S v Department of Community Services

[2002] NSWCA 151

CITATION:	S v Department of Community Services [2002] NSWCA 151
FILE NUMBER(S):	CA 40110/02
HEARING DATE(S):	7 May 2002
JUDGMENT DATE:	23 May 2002
PARTIES :	Richard S Department of Community Services
JUDGMENT OF:	Heydon JA at 1; Hodgson JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	13613/01
LOWER COURT JUDICIAL OFFICER :	Kirby J

COUNSEL:	Applicant in person Mr P Singleton for the Respondent
SOLICITORS:	Applicant in person Crown Solicitors for the Respondent
CATCHWORDS:	Judicial Review - whether Children's Court failed to consider properly an application for leave to apply for rescission or variation of a care order - whether Court's approach unduly technical - whether failure to take account of material circumstances - whether immaterial circumstances taken into account - Appeals - whether District Court has jurisdiction to hear an appeal from a decision of the Children's Court refusing leave to apply for rescission or variation of a care order
LEGISLATION CITED:	Children (Care and Protection) Act 1987, s15, s72, s81 Children and Young Persons (Care and Protection) Act 1998, s60, s61, s71, s74, s75, s76, s90, s91 Supreme Court Act 1970, s48, s69, s101
CASES CITED:	Craig v State of South Australia (1995) 184 CLR 163 Director of Public Prosecutions v Yalda (unreported NSW Court of Appeal, 4 September 1998) Minister for Immigration and Multicultural Affairs v Singh (2002) 76 ALJR 514 Palmer v Haddad [2000] NSWSC 545 "R" v Department Of Community Services [2001] NSWSC 419 Re Nerida [2001] NSWSC 1196 S v Dept of Community Services [2001] NSWCA 219 S v Director-General of the Department of Community Services [2001] NSWCA 413
DECISION:	1. Leave to appeal against the order of dismissal by Kirby J on 17 December 2001 be granted; 2. The appeal be allowed; 3. The order of dismissal by Kirby J on 17 December 2001 be set aside and in lieu thereof it be ordered: (i) The order of the Children's Court made on 3 September 2001 on Richard S's application for leave be removed into this Court and quashed; (ii) The matter of Richard S's application for leave be reheard in the Children's Court by a different Magistrate; 4. It be declared that the District Court of New South Wales had jurisdiction to hear and determine Richard S's appeal against the aforementioned order of the Children's Court; 5. Liberty be reserved to Richard S to apply in relation to costs.

- 1 -IN THE SUPREME COURT

40110/02

Heydon JA
Hodgson JA
Davies AJA

Thursday, 23 May 2002

S v Department of Community Services

Judgment

1 Heydon JA: I agree with Davies AJA.

2 Hodgson JA: I agree with Davies AJA.

3 Davies AJA: On 28 July 1999 a daughter, “Nerida”, was born to the present appellant Richard S and to Renee S. At the time, the parents were not married. On 28 January 2000, Nerida was removed into the care of the Department of Community Services. On 10 October 2000, a Children’s Court constituted by Barnett CM ordered, pursuant to s72(1)(c)(ii) of the Children (Care and Protection) Act 1987 (“the 1987 Act”), that Nerida be placed in the custody of her maternal grandmother, Kerrie Micallef, until she attained the age of 18 years.

4 Richard and Renee S appealed to the District Court. On 13 November 2000, Puckeridge DCJ dismissed the appeal and confirmed the order of the Children’s Court.

5 Puckeridge DCJ noted that the ground on which the order had been made by the Children’s Court was that Nerida was likely to suffer psychological abuse as a result of domestic violence which had occurred between Richard and Renee S. His Honour stated,

“The Department relies upon the grounds of the original application of 31 January 2000, that the child was likely to suffer psychological abuse as a result of domestic violence which had occurred and was occurring between the natural mother and the natural father.”

