SB v Parramatta Children's Court

[2007] NSWSC 1297

CITATION:	SB v Parramatta Children's Court [2007] NSWSC 1297
HEARING DATE(S):	2 November 2007
JUDGMENT DATE :	20 November 2007
JUDGMENT OF:	Price J at 1
DECISION:	1. That the record of the Parramatta Children's Court be removed into this Court. 2. That the decision of the Senior Children's Magistrate made at the Parramatta Children's Court on 2 October 2007 be quashed. 3. That the application of the second defendant filed on 20 April 2007 be remitted to the Parramatta Children's Court there to be heard and determined according to law.
CATCHWORDS:	Children's Court - care application - evidence of previous removal of child other than child the subject of the application - construction of s 106A - whether it provides a ground for a finding of care - who may rebut presumption - question of discretion - certiorari
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 s 8a, s 38E(4), s 44, s 45, s 60, s 61, s 61(2), s 61(3), s 71, s 71(1), s 71(1)(a)-(g), s 71(1)(c), s 71(1)(d), s 71(1)(e), s 72, s 73, s 79(1)(b), s 86, s 91(1), s 93(2), s 93(3), s 93(4), s 95, s 98, s 99, s 106A, s 106A(1), s 106A(2), s 106A(3), Evidence Act 1995 s 91, s 93, s 97
CASES CITED:	Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701 Buck v Comcare (1996) 66 FCR 359 Craig v South Australia (1995) 184 CLR 163 Director-General Department of Community Services v Dessertaine & Ors [2003] NSWSC 972. Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85 Potter v Minahan (1908) 7 CLR 277 Re Alistair [2006] NSWSC 411 In re B (Minors) (Care Proceedings: Issue Estoppel) (1997) 3 WLR 1 Re-Brett v Children's Court of NSW [2006] NSWSC 984 Re Liam [2005] NSWSC 75 Solution 6 Holdings Ltd v Industrial Relations Comm (NSW) (2004) 60 NSWLR 558
PARTIES:	SB Parramatta Children's Court & 3 Others
FILE NUMBER(S):	SC 015279/07
COUNSEL:	E Lawson - Plaintiff Submitting appearance - 1st Defendant S Burchett - 2nd Defendant P Braine - 3rd Defendant A Healey - 4th Defendant
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	375/2007
LOWER COURT JUDICIAL OFFICER :	Mitchell SCM
LOWER COURT DATE OF DECISION:	2 October 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

PRICE J

20 November 2007

015279/07 SB v Parramatta Children’s Court

JUDGMENT

1 HIS HONOUR: The plaintiff the father of the child “Clare” (a pseudonym), claims orders in the nature of certiorari quashing the decision of the Senior Children’s Magistrate on 2 October 2007, and in the alternative declarations on various grounds including that the Senior Children’s Magistrate erred in law in failing to allow the plaintiff to challenge any of the evidence relied upon by the Department of Community Services (the Department). Another issue for consideration is that raised by the Director-General of the Department (the Director-General) concerning the jurisdiction of this Court to grant the relief sought at the present stage of the proceedings in the Children’s Court.

2 The summons cites four defendants. The first defendant is the Parramatta Children’s Court. The second defendant is the Director-General. The third defendant is the mother of the child Clare and the fourth defendant is the carer of the child. The first defendant submits to the orders of this Court.

3 The issues identified in these proceedings concern the interpretation of s 106A of the Children and Young Persons (Care and Protection) Act 1998 (the Act).

4 Section 106A was inserted into the Act by the Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2006 and became effective on 1 January 2007. Section 106A is as follows:

“ 106A Admissibility of certain other evidence

(1) The Children’s Court must admit in proceedings before it any evidence adduced that a parent or primary care-giver of a child or young person the subject of a care application:

(i) from whose care and protection a child or young person was previously removed by a court under this Act or the Children (Care and Protection) Act 1987, or by a court of another jurisdiction under an Act of that jurisdiction, and
(ii) to whose care and protection the child or young person has not been restored, or
(b) is a person who has been named or otherwise identified by the coroner or a police officer (whether by use of the term “person of interest” or otherwise) as a person who may have been involved in causing a reviewable death of a child or young person.
(2) Evidence adduced under subsection (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection.
(3) A parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2) by satisfying the Children’s Court that, on the balance of probabilities:
(a) the circumstances that gave rise to the previous removal of the child or young person concerned no longer exist, or
(b) the parent or primary care-giver concerned was not involved in causing the relevant reviewable death of the child or young person,
as the case may require.
(4) This section has effect despite section 93 and despite anything to the contrary in the Evidence Act 1995.
(5) In this section, reviewable death of a child or young person means a death of a child or young person that is reviewable by the Ombudsman under Part 6 of the Community Services (Complaint, Reviews and Monitoring) Act 1993.”

5 The issues which arise from his Honour’s decision are:

1. Does s 106A provide a ground in itself for a finding by the Children’s Court that a child or young person is in need of care and protection?
2. Is a parent or primary care-giver of a child or young person the subject of earlier proceedings about whom evidence under subsection (1) of s 106A has been adduced, the only person who may be heard on the question of whether the presumption has been rebutted pursuant to subsection (3) of s 106A?
3. Does s 106A prevent the Children’s Court from revisiting the circumstances which gave rise to the order of which evidence has been adduced under subsection (1) of s 106A?

