictional error and procedural fairness - decisions of Children's Court Magistrates
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2000 (NSW) Children’s Court Act 1987 (NSW) Children’s Court Rule 2000 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Craig v South Australia (1995) 184 CLR 163 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Minister for Community Services v Children’s Court of New South Wales (2004) 33 Fam LR 99 Re Alan (2008) 71 NSWLR 573 Re Edward (2001) 51 NSWLR 502 Re Elizabeth [2007] NSWSC 729 Re Fernando; Re Gabriel (2001) 53 NSWLR 494 Re Jayden [2007] NSWCA 35 Vakauta v Kelly (1989) 167 CLR 568 Wentworth v Rogers (No. 12) (1987) 9 NSWLR 400
PARTIES:	Father (first plaintiff) Mother (second plaintiff) Director-General of the Department of Human Services, Community Services Division (first defendant) Children's Court of New South Wales (second defendant) State of New South Wales (third defendant) Independent legal representative for the children
FILE NUMBER(S):	SC 2009/291406
COUNSEL:	R Steward (first plaintiff) C M Wilson (second plaintiff) M Allars, A Stafford (first defendant) W J Hunt (independent legal representative for the children)
SOLICITORS:	R & M Legal (first plaintiff) Alan Robinson (second plaintiff) Crown Solicitor's Office (first, second and third defendants) Mark A Douglass (independent legal representative for the children)
LOWER COURT JURISDICTION:	Children's Court
LOWER COURT JUDICIAL OFFICER :	Hannam CCM; Baptie CCM
LOWER COURT DATE OF DECISION:	10 November 2009 (Hannam CCM); 3 December 2009 (Baptie CCM)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 12 May 2010
Date of Judgment: 19 May 2010

2009/291406 Re Timothy

JUDGMENT

1 REIN J: A Nowra couple, who I shall refer to as “the parents”, bring these proceedings following orders made by Children’s Court Magistrate Hannam which led to their four children (“the children”) being placed in the care of the Minister for Community Services (“the Minister”) and into foster care on an interim basis, and subsequent orders made by Children’s Court Magistrate Baptie to the same effect. The name Timothy is a pseudonym for the first of the four children.

2 On 8 October 2008, the Department of Community Services (“DoCS”) (now the Department of Human Services, Community Services) sought a care order in respect of the children in the Children’s Court at Nowra. The matter was heard by Children’s Court Magistrate Blewitt. As the mother is Aboriginal and the father had no objection, the matter was referred to a “Care Circle”, with his Honour making a finding, which was not opposed, that the children were in need of care and protection pursuant to s 71(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”): see page 104 of Exhibit A (T7.5-7 and T7.12-13). The section is in the following terms:

“71 (1) The Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following: …
(d) subject to subsection (2), the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers”.

3 The Care Circle is a joint initiative between the Department of Justice, the Attorney-General’s Department and DoCS, and it is a similar concept to Circle Sentencing: see the media release at page 50 of Exhibit A.

4 Clause 4.2 of the Care Circle Procedural Guide (“Circle Guide”) describes the Care Circle as

“a form of independent alternative dispute resolution and as such the Care Circle is not recorded and the provisions for the protection of information contained in Clause 11, Children and Young Persons (Care and Protection) Regulation 2000 apply ”.
(emphasis added)

5 In matters involving an Aboriginal family (or a family in which one or other of the mother, father or child identifies as Aboriginal), the possibility of Care Circle proceedings is to be advised to the Court and:

“3.3 Once a determination has been made that a child or young person is in need of care and protection and prior to the matter being listed for final orders any party may apply, or the Magistrate may upon the Magistrates own decision, determine that the matter is suitable to refer to a Care Circle. The Magistrate will hear submissions as to why such a decision should, or should not, be made. These submissions may include information on the willingness of the parents of the child or young person to participate.
3.4 In making a determination that the matter is suitable to refer to a Care Circle, the Magistrate will consider whether a Care Circle would provide valuable input into the following:

· what interim arrangements there should be for the care of the child

· what services/supports can be made available to the family

· where the child should live

· what contact arrangement should be in place

· alternative family placements, or

· such other matters as appear relevant.”

(emphasis added)

6 Procedures in advance of the Care Circle are set out, and Part 4 of the Circle Guide deals with the Care Circle itself. Clause 4.1 provides for a magistrate to chair the Care Circle, and procedures for the first and the further Care Circles are set out. Clause 4.8 provides:

“At the end of the final Care Circle the Magistrate will close the Care Circle and open proceedings in the Children’s Court. The Magistrate will then determine whether to make orders by consent or, where issues remain outstanding, to make directions as necessary and list the matter to be heard before the Children’s Court.”

Clause 4.12 provides:
“Where a care matter is listed before the Children’s Court because there remain matters still to be dealt with by the Court then the care matter will be listed before a different Children’s Magistrate to the one who presided at the Care Circle.”

7 A Care Circle conference was held on 10 November 2009 at the Home Care Building in East Nowra. It was chaired by Hannam CCM.

8 The correct description of what occurred on that day is contentious. Evidence which the plaintiffs sought to read in this hearing was objected to by DoCS on the basis of reg 11(2) of the Children and Young Persons (Care and Protection) Regulation 2000 (NSW) (“the Regulations”), which precludes evidence being given of what occurred during an alternative dispute resolution process, and it was accepted by the plaintiffs’ counsel that the evidence could not be read. It appears from the material to which objection was not taken and from a document entitled “Order of Children’s Court” (at page 16 of Exhibit A) that Hannam CCM, purporting to sit as a Magistrate of the Children’s Court, made the following orders:

“Order allocating parental responsibility on an interim basis made
Adjourned care circle 15/12/09
Docs to file & serve care plan by 30/11/09
Parents to respond by 14/12/09”

9 There is no transcript of what occurred prior to the making of these orders by Hannam CCM. There is no dispute that whatever was done by Hannam CCM was done at the same building in which the Care Circle was held. No transcription facilities, I infer, were available at that building.

10 While there is no transcript, there is a note of Ms Fiona Murphy, a legal officer employer by DoCS: see page 65 of Exhibit A. It is in the following terms, omitting all personal identifiers:

“[XXXX]
Judgment of Magistrate Hannam 10/11/09
A finding has been made on ground 71(1)(d).
Here there was no single incident leading to the matter coming to court, but for a number of years DoCS and others have been concerned, assistance provided, problem continued.

There is no doubt I am attaching great weight on DoCS evidence that the aboriginal caseworker, Ros, was involved for 2 years and made 29 visits.
Also it is in the affidavits that the children have missed a lot of school this year and the parents have knowledge of this and yet this continues.
Other neglect issues – eg severed finger, mark around neck of [XXXX], health issues, exczma [sic], state of the house. While true that the house has been cleaned up there is a history of unhygienic state of the house over the years. There are severe deficits which compromise the safety of the children. The question is re the risk of harm to the children and I have to attach a great deal of weight to the fact that Ros worked with this family for 2 years and there was no change. It is clear that Ros had the interest of the family at heart.