6 His Honour noted the Department’s submission that,

“on the evidence before this Court, the Court could not be satisfied that any natural tendencies or any tendencies of aggression on the part of the natural father have ceased; that the Court accept the evidence of the maternal grandmother and the person in whose care the child now is; that the Court consider that domestic violence is still likely to occur between the natural mother and natural father and that psychological abuse could again occur if [Nerida] was returned to their care.”

7 His Honour noted that the proceedings in the District Court were by way of rehearing. His Honour expressed the relevant test as follows:

“it is only in exceptional circumstances that a child of such tender years be removed from the custody of its natural parents.”

8 His Honour made no adverse comment about Richard S although he found, contrary to the evidence of Richard and Renee S, that assaults had occurred in the past. His Honour specifically rejected the report of the psychiatrist, who undertook the parenting capacity assessment, that Richard S had an anti-social personality. His Honour said:

“this Court does not and cannot find on the evidence that Richard [S] has an anti-social personality disorder.”

9 His Honour commented upon the fact that the problems between Richard and Renee S had arisen from her addiction to drugs and from his desire that she be drug free, including being free of any possible addiction to methadone.

10 As to Renee S, his Honour found that she had been a heroin addict, at least up to five months prior to the hearing, and that, due to that and to her immaturity, she had been unable to accept responsibility for the child by herself and unable properly to care for her.

11 His Honour found:

“It is simply a question of it being too early on the evidence before this Court to say that the natural mother has reached that degree of stability in relation to being free or stable in her previous drug addiction behaviour. She remains a person who still requires in her own words assistance and support in caring for the child.”

12 Having regard to Renee S’s past history of heroin addiction, his Honour considered that Nerida was still in need of care. His Honour concluded:

“I have come to the conclusion and am satisfied to the degree as referred to in s70 of the Act, that the child is still in need of care. I have come to that conclusion on the basis that the natural mothers present drug free condition has not been sustained for a sufficient period of time so as that a court could objectively come to the view that her drug free condition has reached a stable point.
I have also come to the conclusion that the relationships and the tension which still remains between the natural mother and natural father in relation to the drug taking by the natural mother, is such that the Court would have to be concerned as to the stability of that relationship.”

13 On 19 January 2001, Richard S, who sought custody of Nerida, lodged an application for leave to lodge an application for the rescission or variation of the care order. This application came before Mitchell CM. His Worship dismissed the application for leave. That decision was taken on appeal to the District Court. Knight DCJ dismissed the appeal holding that he had no jurisdiction to review the refusal of leave.

14 The matter then came before Hulme J in this Court ("R" v Department Of Community Services [2001] NSWSC 419). His Honour indicated that he was unable to deal with the matter as if it were a hearing on the merits of the issues and that, as to prerogative relief, it would be better for Richard S to make a fresh application which would come before a different Magistrate. His Honour did however make critical comments about the evidence which had been put by the Department before Mitchell CM. Some of this criticised material was damaging to Richard S. His Honour expressed the following views (at [20]):

“How, one might ask, could anyone possibly challenge the information or statements there contained, whether first, second or third hand hearsay, statements that Mr S was threatening people, pressuring people, or the expression of opinion by the authors of the report – on what information one knows not, that this behaviour was ‘typical of Mr S’. For courts to rely on information of this nature is almost to deny the concept of natural Justice.
I have gone on, on some matters at greater length than I perhaps need to have. I have done so because it seems to me that the errors in what has occurred in court before Mr Mitchell are of a nature that they should be specifically adverted to. Although there clearly are matters adverse to the claims of Mr and Mrs or Mr S which would concern any Court, and I am not making a judgment on their entitlement to care, nevertheless, they might fairly feel that they are entitled to more consideration than they in fact received.”