Background

6 The plaintiff and the mother are the parents of the child Clare who was born on 20 April 2007. The mother is also the mother of the child “Rachel” (a pseudonym) who was born on 18 June 2002. The plaintiff is not the father of Rachel.

7 In around January 2006 the plaintiff and the mother commenced a relationship. The mother and Rachel moved in with the plaintiff, his sister and brother-in-law around March 2006.

8 The Department in April 2006 received a risk report in relation to an alleged sexual threat to Rachel when the child complained of the plaintiff or somebody else having “touched me down below while I was asleep”. Further reports followed. About a month later, the maternal grandmother reported Rachel having disclosed that “somebody at night came and touched me” and “mummy put her fingers up there till I was bleeding, [the plaintiff] did too”.

9 On 20 October 2006 the Children’s Court at Cobham made orders placing Rachel in the care of the Minister until she attains the age of 18 years. The orders were made by consent. The father of Rachel did not participate in the proceedings. The plaintiff was not a party to those proceedings.

10 Rachel was placed with and remains in the care of the maternal grandmother.

11 On 20 April 2007 Clare was born at Nepean Hospital. Her parents are, as has been recited, the plaintiff and the mother.

12 On the day of Clare’s birth the Director-General exercising powers under s 44 of the Act assumed the care and responsibility for the child at hospital. A notice of assumption served on the parents stated the reasons for the assumption as follows:

“ Department of Community Services records show that the mother…..has previously had a child removed from her care due to sexual and physical assault allegations. The allegations implicated both [the mother] and her partner, [the plaintiff]. Final orders have been issued. Restoration of this child has not been actioned. The parents are known to have continued to cohabitate and neither party has shown evidence that the issues leading to the sibling’s removal including drug use, sexual and physical assault have been addressed.”.

13 An application to the Children’s Court at Parramatta was filed by the Director-General on the same day seeking an allocation of Parental Responsibility to the Minister pursuant to s 79(1)(b) of the Act for a period of two years.

14 In the application provision is made for the grounds on which the final orders are applied for. The application reproduces the grounds which appear in s 71(1)(a)-(g) of the Act. The following grounds are ticked:

“ The child or young person has been or is likely to be, physically or sexually abused or ill-treated ”

This ground corresponds with s 71(1)(c).

“ 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 .”

This ground corresponds with s 71(1)(d).

“ 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 .”

This ground corresponds with s 71(1)(e).

15 When the application first came before the Children’s Court on 23 April 2007, the plaintiff and the mother informed the Court that ‘establishment’ would be opposed. Arguments were raised in respect of the implications of the new section 106A. Interim parental responsibility for Clare was awarded to the Director-General by the Court. Directions were made requiring the Director-General to file further evidence outlining the case for establishment. Clare was placed by the Director-General with the paternal grandmother.

16 During a mention on 20 June 2007 the legal representative for the Director-General advised the Senior Children’s Magistrate that the maternal grandmother had indicated that some of the material before the Court in relation to Rachel was not true. Following interviews with the maternal grandmother, affidavits were filed by the Department case workers which raise questions as to the credibility of the disclosures made by Rachel and of the maternal grandmother.

17 Pursuant to s 99 of the Act, a representative was appointed to act for Clare.

18 After discussions before his Honour concerning s 106A, the application was listed for the hearing of legal argument on the statutory construction of the section. Directions were made for the filing and exchange of written submissions. On 16 August 2007, following legal argument his Honour reserved his decision and the application was adjourned.

19 On 2 October 2007 his Honour in a document entitled ‘Memorandum’ found in his consideration of s 106A that the mother is a person from whose care and protection a child was previously removed under the Act and to whose care and protection the child has not been restored. That child is Rachel. It follows, his Honour stated, that in accordance with s 106A there is prima facie evidence that the child Clare is in need of care and protection. His Honour went on to helpfully identify the circumstances which might be demonstrated as no longer existing so that the prima facie presumption set up by subsection 2 can be rebutted. He expressed the view that he was not required to retry Rachel’s case in order to isolate what facts and circumstances the mother must rebut [in] Clare’s case and did not regard s 106A as inviting re-litigation of Rachel’s case. Section 106A, his Honour found, provided a ground in itself for a finding that a child or young person is in need of care and was not merely an evidentiary tool to assist in proving a s 71 ground. It was for the mother as the only person who was responsible for Rachel at the time of her removal into care to show effectively that her failure to care for and protect Rachel is no longer relevant to the case of Clare. To do this, the mother is free to rely on any relevant evidence including the evidence of the plaintiff. The plaintiff in his Honour’s view lacks standing to rebut the presumption arising from s 106A(2).

20 The plaintiff complains that the Senior Children’s Magistrate erred in law by finding:

(a) that section 106A provided a ground in itself that a child or young person is in need of protection;
(b) that section 106A did not invite re-litigation of Rachel’s case; and
(c) that the plaintiff lacks standing to rebut the prima facie evidence referred to in subsection 2.

21 The application was subsequently listed for an ‘Establishment Hearing’ on 18 October 2007.

22 On 17 October 2007, a stay of the application was granted in this Court by Hidden J on the ex-parte application of the plaintiff.