I am very concerned re risk of harm to the children – in particular the amount of school they have missed – they are suffering serious harm especially educational damage.

It is not in the interest of the safety and wellbeing of the children to remain with their parents and I am satisfied it is in the interests of the children that they are removed.

Problems with [XXXX] re his behaviour, social skills. Much effort has been put into him attending daycare but it didn’t happen.
Risk to [XXXX] eg she had a mark on her neck from having tinsel around her neck.
I am concerned re the lack of supervision.
[XXXX] admits he sleeps a lot and doesn’t help.

ORDERS

Care Plan to be filed and served by 30 November
Parents to respond by 14 December

3rd care circle on 15 December

DoCS to assess [XXXX]’s sister and aunt [XXXX] as carers.”

11 Mr Robinson, the father’s solicitor, deposes in paragraphs 17 to 20 of his affidavit affirmed 31 March 2010:

“17. There was a break in the Care Circle and President Marien left.

18. The Care Circle then resumed and Magistrate Hannam said words to the effect:
“I will not consider anything said in the Circle but I do want the legal representatives to make submissions based on the Affidavit material as to whether I should make an interim order.”
19. The First Defendant’s solicitor made certain submissions.
20. I made a number of submissions and said words to the effect:
“Your Honour should take into account the decision in Re Alan [2008] NSWSC 379 and the only new evidence since Magistrate Blewitt made his decision not to remove the children is that the condition of the house has improved.” ”

12 The reference to “President Marien” is to Marien DCJ, who is the President of the Children’s Court and who it appears was present as an observer up to that point.

13 The plaintiffs, for reasons I shall detail in a moment, contend that Hannam CCM was sitting in the Care Circle when her Honour made the comments recorded in the legal officer’s note and when her Honour made the orders, and was not therefore sitting as a Magistrate of the Children’s Court. DoCS contends that Hannam CCM must have treated the Circle as closed and that her Honour must have been presiding as a Magistrate of the Children’s Court, albeit without the benefit of transcript.

14 The children were removed from the parents on 10 November 2009 and placed in foster care organised by DoCS. The plaintiffs commenced proceedings in the Supreme Court of New South Wales by Summons filed on 18 November 2009, seeking orders in the nature of certiorari quashing the orders made by Hannam CCM, requesting this Court to exercise its parens patriae jurisdiction in respect of the children, and seeking an interim order returning the children to the care of the parents pending the final hearing in the Children’s Court. Forster J heard the matter and declined to make the interim orders sought. In Forster J’s judgment his Honour said, inter alia:

“[8] It has been made clear that if I were to make an order that the children remain with the Director General, the parents will on 3 December 2009 make an application for an interim order to return the children to them. Likewise, it has been made equally clear that if I were to make order that the children be returned to their parents, the Director General would make an application for custody of the children. In other words, whatever I might decide, this matter will on 3 December 2009 come before the Children’s Court, which will then decide what should happen to the children.
[9] The children are currently in the custody of the Director General, and have been so for the past three weeks or thereabouts. The situation I wish most to avoid is one where the children are returned to the parents, be that today or tomorrow or perhaps even the next day, only to find that they are then ordered to be returned into the custody of the Director General by the Children’s Court. Yet it is quite clear that the Children’s Court is by far the more appropriate court to decide what is in the best interests of the children.
[10] It seems to me that it is very much in the interest of the children not to be pushed from pillar to post and possibly back again, but to be left where they are, at least for the next few days. I understand that while they are not with blood relatives, they are at least in the same community as the parents. Hopefully, the Children’s Court will decide in the next few days how the children’s interests will be best served.
[11] For those reasons I do not proposed to accede to the relief sought in the amended summons but propose to stand over the amended summons before the registrar on a date nominated by the parties, namely 2 February 2010. The parties have agreed to orders 1 to 6 set out in the notice of motion, and I have already made those orders.”
(emphasis added)

15 I think it is clear that his Honour intended that the question of whether an order allocating responsibility for the children to the Minister would be revisited by the Children’s Court, and that this would be considered on the application of the parents as soon as possible.

16 The matter was re-listed before the Children’s Court on 3 December 2009. The matter came before Baptie CCM. The transcript for that occasion reveals that:

(1) her Honour was informed of what had transpired in the Supreme Court;
(2) the parties’ legal representatives indicated their respective positions as follows:
(a) DoCS (for whom Ms Murphy appeared) did not seek any review of the orders made by Hannam CCM;
(b) the mother (for whom Ms Foreman appeared) and the father (for whom Mr Robinson appeared) did not seek any review of the orders made by Hannam CCM, although subsequently Ms Foreman seemed to accept that Baptie CCM could proceed to consider whether an interim order could be made: see T 13.6-9 and T15.13-18;
(c) Baptie CCM was concerned that given the attack on the orders of Hannam CCM and the approach taken by Forster J, it was incumbent on the Children’s Court to revisit the question of what orders should be made;
(d) the children’s representative (for whom Mr Douglass appeared), accepting that his client had made no application, was concerned about the possible invalidity of the orders made by Hannam CCM, and whilst Mr Douglass was apparently conscious of a possible lack of standing on his part, he agreed that Baptie CCM should consider afresh whether an interim care order should be made: see T12.8-12;
(3) Baptie CCM did proceed to determine afresh whether an interim care order should be made and said (at T17.18-36):
“The combined effect of the matters that I have referred to well and truly it would, in my view, be cause for concern if the children were not placed under the parental responsibility of the Minister on an interim basis. There are, as I have indicated, the state of the living conditions, there are the significant health issues and even standing by itself there is the matter or matters relating to the children’s lack of attendance for education.
I having read all of the material including, as I have indicated the parent’s affidavit material I am very clear that I would be of the view to make an interim order allocating parental responsibility to the Minister to ensure the protection of those children. As I indicated at the start I am of the view that there is a necessity today for the Court to make its own independent orders today so that there is clarity in relation to the matters which are in dispute in relation to that earlier order relating to parental responsibility on an interim basis.”
(4) The parents’ representatives had indicated that they had not decided whether to bring an application for review: see T4.20-24, T9.30-40, T12.32-40 and T13.30 (pages 108, 113, 116 and 117 of Exhibit A). In deciding to take the course that her Honour did, Baptie CCM was met with Mr Robinson’s assertion that no order should be considered or made because the orders of Hannam CCM were on foot and remained valid until the Supreme Court determined that they were not valid and that there was no need to make an interim order pursuant to s 90 “because the status quo is until Magistrate Hannam’s order is set aside that the children are in the parental responsibility of the Minister”: T 15.4-11. As I have noted, the mother’s representative, Ms Foreman, seemed to agree that it would be useful for Baptie CCM to consider the matter afresh. In her reasons, her Honour made reference to the possibility of the parents making an application pursuant to “s 90 or s 60, 61” (see T16.5), and after making the orders, her Honour directed the parents to file and serve an application by 8 December 2009: T17.48-49.

