SL v Department of Families, Fairness and Housing
[2021] VSC 523
•25 August 2021
IN THE SUPREME COURT OF VICTORIA
Not Restricted
AT MELBOURNE
Common Law Division
S ECI 2021 01176
SL (A PSEUDONYM)
Plaintiff
v
DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
First Defendant
and
CHILDREN’S COURT OF VICTORIA
Second Defendant
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JUDGE:
O’Meara J
WHERE HELD:
Melbourne
DATE OF HEARING:
23 July 2021
DATE OF JUDGMENT:
25 August 2021 (revised 27 August 2021)
CASE MAY BE CITED AS:
SL v Department of Families, Fairness and Housing
MEDIUM NEUTRAL CITATION:
[2021] VSC 523
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ADMINISTRATIVE LAW — Application under Order 56 for relief in the nature of certiorari and mandamus — Protection order concerning child J — Later protection applications concerning child J and child A — Ruling by Children’s Court — Issue estoppel — Extent to which any and what issues concluded between any and what parties — Children, Youth and Families Act 2005 (Vic), ss 10, 162, 274, 275, 289, 290, 328 and 329 — Relief ordered.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Dr RS Ingleby
Hope Earle Lawyers
For the First Defendant
Dr IRL Freckelton QC
Child Protection Litigation Office (Department of Families, Fairness and Housing)
For the Second Defendant
No appearance
HIS HONOUR:
A Background
1 The plaintiff is the mother of child J who is presently four years of age. She is also the mother of child A who was born on 11 August 2020.
2 On 1 August 2018, pursuant to s 289 of the Children, Youth and Families Act 2005 (Vic) (‘the Act’), the Children’s Court made a ‘care by Secretary order’ in relation to child J. On that occasion, the plaintiff and child J were legally represented, as was the Secretary. The plaintiff’s husband appeared in person.
3 The effect of the care by Secretary order was that parental responsibility for child J was conferred on the Secretary for 24 months. A copy of the Court’s record of determination and minutes of order is attached hereto as Appendix A.
4 The care by Secretary order was presently referred to by Senior Counsel for the first defendant as a kind of ‘protection order’ made pursuant to the provisions of the Act. The Children’s Court had a discretion to make such an order if the relevant grounds stated in s 162 of the Act were made out. The presently relevant sub-sections of s 162 of the Act are as follows –
162 When is a child in need of protection?
(1) For the purposes of this Act a child is in need of protection if any of the following grounds exist –
…
(c) the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
…
(e) the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the parents have not protected, or are unlikely to protect, the child from harm of that type;
(f) the child’s physical development or health has been, or is likely to be, significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.
5 Prior to the hearing on 1 August 2018, the Secretary prepared a 270 page Court Book containing various medical and other material. At the present hearing, I was told – and it did not appear to be in dispute – that the Court Book had been before the Children’s Court at the time at which the care by Secretary order was made.
6 The medical material in the Court Book did not speak entirely with one voice. Some of it was treating records and other parts of it were, in substance, medico-legal opinions. That which would have been relied upon by the Secretary referred to unusual patterns of injury in child J. Other medical opinion evidence – obtained by the parents – expressed the view that accidental injuries had been inflicted on the child.
7 I was not taken to the contents of the Court Book in any detail in the course of the present hearing. That said, parts of the material recorded that child J had suffered injuries at various times.
8 In the present proceeding, the written submissions of the first defendant purported to summarise the injuries suffered by child J as follows –
1. Child J (born 12 June 2017) was admitted to the Royal Children’s Hospital on 6 July 2017 with cerebral haemorrhages.
2. On 20 July 2017 Child J was re-admitted to the Royal Children’s Hospital with a fracture of the right humerus and a referral was made to the Victorian Forensic Paediatric Medical Service.
3. On 21 July 2017 a notification was made to Child Protection.
4. Child J was also identified as having suffered fractures of the lateral aspect of his left 5th, 6th, 7th and 8th ribs.
5. Further, Child J was identified as having widespread, bilateral retinal haemorrhages extending to the periphery of each retina.
6. On 29 September 2017 a further notification was made to Child Protection in relation to further subdural haemorrhages identified of Child J’s brain. A report from the Victorian Forensic Paediatric Services dated 9 October 2017 by Dr Tully stated that “The pattern of injury to J is unusual and highly concerning”, in particular the head trauma which had by that time resulted in poor head control, and which was regarded a representing “a degree of developmental delay in the area of gross motor development”.
9 Counsel for the plaintiff did not take issue with the dates and reports of injuries stated in that summary. The real dispute, it seems, lay elsewhere.
10 The events before the Children’s Court on 1 August 2018 were recorded in a short transcript prepared by the representatives of the plaintiff. The transcript was not prepared by an official provider, but there was no issue about its essential correctness.
11 The transcript does not reveal that the Court was taken to any part of the Court Book. Nor does it appear that any part of the controversy apparent in the material in the Court Book featured during the hearing on 1 August 2018. What is tolerably clear is that the plaintiff, her husband and child J did not oppose the making of a care by Secretary order on the basis that the Secretary had established the need for such an order based upon what came to be described in argument as a ‘likelihood of harm’ in respect of s 162(1)(e) and (f) of the Act and on the basis of ‘actual harm’ and ‘likelihood of harm’ in respect of s 162(1)(c) of the Act.
12 That position is also evident from the record of determination to which I have referred.
13 Ultimately, in the hearing of the present matter, it did not really appear to be in issue between the parties that that was the proper construction of both the events in the course of the hearing on 1 August 2018 and the Court’s record of determination on that date.
14 I should add that a notation to the Court’s record of determination indicates that the parents, while not opposed to the making of the care by Secretary order, ‘dispute[d] the contents of some reports in the Court Book, and the inferences and conclusions drawn therefrom by DHHS’.