Submissions

23 I have had the benefit of extensive written submissions from the parties. Oral submissions were also made.

24 The plaintiff contends that s 106A is not a separate or distinct ground for the making of a care order and does not absolve the Director-General’s obligation to prove the ground or grounds that are set out under s 71(1) of the Act. It follows, the plaintiff argues, that a finding that a child is in need of care and protection cannot be made under s 106A which is an evidentiary aid or a conduit for admitting ‘similar fact’ or ‘historical evidence’. The grounds identified in s 71(1) of the Act are exhaustive to cover all circumstances in which a child could be in need of care and protection. The words ‘prima facie evidence’ in s 106A(2) should not be construed as meaning ‘prima facie finding’ or ‘prima facie presumption’. The plaintiff submits that a parent or primary care-giver against whom evidence under s 106A is adduced may similarly adduce evidence in response pursuant to s 106A(3). If the Court receives evidence under s 106A, the Director-General must plead one of the grounds in s 71 and the Court must make a determination under s 71(1). If the Court is not satisfied to the requisite standard, the Court may dismiss the matter under s 72. The father may cross-examine witnesses, adduce evidence and make submissions in respect of whether a ground in s 71 is proved. Section 106A does not act as a bar to the plaintiff participating in the proceedings.

25 The submissions of the plaintiff are essentially adopted by the mother and the child’s representative. The mother by way of further elucidation claims that his Honour has fallen into the error of seeing the use of the words “of care and protection” as creating a ground when all it does is to identify the nexus of a finding under s 71 and the grounds that are enumerated. Subsection 3 of 106(A) does not prescribe the right of a party to appear but to limit the capacity of them to rebut the presumption. The plaintiff has standing as a right to appear as a party. Whilst the presumption in s 106A relates to any earlier child, its effect is to create a basis of a finding in need of care in relation to the child, the subject of the present proceedings. The mother contends that it would be inimical to the rights of a party who has a vested and significant interest in relation to that child to be excluded at any stage of the hearing but particularly at the preliminary stage where the presumption is being looked at. In the present case, the plaintiff has a significant role to play given that the primary allegations relate to his conduct. His Honour’s finding that he did not have the capacity to revisit the circumstances identified for the purposes of s 106A(3) was wrong as it is submitted that there is a discretion as to whether such a revisiting of those circumstances may be allowed.

26 The child’s representative submits that unless all relevant parties, including the plaintiff, are given a full opportunity to be heard and have the right to call witnesses and cross examine in relation to all issues including those raised by s 106A the proceedings would be tainted by a lack of procedural fairness which potentially would not be in the best interests of the child.

27 The Director-General opposes these arguments. Whilst it is conceded that his Honour’s reference to s 106A providing another ground is strictly inaccurate, it reflects, the Director-General argues, the practical effect of the provision in the absence of rebuttal or other evidence. The only ground for a care order is the need for care and protection, the ‘reasons’ provided by s 71 being, the Director-General submits, merely facts or particulars, which are deemed to evidence such a need, while s 106A provides alternative, rebuttable evidence of such a need. Section 71 is permissive not restrictive in the making of care orders. By contrast s 72 states the limits of jurisdiction to make care orders, that is, ‘only’ where present or past need for care and protection is established, without limitation upon the ‘reasons’ for it. The Director-General contends that his Honour was correct to reject the plaintiff’s argument that any finding under s 106A must be brought within the scope of s 71 ground. Section 106A(1) does not, it is submitted provide for the admission of evidence of the ‘reasons’ for the prior removal but of the fact of the prior removal. By subsection (2) those facts are ‘prima facie’ evidence of prior need without consideration of any of the circumstances, evidence or reasons for them. Consequently in the absence of evidence from the parent under s 106A(3) there could be no basis for assigning the prima facie evidence to any of the ‘reasons’ in section 71. Subsection 106(A)(3) creates a specific right for a specific party and consequently his Honour’s finding that the plaintiff lacked standing to rebut the evidence under s 106A did no more than note that he was not such ‘a parent or primary care-giver’. His Honour’s ruling, the Director-General submits, did not affect the right of the plaintiff and any other party to adduce evidence of and make submissions on any other relevant matters relating to the issue of need. However, in the absence of evidence or submissions from the relevant ‘parent or primary care-giver’ satisfying the Court that the previous circumstances no longer exist or the relevant ‘parent or primary care-giver’ was not involved in a reviewable death, the plaintiff cannot challenge the evidentiary onus stipulated by the section as having been created by the fact of the prior removal. Alternatively, his Honour consistent with his discretion was entitled to decline to entertain evidence or submissions from the plaintiff seeking to re-litigate the issues determined in the prior proceedings.

DECISION

28 In dealing with the construction of s 106A, it is necessary to refer to Chapters 5 and 6 of the Act. Section 71 is found in Part 2 of Chapter 5 whereas s 106A is found in Part 1 of Chapter 6.