17 I note in this latter connection that Baptie CCM said (at T14.33-38):

“even if I make an order today in relation to s 70 which clearly seems to allow the court to you know bring it’s own mind to making further orders on an interim basis. That’s not going to preclude, or diminish the potential for your client or Ms Foreman’s client to make that application next week. Nothing effectively has changed except that there is some certainty as to what it is you’re then challenging next week.”

18 The matter was before the Children’s Court on 11 January 2010, 21 January, 11 March, 18 March and 8 April. On 9 December 2009, the parents filed an application for review of the decision of Baptie CCM: see Exhibit B. That application was returnable before the Court on 11 January 2010, and it came before Murphy CCM. There is no transcript available for that date because, I was informed, the Attorney-General’s Department has advised that the court recording tapes for that date were blank, and there is some dispute about what occurred. It was, however, agreed between the parties before me that on 11 January 2010, there was on foot an application by the mother pursuant to s 90 of the Act seeking a variation of the order in respect of parental responsibility, which application was withdrawn for reasons which, I was informed, the parties agreed are not relevant. No attack has been made on any decision of the Children’s Court after 3 December 2009.

19 The matter has been fixed by the Children’s Court for hearing on a final basis on 30 June and 1 July 2010.

20 In the proceedings before me, Mr R Steward of counsel appeared for the father, Mr C Wilson of counsel appeared for the mother, Ms M Allars of counsel appeared with Mr A Stafford of counsel for the Director-General of the Department of Human Services, Community Services (“the Director-General”), and Mr W Hunt of counsel appeared for the representatives of the children.

21 I received detailed written submissions on behalf of all parties. Although some points were given different emphasis, the position of the parents was conjoint and the children’s representative supported DoCS’ position. Following the hearing last Wednesday, I received by 14 May, with leave granted, written submissions on the issues of bias and waiver.

22 The parents, in their written submissions, point to 12 matters which they argue lead to the conclusion that Hannam CCM’s orders were ultra vires. DoCS does not accept that the orders made were ultra vires, but takes the position that there is no reason to consider that issue because the orders made by Baptie CCM were valid, which renders the debate about Hannam CCM’s orders sterile.

23 There are a number of provisions of the Act to which I was taken and to which I should refer:

“ 7 What is the role of the objects and principles of this Act?
The provisions of this Chapter are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law.

8 What are the objects of this Act?
The objects of this Act are to provide:
(a) that children and young persons receive 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, and
(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and
(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

9 Principles for administration of Act
(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.
(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:
(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.
(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.
(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.
(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.
(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.
(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

12 Aboriginal and Torres Strait Islander participation in decision-making
Aboriginal and Torres Strait Islander families, kinship groups, representative organisations and communities are to be given the opportunity, by means approved by the Minister, to participate in decisions made concerning the placement of their children and young persons and in other significant decisions made under this Act that concern their children and young persons.

37 Alternative dispute resolution
(1) In responding to a report, the Director-General is to consider the appropriateness of using alternative dispute resolution services that are designed:
(a) to ensure intervention so as to resolve problems at an early stage, and
(b) to reduce the likelihood that a care application will need to be made under Chapter 5, and
(c) to reduce the incidence of breakdown in adolescent-parent relationships, and
(d) if an application for a care order under Chapter 5 is made, to work towards the making of consent orders that are in the best interests of the child or young person concerned.
(2) Attendance at a preliminary court conference is mandatory.
(3) Participation in all other forms of counselling and conferencing is voluntary.
Note. Within this provision, models for counselling and conferencing may be developed to accommodate the unique requirements of a community (whether cultural, geographic or language), the complexities of the case, or the nature and severity of the abuse suffered by the child or young person.

46 Emergency care and protection orders
(1) The Children’s Court may make an order for the emergency care and protection of a child or young person if it is satisfied that the child or young person is at risk of serious harm.
(2) The order, while in force, places the child or young person in the care responsibility of the Director-General or the person specified in the order.
(3) The order has effect for a maximum period of 14 days, unless the order is extended in accordance with subsection (4).
(4) An order under this section may, while the order remains in force, be extended once only for a further maximum period of 14 days.
(5) If an application is made for the extension of an order under this section before the order expires, the order remains in force until the Children’s Court makes a final determination on the application, even if that occurs after the original expiry date.

49 Care of child or young person pending care proceedings
(1) If a child or young person is removed from the care of his or her parent or parents under this Part or a warrant issued under section 233:
(a) the child or young person is to be kept at a place approved by the Minister for the purposes of this section, and
(b) the Director-General has the care responsibility for the child or young person.
(2) The Children’s Court may, by order, vest the care responsibility in a designated agency.
(3) The Director-General or designated agency having the care responsibility for the child or young person may delegate that responsibility to a relative of the child or young person, an authorised carer or a person approved by the Children’s Guardian.
(4) Despite subsection (3), the Director-General may delegate the care responsibility for the child or young person on an interim basis to a person other than a person specified in subsection (3) but must use his or her best endeavours to delegate that responsibility to a person so specified as soon as is reasonably practicable.
(5) The exercise of the care responsibility by a person referred to in subsection (3) or (4) is subject to any direction given to the person by the Director-General or the designated agency that made the delegation.

50 Discharge of child or young person from Director-General’s care responsibility
(1) The Director-General may, at any time, discharge a child or young person from the Director-General’s care responsibility with or without any undertakings being given by the child or young person or by a parent of the child or young person.
(2) An undertaking, if given, is to be in writing and signed by the person giving it.
(3) In determining whether or not to exercise the power under subsection (1), the Director-General is to have regard to the following:
(a) any views expressed by the child or young person as to whether he or she wishes that power to be exercised,
(b) any views expressed by the child or young person as to whether he or she intends to return to the care and protection of a parent,
(c) whether the exercise by the Director-General of that power is likely to protect the safety, welfare and well-being of the child or young person,
(d) whether the failure by the Director-General to exercise that power is likely to endanger the safety, welfare and well-being of any other person.
(4) If the Director-General discharges the child or young person from the Director-General’s care responsibility following an order of the Children’s Court, the Director-General must explain to the Children’s Court at the next sitting day of the Court why the Director-General’s care responsibility was no longer needed.

60 Definitions
In this Act:
care application means an application for a care order.
care order means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86.
care proceedings means proceedings under this Chapter.

61 Applications for care orders
(1) A care order may be made only on the application of the Director-General, except as provided by this Chapter.
(2) A care application must:
(a) specify the particular care order sought and the grounds on which it is sought, and
(b) without limiting paragraph (a), be accompanied by a written report specifying such information as may be prescribed for the purposes of this section by the rules made under the Children’s Court Act 1987 .
(3) The order sought may be varied:
(a) without the leave of the Children’s Court at any time before a determination is made under section 72 in relation to the care application concerned, and
(b) after such a determination is made—only with the leave of the Children’s Court.
Note. Section 34 requires the Director-General to consider a variety of alternative means to provide for the safety, welfare and well-being of the child or young person before commencing proceedings in the Children’s Court.
Section 71 sets out the various grounds that enable the making of a care order.

62 Interim and final orders
A care order may be made as an interim order or a final order, except as provided by this Part.