15 No appeal was sought to be brought from the care by Secretary order.
16 Immediately prior to the expiry of the care by Secretary order, on 29 July 2020, the Secretary applied, pursuant to s 290(1A) of the Act, seeking an order that child J be made subject to a ‘long-term care order’. A long-term care order is another kind of ‘protection order’ under the Act. The effect of such an order would be to confer parental responsibility for child J upon the Secretary until he marries or attains 18 years, whichever happens first.
17 As I have noted, child A was born on 11 August 2020, and I was told that on that or the next day the Secretary applied for both a care by Secretary order and, it seems, also a long-term care order in respect of him.
18 It seems that the first defendant sought to found a significant part of the present applications concerning child J and child A in what was said to have been the earlier ‘finding’ that, broadly speaking, child J had suffered ‘actual harm’ in the care of his parents. In that regard, the first defendant came to submit to the Children’s Court that –
[2] …[The parents] are estopped from asking the Court to rehear issues already finally determined by the Court. The department further submits that the parents are estopped from calling witnesses and adducing or producing evidence concerning matters already determined by the Court, insofar as this evidence is adduced or produced in order to rehear those issues already finally determined by the Court.
…
[9] By reason of the findings of the learned Magistrate on 1 August 2018, the finding of actual physical harm having been suffered by [child J] in the care of his parents constitutes an issue estoppel under which the Court is bound to accept those facts. By extension it is submitted that the parents are estopped from calling witnesses or adducing evidence in these proceedings for the purpose of revisiting the issue of the harm caused to [child J].
19 The position of the first defendant came to be, in substance, that the care by Secretary order of 1 August 2018 created an issue estoppel that bound the parties in respect of any legally indispensable issue of fact or law. In that regard, in both the application concerning child J and, it seems, also in the application or applications concerning child A, the first defendant sought to rely upon what was described as the ‘finding’ that child J had suffered ‘actual harm’ in the care of his parents.
20 In that, it seems to have come to be understood that the submission of the first defendant extended to contending that a consequence of the estoppel was that the material in the earlier Court Book that could be said to have supported the making of what was described as the ‘actual harm’ finding could not now be challenged.
21 The first defendant’s position came to be supported by the independent representative for child J.
22 By contrast, the representative of the plaintiff seems to have either contended or come to contend that no issue estoppel arose in connection with the care by Secretary order of 1 August 2018 such as to amount to any ‘bar’ upon her, and that it would be sought to dispute the material earlier relied upon by the Secretary and to adduce evidence disputing the basis for the making of the earlier order, particularly in respect of any proposition that the parents had caused ‘actual harm’ to child J.
23 Indeed, at the hearing of the present proceeding, Counsel for the plaintiff confirmed that the position was and would be that the care by Secretary order was wrongly made.
24 It seems that the position of the plaintiff came to be supported by the independent representative for child A.
25 On 12 February 2021, the issue was heard before the Children’s Court, seemingly as a preliminary question arising in connection with the applications concerning each of child J and child A.
26 The issue might not at that point have had quite the same definition as might be evident in the above (which, it might be said, had the benefit of the assistance of both Counsel in the present argument), but the gist of the dispute was clear enough.
27 The Magistrate hearing the matter was the same Magistrate that had earlier made the care by Secretary order in respect of child J, although nothing seems to have turned on that fact.
28 Her Honour published ‘reasons for decision’ on 19 February 2021. The presently relevant reasons of the Magistrate are as follows –
13. The DFFH relies upon the written submissions of Mr Watts [representative of the Secretary].
14. The ICL for Child J adopts the submissions.
15. The ICL for Child A has made oral submissions as to why the Court should revisit the protective concerns that related to Child J. Ms Ardley submits that the Court is required to consider whether the child is in need of protection pursuant to section 247CYFA.
16. Ms Ardley submits that the DFFH rely heavily on what happened to Child J as a basis for submitting that Child A is in need of protection.
17. Ms Ardley puts that Dr Milburn is not an independent witness and that the Court needs to hear all of the evidence relating to Child J’s protection application in order to consider the protective concerns in relation to Child A.
18. At the Readiness Hearing on 27/11/2020, Directions made by HH Billings included that the parents were required to provide to the Court and the parties the legal basis upon which they relied to assert that the protective concerns in relation to Child J should be revisited. No material has been provided to the Court, instead, oral submissions were made by each parent.
19. In her submissions [SL] relied in part on the decision of HH Magistrate Power [DOHS v Ms B and Mr G [2008] VChC1]. However, HH in considering the issue estoppel aspect of the case stated that no party would be entitled to lead evidence in an attempt to show that the respective children were not in need of protection on the dates that this Court has previously found that they were.
20. The principle of issue estoppel prevents any party to later proceedings from seeking to call into question the findings made by the Court in proceedings that have already been determined by the Court.
21. The Court made orders on 1/8/2018. On this date a Care by Secretary Order was made. The order was unopposed by the parents who were legally represented on this date. A finding of proof was made in relation to section 162(1)(e) and (f) on the basis of ‘likelihood only’ and in relation to sub-section (c) on the basis of actual harm. The Court Order was not appealed. Counsel for the DFFH asserts that it became aware of the parents’ assertion that the matters relating to Child J be re-litigated when the Protection Application in relation to Child A was issued on 11/8/2020.
22. Having heard the submissions, and taking them all into consideration, I am satisfied that the parents are estopped from adducing new evidence or calling new witnesses in relation to the issue of Child J’s injuries.
23. The principle of issue estoppel precludes the Court from reconsidering the question of proof, which has already been determined by the Court on 1/8/2018.
29 It is not evident that the Court made any orders in consequence of that decision. It was, in effect, the equivalent of a ruling in the course of a trial, albeit in this instance prior to any such trial.