29 Chapter 5 deals with Children’s Court proceedings. Part 1 is concerned with emergency protection and assessment. Section 44 enables the Director-General to assume the care responsibility of a child or young person in hospital or other premises. The Director-General exercising his responsibilities under this section assumed the care and responsibility of Clare on the day of her birth. Section 45 imposes an obligation upon the Director-General to promptly apply for orders including emergency care and protection orders. An application was made by the Director-General for placement of Clare under the interim parental responsibility of the Minister on the same day that care responsibility was assumed.

30 Part 2 of Chapter 5 concerns Care Applications. A care application is an application for a care order which is defined to mean an order under Chapter 5 for or with respect to the care and protection of a child or young person (s 60). Care proceedings mean proceedings under Chapter 5.

31 Section 61 deals with applications for care orders.

32 As his Honour determined that s 106A provided a ground itself for a finding of a need for care and protection and the Director-General contends that the only ground for a care order is the need for care and protection and the ‘reasons’ provided by s 71 are merely facts or particulars which are deemed to evidence such a need, it is appropriate to recite s 61. Section 61 is as follows:

“ 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 specify the particular care order sought and the grounds on which it is sought (my underlining).
(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 ” (my underlining).

33 The explanatory note recites that s 71 sets out the various grounds that enable the making of a care order. No reference is made to s 106A providing such a ground.

34 Section 106A is not specified in the present application as being a ground upon which the care order is sought. The identified grounds are ss 71(1)(c)(d) and (e). It appears that these grounds mirror the grounds in the application for care of the child Rachel. As was noted by Kirby J in Re Alistair [2006] NSWSC 411 [at 63] an application for a care order is a formal document which serves to inform the parties of the care order sought and the grounds upon which it is sought (s 61(2)). Section 61 (3) provides that the orders sought may be varied but only with the leave of the Children’s Court after a determination is made.

35 It has been considered that s 71 sets out the grounds for the making of a care order: see Alistair [at 66] and Director-General, Department of Community Services v Dessertaine & Ors [2003] NSWSC 972. In Dessertaine Greg James J observed [at 12-13]:

“12 It is apparent that s 71 only permits the Children’s Court to make a care order in the event that the Magistrate is satisfied of the matters set out in s 71(a)-(h). Those are the reasons under the Act, which permit the Children’s Court to make the court orders.
13 Under s 71, notwithstanding that any or all of the relevant reasons are made out, it remains open to the Magistrate sitting as the Court to exercise a discretion whether to make an order which discretion must be exercised in accordance with proper judicial principles. This may mean, of course, that the conduct, which might constitute the matters referred to in each of the numbered sub-paragraphs, is such that, on a proper exercise of discretion and principle, an order must be made so that the court acts in accordance with the law.”

36 It seems, however, that the Director-General contends that Dessertaine supports the proposition that it is unnecessary for the Magistrate to make a finding of a reason under s 71 before a determination is made under s 72 that the child or young person is in need of care and protection. The Director-General points to [53] where Greg James J said:

“…….The need for care and protection is a necessary finding to be made because that is the finding upon which the Act posits whatever other orders might be made. The Act does not so treat the reasons for that finding.”

37 In Dessertaine the Magistrate had made a care order for one of the reasons the Department had advanced in its application, namely under s 71(1)(e). The complaint by the Director-General was that the Magistrate failed to give sufficient reasons for what he did do, which was to decide that the child was in need of care and protection within the terms of the Act, but only expressly enunciated the matters to which s 71(1)(e) refers as the basis of the decision: see Dessertaine [at 5]. The Director-General’s complaint was rejected the reasons being found to be sufficient.

38 Dessertaine was primarily concerned with the sufficiency of reasons and does not provide authority for the proposition that it is unnecessary to be satisfied of one of the grounds in s 71 before the making of the determination required under s 72. The present argument for the Director-General ignores what was said by Greg James J in the passages which I have quoted at paragraph 35 above.

39 Section 71 provides:

“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:
(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.
(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:

Note. The Children’s Court cannot make a care order in circumstances to which section 75 (2) applies.”

40 The language of ss 61 and 71 does not assist the contention for the Director-General that the reasons provided by s 71 are merely facts or particulars and the only ground for a care order is the need for care and protection. Section 71 is introduced by the emboldened words “Grounds for care orders”. The reasons of which the Children’s Court must be satisfied before making a care order are identified in subparagraphs (1)(a) to (i). These reasons are the grounds for the making of a care order. The words “Grounds” and “reasons” where used in s 71 are to my mind interchangeable. There are nine grounds none of which include s 106A.

41 The argument for the Director-General that in the absence of evidence from the parent under s 106A(3) there could be no basis for assigning the prima facie evidence to any of the ‘reasons’ in s 71 is weakened by the insertion in s 71 of subparagraph 1(i) which expressly includes as a reason “any presumption arising from the operation of s 38E(4) that the child or young person is in need of care and protection has not been rebutted”. Section 71(1)(i) came into operation on 30 March 2007: Children and Young Persons (Care and Protection) Amendment (Parent Responsibility Contracts) Act 2006 s 3 and Sch 1 [12]. Any non-rebutted presumption which may be said to arise from the operation of s 106A(2) has not been included in s 71 although s 106A came into operation on 1 January 2007. Furthermore, the inclusion of subparagraph 1(i) in s 71 does not support his Honour’s interpretation of s 106A.