67 Children’s Court order not limited by terms of care application
The making of a care application for a particular care order of the Children’s Court does not prevent the Children’s Court from making a care order different from, in addition to, or in substitution for, the order for which the application was made, provided all prerequisites to the making of the order are satisfied.

69 Interim care orders
(1) The Children’s Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined.
(1A) The Children’s Court may make an interim care order prior to determining whether the child or young person is in need of care and protection, if the Court is satisfied that it is appropriate to do so.
(2) The Director-General, in seeking an interim care order, has the onus of satisfying the Children’s Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility.
Note. Section 49 makes provision for the care of children and young persons pending care proceedings.

70 Other interim orders
The Children’s Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings.

70A Consideration of necessity for interim care order
An interim care order should not be made unless the Children’s Court has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a final order or an order dismissing the proceedings.
Note. Sections 63 and 72 deal with the power of the Children’s Court to dismiss proceedings and section 94 deals with adjournments.

71 Grounds for care orders
(1) The Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following:
(a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason,
(b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection,
(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,
(d) subject to subsection (2), the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,
(e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,
(f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children’s Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service,
(g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with,
(h) section 171 (1) applies in respect of the child or young person,
(i) in the case where the application for the order is made by filing a contract breach notice—any presumption arising from the operation of section 38E (4) that the child or young person is in need of care and protection has not been rebutted.
(1A) If the Children’s Court makes a care order in relation to a reason not listed in subsection (1), the Court may only do so if the Director-General pleads the reason in the care application.
(2) The Children’s Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of:
(a) a parent’s or primary care-giver’s disability, or
(b) poverty.
(3) (Repealed)
Note. The Children’s Court cannot make a care order in circumstances to which section 75 (2) applies.

72 Determination as to care and protection
(1) A care order in relation to a child or young person may be made only if the Children’s Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection:
(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and
(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).
(2) If the Children’s Court is not so satisfied, it may make an order dismissing the application.

90 Rescission and variation of care orders
(1) An application for the rescission or variation of a care order may be made with the leave of the Children’s Court.
(1A) The Children’s Court may order a person who makes an application under this section to notify those persons whom the Children’s Court specifies of the making of the application.
Note. Section 256A sets out the circumstances in which the Children’s Court may dispense with service.
(2) The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.
(2A) Before granting leave to vary or rescind the care order, the Children’s Court must take the following matters into consideration:
(a) the nature of the application, and
(b) the age of the child or young person, and
(c) the length of time for which the child or young person has been in the care of the present carer, and
(d) the plans for the child, and
(e) whether the applicant has an arguable case, and
(f) matters concerning the care and protection of the child or young person that are identified in:
(i) a report under section 82, or
(ii) a report that has been prepared in relation to a review directed by the Children’s Guardian under section 85A or in accordance with section 150.
(3) An application may be made by:
(a) the Director-General, or
(b) (Repealed)
(b1) the child or young person, or
(c) a person having parental responsibility for the child or young person, or
(d) a person from whom parental responsibility for the child or young person has been removed, or
(e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person.
(3A) If:
(a) an application is made to the Children’s Court by a person or persons (other than the Director-General) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and
(b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and
(c) the Director-General is not a party to the proceedings,
the applicant must notify the Director-General of the application, and the Director-General is entitled to be a party to the application.
(4) The Children’s Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (3) (e) unless it considers the person to have a sufficient interest in the welfare of the child or young person.
(5) If:
(a) an application for variation of a care order is made or opposed by the Director-General, and
(b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children’s Court,

the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order.
(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration:
(a) the age of the child or young person,
(b) the wishes of the child or young person and the weight to be given to those wishes,
(c) the length of time the child or young person has been in the care of the present caregivers,
(d) the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,
(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,
(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.
(7) If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so:
(a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and
(b) if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.
(8) On the making of an order under subsection (7), the Children’s Court must cause notice of the order to be served on the Director-General.

The decision of Magistrate Blewitt

24 I have referred to the orders made by Blewitt CCM on 8 October 2009. I should note that after discussing with the legal representatives what undertakings might be given, his Honour said at T6:

“even though the situation is bad and a lot of support has been given to the family I’m not sure that the children are at such risk that removal is required but clearly matters cannot remain as they are and improvements must be made …
Clearly something has to be done for the interest of the children so my current inclination is to make an interim supervision order and interim order for undertakings …
I’m not inclined on the material before me to be making an interim order allocating parental responsibility to the Minister but clearly something does have to be done and I hear the department is willing to work with this family and if the family is willing to work with the department it may be that the children do not have to be removed today but if there is no improvement then I think it’s inevitable that the children will be removed.”

25 His Honour then, having heard that the parents and the children’s representative did not oppose the making of a finding and referral to the next Care Circle, made the finding at T7 and referred the matter to a Care Circle. His Honour granted leave to restore the matter to the list on seven days’ notice.

26 No challenge has been made to the finding made by Blewitt CCM or to the order for referral made by his Honour. It is asserted by the plaintiffs that Blewitt CCM dismissed DoCS’ application for interim orders. I do not think that this is an accurate description. What his Honour did was to decline making an interim order on that occasion, but to foreshadow clearly the possibility that one would be made if there were no improvement in the conditions in which the children were living.

27 The note of the DoCS legal officer (page 65 of Exhibit A) is consistent with Hannam CCM having decided to sit as a magistrate hearing a substantive application, and the orders contained at page 16 of Exhibit A are also consistent with that view. On the other hand, there are these problems:

(1) the evidence of both Ms Foreman and Mr Robinson is that Hannam CCM did not close, or indicate that she was closing, the Care Circle (see paragraph 6 of Ms Foreman’s affidavit affirmed on 16 November 2009 at page 11 of Exhibit A and paragraph 18 of Mr Robinson’s affidavit affirmed on 31 March 2010 at page 30 of Exhibit A);
(2) what is recorded in the DoCS legal officer’s note does not record any closing of the Circle, nor does it record whose application for an interim care order Hannam CCM was considering;
(3) the matter had not been listed for hearing before the Children’s Court on 10 November 2009;
(4) the children’s representative was not present at the Care Circle or what followed the Care Circle on 10 November 2009, if what occurred was not a continuation of the Care Circle;
(5) no transcript was taken of the “proceedings”, so there is no record kept by the Court of what was said, what evidence was relied on, or Hannam CCM’s reasons, as required in respect of care applications: see rule 30 of the Children’s Court Rule 2000 (NSW) ;
(6) the Circle Guide contemplates what is to occur at the close of the Care Circle, and a hearing on substantive issues by the magistrate presiding over the Care Circle is not one of the options;
(7) Section 37(1)(d) of the Act contemplates the use of alternative dispute resolution to work towards the making of consent orders. Section 12 contemplates a scheme such as the Care Circle in which Aboriginal community elders can be involved. Regulation 11(2) provides that evidence of anything said or any admission made during alternative dispute resolution is not admissible in any proceedings before any court, tribunal or body. Regulation 11(3) provides that a document prepared in furtherance of discussions cannot be disclosed to the Court;
(8) the “orders” record an order “allocating parental responsibility on an interim basis”, but there is no record of to whom that parental responsibility was allocated and there is no transcript which enables that to be determined. The DoCS legal officer’s note does not record such an order having been made, but refers to a conclusion that “it is in the interests of the children that they are removed”;
(9) there was no fresh application by DoCS for an interim order on 10 November 2009, and even if the original application was on foot, it had not been stood over to that date. No hearing was contemplated; and
(10) there is no evidence that the Home Care Building in East Nowra was approved by the Attorney-General for the purpose of Children’s Court sittings, and whilst there is power under s 19 of the Children’s Court Act 1987 (NSW) to hold the Court in some other building if it is expedient in the opinion of the Court to do so, there is nothing to indicate that consideration was given to that question.