15 His Honour’s decision was taken on appeal to the Court of Appeal which dismissed the matter. Mason P, delivering the principal judgment of the Court, pointed out that the Children’s Court is the specialist body that has the jurisdiction to determine issues relating to the welfare of children and that it was not the role of the Supreme Court to exercise the original jurisdiction of the Children’s Court. His Honour said that Mr and Mrs S would be better served by making a fresh application which he would expect to come before a different Magistrate. His Honour also made the comment:

“Certain errors are discussed in the judgment of Hulme J. The Children's Court would be required to give proper regard to his Honour's comments if and when the matter returns to that Court on a fresh substantive application.”

16 Later in 2001, Richard S made a fresh application to the Children’s Court. This application came before Zdenkowski CM. On 3 September 2001, his Worship refused leave to apply for rescission or variation of the care order previously made. I shall later deal with his Worship’s reasons in some detail, for they are the subject of these present proceedings. Mr S again appealed to the District Court of New South Wales. On 26 September 2001, Black DCJ dismissed the appeal on the ground that he had no jurisdiction to review the refusal of leave. His Honour adopted the reasoning of Knight DCJ.

17 An appeal to the Court of Appeal from the decision of Black DCJ was lodged. That appeal was struck out by Beazley JA (S v Director-General of the Department of Community Services [2001] NSWCA 413) on the ground that the Court of Appeal had no jurisdiction to hear an appeal from a decision of the District Court on an appeal from the Children’s Court. However, her Honour remitted the matter to the Common Law Division to consider whether prerogative relief should be granted.

18 Pursuant to the remittal by Beazley JA, Richard S filed a summons in the Common Law Division of this Court seeking, inter alia, prerogative relief in respect of the decision of Zdenkowski CM, and also in relation to the decision of Black DCJ. As s48(2)(b) and (d) of the Supreme Court Act 1970 required that the proceedings in relation to the decision of Black DCJ be assigned to the Court of Appeal, the matter which proceeded before Kirby J in the Common Law Division concerned only prerogative relief in relation to the decision of Zdenkowski CM. His Honour dismissed the summons for reasons which I shall later mention. Richard S filed an application for leave to appeal against Kirby J’s order.

19 This Court heard full argument on that application to the intent that, if leave were granted, the appeal would be decided without further argument. At the request of the parties, leave was given to supplement their oral arguments by written submissions, the last of which was received on 13 May 2002.

20 I return now to the decision of Zdenkowski CM. As these proceedings seek relief in the nature of certiorari, it is necessary for the Court to keep in mind that any error found must be an error on the record. The nature of certiorari was discussed in Craig v State of South Australia (1995) 184 CLR 163. Section 69(4) of the Supreme Court Act 1970 provides that

“the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.”

In a Court such as the Children’s Court, where the predominant concern is the welfare of the child, and in proceedings such as these where the issue is whether there has been a significant change in any relevant circumstance since a care order was last made or varied, the term “the record” can be regarded as having a reasonably wide ambit. In a case such as the present, it is not limited to documents filed for the particular proceeding but includes, in my view, preceding decisions of the Children’s Court with respect to the particular child and, in my opinion, includes or ought to include not only decisions leading to the making or varying of the relevant care order, but also relevant intervening decisions of higher courts which have dealt with the issue of the child’s custody. Thus, for example, I regard the judgment and reasons for judgment of Puckeridge DCJ given on 13 November 2000 as part of the record. His Honour’s order was the relevant care order in relation to the child Nerida, the rescission or variation of which was sought. However, it is not necessary to decide the general point just stated since, in any event, the application to the Children’s Court lodged by Mr S specifically referred to and attached the judgment of Puckeridge DCJ and the judgment of Hulme J, thereby incorporating them in the record on any view of that expression.

21 The Children and Young Persons (Care and Protection) Act 1998 (“the 1998 Act”), which has substantially replaced the 1987 Act, provides:

“ 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) …
(3) The order sought may be varied, but only with the leave of the Children's Court.
…
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 of the following reasons:
…
(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,
(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,
…
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.
(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.
…
(3) An application may be made by:
…
(c) a person having parental responsibility for the child or young person, or
…
(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 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 for a care order.”