42 His Honour correctly points out (Memorandum p6) that s 106A (2) does not speak of prima facie evidence of a ground provided in s 71 but, rather of “prima facie evidence that the child or young person… … is in need of care and protection”. Subsection (2 )of s 106A provides:

“(2) Evidence adduced under subsection (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection.”

43 It does not necessarily follow that the absence of reference to a ground in subsection (2) leads to the conclusion that the section itself provides a ground for care.

44 The application is presently within what is termed “the establishment phase” of its passage through the Children’s Court. The establishment phase concerns the determination of the need for care and protection. The establishment phase concludes once a determination has been made under s 72 of the Act. What then follows is sometimes referred to as “the welfare phase” during which the Children’s Court can consider the final orders required to care for and protect the child or young person: see s 73-86. All of these sections fall within Part 2 of Chapter 5.

45 The context within which the section is placed is an aid to the construction of s 106A.

46 Chapter 6 deals with the procedure of proceedings before the Children’s Court. Proceedings are not to be conducted in an adversarial manner (s 93(1)). They are to be conducted with as little formality and technicality as the circumstances permit (s 93(2)). The Children’s Court is not bound by the rules of evidence unless it determines that those rules, or such of them as are specified, should apply to the proceedings (s 93(3)). The standard of proof is on the balance of probabilities (s 93(4)). All matters are to be dealt with as expeditiously as possible (s 94). Sections 96-104A deal with the attendance of persons before the Court, the right of appearance, appointment and role of a legal representative, guardian ad litem and support persons. Sections 104A – 105 provide for the exclusion of persons from proceedings, the entitlement of the media to hear proceedings and the prohibition of names and identifying information of a child or young person. Section 106 deals with the admissibility of certain statements made by a child who has exhibited sexually abusive behaviours.

47 It was within this context that s 106A was inserted into the Act. The inclusion of s 106A into Chapter 6 Part 1 indicates that the object of the section is to mandate the admission of evidence of a kind specified in subsection (1) and not to provide an additional ground for a care order. The omission of any reference to s 106A in s 71 and the inclusion of subsection (i) in s 71(1) further indicate that s 106A is not to be considered as an additional ground.

48 Another aid to construction is what was said in the Legislative Assembly on 24 October 2006 during the second reading speech of the Children and Young Persons (Care and Protection) Miscellaneous Amendment Bill which introduced a mix of significant and minor reforms to the Act. Ms Reba Meagher, the Minister for Community Services, and Minister for Youth relevantly said:

“A further key feature central to improving protection for children at risk of harm from parents or caregivers is the introduction of new section 106A into the Act. This provision specifies that in care proceedings the Children’s Court shall allow, consider and give weight to evidence that a parent or caregiver has previously had a child removed and not restored to their care, or has been identified by the Coroner or police as a person who may have been involved in causing a reviewable death of a child or young person. This amendment will remove any technical obstruction to the court considering evidence of a parent or carer’s past history in relation to the removal of other children. It will require that the court admit and give weight to a parent or caregiver’s past history in relation to the removal of other children or involvement in causing a reviewable death of a child or young person.
In care proceedings before the Children’s Court and where there has been a history of a parent or caregiver causing harm to a child, the bill places the onus of proof on the parent or caregiver. They must rebut the presumption that, on the balance of probabilities, the child in their current care is not at risk of harm and in need of care and protection either because the previous factors that put a child at risk of harm are now no longer present or because they were not personally involved in causing harm in the previous case. This suite of amendments will go a long way towards strengthening child protection by ensuring that prenatal reports may provide opportunity for support and early intervention to a newly born child as envisaged by the Act. This is by requiring the court to consider and give sufficient weight to similar fact evidence concerning past child abuse or neglect by a parent or caregiver. It is critical that the Children’s Court be able to consider all available evidence when ordering preventative and protective measures for children.” (Hansard, Legislative Assembly, 24 October 2006 at 3273-3274).

49 It is apparent that the Legislature’s intention by the introduction of s 106A is to enable the Children’s Court to consider and give weight to evidence that a parent or caregiver has previously had a child removed and not restored to their care or has been identified by the Coroner or police as a person who may have been involved in causing a reviewable death of a child or young person. The new section is intended to overcome obstacles which might be considered to arise from the application of the rules of evidence by the Children’s Court to the proceedings before it. Similar fact or tendency evidence or evidence of a prior decision or a finding of fact must be admitted provided it falls within s 106A(1) notwithstanding provisions of the Evidence Act 1995 such as ss 91 and 97. This is made clear by subsection (4) of s 106A which provides for the section to have effect despite s 93 of the Act and despite anything to the contrary in the Evidence Act 1995.

50 No mention is made in the second reading speech of the section providing a ground for a care order.

51 With respect to his Honour, I do not agree that s 106A provides a ground in itself for a finding by the Children’s Court that a child or a young person is in need of care and protection. Furthermore, I do not agree with the Director-General’s contention that it is unnecessary for a Magistrate to be satisfied of one of the reasons in s 71 before making the determination required by s 72. The reasons identified in s 71 are not merely facts or particulars but are grounds and the Children’s Court must be satisfied of at least one of the grounds identified in s 71 before a care order is made.