28 If Hannam CCM was presiding in the Care Circle, her Honour could not have been sitting on a hearing of the Court. If Hannam CCM intended to terminate the Care Circle, her Honour needed to do so formally, particularly if it was her intention to reconvene as the Children’s Court in a location that was not a recognised Court building.

29 The legal officer’s note purports to record the “judgment” – it does not purport to record what transpired before the judgment. There is nothing in that note which undermines the plaintiffs’ contention that Hannam CCM did not close the Care Circle before she delivered her “judgment”. If her Honour had not closed the Circle, there was no hearing to found the judgment, and hence the orders. Hannam CCM asked the legal representatives to make submissions, based on “the affidavit material”, as to whether she should make an interim order, and said that she would “not consider anything said in the Circle”, but her Honour did not indicate that she had closed the Circle. The parents’ representatives thought that Hannam CCM was resuming the Circle after Marien DCJ had left. I think, at best, there would have been confusion in the minds of the representatives of the parties as to what process they were engaged in and whether anything said by them prior to those words of Hannam CCM would be treated as pertinent to that part of the session. In short, the Court cannot infer that the parties and their representatives were made aware that the Care Circle had closed and at what point in time, even if that is what Hannam CCM had in mind.

30 There is no transcript to assist in interpreting the order (and the legal officer’s note does not assist). I accept that it may be possible to infer what was meant, but the orders are of such significance to the children and to the parents that they should be stated with precision, and even more precisely in the absence of transcript.

31 In my view, even if the Court was convened, the failure of Hannam CCM to make it clear that she had convened the Court not only created a significant doubt as to what in fact was occurring, but was itself a flaw in the process sufficient to make the proceedings irregular and constituted a failure to observe due judicial process. Further, Hannam CCM did not, on the record of the DoCS legal officer, deal at all with the arguments advanced by Mr Robinson and referred to at paragraph 20 of his affidavit (see [11] above). The failure to give reasons is not a ground advanced by the parents, but the absence of any consideration of the points raised by Mr Robinson may be linked to the confusion as to whether and at what point in time the Care Circle was closed.

32 Further, assuming that the Care Circle had ended, in moving to the role of magistrate immediately after the Care Circle was closed, Hannam CCM did not follow the Circle Guide within which the Care Circle system is to operate, because her Honour did not observe the requirement that, in the absence of orders by consent, the only orders that can be made are directions and for the matter to be listed for hearing by another magistrate. It was submitted by Ms Allars that the Circle Guide does not have the force of law, but first, s 37(1)(d) makes it clear that the object of the alternative dispute resolution process used after a care application is made is consent orders, and the Circle Guide expresses the Care Circle to be a form of alternative dispute resolution covered by reg 11 of the Regulations, and implicitly within s 37 of the Act. Secondly, it is, I think, generally accepted that a person who has acted as a mediator should not judge the cause. There are at least two very good reasons for that. The first is that things said at a mediation cannot be used in evidence (reg 11(2) of the Regulations), and yet there is a real prospect that the mediator (or person presiding, in this case) might rely on knowledge gained or admissions made at the mediation. The second is that the possibility that the mediator might sit as a judge in the same matter would inhibit a free and frank exchange of information and views at the mediation, or here the Care Circle. Mr Hunt submitted that the normal inhibitions may not apply with equal force here, since the process proceeds in the Circle Guide on a finding that the child is in need of care. The Circle Guide does, however, clearly envisage (by clauses 4.8 and 4.12) that the magistrate presiding will not hear the substantive matter. It is possible that Hannam CCM took into account only matters that were contained in the affidavits, but her Honour had presided over the mediation and it is not possible to know what impact observing and hearing the matters discussed at the Care Circle had upon her Honour’s judgment consciously or subconsciously, because there is no record of the Care Circle conference. In my view, Hannam CCM should have disqualified herself from hearing the matter. I do not accept the contention of DoCS that the fact that a person conducting a mediation is not precluded from “disclosing” information by virtue of reg 11(5), which I take to mean a disclosure to appropriate authority, has any bearing on the issue of whether the presiding magistrate could sit on the matter in the Children’s Court.

33 I received further written submission from DoCS and the mother’s counsel on the question of disqualification, referring to the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, and relying on the failure of the parents’ legal representative to seek to have Hannam CCM disqualify herself.

34 In respect of the test for apprehension of bias, the High Court stated in Ebner at 344 per Gleeson CJ, McHugh, Gummow and Hayne JJ:

“the governing principle is that, subject to qualifications relating to waiver…or necessity…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”

35 DoCS urged me to conclude that a fair-minded lay observer would not think that Hannam CCM might not bring an impartial mind, and the parents urged me to conclude that the fair-minded lay observer might reasonably apprehend that Hannam CCM might not bring an impartial mind. The submissions on behalf of the parents also touched on another aspect, which is the fact that the parents consented to attend the Care Circle understanding that the presiding magistrate would be facilitating the achievement of consent orders, with no understanding that the magistrate would or might proceed immediately to a hearing. Whilst it is possible to view the matter as one where the fair-minded lay person might think that Hannam CCM might not be able to bring a mind unaffected by material that would not be before her Honour in the court hearing as evidence, I think that the point is more that the parents were entitled to anticipate and expect that Hannam CCM would not be judging the cause as a matter of procedural fairness. The two points can be brought together, since if a lay observer was aware that the Circle Guide expressly contemplated that the magistrate presiding at the Care Circle would not hear the matter in the Children’s Court, in my view, he or she could reasonably apprehend that the process adopted was flawed and hold the apprehension referred to in Ebner.

36 The point was made by Ms Allars that the parties did not ask Hannam CCM to disqualify herself from hearing the matter, and that this precludes reliance on the point, that is, that there has been a waiver. The plaintiffs sought to lead evidence which was at least potentially relevant to that point, which was objected to on the grounds of reg 11(2).