B The present proceeding
30 By originating motion dated 19 April 2021, the plaintiff applies for judicial review of the decision. The originating motion states grounds as follows –
1. The Second Defendant’s determination that the Plaintiff is ‘estopped from adducing new evidence or calling new witnesses in relation to the issue of Child J’s injuries’ is vitiated by legal error insofar as:
(a) the estoppel is inconsistent with the application of the best interest principles set out in Section 10 of the Children, Youth and Families Act 2005 in that it will preclude the Court from reaching a fully informed decision as to what orders are in either child’s best interests; and
(b) the estoppel is inconsistent with the principles to which decision makers (including the Court) are to have regard as set out in Section 11 of the Children, Youth and Families Act 2005, in particular that the decision making process should be fair and transparent; and
(c) the estoppel is inconsistent with Section 215 of the Children, Youth and Families Act 2005 which provides how the Family Division must conduct proceedings before it, in particular that proceedings must be conducted in an informal manner, without regard to legal forms and that the Court may inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary; and
(d) further and in the alternative, the Second Defendant erred in applying the principal (sic) of ‘issue estoppel’ to preclude the Plaintiff calling evidence or challenging the First Defendant’s evidence beyond the findings made in respect of Sections 162(c), (e) and (f) of the Children, Youth and Families Act 2005 in respect of Child A and if the principle of issue estoppel is properly applicable (which is expressly denied by the Plaintiff) it should be strictly limited to estopping the Plaintiff challenging those findings.
2. The Second Defendant’s determination that the Plaintiff is ‘estopped from adducing new evidence or calling new witnesses in relation to the issue of Child J’s injuries’ will cause a denial of natural justice insofar as the Plaintiff will be effectively unable to challenge or respond to significant evidence relied upon by the First Defendant – evidence that was not challenged in the previous proceedings in respect of Child J given orders were made unopposed in those proceedings yet noting that issue was taken with the contents of the reports relied upon by the First Defendant.
31 As is apparent, each ground seeks to take issue with the determination of the Children’s Court that the plaintiff is ‘estopped from adducing new evidence or calling new witnesses in relation to the issue of Child J’s injuries’, albeit each in slightly different ways.
32 By letter, the second defendant, the Children’s Court of Victoria, indicated that it would abide the decision of this Court.
33 In the course of argument, I raised with the parties whether a decision or ruling of the present kind could be the subject of relief in the nature of certiorari and mandamus via Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. In substance, Dr Ingleby, on behalf of the plaintiff, submitted that no part of Order 56 ought be an impediment to the substance of the relief sought by the plaintiff. Dr Freckelton QC, on behalf of the first defendant, indicated that it was not submitted that Order 56 relief was unavailable. I am satisfied that the relief sought may be ordered, if appropriate. That said, it is only in an exceptional case that the Court should intervene in such a decision made in or prior to trial.
C Submissions of the parties
34 Both parties filed written submissions, which I have read and considered.
35 The essential propositions of the plaintiff were that –
(a) the principle of issue estoppel does not apply when the ‘best interests of the child’ are the paramount consideration; and
(b) the care by Secretary order made on 1 August 2018 did not create an issue estoppel in the terms contended by the first defendant.
36 The plaintiff contended that she –
should be at liberty to challenge the assumptions underlying the earlier Department intervention; and in particular to adduce expert evidence which challenges the “Shaken Baby Syndrome” diagnosis.
37 The first defendant confirmed that –
On 1 August 2018 the Children’s Court made a care by Secretary order pursuant to s 289 of the Children, Youth and Families Act 2005 (Vic) … in relation to Child J with the preconditions for finding that Child J was in need of protection being found proved pursuant to s 162(1)(e) and (f) of the Act on the basis of likelihood of harm and on the basis of s 162(1)(c), namely that Child J had suffered physical injury.
38 The first defendant thereafter confirmed that it had –
brought Child A’s application on the likelihood of physical and emotional harm that was present due to the actual harm suffered by Child J in the care of the parents.
39 In respect of the plaintiff’s contention that issue estoppel did not apply, the first defendant contended that although it did not apply in ‘some situations in family law proceedings’ –
this does not remove the need for finality in litigation to have operation and provide a carte-blanche for reopening of previously determined litigation.
40 In that regard, it was submitted that the Magistrate had been correct, in that –
Were she to have decided otherwise and not applied the doctrine of issue estoppel, the option would exist for the parents to return repeatedly over the course of many years to argue again, effectively by way of appeal/fresh hearings, that the medical evidence should be reconsidered and different findings made. This would be contrary to the efficient running of the Children’s Court as a decision-making body.
41 The plaintiff also filed a short reply submission.
42 At the hearing, Dr Ingleby, on behalf of the plaintiff, submitted, in substance, that –
(a) the ‘big point’ was that the ‘the Magistrate treated issue estoppel as an absolute bar’, which was ‘too absolute’ and therefore erroneous;
(b) in that regard, s 10 of the Act – which provides that ‘for the purposes of this Act the best interests of the child must always be paramount’ – and two decisions at appellate level, have qualified any operation of the doctrine of issue estoppel in cases involving the welfare of children such that it becomes only ‘one of the factors in the mix’;
(c) the first defendant, in its written submissions, had ‘actually conceded the absolute bar point’;
(d) in any event, the circumstances of the hearing on 1 August 2018 and determination of the Court on that occasion were such that ‘no precise factual findings’ were made capable of giving rise to any issue estoppel, particularly because of what was described as the ‘express reservation’ of the parents noted in the Court’s determination; and
(e) it was ultimately intended to be submitted to the Children’s Court that the care by Secretary order was wrongly made.
43 In response, Dr Freckelton QC, on behalf of the first defendant, submitted that –
(a) the care by Secretary order made by the Children’s Court on 1 August 2018 was capable of giving rise to an issue estoppel and, in this instance, did so such that no challenge ought be permitted to be entertained in respect to what must be taken to have been the findings of ‘actual’ harm (in particular) accepted by the Court to have been suffered by child J in the hands of the parents;
(b) in that regard, it was submitted that –
there is no reason to conclude that she [the Magistrate] did not – consider the evidence before her and make her own mind up about whether the pre-conditions for making findings were satisfied.
