Re Victoria

[2002] NSWSC 647

CITATION:	Re Victoria [2002] NSWSC 647
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3530/02 - Ex tempore
HEARING DATE(S):	19 July, 2002
JUDGMENT DATE:	19 July 2002
PARTIES :	Director-General, Department of Community Services - Plaintiff Children's Court of New South Wales - First Defendant The names of the Second and Third Defendants are suppressed.
JUDGMENT OF:	Palmer J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Deputy Chief Magistrate Helen Syme

COUNSEL :	I.D. Bourke - Plaintiff Ms Orman-Hales (Sol) - First Defendant - Excused A.S. Howen - Second and Third Defendants W.J. Malos - Child's Representative
SOLICITORS:	Crown Solicitor - Plaintiff Crown Solicitor - First Defendant (excused) Ward Maxwell & Co - Second and Third Defendants Heidtman & Co - Child's Representative
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - Parens patriae jurisdiction of Supreme Court - proceedings in Children's Court - interference by Supreme Court - invocation of parens patriae jurisdiction in what is, in substance, an appeal from Children's Court custody decision - attempt to by-pass appeal to District Court on ground that District Court cannot hear appeal expeditiously - principles discussed.
LEGISLATION CITED:	Children (Care and Protection) Act 1987 (NSW), s.72(1)(c)(ii) Children and Young Persons (Care and Protection) Act 1998 (NSW), s.91, s.247 District Court Act (NSW) 1973, s.143(1)
CASES CITED:	- Anna, Bruno, Courtney and Deepak, Re [2001] NSWSC 79 - Director-General, NSW Department of Community Services v Y [1999] NSWSC 644 - Harris, In re 37 SR(NSW) 17 - M v M (1988) 166 CLR 69 - Official Solicitor to the Supreme Court v K [1965] AC 201 - Ping v Van Der Kroft [1982] 2 NSWLR 731 - Roberts v Balancio (1987) 8 NSWLR 436 - Spruill v Director-General of the Department of Community Services [2001] NSWCA 413 - T v H (1985) 3 NSWLR 270 - Weir, Re (1953) 70 WN(NSW) 78
DECISION:	Interim orders made affecting contact between child and mother and as to surrender of mother's passport. Proceedings should be discontinued or transferred to District Court.