37 There are, I think, several answer to that contention, even assuming that the Care Circle was closed at some point in time and followed by a substantive court hearing:

(1) While as a general rule, applications for disqualification should be made by practitioners and as soon as the problem is apparent, the proceedings here were out of the ordinary – the matter not having been listed as a hearing, with no notice to any of the parties or their legal representatives that there would be a substantive hearing on that day, and with Hannam CCM hearing a contested application which had previously been the subject of a refusal by Blewitt CCM to grant the interim order sought on that earlier occasion. Further, the children were not represented either at the Care Circle or the “hearing”. The children’s representative takes no point about this, but it is a relevant circumstance. The “proceedings” were not held in a court room and no transcript was being taken. The context was sufficiently unusual to make the assertion of waiver somewhat hollow. The sound principle that a party with a ground of objection cannot sit back until the judge decides the question adversely (see Vakauta v Kelly (1989) 167 CLR 568) and also that the ground of disqualification should be put as soon as possible so that the judge has “an opportunity to consider and, if thought fit, to comment on the allegations” ( Wentworth v Rogers (No. 12) (1987) 9 NSWLR 400 at 422 per Kirby P, Hope and Priestley JJA) are not applicable, in my view, in circumstances such as these and where the grounds arise with such rapidity. The parents launched their proceedings in this Court within days of Hannam CCM’s decision.
(2) Unless the Circle Guide is treated as laying down a form of rules accepted by the Court, then a referral to the “Care Circle” would be meaningless and a question would arise as to whether the process was a form of dispute resolution at all since, as Ms Allars pointed out, there is no reference in the Act to the Care Circle. If what occurred had no discernible agreed structure, it could not amount to a form of alternative dispute resolution within the meaning of s 37 of the Act, particularly having regard to s 37(1)(d), and reg 11(2) would have no force and the evidence to which objection was taken would be admissible. If such evidence were admissible, it would be relevant to the question of whether the parents can be said to have waived any objection to the course taken by Hannam CCM.

(3) I can accept that the parties may consent to a magistrate, who has chaired the Care Circle and who has heard nothing prejudicial concerning the parties, hearing the matter, but I think it must be only after the magistrate has raised the issue squarely with all parties and they have consented to that course. There is nothing to suggest that occurred here.

(4) I think it would be inimical to the use of the Care Circle as a form of alternative dispute resolution for a magistrate who chairs the Circle to be able to proceed to hear the substantive matter, at least without the fully informed consent of all parties and without fixing a date, however proximate, for that to occur.

38 It follows that in my view, the interim removal order made on 10 November 2009 was made either ultra vires or in circumstances of procedural unfairness, and should be set aside.

Magistrate Baptie’s orders

39 Baptie CCM was put in an invidious position, since her Honour was aware that the plaintiffs had sought to have Hannam CCM’s orders quashed in the Supreme Court, and yet before her Honour, the father (at least) contended that Hannam CCM’s orders were valid orders until such time as they were set aside by the Supreme Court and hence no reconsideration was necessary, and DoCS’ position was that Hannam CCM’s order were valid. Not only that, Forster J had contemplated that the Children’s Court would consider the matter afresh, yet the parents who had the interest in having a review had not even decided as of that date whether they would ask the Court to revisit the question of the interim care orders.

40 The parents’ attack on the orders made by Baptie CCM was on three principal bases:

(1) that there was no application by the Director-General for an interim care order before her Honour on 3 December 2009;
(2) that there was no necessity for any such order given the currency of the order of Hannam CCM;
(3) that there was a denial of natural justice because the parents were not, on 3 December 2009, ready to deal with the matter, and Baptie CCM did not hear argument or submissions.

41 The parents assert that Baptie CCM was purporting to rely on s 70 of the Act. They accept that when an application for interim care orders is properly before the Court, the Court can make orders in different terms to those sought by DoCS (s 67 of the Act makes that concession one that was properly made), but assert that no application was before the Court on 3 December 2009.

42 Section 70 was the only section of the Act which Baptie CCM mentioned, and I think it is clear that s 70 is the section which her Honour thought gave her power.

43 In my view, the fundamental question is what was the statutory power that Baptie CCM was exercising or, as the plaintiffs would have it, purporting to exercise. The only section to which Baptie CCM referred was s 70, but Ms Allars argued that, provided Baptie CCM made no reference to the section in her reasons, and even if, contrary to DoCS’ contentions, her Honour was relying on a section which did not give her power, it would be sufficient if her Honour applied the correct test found in s 69, that is, whether it was in the interests of the safety, welfare and well-being of the children for the interim removal order to be made.

44 There is some scope for debate as to what precisely s 70 is dealing with in comparison to s 69, particularly having regard to the use of the words “such other care orders”, but reliance on s 69 and/or s 70, on the plaintiff’s case, faces the important obstacle that any application for a care order must be made by the Director-General: see s 61(1) of the Act. DoCS argued that there was on foot an application for a care order by the Director-General, being the application made on 8 October 2009, and by virtue of s 69(1), that application and the absence of any final order having been made was all that was required.

The relationship between s 69 and s 70

45 Section 69(1) and s 69(1A) do not expressly state what interim care orders it is intended are to be dealt with. When s 69(2) is taken into account, it appears that s 69 contemplates that the interim care order with which s 69 is concerned is an interim care order pursuant to which the child will not remain with her or her parents (or other persons having parental responsibility), which I shall call for ease of reference an “interim removal order”, and which interim order is one sought by the Director-General.

46 Section 70 also does not specifically detail what care orders are envisaged to be dealt with by it, but it uses the phrase “such other care orders”, and if s 69 is read as dealing with interim removal orders, then s 70’s heading of “Other Interim Orders” and its use of the phrase “such other care orders” are meaningful. On this reading of the section, s 70 does not permit the Court to make orders removing children from the care of their parents.

47 Intersecting this issue is a further issue. Does the Court have power to make an order for removal of children from their parents even if there is no application made by the Director-General for such an order? This issue straddles both s 69 and s 70 if a more expansive view of s 70 is taken. Section 69 seems to contemplate that the only interim orders for removal that the Court would have to deal with are applications by the Director-General: see s 69(2). In a sense, the very specific attention in s 69 to what the Director-General must prove in relation to interim removal orders provides support for the view that s 70 is not concerned with interim removal orders at all. Even if ss 60 and 70 are not read in the way postulated above, and s 70 could theoretically provide an alternative basis to s 69 for the Court making orders for removal, the question then arises as to whether s 70 provides a power to the Court to make a care order (including an interim removal order) without the need for any application to be made by the Director-General or any other party.

48 The submissions on behalf of the parents can be framed this way:

(1) By virtue of s 60, “care application” means an application for a “care order”. A “care order” is any order sought under Chapter 5 of the Act.
(2) By virtue of s 62, a care order can be made as an interim order or final order.
(3) It follows that an interim care order is a care order and that an application for an interim care order is an application for a care order.
(4) A care order must be applied for by the Director-General. There is an exception foreshadowed in s 61(1), but no exception relevantly applies.
(5) There was an application made on 8 October 2009 by the Director-General for final orders and for an interim order, but as at 10 November 2009 and 3 December 2009, there was no application for an interim order on foot because Blewitt CCM had dismissed DoCS’ application for an interim order, or alternatively, his Honour was part heard on that application.