52 It seems to me that evidence adduced under subsection (1) is prima facie evidence which if not rebutted may satisfy the Children’s Court on the probabilities that the child or young person is in need of care and protection for any relevant ground in s 71(1). If the Children’s Court is so satisfied, a care order in relation to the child or young person may be made under s 72.

53 In the present proceedings the grounds identified in the application are ss 71(1)(c),(d) and (e) which mirror the grounds in the application for the care and protection of the child Rachel.

54 The next issue which has been identified is the right of the plaintiff to be heard on the question of whether the presumption has been rebutted pursuant to subsection (3) of s 106A.

55 The Senior Children’s Magistrate found that the plaintiff “lacks standing to rebut the presumption erected in s 106A(2)” (Memorandum p8). His Honour had earlier remarked:

“In the present case, it is for the mother as the only person who was responsible for [Rachel] at the time of her removal into care, to show, effectively, that her failure to care for and protect [Rachel], as found by the court in the previous proceedings is no longer relevant to the care of [Clare]”.

56 It is not suggested that the plaintiff was a primary care-giver of Rachel. The Director-General contends that his Honour was correct as the language of subsection 3 speaks of “a parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2)”. The child’s representative in oral argument enunciated that prior to the insertion of the section into the Act, if evidence had been admitted of Rachel’s removal in the proceedings for care of Clare, the legal representative for the child, and the plaintiff as well as the mother had standing pursuant to s 98 of the Act to test that evidence.

57 His Honour’s determination, it is submitted, removes the ability of the child’s representative to challenge the evidence and the Act should not be construed to remove a pre-existing right.

58 Section 98 is as follows:

“ 98 Right of appearance
(1) In any proceedings with respect to a child or young person:
(a) the child or young person and each person having parental responsibility for the child or young person, and

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.
(2) However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.
(2A) If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court is to appoint a guardian ad litem for the person under section 100 or 101 (as the case may require).
(3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.”

59 The circumstances giving rise to Rachel’s removal, his Honour found, included allegations of her physical and or sexual abuse at the hands of the plaintiff and of domestic violence between the plaintiff and the mother. Other circumstances, his Honour observed, may have been their drug use. Prior to the introduction of s 106A the plaintiff may have given and called evidence and cross examined witnesses about these matters should they have been admitted as being of relevance in the establishment phase of Clare’s proceedings.

60 His Honour, however, determined that the plaintiff is not entitled on his own account to rebut “the subsection (2) presumption because he was neither a parent nor primary care-giver of [Rache]”: Memorandum p5. It appears to follow from his Honour’s reasoning that the child’s representative is not entitled to adduce evidence or to cross-examine witnesses to rebut the prima facie evidence referred to in subsection (2).

61 His Honour’s approach is consistent with a literal interpretation of subsection (3).

62 Examples, however, of the difficulties which might arise from such a construction were advanced during oral argument. Such examples include the death of the mother, the mother’s move overseas or to another state, or the mother’s disinterest. Using these examples in the present circumstances where the father is not the relevant parent or primary care-giver in respect of whom evidence referred to in subsection 1 has been adduced, the prima facie evidence referred to in subsection (2) could not be rebutted as the mother is either not present or not interested. Another situation that might arise is where a mother and father have become estranged. The mother might have no interest in seeking to rebut the prima facie presumption founded upon circumstances that the father who was not the parent or primary care giver was for instance sexually or physically abusive to the child who was previously removed. The father may wish to challenge those circumstances but is unable to do so as he does not have standing and the mother does not wish to call him as a witness.

63 His Honour, it seems, was comforted in his interpretation of the section by remarking that the mother could rely on any relevant evidence including the evidence of the father. In all of the examples posited in paragraph 62, the mother was either not present, disinterested or unwilling to call the father and in those circumstances the proceedings would deny natural justice and be procedurally unfair to the father and the child.

64 A practical consideration which is said to arise in the present application concerns the legal representation of the mother. Should the mother be required to call the plaintiff to rebut the allegations of physical and sexual abuse, it is said that a proof of evidence will need to be taken by the mother’s legal representative from him with the possibility that he may be cross-examined. If the mother fails to rebut the prima facie case and the application for care is established, the plaintiff would then resume his standing as a party. As a consequence of the potential conflict of interest which might arise, the lawyers for the mother would be obliged to disqualify themselves from further acting in the application and the plaintiff would resume his separate representation. As the mother contends, such a conflict might have serious implications for the prosecution of her case. Such a consequence gives rise to the potential of procedural unfairness to the mother.

65 The “unfairness of silencing a person in the [father’s position]”, his Honour opined “is more apparent than real”. (Memorandum p7). His Honour went on to note that s 106A is talking about establishment, not placement and remarked there will be many matters where at the establishment phase one of the parties will have little to say but after the finding of need of care is made the Court will hear the evidence of the “silenced party” and may make care orders favourable to that party. With respect this approach undervalues the importance of the determination that the child is in need of care and protection. As was said by Kirby J in Re Alistair [at 65]:

“The establishment phase involves a determination of the need for care and protection, such as to warrant the intervention of the Court. It is a threshold issue. Lord Nicholls of Birkenhead in Re O (Minors) , in the context of similar although not identical legislation in England ( The Children Act 1989), said this (p1080 para 14):
“….The purpose of this threshold requirement is to protect families, both adults and children, from inappropriate interference in their lives by public authorities through the making of care and supervision orders.”