22 Richard and Renee S married in late 2000 but had been living apart since early 2001. I cannot set out the facts in any detail for the affidavits of Richard and Renee S, which are specified in the application before the Children’s Court as setting out significant changes on which leave should be granted, are not included in the papers with which this Court has been provided.

23 I should observe that a person seeking leave to apply for the rescission or variation of a care order is not required to prove on such an application that, if leave be granted, the person would be entitled to the order sought. The first step is simply to establish that there has been a change of sufficient significance to justify the consideration of an application for rescission or variation of the care order.

24 The crux of Richard S’s application, which was no doubt fleshed out in the affidavits of himself and Renee S which were referred to in his application, was that he, Richard S, was a person of good character, that he was fit to care for his child, that he was living apart from Renee S in an environment in which the previous problems were unlikely to be encountered and that Renee S, had, in any event, been heroin free for a period of 14 to 15 months.

25 Zdenkowski CM did not grasp the substance of the case which was being put by Richard S, namely that he, the father of the child, was seeking custody, that he was well-fitted to care for the child and that the circumstances which had led to the previous problems were no longer operable.

26 The Magistrate expressed the task before him as:

“I have to decide whether, strictly on the evidence before me, there is a significant change in relevant circumstances since 30/11/00 which would materially affect the welfare of [Nerida] so as to justify a grant of leave under s.90.”

27 The words “strictly on the evidence before me” and the reference to the date, 30 November 2000, indicate that the Magistrate unduly narrowed his consideration of relevant factors. Section 90(2) uses the expression “a significant change in relevant circumstances”. This requires a comparison between the situation at the time when the application was heard and the facts underlying the decision when the order was made or last varied.

28 Puckeridge DCJ had pointed out that a principal factor underlying the making of the original care order was that, when they were living together, Richard S had assaulted Renee S and that this had been considered to be a factor placing the child at risk of psychological damage. His Honour, however, considered that the assaults had arisen from Richard S’s attempts to break Renee’s heroin and methadone addiction and that Richard S did not have an anti-social personality. His Honour confirmed the care orders, however, as he considered that, due to her heroin addiction and immaturity, Renee S had been unable to care properly for Nerida and that the five months which had elapsed was an insufficient time to establish that she was stable and capable of caring for her child.

29 The principal changed circumstance on which Richard S relied was that he, as a parent, was seeking custody of his child. It can be inferred from his application that he put himself forward as a fit and proper person and the most appropriate person to have custody of Nerida. Another changed circumstance on which he relied was that he was living apart from Renee S. It may be inferred that he would say that the circumstances that led to the assaults which were a cause of the original care order would not be repeated. A third relevant circumstance relied on was that Renee S had continued to be drug free. It may be inferred that he would say that sufficient time had passed to demonstrate that Renee S was stable and that any involvement she had with the child would be a proper, caring involvement.

30 These three circumstances which Richard S put forward were, on their face, significant. In the hearings before Barnett CM and Puckeridge DCJ, the principal issue considered was whether Renee S had the capacity to care properly for her daughter. Although Puckeridge DCJ said that both parents appealed to the District Court from the original care order, his Honour’s reasons for judgment were entitled “Renee Marie S v Department of Community Services”, and his Honour confirmed the care order because he was not satisfied that Renee S would properly care for the child.

31 Zdenkowski CM said, early in his reasons:

“When invited by the court to clarify the precise grounds on which he sought to rely the applicant confirmed that the two matters identified by Mr Singleton were relied on and added a third, namely that His Honour Judge Puckeridge in his judgment of 30/11/00 (at p8) found no evidence that the applicant suffered from Anti-Social Personality Disorder.
In my view this last-mentioned basis has no substance. A finding in the judgment of 30/11/00 cannot relevantly constitute a significant change in terms of s90(2) which contemplates a change between 30/11/00 and the date of the application for leave lodged on 26 June 2001.”