(c) insofar as an issue estoppel is said to arise in respect of the application concerning child A, that child is the brother and in interest a ‘privy’ of child J, which, it was submitted, is a ‘classic scenario where they are very much privies’ and ‘an archetypal example of the applicability of privies’;
(d) the estoppel found below would not prevent the plaintiff from leading evidence to address, in effect, the extent to which ‘circumstances had changed’ since the making of the order on 1 August 2018; and
(e) section 10 of the Act and the two appellate decisions relied upon by the plaintiff must have been taken into account by the Magistrate, and the present situation is ‘a world away’ from scenarios in which it might be thought that no issue estoppel could arise.
44 As is evident, the essential issue is and was whether the Magistrate was wrong to rule that the plaintiff is ‘estopped from adducing new evidence or calling new witnesses in relation to the issue of Child J’s injuries’.
45 In that sense, many of the references in the stated grounds to other provisions of the Act and denial of natural justice did not come ultimately to be emphasised or developed. Nothing turns upon any of those references in any event. The principle issue is that identified above. For those reasons, the plaintiff’s two grounds can be addressed as directed to the one essential issue.
D Issue estoppel
46 It is a ‘central tenet’ of the judicial system that controversies once resolved are not to be reopened except in a few, narrowly defined circumstances. The doctrine of issue estoppel gives effect to that tenet, as does the doctrine of res judicata.
47 An issue estoppel may arise not only from the decision of a court. It will, however, arise where –
(a) the ‘same question’ has been decided;
(b) the decision was final; and
(c) the parties or their privies are the same.
48 Dixon J spoke to the applicable principles in Blair v Curran, as follows –
A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceeding passed into judgment, so that it is merged and has no longer an independent existence, while in the second, of the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact, the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. … But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point in issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
In the phraseology of Lord Shaw, “a fact fundamental to the decision arrived at” in the former proceedings and “the legal quality of the fact” must be taken as finally and conclusively established. But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very right to the title to rights give to no preclusion.
…
The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order.
49 Similarly, in Hoysted v Commissioner of Taxation, the Judicial Committee of the Privy Council stated –
if in any Court of competent jurisdiction a decision is reached, a party is estopped from questioning it in a new legal proceeding. … The principle … also extends to any point, whether of assumption or admission, which was in substance the ratio of and fundamental to the decision.
50 The principles apply equally to consent judgments, or judgments in which no reasons are given. The court will examine the evidence to determine the matters that were in dispute. Any issue fundamental to the judgment or order will be conclusively determined. But where the evidence does not assist, it may be that all that will bind the parties will be the judgment or order.
51 As is evident in the classic passage of Dixon J extracted above, it is important to identify, with precision, the issues decided in the earlier proceeding and the issue that falls for determination in the present proceeding in order to determine whether there is ‘the requisite identity between any of the issues in the two sets of proceedings’.
52 Finally, in determining whether an issue estoppel is established (or not), the court may look to the record, including the decision of the court concerned, and any material that shows what issues were raised and decided.
E ‘Best interests of the child’
53 As I have noted, the plaintiff’s ‘big point’ was that issue estoppel cannot ever be an ‘absolute bar’ in a proceeding such as the present and, it was said, the Magistrate had erred in so finding. In that regard, the plaintiff relied upon s 10(1) of the Act and the appellate decisions of In the Marriage of Schorel (‘Schorel’) and CDJ v VAJ (No 1) (‘CDJ’).
54 Section 10(1) of the Act provides that ‘[f]or the purposes of this Act the best interests of the child must always be paramount’. Neither party referred to any decision of the Court of Appeal or this Court which has relevantly considered s 10 of the Act. Neither Schorel nor CDJ concerns s 10 of the Act.
55 In Schorel, the Full Court of the Family Court considered issue estoppel in family law proceedings. The context was of some importance. In family law proceedings between husband and wife there were issues of paternity in respect of some of the children of the marriage. Notwithstanding those issues, a decree of divorce was made and a part of that appears to have involved a declaration that each child was a ‘child of the marriage’. Upon that, the husband later contended that the wife was estopped from asserting that he was not the father of any of the children concerned. That was a contention later described by the Full Court as ‘most unjust’ in the circumstances of the case, as it was clear from the transcript that ‘neither the solicitor for the wife nor the judge [had] contemplated such a consequence’.
56 In any event, the Full Court doubted that the declaration related to any issue between the parties or that it could form the basis for an issue estoppel relating to the children, but did not finally determine either issue. Principally by reference to a sequence of English and Australian authorities concerning, among other things, the custody of children, the Full Court stated –
the cases appear to us to establish that, whatever might be the scope of issue estoppel in ordinary civil litigation, it has a much more limited application in matrimonial causes, and more especially in litigation which involves the welfare of children. That approach is based upon the view that the duty of courts in family law has a wider and more public element and imposes a greater responsibility to elicit the actual facts, but more particularly it is based on the obligation of such Courts to have regard to the welfare and protection of children within its jurisdiction.
57 Notwithstanding the rather expansive nature of that language, the Full Court ultimately stated –
It is sufficient for present purposes to say that an issue estoppel relating to the paternity of a child does not and cannot arise as a consequence of a declaration made under s 55A. Issue estoppel has a very limited application generally in family law, whether in relation to the narrower issue of paternity or in relation to other issues which may have previously been determined between the parties, as particularly the English cases referred to above amply demonstrate. It is unnecessary for present purposes to consider the outward limits of this view, except perhaps to add that where a matter has been clearly and directly put in issue in contested family law proceedings it may not be open to a party in ordinary circumstances to continue to relitigate that same issue in subsequent proceedings.
[Emphasis added]
58 Schorel was decided in 1990. Neither party referred me to any more recent consideration of the issue by the Family Court.
59 CDJ concerned the statutory discretion of the Family Court to receive further evidence in an appeal. A Full Family Court had received further evidence, some of which had been available at the trial but had not been produced. The majority of the High Court comprising McHugh, Gummow and Callinan JJ determined that the Full Court had erred in exercise of the discretion. Gaudron and Kirby JJ dissented. The case did not concern the doctrines of res judicata or issue estoppel.