1 These proceedings concern the custody of a young girl, now about three and a half years old, who has been given the pseudonym Victoria. 2 On 5 July 2002 the Plaintiff, to which I will refer as DOCS, filed a Summons in this Court seeking the stay of an order made on 1 July 2002 by a Magistrate in the Children's Court under s.72(1)(c)(ii) of the Children (Care and Protection) Act, 1987 (NSW) (“the 1987 Act”). The order gave custody of Victoria to her mother, who is the Second Defendant, subject to certain undertakings to the Court given by the mother. DOCS sought a stay of that order pending determination of these proceedings. 3 The Summons which DOCS filed in this Court seeks an order that the order made by the Magistrate be quashed, although s.91 of the Children and Young Persons (Care and Protection) Act, 1998 (NSW) (“the 1998 Act”) which superseded the 1987 Act and which now governs appeals, provides that an appeal de novo from an order of the Children's Court lies to the District Court. 4 In filing its Summons in this Court rather than commencing an appeal in the District Court, DOCS seeks to invoke this Court’s inherent parens patriae, or wardship, jurisdiction, which is preserved notwithstanding specific legislation enacted by the State of New South Wales and by the Commonwealth of Australia to provide for the welfare of children: see s.247 of the 1998 Act; Director-General, NSW Department of Community Services v Y [1999] NSWSC 644, paras.84-97; Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79, at para.21; Spruill v Director-General of the Department of Community Services [2001] NSWCA 413. Why DOCS has taken this course is of some significance – a matter to which it will be necessary to return. 5 DOCS’ application came before me as a matter of urgency on 5 July 2002. There was no opposition by the mother and Victoria’s representative to orders making Victoria a ward of the Court and staying the Magistrate’s custody order pending determination of the proceedings. The issues debated on that day were confined to the extent to which the mother was to have interim contact with Victoria, the extent to which the contact would be supervised by a representative of DOCS, and whether the mother should temporarily surrender her passport to prevent her from absconding with the child. 6 As I have noted, the application was brought on urgently and the evidence in support was very limited. A copy of the Magistrate's judgment was not made available. I determined to preserve the status quo for a period of two weeks, continuing the contact provisions under limited supervision and requiring the mother to surrender her passport to the Registrar of the Equity Division in the meantime. A short ex tempore judgment which I delivered on that day sets out the reasons for that decision. 7 I then gave directions for the filing of further evidence by both parties to ensure that when the matter was brought back before me, as it has been today, the parties could place before the Court such further evidence as they wished as to the child's well-being and as to considerations affecting contact between the child and the mother pending determination of the proceedings. 8 DOCS has filed an affidavit putting into evidence certain material which was before the Magistrate, the Magistrate's decision itself and a further affidavit by a paediatrician as to Victoria's present condition. The mother has filed an affidavit in which she describes the quality of the contact which she has with Victoria and gives reasons why she wishes to have removed or varied the restrictions placed on that contact. 9 At the commencement of the hearing today Mr Howen, who appears for the mother, sought an adjournment for a period of two weeks on the ground that DOCS had failed to file satisfactory evidence as to Victoria’s present condition. He said that material existed within the DOCS’ files which updated Victoria's condition and which was relevant to the issue of her contact with her mother but that, in breach of a general obligation under the 1997 Act and the 1998 Act, DOCS had not placed that evidence before the Court for consideration today. He sought, at first, some order or direction that DOCS file such further affidavit evidence or expert’s report as to Victoria’s position as he might later identify. 10 In the course of argument I expressed some doubt as to whether a party to proceedings in the wardship jurisdiction of this Court was entitled to obtain any direction compelling DOCS to file affidavits or procure expert reports as to a matter specified by that party. Mr Howen submitted that the Court had such a power because proceedings in the wardship jurisdiction of the Court, like proceedings in the Children’s Court, are not adversarial in nature but, rather, are concerned to determine the best interests of the child. 11 It is true, of course, as Mr Howen says, that proceedings in the wardship jurisdiction of the Supreme Court are not treated by the Court in the same way as other proceedings. The task of the Court in wardship proceedings is not to decide whether the plaintiff or the defendant wins the day but is, rather, to protect and promote the best interests of a child who is not, in many cases, an active participant in the proceedings. It is for this reason that the Supreme Court regards itself as entitled to depart from the rules of evidence which apply in proceedings which are truly adversarial in character: see e.g. Official Solicitor to the Supreme Court v K [1965] AC 201, at 240-241; Roberts v Balancio (1987) 8 NSWLR 436, at 440; M v M (1988) 166 CLR 69, at 76. 