32 The Magistrate was correct that the comment by Puckeridge DCJ that Richard S did not suffer from an anti-social personality disorder was not of itself a significant change. But what was significant was that Puckeridge DCJ made no adverse finding against Richard S save in relation to the assaults which had occurred during his attempts to wean Renee S from heroin and methadone addiction.

33 The substantial point which Richard S was putting, although he no doubt expressed it badly, was that he was a fit and proper person to have care of the child, that he was seeking custody and that he was living in an environment in which psychological or other damage to the child would not occur.

34 In relation to Richard S, his Worship said:

“Mr Singleton submitted that as a matter of law a separation of parents might amount to a significant change but that in the circumstances of this case the separation of 5/1/01 referred to could not amount to such a change . …
…
The remaining ground relied on by the applicant is his separation from Renee [S] on 5/1/01.
Again, in the circumstances of the case, it is not a satisfactory basis for asserting that there has been a significant change in any relevant circumstances which could materially improve the welfare of [Nerida]. As Ms Renshall pointed out the status of this change is ambiguous to say the least. Again, there is evidence in Exhibits 5 and 6 (the update reports) which clearly indicates not only a continuing but a problematic relationship. The mere physical separation referred to does not constitute a relevant significant change . Nor, in my view, is it an appropriate basis for a grant of leave.” [ Emphasis added ]

35 The first sentence above set out a submission made by counsel for the Department. However the Magistrate set it out as if he adopted and approved it. As a matter of law, the separation of the parents was a relevant change. As a matter of law, the separation could amount to a significant change. Puckeridge DCJ had referred to the tensions which had arisen between Richard and Renee S because of her heroin problem. Richard S’s case was, inter alia, that such tensions were unlikely to occur because he and Renee were living separately.

36 Richard S’s case was not that the “mere physical separation” of itself constituted a sufficient change. The case which he sought to put forward was that he, the father, was a proper person to have the care of his child and that, with him, the child would live in a suitable environment.

37 In respect of Renee S, his Worship said, summarising a submission by Mr Singleton:

“Further that the drug-free period in relation to Renee [S] commenced, according to the applicant’s case, in March 2000 and continued to date. In other words this was not a significant change but rather the continuation of a status that commenced some 7 months prior to 30/11/00. Moreover, there is no clear evidence of how this will affect the parenting capacity of Renee [S] or indeed what role, if any, is contemplated by her. Renee [S] is, of course, not the applicant in this case.”

His Worship dealt with the submission thus:

“It is certainly commendable that Renee [S] has made efforts to deal with her heroin problem. To some extent these efforts are contradicted by Exhibit 6 (one of the update reports by Siobhain Egan) which the applicant tendered in his own case. In relation to the applicant’s claim that Renee [S]’s drug-free status amounts to a significant change since 30/11/00 within terms of s 90, I am not so satisfied. This is because (a) this is not a fresh development but, at best, a continuation of a former state (b) it is evidence which at best indicates an improvement in the health and well-being of Renee [S] (c) there is contradictory evidence which I cannot ignore that Renee [S] is not drug-free (d) there is no satisfactory evidence of her prospective role in relation to [Nerida] (e) there is no satisfactory evidence of the precise ramifications of the claimed drug-free status for the welfare of [Nerida].”

38 Zdenkowski CM expressly found that Renee S’s claimed drug free status could not be a significant change for it was a continuation of a status that was in existence when Puckeridge DCJ confirmed the original care order. Yet Puckeridge DCJ had dealt with the matter on the basis that the five months drug free period which had elapsed was not a sufficient time to demonstrate “stability in relation to being free or stable in her previous drug addiction behaviour”. What Zdenkowski CM had to consider was whether the further time together with the preceding five months was relevantly significant. Compared to the period of five months which Puckeridge DCJ had to consider, a period of 14 or 15 months is much more likely to be a significant period of drug free status, if it be established. His Worship’s characterisation of it as a “continuation” prevented him from considering whether it was not part of a “significant change”.