60 In the present argument, the applicant pointed to particular paragraphs in the joint judgment of the majority and in the dissenting reasons of Gaudron J and Kirby J respectively.
61 For present purposes, it is sufficient, and appropriate, to refer to the joint judgment of the majority. In that regard, the majority observed that the discretion to receive fresh evidence was statutory and its exercise best approached as a matter of statutory construction. Then, at [104], in a passage presently relied upon and emphasised by the plaintiff, the majority stated –
In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising those discretions.
62 The point of that passage was that the statutory discretion was more ample than that at common law. That said, the majority emphasised the need for care in admitting further evidence in ‘parenting cases’. Their Honours thereafter stated –
The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
[Emphasis added]
63 The majority analysed the further evidence received by the Full Court and noted that none of it was likely to have resulted in the primary judge reaching a different conclusion. The majority observed that the Full Court ‘plainly observed that the order made [by the primary judge] may not have been in the best interests of the children’. However, their Honours did not consider that to have been a proper basis to admit the evidence and order a new trial. The majority stated –
The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at the trial.
[Emphasis added]
64 In this sense, as the majority thereafter explained, it had been necessary for the Full Court to bear in mind the purpose for which further evidence might be received, namely to facilitate the correction of error below. In that, the majority identified that in ‘truly exceptional’ cases it might be that the court considers that there is a ‘very real risk’, although not a probability, that the current order might not be in the ‘best interests’ of the child.
65 In that context, the majority turned to the notion of ‘the best interests of the child’ and stated –
151 Wide as the discretion conferred by s 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child. Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration of proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
152 The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.
[Emphasis added]
66 At that point, the majority confirmed that the case had no exceptional feature and proceeded to explain the uncertain and, at best, marginal benefits that, in that case, might be thought to accrue from a change in residency arrangements. In that, the majority confirmed that one factor relevant to the discretion to receive further evidence in such an appeal must be ‘whether any improvement justified putting the family through a new hearing and would outweigh any adverse consequences that might flow from another and different residency order’. As the majority noted, the Full Court had given no consideration to that and other such issues.
67 As is evident, the majority set aside the Full Court’s exercise of the discretion to receive further evidence as vitiated by legal error.
68 CDJ was decided in 1998. I was taken to no subsequent case in which any such issues have arisen, either directly or indirectly.
69 In any event, in proper context it may be seen that neither Schorel nor CDJ might be said to have swept away the application of the doctrine of issue estoppel to cases in which a court is required to consider the welfare of children.
70 Schorel was an exceptional case, and had some unjust features, and the Full Court did not wholly sweep the doctrine away anyway. Indeed, the Full Court admitted of the distinct possibility that there were circumstances in which the doctrine would operate.
71 CDJ did not concern issue estoppel at all, but the majority considered issues of finality and, ultimately, set aside the Full Court’s exercise of discretion in a manner that was essentially confirmatory of the place and importance of finality, save in ‘truly exceptional circumstances’.
72 The majority in CDJ also examined the notion of the ‘best interests of the child’ and identified it as a multifaceted value of variable weight rather than an immutable and enduring fact. Albeit that the majority did refer to ‘factors’ at [104], the balance of the majority’s reasoning does not suggest that in most cases finality should be taken to carry the status of a ‘factor’ of less or no more weight than any other; quite the contrary.
73 It follows from the above that it is more appropriate, in my view, to seek to identify any present displacement or modification of the doctrine of issue estoppel in the terms of the Act and with reference to any relevant facts of the present case rather than via a somewhat fragile combination of one sub-section of the Act sought to be afforded a wide operation by reference to selected paragraphs from Schorel and CDJ.
74 In that regard, sub-s 8(1) of the Act requires that the Children’s Court have regard to the principles in Part 1.2 of the Act, including s 10, ‘(where relevant)’, in making any decision or taking any action under the Act.
75 As noted, sub-s 10(1) states the ‘best interests’ principle, which is expanded upon in ss 10(2) and (3). Those sub-sections include the requirement always to consider ‘the need to protect the child from harm’, but also require that consideration be given to a wide range of other factors not all of which may be able to be perfectly reconciled.
76 In that sense, the various sub-sections of s 10 alone might be thought intrinsically to recognise and reflect the observations made by the majority in CDJ concerning the manner in which any view of the ‘best interests of the child’ may be both informed by multiple conflicting considerations and ultimately debateable as to both its significance and weight.
77 ‘Protection orders’ are addressed in Chapter 4 of the Act, specifically Part 4.9.
78 As noted, s 162 identifies the grounds that will establish when a child is ‘in need of protection’. The best interests of the child is not specifically identified as relevant at that point, although it is obviously specified earlier in s 10 and might be thought to be implicit later in s 215B.
79 Section 274 provides that a ‘protection order’ may be made in respect of a child if the Court finds ‘that the child is in need of protection’. Upon that finding – which proceeds by reference to the grounds identified in s 162 – and in exercise of the discretion conferred by s 274, the Court may make any one of several ‘protection orders’, including a care by Secretary order or a long-term care order. In particular ways, s 276 operates to make the ‘best interests of the child’ relevant to the making of ‘protection orders’.
80 As earlier noted, a care by Secretary order may be made for a period of 24 months and must provide that a parent can resume parental responsibility for the child if ‘the Secretary is satisfied that it is in the child’s best interests’. Such an order must be reviewed and may also be determined, extended and revoked.
81 As to the latter, a child or a parent may ‘only’ apply to the Children’s Court for revocation of a care by Secretary order if, among other things, ‘the circumstances have changed since the making of the care by Secretary order’.