12 However, I am not aware of any authority for the proposition that the nature of wardship proceedings justifies the Court in compelling one party, against its will and at its own expense, to procure and tender to the Court a report from an expert as to particular matters specified by an opposing party. If a party to wardship proceedings already has in that party’s possession reports or other discoverable material, such material can be procured by the opponent by the ordinary means of a Notice to Produce. But I think that it is going too far to hold that the special character of wardship proceedings warrants the Court in making the kind of order suggested by Mr Howen. It must not be forgotten that wardship proceedings often do not involve DOCS as a party so that it cannot be assumed that the resources of the State will always be available to provide expert evidence for the benefit of the Court and of the parties. 13 In my view, save in extraordinary circumstances where the interests of justice and fairness otherwise require, in wardship proceedings it should be left to a party contending for a particular result to adduce evidence, including expert evidence, in support of that result; one party should not be able to cast upon another party the evidentiary burden of the issues affecting the child’s best interests, as well as the expense of discharging that burden. 14 Ultimately, Mr Howen’s position came to be that, during the period of the adjournment which he sought, he wished to be able to procure production of material within the DOCS’ files by means of a Notice to Produce or by subpoenas. Why it was that a Notice to Produce had not been previously given seeking the DOCS material was not explained. 15 Mr Howen seeks that, during the period of the adjournment, there be a variation of the conditions upon contact between Victoria and the mother which I imposed when the matter was before the Court on 5 July. Those conditions provide that until further order, the mother have contact with the child each Tuesday and Friday between the hours of 10am and 3pm at the mother’s residence, such contact to be supervised by Ms Amy O'Heir, not necessarily for the whole period of contact but for such part as Ms O'Heir deems desirable. 16 Mr Howen also seeks to vary the orders made on 5 July by releasing the mother from the obligation to deliver her passport into the custody of the Registrar of this Court. The mother has failed to comply with that order. She has not explained in the affidavit which she has filed today why that failure occurred. Neither has Mr Howen today offered any satisfactory explanation for that failure. That is a matter which, in my view, is of considerable concern. 17 DOCS and the child's representative, who has appeared today upon the application, do not oppose an adjournment of the proceedings to enable such further evidence as the mother wishes to procure to be adduced. However, DOCS does oppose any relaxation of the orders relating to the supervision of contact and to dispensation of the requirement that the mother surrender her passport to the Court in the meantime. 18 In determining whether there should be any relaxation of the terms upon which contact between the mother and the child should take place, I have had regard to the following matters. Firstly, I have to take into account the risk of further harm occurring to the child. 19 The facts recounted by the Magistrate as to how the injuries to this child occurred make very disturbing reading. It is not necessary for me now to elaborate, but it appears that the Magistrate has found that the three sets of injuries which the child suffered in India and which have left her severely physically and intellectually disabled were deliberately inflicted by the father and that the mother was, at the least, aware of how the injuries occurred, did not take steps to prevent further injuries, and was covering up for the father in the evidence which she gave to the Children’s Court. 20 While Victoria was in the custody of the mother in Australia she suffered a further injury, namely a fracture of the right leg. The mother said that this was accidental and was caused when she was pushing Victoria in a stroller through a narrow supermarket aisle: the child's leg protruded from the stroller and came into forceful contact with an aisle ledge. The Magistrate accepted this as an accidental injury, but expressed grave concern that the mother could have allowed such a situation to happen and that the mother had delayed for some time in seeking medical assistance for the child. 21 Although I accept, as the Magistrate found, that the mother has engaged in therapy to improve her ability to deal with Victoria, these matters must, of course, weigh very heavily with the Court when it considers the welfare and safety of the child pending determination of these proceedings. 22 The second factor which I must take into account is whether there is any appreciable risk of the mother absconding with the child to India if she is left in unsupervised contact with the child for any period and has full and free access to her passport. 