39 I should further note that the Magistrate does not appear to have maintained a clear distinction between an application for a grant of leave and an application for the rescission or variation of a care order. The first task was to consider whether there was a change of sufficient significance to justify the consideration of an application for rescission or variation. In some cases, it would not be inappropriate for the Children’s Court to consider both the leave application and the substantive application together, if the Court announced at the commencement of the proceedings that that was what it was doing. However, in that event, the Court would need to fully consider all aspects of the application. In the present case that was not done.

40 The Magistrate took into account that there was no satisfactory evidence of Renee S’s prospective role in relation to Nerida and no satisfactory evidence of the precise ramifications of her claimed drug free status. Had the matter proceeded as the hearing of an application for the rescission or variation of the care order, those are matters which the Magistrate should have ensured were clarified. In cases of this type, where persons are often unrepresented, and may be emotionally upset by the care order which has been made, it is essential that the Children’s Court should ensure that all relevant information is obtained so that an order is made in the best interests of the child. Puckeridge DCJ considered that an order that the child should be raised by a grandparent should be made or continued only if special circumstances existed. If the Children’s Court had been proceeding to hear the application for rescission or variation, it would have been the duty of the Court to ensure that, if relevant information was not in the affidavits, the information was obtained and examined.

41 The matter before the Children’s Court proceeded as an application for leave. Counsel for the Department has indicated to the Court that, because the matter was an application for leave, he did not cross examine Richard and Renee S on their affidavits. It was therefore wrong for the Magistrate to take into account contradictory evidence which he said he could not ignore that Renee S was not drug free and the fact that there was no satisfactory evidence of the precise ramifications of the claimed drug-free status for the welfare of Nerida.

42 Because the Magistrate approached the issue before him in a limited and unduly technical way, he failed to consider the substance of the case which Richard S sought to present and, as so often happens on such an occasion, he failed to take account of material considerations and took into account considerations which, on the application for leave and in the absence of cross-examination of Richard and Renee S, were immaterial. The Magistrate’s failure constituted errors of law similar to those considered in Minister for Immigration and Multicultural Affairs v Singh (2002) 76 ALJR 514 where Gleeson CJ, Gaudron and Kirby JJ, McHugh and Callinan JJ dissenting, held that, due to a misunderstanding of the term “serious non-political crime” in Article 1F of the Refugees Convention, the process of reasoning of the Administrative Appeals Tribunal was flawed and that it failed to take account of matters to which it ought to have had regard. Those failures were held to be errors of law.

43 In my opinion, the proceedings in the Children’s Court miscarried. Richard S was met again by the difficulties which bedevilled earlier proceedings and of which Hulme J spoke.

44 Kirby J (Re Nerida [2001] NSWSC 1126 at [39]) was of the view that the Magistrate gave,

“a careful and considered judgment, adverting to the submissions made by Mr S.”

His Honour also considered that (at [46]),

“his Worship recognised that the matter needed to be looked at from the viewpoint of Mr S, taking his case at its highest.”

On that basis, he refused relief. In my opinion this was an error. In my opinion, while the Magistrate’s judgment may have been careful and considered, it was fundamentally flawed; and the Magistrate did not in fact comply with his own recognition that, in the absence of challenge and cross examination, he should take Mr S’s case at its highest.

45 Richard S also seeks an order of review in relation to the decision of Black DCJ. The question is whether Black DCJ, sitting as a judge of the District Court, had jurisdiction to review the decision of Zdenkowski CM refusing the leave sought by Richard S to apply for rescission or variation of the care order. The point is a short but difficult one.

46 Section 91(1) of the 1998 Act provides:

“A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.”

47 Section 15 of the Childrens Court Act 1987 provides:

“The Court may, in relation to all matters in respect of which it has jurisdiction, make such orders, including interlocutory orders, as it thinks appropriate.”