82 As earlier noted, a long-term care order confers parental responsibility for the child on the Secretary until the child attains 18 years or marries, whichever comes first. Such an order must not be made unless the Court is satisfied, among other things, that ‘the making of the order is in the best interests of the child’. Again, such an order must be reviewed and may be determined or revoked. Such an order may be revoked by the Court ‘if it is satisfied that it is in the best interests of the child to do so’.
83 Appeal from a protection order, or the extension of a care by Secretary order, or the revocation of a care by Secretary order or long-term care order, is to the County Court or, in certain circumstances, to the Trial Division of the Supreme Court.
84 Such an appeal is commenced by notice of appeal filed within 28 days of the order in question, and is in the nature of a rehearing. Such an appeal does not operate as a stay of any order of the Children’s Court, unless otherwise ordered.
85 If a notice of appeal is not filed within time, such a late filed notice of appeal is deemed to be an application for leave to appeal, and the appeal may proceed if, among other things, the court considers that the failure to file a notice of appeal within the specified period was ‘due to exceptional circumstances’.
86 The Act provides separately for appeal on a question of law to the Supreme Court from a final order of the Family Division of the Children’s Court. Such an appeal must be instituted within 30 days of the making of the order complained of and does not operate as a stay on the order of the Children’s Court unless the Supreme Court so orders. In the event of such an appeal, the person appealing –
is deemed to have abandoned finally and conclusively any right under this or any other Act to appeal to the County Court or any right under this section to appeal to the Trial Division of the Supreme Court.
87 Such an appeal, if instituted outside the time provided, is deemed to be an application for leave to appeal, and leave may be granted if, among other things, the Court is of opinion that the failure to institute the appeal within time was ‘due to exceptional circumstances’.
88 As is evident, the Act provides for a complicated but in many respects orthodox series of steps by which certain ‘protection’ and related orders may be applied for, made, reviewed, extended, revoked, and appealed. Consideration of the ‘best interests of the child’ seems to be required at every step of that process, one way or another.
89 At no point in the statutory scheme that I have outlined does the Act specifically displace central tenets such as res judicata and issue estoppel. Indeed, it might be thought that the scheme is premised in their presence: if a party is dissatisfied with a protection order it may be sought to be appealed, and principally within certain times.
90 Further, any such appeal is either in the nature of a rehearing, and therefore an appeal in which error must be shown, or in the nature of an appeal on a question of law, and thus even more confined. In each case, simple appeal does not operate as a stay upon the order from which appeal is brought.
91 The fact of such a regulated and confined appeal process tends to suggest that the orders and therefore ultimate findings of the Children’s Court below should be taken to be settled unless displaced on appeal by the demonstration of error, at least.
92 There are significant reasons of policy why that might be thought to be so. One such reason was highlighted in the reasoning of the majority in CDJ, namely that finality subject to appeal can have the benefit of limiting or avoiding further hearings.
93 That view of the statutory scheme also tends to be supported by the provisions relating to the revocation of such orders. In the case of a care by Secretary order, a child or parent may ‘only’ apply if ‘circumstances have changed’, which tends to bespeak the assumption that the earlier circumstances are taken to have been established.
94 Similarly, a long-term care order may be revoked if the Court is satisfied that ‘it is in the best interests of the child to do so’. The form of the provisions relating to revocation of such an order suggests that the statute will accommodate changes in views as to ‘the best interests of the child’ over time and without having to give a wide and particular operation to s 10.
95 In light of the above, any proposition to the effect that no preclusive doctrines are at work in such a scheme, and that doctrines such as issue estoppel are, at best, no more than a ‘factor’, is an unlikely one. If that were the case, it is not easy to see how the statutory scheme might operate in the very detailed terms in which it has been enacted.
96 At its baldest, if that were the case, the position might then be that if the Secretary, child or parent were dissatisfied with some aspect of the outcome of an application for a protection order that party might the next day simply use the provisions of the Act in some way to seek to re-run the argument entirely. But the provisions of the Act relating to review, determination, revocation and appeal do not seem premised in such an unorthodox course.
97 Nor, it must be said, does such a course seem to be contemplated by the manner in which the ‘best interests’ principle is made a mandatory consideration at every relevant part of the process that I have outlined. In that sense, it is a mandatory value to be considered at every part of the process, but it does not have any independent function of substantively shaping or displacing the enacted and relatively orthodox process of review, determination, revocation and appeal which I have outlined.
98 It is often the case that the proper construction of such a statute can be better understood by reference to detailed underlying evidence and factual findings.
99 Little about the present case has permitted that to occur. The care by Secretary order was made in August 2018 without any evident examination of the underlying evidence. Applications then emerged in 2020, and proceeded to the present ruling, again without much in the way of detailed consideration of the underlying evidence.
100 Further, the present application was argued by both parties with reference to relatively broad duelling statements concerning the underlying circumstances.
101 In that regard, the submissions of the plaintiff were premised in a degree of insinuation to the effect that the family was either dealt a grave injustice in August 2018, or has come to be the victim of a grave injustice as a consequence of developments in the interim in the medicine or science relating to ‘shaken babies’ analogous to the position after the development of DNA testing and ‘better quality blood testing’. Thereupon, it was submitted, the ‘best interests of the child’ should mean, in effect, that ‘justice’ should now be allowed to be done and endeavours to displace the earlier events thereby permitted or facilitated.
102 Notwithstanding the above, it is notable that in 2018 the care by Secretary order was made unopposed by both the parents and the independently represented child J. Equally notable, it seems to me, is the fact that in 2021 the argument of the Secretary to the effect that the plaintiff is estopped was supported by child J, again independently represented. If the ‘best interests of the child’ are properly to be considered to take account of the wishes of that independently represented child, even at a broad level it is not obvious that child J has been the subject of a grave injustice.
103 In any event, the submissions of the defendant broadly derided those of the plaintiff as amounting to the facilitation of ‘re-litigation’, while raising the spectre of the risk of the sequential deployment of the views of experts with different perspectives, and otherwise were to the effect that the plaintiff was not only estopped as to the care by Secretary order made in 2018, but also, it seemed, in respect of the evidence put before the Children’s Court when the order was made.