66 It seems to me that to deny a parent of a child the right to be heard on an issue which is fundamental to the determination of the need for care is to deny that parent natural justice.

67 In all actions and decisions under the Act concerning a child or young person the safety, welfare and well-being of the child or young person must be the paramount consideration (s 9(a)). 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 or young person’s development (s 9(d)). A determination of care founded on unchallenged and erroneous circumstances could not be said to be in the interests of the welfare of the child.

68 I do not think that the Legislature intended to create proceedings which were procedurally unfair or denied natural justice to a parent or a child or young person by the introduction of s 106A. The right to be heard on matters relevant to the proceedings is of fundamental importance to the child and the child’s parents. Should a common law right be intended to be taken away, the Legislature must make that “irresistibly” or “unambiguously clear”: see Potter v Minahan (1908) 7 CLR 277 at 304, Bropho v Western Australia (1990) 171 CLR 1 at 17, R v JS [2007] NSWCCA 272 at [31]. This approach has been followed in relation to statutory rights: see Buck v Comcare (1996) 66 FCR 359 at 364-5.

69 Section 106A(3) does not state that it is only the parent or care-giver in respect of whom the relevant evidence has been adduced who may rebut the prima facie evidence. Subsection (4), moreover, makes it plain that the section applies despite s 93 and despite anything to the contrary in the Evidence Act. There is no mention of s 98 in s 106A. Although the Minister in the second reading speech made reference to the onus of proof being placed on the parent or care-giver, nowhere in the second reading speech is reference made to an intention to limit the rights under s 98 of a parent, primary carer or child. In my opinion, the section does not make it clear that it is intends to limit the rights conferred by s 98.

70 The principal object of the Act is to ensure that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, taking into account the rights, powers and duties of their parents or other persons responsible for them (s 8(a)). The purpose of s 106A is to facilitate the admission of evidence. Section 33 of the Interpretation Act 1987 requires that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that object. As was said in Solution 6 Holdings Ltd v Industrial Relations Comm (NSW) (2004) 60 NSWLR 558 by Spigelman CJ at [81]:

“…………In contemporary Australian jurisprudence, a purposive approach to interpretation is to be adopted, not a narrow literalism.”

The purposive approach does not permit a construction which cannot be deduced from the words actually used. If the legislature “uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”: per McHugh J in Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85 (at 113).

71 An interpretation of subsection (3) that it is not intended to be restrictive and provides guidance as to what is required to rebut the prima facie evidence is not inconsistent with the language of the section. Nor in my opinion does it construe the words in an unrealistic manner. Whilst the parent or primary care-giver in respect of whom evidence referred to in subsection (1) may rebut the evidence, a parent or care-giver of the child the subject of the application for care before the Children’s Court who has a relevant interest in the circumstances that gave rise to the previous removal is not precluded by subsection (3) from exercising his or her rights under s 98 to adduce evidence to rebut the presumption or to cross-examine witnesses. Nor is the child or the child’s representative. This interpretation produces an operation of the Act which is procedurally fair and which conforms, in my opinion, with the objects of the Act and the Legislature’s intention rather than the literal interpretation which has unintended and unjust consequences.

72 It should, however, be plainly understood that a parent or care-giver to whom subsection (1) does not apply must have a relevant interest in the circumstances which gave rise to the previous removal. Relevance is the cornerstone of the rights found in s 98. In the present application, the plaintiff has a relevant interest in those circumstances as the allegations against him and the mother founded Rachel’s removal as does the child’s representative who must act in the best interests of Clare. It follows that I do not agree with his Honour’s finding that the plaintiff does not have standing to rebut the presumption.

73 The next question which arises is whether section 106A precludes the Children’s Court from re-visiting the circumstances which gave rise to the order of which evidence has been adduced under subsection 1 of the section. The plaintiff contends that his Honour found that it did. For that contention, the plaintiff refers to two passages in the Memorandum:

“ It is not my view that I am required to retry [Rachel’s] case in order to isolate what facts and circumstances [the mother] must rebut [in Clare’s] case:” Memorandum p2

And

“ Because I do not regard section 106A as inviting re-litigation of [Rachel’s] case, I think I can regard all of the foregoing matters, including doubts which may arise regarding the integrity of the maternal grandmother’s evidence, as constituting ‘the circumstances that gave rise to the previous removal’.” (Memorandum pp 4-5).

74 It is not to my mind evident from these remarks that his Honour made the finding of which the plaintiff complains.

75 The issue of whether the Children’s Court has a discretion to revisit the issue of a finding of need for care and protection was compendiously considered in Re Alistair where Kirby J held [at 83] that the Children’s Court has a discretion to permit a party to re-open an issue, including the issue of establishment, if it is appropriate to do so. His Honour cited with favour [at 84-86] the identification by Hale J In re B (Minors) (Care Proceedings: Issue Estoppel) (1997) 3 WLR 1 of some of the factors relevant to the exercise of the discretion. Those factors include the public interest in an end to litigation, the likelihood of possible prejudice to the welfare of the child by delay in determination of the outcome of the case, the unlikelihood that the welfare of the child is to be served by erroneous determinations of fact, the importance of the previous findings in the context of the current proceedings and the consideration of whether there is any reason to think that a re-hearing of the issue will result in a different finding.