49 I deal below with the question of whether there was an application by the Director-General on foot on 3 December 2009, but first I need to consider whether there had to be such an application. As a matter of construction of the Act, I think that the requirement that an application for care orders can only be made by the Director-General “except as provided by this Chapter” (s 61(1) of the Act) extends to interim care orders as well as final care orders. I do not accept that filing an application for final relief means that the Court can make an interim order for removal pursuant to s 69 even if the Director-General does not make an application for interim removal. Section 69 is not an exception in Chapter 5 of the Act.

50 This leaves, relevantly, the question of whether s 70 is an exception in Chapter 5 to the requirement of s 61(1) that a care order can only be made on the application of the Director-General.

51 If section 70 is read in the way postulated above in [46], then it is not an exception to s 61, at least in relation to interim orders for removal. Reference needs to be made to the decision of Bell J (then on the Bench of this Court), in Minister for Community Services v Children’s Court of New South Wales (2004) 33 Fam LR 99. A magistrate had made on order relying on s 70 to allocate parental responsibility to the Minister, and on the basis of s 15 of the Children’s Court Act, which empowers interlocutory orders to be made as the Court considers appropriate. Bell J concluded that the young person’s application did not fall within Chapter 5 of the Act, and that the magistrate had no power to make the order allocating parental responsibility to the Minister. Bell J said (at 102-104):

“[21] An application for a care order may be made only on the application of the Director-General, except as provided by [Ch 5]: s 61. It would appear that the only provision made in [Ch 5] for an application for a care order to be made by a person other than the Director-General is that found in s 90 , which deals with the revision and variation of care orders.
[22] The application brought by Nadya was not a care application under Ch 5 of the Act.

…

[30] The challenge that the plaintiffs make is to the magistrate’s power to make an interim order under s 70 of the Act allocating parental responsibility in circumstances in which the Director-General had not brought a care application under Ch 5.”
(emphasis added)

52 I think it is implicit in Bell J’s reasoning that the magistrate had no power to make an order under s 70 in the absence of an application from the Director-General for such an order, and this undermines the contention that s 70 (or s 69) empowers a magistrate to consider an application for an interim care order from someone other than the Director-General. As Bell J pointed out, s 90 does permit applications by persons other than the Director-General, and so it is an exception within s 61.

53 In coming to a view as to whether s 70 permits the Court to consider an order for removal of children even where there is no application by the Director-General, I am conscious that there could be good reasons for allowing the Children’s Court to make orders of a dramatic nature even where no application is pursued, but s 46 is available in situations of emergency. If the Director-General, for whatever reason, does not make an application where one ought to be made but the circumstances are not such as to bring s 46 into play, it might be an unfortunate consequence of the legislation that the Children’s Court cannot make an order of its own volition or on the application of a party other than the Director-General, but the foundation may be that it is anticipated that DoCS will always have the paramount interests of the child in mind, and will make informed decisions as to whether applications should be made.

54 It has been held by the New South Wales Court of Appeal in Re Jayden [2007] NSWCA 35 that ss 69, 70 and 70A, being concerned with interim orders, have a different standard in relation to what must be established in comparison to ss 72 and 78, adopting the same approach that Bell J took in Re Fernando; Re Gabriel (2001) 53 NSWLR 494: see Re Jayden at [76]-]79], and as a matter of construction, treating those later sections as relating to final orders. Ipp JA did note at [88]:

“Generally, by its very nature, an interim order is of a temporary or provisional nature and the law recognises that nothing should be done to alter the status quo established by such an order pending the final resolution of the proceedings.”

I do not read Jayden as expressing any view on the issues of what type of interim order is contemplated by s 70 and by whom applications under s 69 and s 70 can be brought.

55 No point has been taken as to the use of the phrase “allocating parental responsibility” in the interim removal orders of both Hannam CCM and Baptie CCM, this being a term that is used in ss 79, 80 and 81. It seems to have been accepted by all concerned that such an order can be made on an interim basis, perhaps because s 80 specifies a requirement for a care plan in the case of a final order, and hence that the use of the phrase is not inconsistent with Re Jayden.

56 I note that s 9 of the Act emphasises the paramountcy of the safety, welfare and well-being of the child or young person, and also that s 9(2)(c) notes a further principle:

“In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.”

I do not think that these matters confer any additional powers on the Children’s Court beyond those found in the statute: see also in the connection s 7 of the Act.

57 In my view, s 69(1) is the source of power for interim removal orders, not s 70, and neither section permits the Court to make interim care orders unless the Director-General has made an application for an interim care order.

58 I turn now to the question of whether there was before Baptie CCM an application for an interim care order on 3 December 2009. In my view there was not, but not for the reasons advanced by the parents, my reasons being:

(1) There was an application for interim care before Blewitt CCM on 8 October 2009. I do not accept that Blewitt CCM dismissed the application – rather I think his Honour declined to make an order at that point in time, and stood over the proceedings to the future, pending the outcome of the referral to the Care Circle. I am not persuaded that if Blewitt CCM did not dismiss the application for an interim removal order, his Honour should be described as being “part heard” as the parents contend (see T17-18 and T52 from the hearing on 12 May 2010), but this is not critical to the outcome of the case.
(2) On 10 November 2009, Hannam CCM made orders that I have found to be a nullity, so I do not think that the application of the Director-General was properly considered by the Court on that occasion. On that basis, it is arguable that when the matter was called on before Baptie CCM on 3 December 2009, there was an extant application by the Director-General, or at least one which was capable of being promoted, it not having been dismissed. It is not necessary to resolve that question because of what is set out in (3) below.
(3) The statement of the Director-General’s legal representative on 3 December 2009 (at T2.31-34) that:
“The Director-General’s position and I understand the children’s representative’s position was that the children remain where they are and the status quo remain. So we are not seeking to have the order changed at all, the current order.”

particularly when coupled with the absence of any further comment by the DoCS representative, leads me to conclude that there was no application made, or sought to be made, by the Director-General on that date.
(4) Even if, on one view, what was said by the children’s representative, Mr Douglass, amounted to an application, it was not an application by the Director-General (and was not supported by the Director-General).
(5) There being no application by the Director-General, neither s 69 nor s 70 could be the source of power. No other source of power, such as s 46 or s 90, was claimed to found the decision, nor was there any reliance on an implied power. Section 46 could not be relied on because of the limited period for which such an order can be made, and s 90 could not be relied on as there was no application for leave on foot.

59 There is potentially a difficulty with the conclusion that Baptie CCM had no power to revisit the question of what orders should be made in the absence of an application by the Director-General or an application for leave by the parents under s 90. The first relates to the question of whether multiple applications can in any event be made by the Director-General, and the second is whether s 90 is available to parties who wish to challenge interim orders. There is no doubt that leave is required under s 90(1), but there is also an issue as to whether s 90 can be availed of in respect of interim orders. In Re Elizabeth [2007] NSWSC 729, Palmer J commented that s 90 provided for rescission or variation of an interim care order by the Children’s Court if there has been a significant change of circumstances, a view endorsed by Gzell J in Re Alan (2008) 71 NSWLR 573. A different view was taken by Kirby J in Re Edward (2001) 51 NSWLR 502 at 513 ([55]).