23 The mother’s affidavit filed today makes it clear that she feels very strongly that she is being detained in this country against her will by the necessity of having to contest these custody proceedings. She has made it clear that she feels very strongly that Victoria likewise is being detained in this country when her mother wishes her to return as quickly as possible to India in order that she and the mother may rejoin the father. 24 The child is within the jurisdiction of this Court and is the subject of an order made by the Children’s Court and of undertakings to that Court given by the mother. So far as the evidence presently suggests, the jurisdiction of this State has been validly invoked in relation to the child and the child, being now within the jurisdiction of the Court, is entitled to the Court’s protection. In considering what terms should be imposed upon the mother’s contact pending determination of proceedings to quash the Magistrate’s custody order, I have to evaluate whether there is an appreciable risk of the child being removed from the Court’s jurisdiction and the orders of the Court being frustrated. 25 Having read the decision of the Magistrate, having read the criticisms by the Magistrate as to the mother's credit in giving evidence before that Court, and taking into account the expressed desire of the mother to return to India as quickly as possible, I cannot dispel as unreal or fanciful the possibility that the mother may abscond to India with the child if given unsupervised contact when her passport is within her possession. 26 I note, as I have said, with some real concern that the mother has not complied with the Court’s previous order to surrender her passport. I cannot accept that this is somehow inadvertent. It seems to me to demonstrate an intransigent attitude of resistance to the order of the Court. While I can well understand the mother's reasons for feeling that she and Victoria are detained in this country against their will, nevertheless I cannot bring myself with any confidence to relax the restrictions upon contact between the mother and the child which were imposed on the last occasion pending the final determination of this matter. 27 When making orders today, I will require the mother to surrender her passport forthwith to the Registrar as a condition of continuing to have contact with the child, any part of which is unsupervised. 28 As to the time during which supervision of contact is to be exercised by DOCS, I have not placed any time restriction upon such supervision by the previous order, leaving it in the discretion of the supervisor, Ms O'Heir, as to the time that she felt was necessary for supervision. The mother apparently gets on well with Ms O'Heir. No doubt Ms O'Heir is sensitive to the mother's need for as much unsupervised contact as is possible and tailors the degree of supervision to what she feels is prudent in the circumstances. That is the regime which I think should continue. 29 I note that Ms O'Heir is about to leave DOCS. There are, according to the Magistrate's decision, some other DOCS' representatives and representatives of an organisation called Jannawi who would appear to be acceptable to the mother as supervisors of contact. However, I note that the Magistrate has deemed it unacceptable for Ms Coorey to have anything to do with the supervision of contact. What I would propose is that the directions for supervision will specify supervision by Ms O'Heir and, if not by her, then by some representative of DOCS other than Ms Coorey. 30 I come now to question as to how this matter should proceed. The Summons seeks the quashing of the Magistrate’s order as if the relief sought were in the nature of certiori. DOCS does not contend, however, that the Magistrate lacked jurisdiction or that there was a denial of natural justice. There is some attempt in DOCS’ written submissions to contend that there was error of law on the face of the record, but it is fairly plain from those submissions, I think, that the real burden of DOCS’ complaint is that the learned Magistrate, in the exercise of a discretion, failed to give due weight to a number of factual circumstances and gave disproportionate weight to others. In other words, these proceedings really seem to be an appeal directly to this Court from the decision of the Magistrate. 31 It is true that the 1998 Act does not limit the parens patriae, or wardship, jurisdiction of the Supreme Court. Nevertheless, I would think it highly inappropriate for appeals from decisions of Magistrates in the Children's Court to be made as a matter of course to this Court under the guise of invoking the wardship jurisdiction. When a contest concerning a child has been fought in the Children’s Court and a party is dissatisfied with the decision, an appeal should be made to the District Court under s.91 of the 1998 Act, and any application for a stay of the Magistrate's order should be made to that Court pending determination of the appeal. It would only be in the most extraordinary circumstances that this Court should be asked, in the exercise of its parens patriae jurisdiction, to set aside or to affect the decision of a Magistrate in the Children's Court.