76 Whilst Re Alistair was not concerned with evidence adduced under s 106A(1) there is nothing in the language of the section which prevents the Children’s Court from exercising a discretion to re-open as an issue the circumstances which gave rise to the order of which evidence has been adduced under subsection (1) of s 106A. The extent to which those circumstances are to be reconsidered is, however, a matter of discretion. The discretion must be exercised in accordance with proper judicial principles and the factors identified in Re B may be of relevance. If the Senior Children’s Magistrate has determined that s 106A prevents him from re-opening Rachel’s case then I would respectfully consider that this determination was incorrect. If, however, his Honour was expressing the view that it is unnecessary to revisit Rachel’s case in order to identify the circumstances that give rise to Rachel’s removal for the purpose of subsection 3 then that may be a determination which was well open to him. As his Honour’s reasons on this issue are opaque, I am content to state that it is a matter for his discretion which is to be exercised judicially.

77 What is in the first instance sought by the plaintiff is an order for certiorari to quash the decision of the Senior Children’s Magistrate. The plaintiff, furthermore, seeks orders in the nature of declaratory relief.

78 The Director-General contends that even though error may be demonstrated that prerogative relief should not be granted. The principal argument for the Director-General is that there has not been shown a failure to afford procedural fairness. His Honour’s ruling, it is submitted, does not amount to a denial of procedural fairness and could only amount to the threat of such a denial in that the ruling has not to date been put into effect and the plaintiff was fully heard before the ruling was made. The Memorandum does not, the Director-General argues, constitute any judgment or order under the Act or purport to exercise any jurisdiction outside the procedures laid down in the Act. It is merely a procedural ruling within the confines of a hearing in respect of which the Children’s Court has undoubted jurisdiction.

79 The Memorandum of the Senior Children’s Magistrate, notwithstanding the heading of the document is a reserved judgment on the issues which had been ventilated at the hearing on 16 August 2007. It followed written submissions and extensive argument on the construction of s 106A. His Honour’s reasons were intended to govern the establishment hearing which was subsequently listed for hearing on 18 October 2007. They are orders made by a judicial officer at the preliminary stage of the proceedings. The findings of his Honour that s 106A provides a ground in itself and that the plaintiff does not have standing to rebut the presumption would, if allowed to stand, deny the plaintiff procedural fairness.

80 Certiorari is not simply a discretionary remedy available to correct error. It is available on distinct grounds including jurisdictional error, failure to convey the appropriate measure of procedural fairness, fraud, or error of law on the face of the record: see Craig v South Australia (1995) 184 CLR 163 at 175 – 176.

81 The scope of certiorari in respect of decisions made at a preliminary stage of the decision-making process was considered by the High Court in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149. In the majority judgment Brennan CJ, Gaudron J and Gummow J said at 159:

“……Thus, for certiorari to issue, it must be possible to identify a decision which has a discernable or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.
This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently “affects rights” in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently “determines” or is connected with that decision.
The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision.”

82 In the present case the ultimate decision to be made, to my mind, is the determination under s 72 as to care and protection. That ultimate decision affects the legal rights of the child and her parents. His Honour’s judgment substantially determines that decision. Should, however, the ultimate decision be considered to be the making of orders allocating parental responsibility under s 79, his Honour’s judgment although further removed sufficiently determines the making of those orders as the finding of the need of care and protection is an essential pre-requisite for the making of such orders.

83 The jurisdiction of this Court in respect of proceedings in the Children’s Court has been analysed in Re Liam [2005] NSWSC 75 per McDougall J at [25-30] and in Re-Brett v Children’s Court of NSW [2006] NSWSC 984 per Sully J at [29]. The District Court is intended to be the primary court of review of decisions made by the Children’s Court under the Act. The Act, however, excludes appeals to the District Court against an interim order (s 91(1)).

84 For all the above reasons the plaintiff has established an entitlement to an order in the nature of certiorari. Although applications to this Court for prerogative relief for decisions made at a preliminary stage of proceedings in the Children’s Court are not to be encouraged, I propose to exercise my discretion and grant relief. The issues raised in the current proceedings concern the interpretation of a new provision in the Act and are of particular importance in the conduct of care applications. The Senior Children’s Magistrate is the senior judicial officer presiding in the Children’s Court and it is likely that his Honour’s judgment on the construction of s 106A will have substantial weight. The fundamental purpose of prerogative relief is to ensure compliance with the law and due procedure: see Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701 at 719B. It is in the best interests of the child Clare to have the care proceedings finalised as expeditiously as possible in accordance with the correct application of the law.

85 I make the following orders:

1. That the record of the Parramatta Children’s Court be removed

into this Court.

2. That the decision of the Senior Children’s Magistrate made at
the Parramatta Children’s Court on 2 October 2007 be quashed.

3. That the application of the second defendant filed on 20 April

2007 be remitted to the Parramatta Children’s Court there to be

heard and determined according to law.

4. That the second defendant pay the costs of the plaintiff and of
the third and fourth defendant of the hearing in this Court. No

order as to costs of the first defendant.

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