60 I do not need to decide the point, but:

(1) given the absence in s 90(1) of any express restriction of the care orders to final care orders and my view that “care orders” includes interim care orders, except where the terms of the section make it clear that it is only dealing with final orders (for example, s 78), as held in Re Jayden ;
(2) the absence of an appeal from the District Court, by virtue of s 91(1), from interim care orders;
(3) the requirement for leave pursuant to s 90 and the requirement for significant change as filters; and
(4) the significance of an interim removal order

I would respectfully follow the approach of Palmer J in Re Elizabeth and Gzell J in Re Alan.

61 In considering the anomalies which arise from the conclusion that ss 69 and 70 did not give power to Baptie CCM to reconsider, of her Honour’s own volition, whether a fresh interim order should be made, it is important to bear in mind that the matter cannot be viewed only on the scenario which occurred, namely that Baptie CCM came to the same view as Hannam CCM. If Baptie CCM had come to the view that no interim order should be made, there would then be inconsistent judgments of the Children’s Court – one allocating parental responsibility to the Minister and one leaving responsibility with the parents. DoCS’ argument that the Court can, of its own volition, make orders not simply varying but effectively overturning or rescinding orders made by another magistrate carries with it its own difficulties, as the parents’ submissions point out. If it is contended that interim orders should be viewed as “until further order of the Court” (often the form of interim injunctive relief in this Court, for example), then it is not what is said in the orders of Hannam CCM or Baptie CCM and is inconsistent with the passage from Re Jayden which I have set out at [54] above, and I do not think that could be construed as having been the scope of either of the interim orders made in this case.

62 In so far as these issues lead to an argument of whether there was any “need” for an order protecting the children as at 3 December 2009 given that they were under the responsibility of the Minister, this raises questions of some complexity that I do not need to determine, given my views as to the absence of power and the issue of procedural fairness, which I comment on below.

63 On the question of procedural fairness, there are competing considerations, including the fact that the parents were not ready to advance their case for variation or rescission of the orders of Hannam CCM even though that was what Forster J had intended, and the fact that the mother’s representative (but not the father’s) appeared to acquiesce in the course proposed by Baptie CCM. But essentially, even if, contrary to my earlier expressed view, the Court did have power to deal with the question of an interim order without any application by the Director-General, I think that the matter should have been listed by the Children’s Court for that issue to be heard. There was no urgency for it to be heard on 3 December 2009, because the children were in the care of the Minister and there was no risk of the orders of Hannam CCM being set aside before 2 February 2010. Without in any way wishing to be critical of Baptie CCM, who was dealing with a very difficult situation at the end of a busy list, I note that her Honour, having determined that she was going to consider the matter afresh, did not enquire as to whether there was an fresh evidence relevant to her Honour’s task, including how the children were faring under the care of persons other than the parents, nor ask for any submissions from any of the parties. This gives some support to the parents’ contention that Baptie CCM’s thinking was influenced by the need to achieve “certainty”, and I do not think that the parents were really given an opportunity to persuade the Court, as they had successfully done on 8 October 2009, that no order for removal should be made at that time. In saying this, I am not to be taken as concluding that the removal of the children from the parents was not an outcome which could be justified on the basis of the material before the Children’s Court and referred to by Baptie CCM, or that a result was arrived at by Baptie CCM (and Hannam CCM) that was not in the best interests of the children, but rather I have concluded that the process was flawed. I think that Baptie CCM thought that the parents would not be disadvantaged by the making of the order her Honour made because they could apply to vary it, but that conclusion assumes that s 90 is available in respect of interim orders (correctly, in my view, but not undoubtedly, given the expression of a contrary view by Kirby J in Re Edward and possibly Bell J in Re Fernando and Gabriel) and ignores the requirement for leave and the demonstration of a substantial change in circumstances found in s 90.

64 I conclude, therefore, that the interim removal order made by Baptie CCM on 3 December 2009 is also liable to be set aside as ultra vires and by reason of procedural unfairness.

65 The plaintiffs concede that the remedy sought is discretionary, but they advance a number of reasons as to why the discretion should be exercised in favour of the plaintiffs. They rely on Craig v South Australia (1995) 184 CLR 163, in which it was held at 175-176:

“Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.”

66 Neither DoCS nor the children’s representative advanced any submission against the grant of the remedy should the Court find that there has been jurisdictional error or want of procedural fairness. In my view, having regard to the significance of the orders that were made by both Hannam CCM and Baptie CCM, the only reasons that might induce the conclusion that the discretion should not be exercised are the failure of the parents to attend Court on 3 December 2009 ready to apply for review pursuant to s 90 of the Act and the acquiescence of the mother to the course proposed by Baptie CCM, which latter point would not affect the father. I have given consideration to the issue of the failure to advance a case on 3 December 2009 consistent with the application in the Supreme Court, and although relevant, it does not lead me to the conclusion that this failure should result in refusal to exercise the discretion. The situation which had developed was a confusing one, and there may well have been a doubt in the minds of those advising the parents as to whether any application could be made by the parents in respect of an interim order, given the view expressed in Re Edward.

67 There was before me last Wednesday agreement as to what would occur should I come to the view that the orders of Hannam CCM and Baptie CCM should be set aside: see T34 of the transcript for 12 May 2010, namely:

(1) that the Court should exercise the parens patriae jurisdiction; and
(2) that the Court should make an interim order that parental responsibility for each of the children vest in the Minister until the matter is determined at the final hearing in the Children’s Court.

The prospect of a contest as to the appropriate orders for contact with the children by the parents was foreshadowed.

68 So far as the first point is concerned, decisions of judges of this Division have emphasised the need for the parens patriae jurisdiction to be exercised only in exceptional circumstances (see Re Alan and the cases there referred to at 574-575 ([7]-[13])). I think that the circumstances here meet that description and that the Court should exercise the jurisdiction available. Incidentally, I note that Gzell J said in Re Alan at 576 ([19]) that under its parens patriae jurisdiction, this Court does not set aside orders of the Children’s Court. I do not think that his Honour was expressing a view on the position when orders have been, or are about to be, set aside on the basis of irregularity, and no argument to that effect was put in this matter.

69 So far as the second point is concerned, there are a number of factors which would encourage me to accept what is proposed:

(1) it is a position arrived at by the parties who are all represented by experienced family law practitioners;
(2) it is consistent with the “welfare conclusion”, as Mr Hunt put it, to which both Hannam CCM and Baptie CCM came;
(3) it is against the background of a finding made by Blewitt CCM that the children’s basic physical, psychological or educational needs were not, as at October last year, being met, or were not likely to be met by the parents.
(4) it is in the context of the salient fact that the children have now been in care for six months and the final hearing in the Children’s Court is only six weeks away.

70 It may be that given the fact that all persons affected are represented, it is not necessary to consider the matter further, but I will give the parties an opportunity to present such evidence as is considered appropriate before making a decision on the orders to be made. There appeared to be consensus between the parties on the nature of the evidence which should be provided to the Court.

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