104 In the end, both positions had elements of extremity, and neither descended much into the detail of the underlying facts or evidence.
105 I am mindful that approaching the present task apprised of no more than broad notions of the kind that I have described may run the risk of diverting attention from a proper construction of the statutory scheme via reference to hypothetical scenarios at the limits of imagination. Such an approach must also have its own risks of distortion and error.
106 In consequence, I do not have any view of the underlying facts and presently proposed medical or scientific evidence such as to illuminate an understanding of the statutory scheme beyond that essayed above.
107 In these circumstances, and for the reasons stated, I cannot accept that the presence of s 10(1) sought to be interpreted via Schorel and CDJ is such as to displace the operation of the doctrines of res judicata and issue estoppel within the scheme of the Act that I have described. In my view, it is much more likely that such doctrines are implicit within the operation of that scheme.
108 It may be that the facts of a future and ‘truly exceptional case’ might be such as to suggest otherwise, or to at least modify the understanding evident in the above analysis in one or more respects. However, that is best undertaken and understood in the context of such a case. For the reasons that I have outlined, I am not at all confident that the present is such a case.
109 In any event, and even if I am wrong about the analysis undertaken to this point, I cannot accept the submission of the plaintiff that in the present instance the ruling of the Magistrate amounted to a determination that estoppel was an ‘absolute bar’ to adducing new evidence or calling new witnesses in any such case.
110 On one level it is hard to interpret her Honour’s ruling in such a manner because –
(a) the ruling does not say anything about either s 10 of the Act or either of the authorities presently relied upon by the plaintiff – perhaps because, as far as I can tell, they were not identified in argument before her Honour;
(b) her Honour does not say, in terms, that estoppel is and is always an ‘absolute bar’; and
(c) the entire manner in which the present ruling has come to be made by reference to broad propositions, prior to trial and rather disconnected from any precise examination of the earlier issues determined against the issues presently arising, suggests that her Honour had broad propositions in mind relating to the present proceeding, but not necessarily in respect of all such proceedings.
111 Moreover, as I read her Honour’s reasons at [22]-[23], in particular, her Honour simply determined that such a course may not be undertaken in the present case. Whether or not that was erroneous may be considered having regard to established principles. However, I do not accept that it was wrong (if, contrary to the above, it was wrong) for the further reason that her Honour was saying, in effect, that issue estoppel is an ‘absolute bar’ that must always operate in every such case.
F The balance of the argument
112 The balance of the argument must turn upon the application of conventional principles relating to the doctrine of issue estoppel.
113 I have already identified both the manner in which the issue arose and the elements and principles relating to the doctrine of issue estoppel. In that context, it may be accepted that the earlier determination of the Children’s Court was final in the necessary sense, and neither party contended to the contrary.
114 That said, issues presently arise as to –
(a) what might be said to have been the ‘fundamental’ or ‘ultimate’ facts determined in the earlier proceeding; and
(b) whether, as between the earlier determination and the present applications, there is the necessary identity of parties and issues.
115 As to the first of those issues, I have noted that the plaintiff contended, in effect, that there were ultimately no findings made by the Children’s Court in 2018; to which the defendant countered both that findings were made and, it seems, that the Children’s Court must be taken to have accepted the whole of the evidence in the Court Book said to support those findings.
116 As between the extremities represented by those two positions, the central question seemed to be whether it should be accepted that the Children’s Court in 2018 found that child J had suffered what in the hearing was sometimes described as ‘actual harm’ and, if so, what, if anything, might turn upon that finding having been made.
117 As I have noted, the form of the Children’s Court’s record of determination suggests that the Court accepted the contention that the elements of s 162(1)(c) were proved as to ‘actual harm’ and not merely or only ‘likelihood’ by reference to s162(1)(e) and (f). That understanding is confirmed by the short transcript relating to the hearing.
118 On the other hand, no part of that transcript suggests that the Court either considered any part of the material in the Court Book or made any findings to the effect that such ‘actual harm’ was constituted by any one or more of the specific injuries referred to in the material in the Court Book.
119 In argument, the plaintiff sought to place particular significance in the first of the notations stated in the record of determination and the first defendant submitted that the notation concerned only the question of ‘likelihood’ arising under ss 162(1)(e) and (f). In my view, nothing turns on the debate. It is evident from other parts of the record of determination, and the transcript of the hearing, that the Court accepted and made the care by Secretary order on the basis that included that child J had suffered what was described as ‘actual harm’ within the meaning of s 162(1)(c).
120 For these reasons, it must therefore be accepted that the Children’s Court did accept that child J had suffered ‘actual harm’, and the plaintiff’s submission that no specific finding was made must be rejected. However, the defendant’s submission to the effect that the Children’s Court must be taken to have accepted some particular view of the underlying evidence in the Court Book must also be rejected.
121 At this point the question becomes what such a finding might be said to have amounted to, and whether it might be said to constitute a finding of ‘fundamental’ or ‘ultimate’ fact such as to found an estoppel between the parties.
122 In some respects, the latter issue is more readily answered in the present context because the grounds or ultimate elements in the making of a protection order are stated in s 162(1)(c). In that regard, the necessary grounds or findings must be that –
(a) the child has suffered significant harm as a result of physical injury; or
(b) the child is likely to suffer significant harm as a result of physical injury; and
(c) the child’s parents have not protected the child from harm of that type; or
(d) the child’s parent are unlikely to protect the child from harm of that type.
123 In the present context, as I have indicated, it was accepted or must have been found that the child suffered what in argument was described as ‘actual harm’, namely significant harm as a result of physical injury. It seems to me that that is a finding of ultimate fact that can be said to give rise to an estoppel as between the parties to it, namely the Secretary, the parents and child J.
124 That said, owing to the circumstances in which that finding was apparently made, it is not possible to further reason that it was constituted by any particular injury or combination of injuries suffered at any particular time or times.