32    I propose to hear submissions of the parties as to where the further conduct of this matter should take place, that is, whether in this Court or in the District Court, and when that is determined I will give directions to facilitate the speedy determination of the matter, as well as imposing the terms upon which the mother is to have contact with the child in the meantime.

After further submissions: 33 The matter which has now been debated before me is whether these proceedings should continue as an application to the Supreme Court in the exercise of its wardship jurisdiction or whether the matter should proceed as an appeal to the District Court, in accordance with s.91(1) of the 1998 Act. 34 Mr Bourke, who appears for DOCS, rightly submits that there are very unusual circumstances in this case which, he says militate in favour of a decision that the appropriate forum for the continuing contest should be this Court. The most important of those circumstances is delay. He rightly points out that the contest between DOCS and the parents in this case has been continuing in the Children's Court for some two and a half years and has occupied some 40 days of hearing: for all but about six months of Victoria's life, she has been the subject of proceedings in which her custody has been in question. Mr Bourke says that if custody is to be contested de novo in the District Court, it is highly probable that a large volume of evidence will be tendered and that the hearing will take very many days. He says that inquiries from the District Court reveal that it would probably not be possible for the appeal to be heard and determined this year. Bearing in mind the extraordinarily adverse effect that the delay in deciding the question of Victoria’s custody must be having on her welfare and development, this Court should, he says, take the matter into its own control and expedite the hearing so it can take place much earlier than in the District Court. 35 There are a number of other factors upon which Mr Bourke relies, namely, the effect of proceedings in the District Court upon the child's immigration status and whether or not the District Court has power to require the mother to surrender her passport pending the appeal. These are subsidiary matters of machinery. The substantial question is what is the appropriate forum for the determination of this contest in the circumstances of this case. 36 In my opinion, I must have primary regard to the fact that the 1998 Act provides for the operation of a specialist jurisdiction within the Court system of this State. Matters concerning the welfare of children are to be dealt with by a Children’s Court consisting of Magistrates highly experienced in the determination of such issues. The 1998 Act also specifically provides that appeals from the Children’s Court lie to the District Court; s.91 provides a machinery for the conduct of those appeals and vests the District Court with the appropriate jurisdiction to make all such orders as the Children’s Court might make for the welfare of the child. 37 I do not think that there should be encouraged a procedure whereby persons who have fully contested a matter in the Children’s Court and wish to appeal can by-pass the appeal provisions of the 1998 Act and come straight to this Court seeking to invoke its inherent wardship jurisdiction. Quite apart from the fact that to do so would sanction a departure from the appeal procedure laid down by the legislature in the 1998 Act, such an application would involve a quite different question from that which is normally raised on an appeal. In an application to this Court in its wardship jurisdiction, the question is not whether the decision of the Children’s Court, or of the District Court on appeal from the Children’s Court, was right or wrong or whether the wide powers conferred on a Court under the 1997 or 1998 Acts were rightly or wrongly exercised or could have been better exercised. The question before this Court will be: what is in the best interests of the child as matters stand at the date of this Court’s judgment. It may be that the circumstances revealed in, or flowing from, the decisions of the lower Courts have a great part to play in the consideration of that question, but they will not necessarily be conclusive. Indeed, in certain circumstances what transpired in the lower Courts might be utterly irrelevant to the question before this Court in the exercise of its inherent jurisdiction. 38 That this is so is demonstrated by the fact that an order of this Court in its parens patriae jurisdiction does not set aside an earlier order made by a statutory Court such as the Children’s Court; the statutory Court’s order still stands although in a sense it may be said to be superseded where it is inconsistent with this Court’s order, so that an injunction in the nature of prohibition would lie to restrain the statutory Court from enforcing its earlier inconsistent order: see In re Harris 37 SR(NSW) 17, at 28-29 per Jordan CJ and Long Innes J, and at 31-32 per Maughan AJ. 39 As I have said earlier, this Court should not encourage any process by which those dissatisfied with the result of proceedings in the Children's Court can simply set at naught the proceedings in that Court and come afresh to this Court, invoking its parens patriae jurisdiction in order to argue all over again the matters that have been debated before the lower Court. If that were to be in any way encouraged, then parties would inevitably face the risk of being involved in a multiplicity of uncontrolled proceedings fought in the Children's Court and in the Supreme Court, with the distinct possibility of conflicting concurrent orders obtained in the Supreme Court and in the lower Court. 40 What I have said indicates, in my view, the approach which, as a general rule, this Court ought to adopt when its wardship jurisdiction is sought to be invoked in what is in substance an appeal from a decision of the Children’s Court. This approach is supported, in my opinion, by decisions of this Court such as Re Weir (1953) 70 WN(NSW) 78; Ping v Van Der Kroft [1982] 2 NSWLR 731; T v H (1985) 3 NSWLR 270, at 274; and Re Anna, Bruno, Courtney and Deepak (supra) at paras.20 to 22. Of course, as these authorities indicate, there may be exceptional circumstances in a particular case which justify the Court in departing from that general approach. 