48 It is not in dispute that the Magistrate’s order refusing leave to apply was an order of the Children’s Court. Nor is it in dispute that the order was not an interim order. However the view taken by Knight DCJ and followed by Black DCJ was that the 1998 Act does not intend that a refusal of leave be the subject of appeal to the District Court.

49 Division 4 of the 1987 Act, which dealt with Children’s Court orders, did not contain any provision for leave. However, s81(1), which provided for appeals to the District Court, used the term “decision”:

“Any person who is dissatisfied with a decision of the Children’s Court under this Part may, in accordance with the rules of the District Court, appeal to the District Court against the decision.”

The term “decision” is as wide a term as could be used. Section 81(2) limited appeals only by providing that appeals by the Director-General should be brought limited to a point of law.

50 Section 60 of the 1998 Act gives these 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.”

51 Most of the principal sections in Part 2 of the 1998 Act use the term “care order”. However some sections, such as s74 which deals with an order for provision of support services, s75 which deals with an order to attend a therapeutic or treatment programme and s76 which deals with an order for supervision, use the term “order”. Many of the orders which the Children’s Court may make are interlocutory in nature. Section 89 of the 1998 Act specifically refers to “a final order of the Children’s Court”, thereby expressly distinguishing between a final order and some interlocutory orders.

52 Section 91(1) uses the term “order”, not the defined expression “care order”. It also encompasses interlocutory orders. Otherwise, the exclusion of “interim order” would be unnecessary. The section does not use the term “final order”.

53 Plainly, in s91(1) of the 1998 Act, the term “order” encompasses an order of the Children’s Court refusing an application for a care order or for rescission or variation of a care order. Its terms are not limited to dissatisfaction with the making of a positive order. Prima facie, therefore, the term “order” in s91 should be read as referring to all orders of the Children’s Court in proceedings made under Part 2 of the 1998 Act. Prima facie, therefore, the subsection encompasses an order of the Children’s Court made with respect to an application for leave to make application for the rescission or variation of a care order.

54 Mr Singleton submitted, however, that the term “order” should be read down because the Act indicated an intention to limit legal proceedings by requiring that leave be obtained for the lodging of an application for the rescission or variation of a care order. However, the cases to which he directed attention, Director of Public Prosecutions v Yalda (unreported NSW Court of Appeal, 4 September 1998) and Palmer v Haddad [2000] NSWSC 545, do not advance that proposition.

55 In my opinion, there is no adequate basis for giving the term “order” in s91(1) of the 1998 Act other than its ordinary meaning. That meaning encompasses a decision of the Children’s Court refusing leave to apply for rescission or variation of a care order, cf. Supreme Court Act 1970, s101(1)(g).

56 In the circumstances, Richard S has an entitlement to an order of certiorari in respect of the order of Zdenkowski CM and also in respect of that of Black DCJ. However, in the exercise of the Court’s discretion I would decline to make an order of that nature in respect of the order of Black DCJ. As both Mason P and Hulme J pointed out, the Children’s Court is the court with the primary responsibility for the welfare of children. It is preferable that that Court should first consider the matter. In any event, the order which was the subject of the appeal to the District Court should be quashed. For the same reason it is necessary to refuse Mr S’s request that this Court should retain the matter. Black DCJ made no order as to costs. Nor did Zdenkowski CM.

57 I would propose the following orders:

1. Leave to appeal against the order of dismissal by Kirby J on 17 December 2001 be granted.

2. The appeal be allowed.

3. The order of dismissal by Kirby J on 17 December 2001 be set aside and in lieu thereof it be ordered:

(i) The order of the Children’s Court made on 3 September 2001 on Richard S’s application for leave be removed into this Court and quashed;
(ii) The matter of Richard S’s application for leave be reheard in the Children’s Court by a different Magistrate;


4. It be declared that the District Court of New South Wales had jurisdiction to hear and determine Richard S’s appeal against the aforementioned order of the Children’s Court;

5. Liberty be reserved to Richard S to apply in relation to costs.

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