41 In the present case, DOCS says that exceptional circumstances are constituted by the inordinate delay which Victoria has suffered in the determination of her custody status in the proceedings which have so far occupied the Children's Court. I am the first to agree that it is a truly appalling state of affairs that this child's custody status should have been the subject of such protracted proceedings. By this, I do not intend to criticise in the slightest degree the conduct of the case by the learned Magistrate in the Children's Court. I very well appreciate there are constraints on the resources of that Court so that it will often be impossible to give large blocks of time to the hearing of a complex case, such as this one undoubtedly is. The fact of the matter remains, nevertheless, that completely unacceptable delay has occurred in the determination of this dispute. 42 However, that delay alone does not justify, in my opinion, the parties in leap-frogging the appeal provisions of the 1998 Act and coming directly to this Court. To allow such a process would be to thrust onto this Court the burden of appeals from the Children's Court simply on the ground that the District Court lacks sufficient resources to discharge its obligations to hear cases, particularly urgent cases, in a timely manner. To allow that process would be to shift the burden of the problem from one Court to another without addressing its cause. 43 What I propose to do is to transfer these proceedings to the District Court under s.143(1) of the District Court Act, 1973 (NSW), if that is the course desired by the parties, so that the matter may proceed as an appeal under s.91 of the 1998 Act. I note in this regard that paragraph 3 of the Summons filed by DOCS seeks an order that the Magistrate's decision be quashed. As I have observed earlier, I do not think that that was an appropriate order to seek if the matter were to proceed in this Court by successful invocation of the parens patriae jurisdiction. What the Summons really sought was an order setting aside the Magistrate’s decision by way of appeal. 44 One way of dealing with the Summons is, as I say, to transfer it to the District Court so that the directions which have been made in these proceedings to date continue as directions in the District Court. Any application to vary those directions or as to the further conduct of the matter can then be made in the District Court. Alternatively, I could simply dismiss the Summons at some time in the future when an appeal has properly been commenced by DOCS in the District Court, the orders which I have made in the meantime remaining until the proceedings are dismissed and the District Court has itself made its own directions and orders as to contact and as to the retention of the mother's passport. Whichever option is chosen, it is really a matter of machinery rather than substance, as I view the matter at the moment. I am open to suggestion by the parties as to which machinery they prefer to adopt. After further submissions: 45 The orders that I propose to make are, therefore, at the election of the parties either to stand the Summons over for a certain time pending commencement in the District Court of an appeal under s.91 of the 1998 Act and then to dismiss it, or else simply to transfer the proceedings to the District Court at this stage so that they can be treated as an immediate appeal under s.91. Whichever happens, I propose to direct the Registrar of the District Court to give the hearing of this matter the highest priority having regard to the Court's commitments and available time with a view to its being determined at the earliest date and certainly before the end of this year. I would request the Registrar to procure special case management for this case in order to achieve that result. Whether the proceedings in this Court end and the Summons is dismissed or whether the matter is transferred to the District Court, I will ensure that the Registrar of the District Court obtains a copy of these reasons so that he or she may appreciate the compelling need for urgency in the fixing of a hearing in the interests of this child, who has suffered more than enough already by reason of delay in the Court process. 46 The parties can agree upon some short minutes, if they want to do that over the weekend and bring the matter back. If they do it now, I will make the orders in chambers. After further submissions: 47    The mother seeks a determination of the stay application which has been made by DOCS. The stay which I ordered on the previous occasion was up to and including today, the question whether it should be continued being reserved for decision today. It will have emerged from my reasons that I propose to continue the stay, at least until further order. It seems that the matter will now probably be transferred to the District Court. If it is transferred, it will be for the District Court to entertain any further application to remove the stay. In other words, the order which I shall make is to continue the stay pending the determination of the appeal or further order of the Court. It will be a matter for the mother to apply to the District Court if she is of the view that the stay ought to be lifted at any time by reason of further evidence as to changed circumstances. 48    I make the following orders:

(1) The orders in paragraphs 2, 3, 4, and 9 of the Short Minutes of Order dated 5 July 2002 are continued until further order.

(2) The order in paragraph 5 of the Short Minutes is varied by addition after the words “Ms Amy O'Heir” of the words “or some other authorised representative of the plaintiff, except Ms Coorey” .

(3) Order that the second defendant deliver to the Registrar of the Equity Division forthwith her passport to be held by the Registrar of the Equity Division or by the Registrar of the District Court when this proceeding is transferred to the District Court, until further order of the appropriate Court.

(4) Note that the Second Defendant's passport number A-5881917 has been delivered into the Court's custody today.

(5) Direct that the Second Defendant have liberty to apply for release of her passport to this Court or to the District Court when the matter is transferred upon 24 hours' notice to the other parties.

(6) Stand the proceedings over for further directions before me at 10am on 31 July 2002.

(7) Costs reserved.

– oOo –

Last Modified: 07/25/2002