125 In that sense, albeit that the ‘actual harm’ finding binds the parties between whom it was decided, its precise content is unknown. It follows that whether or not any particular injuries that might have comprised some part or all of that finding occurred, and the circumstances in which any of them occurred, can form no part of the preclusion. The position is akin to that of a consent judgment or a judgment for which no reasons were given: the preclusion covers the finding that child J suffered what was described in argument as ‘actual harm’, but not the particular suffering of any particular injury or injuries that might be said to have comprised that ‘actual harm’.
126 More contentious between the parties appeared to be the issue whether any part of the preclusion might cover the broad issue whether the parents were responsible for that harm or harm of that type.
127 It was not wholly clear whether or not either of the parties was contending that such a finding was made.
128 I have earlier noted that in submissions to the Children’s Court, the first defendant described the ‘finding’ made on 1 August 2018 as ‘actual physical harm having been suffered by [child J] in the care of his parents’.
129 On the other hand, in written submissions in the present proceeding, the first defendant variously described the finding made by the Children’s Court as –
(a) ‘that Child J had suffered physical injury’;
(b) ‘Child J having suffered actual harm and being in need of protection from the likelihood of future harm’; and
(c) that child J ‘had suffered significant harm as a result of physical injury and his parents had not protected him from the harm’.
130 The present Court Book included an affidavit of a solicitor. The plaintiff submitted that the affidavit needed to be read in the context of the transcript of the hearing on 1 August 2018, but did not take objection to it. In respect of the ‘preconditions’ for a finding under s 162(1)(c) of the Act, the solicitor deposed that the Children’s Court had found that ‘Child J had suffered physical harm’.
131 The Court Book included a further affidavit. The plaintiff submitted that the further affidavit ‘goes beyond the issues which can properly be taken into account’, which seemed to be an objection to placing any reliance upon it in respect of what might be concluded to have been the determination of the Children’s Court.
132 However, part of that affidavit deposed to a distinction evidently made in practice between applications found proved by reference to ‘actual harm’ and applications found proved by reference to ‘likelihood of harm’ and the manner in which either is usually reflected in the minutes of orders completed by the Children’s Court.
133 That distinction was very much reflected the distinction drawn in argument before me, and seems also to have been the distinction evident in both the short transcript of the hearing on 1 August 2018 and the Court’s record of determination on that occasion.
134 In none of those places, however, is any clear guidance given in respect of whether, beyond the finding that child J had suffered ‘actual harm’ in the sense of significant harm as a result of physical injury, the Children’s Court determined further, as required by s 162(1)(c), that the child’s parents had not protected the child from harm of that type or that the child’s parents were unlikely to protect the child from harm of that type.
135 It may be accepted that one or both of these statutory alternatives must have been accepted. However, in the material to which I have referred it is simply not clear what was ultimately determined in respect of this further element. That being the case, it cannot be known whether one (and, if so, which one) or both were accepted.
136 It must follow that, as with any consent order or judgment for which few or no reasons are given, neither element can strictly now be concluded to have been determined and thus now to be precluded.
137 The second issue is whether there is presently an identity of parties and issues.
138 As to the latter, it appeared to be common ground that the grounds for the protection orders now sought are the same as those on which the order in respect of child J was sought in 2018. In that sense, at least in respect of the application concerning child J, there is an identity of at least some of the issues in dispute.
139 That said, as I have indicated, the only issue in respect of which an issue estoppel might now be said to arise between the Secretary, the parents and child J is whether the child has suffered ‘actual harm’, or, in the language of the Act, ‘significant harm as a result of physical injury’; and even in respect of that issue, the preclusion does not cover the individual injuries concerned.
140 More generally, as I have explained, there can be no preclusion of what might broadly be called the ‘responsibility issue’ and nor, in my opinion, can there be any preclusion as to whether child J was likely to suffer significant harm. That is because to ask, in 2018, whether child J was likely to suffer significant harm as a result of physical injury, is not precisely the same question as asking, in 2020 or 2021, whether child J was likely to suffer significant harm as a result of physical injury.
141 Notwithstanding the above, I cannot accept that it is open to the plaintiff to conduct the present application relating to child J on the basis that the earlier order was wrongly made. Such an endeavour seems to me to be inconsistent with the proper administration of justice. In any event, for reasons that should be apparent, it is simply unnecessary for the plaintiff to defend the present application concerning child J on that basis. There can be dispute about whether child J suffered certain injuries and, indeed, whether either or both parents ought be considered to bear responsibility for such injuries, without any need specifically to contend that the earlier order was ‘wrongly made’.
142 The remaining issues concern the application or applications relating to child A.
143 In that regard, on the face of s 162(1)(c), there is no identity of issues between the determination of the Court concerning child J in 2018 and the issues now arising in the applications relating to child A. Section 162(1)(c) is directed, in terms, and repeatedly, to ‘the child’; and in the present two instances ‘the child’ is not the same child.
144 The manner in which the defendant sought to sidestep the present difficulty was to submit that child A is a ‘privy’ of child J. Indeed, as I have noted, it was submitted to be ‘a classic scenario where they are very much privies’.
145 That submission was sought to be supported by reference to a sequence of authorities. However, so far as I can tell, none of those authorities concerns circumstances akin to the present.
146 Moreover, the authorities refer to privity of blood, title and interest. The relevant submissions of the first defendant ranged between emphasising matters of blood and interest, each in a general sense, but without distinguishing between those notions with any particular specificity.
147 Estoppel is a matter personal between parties. In each case, privies of blood, title or interest are made subject to the benefit or burden of an estoppel because they are representatives of the party originally so bound. In that sense, it may be understood why it is a person succeeding to the rights and liabilities of another via death, insolvency, assignment or statute could be a privy: that person has a legal or beneficial interest in the previous litigation or its subject matter. The privy comes to that interest under, through or on behalf of the party bound.
148 However, no relation of such a kind exists between child J and child A or, for that matter, between either of the parents and child A. In the present applications concerning him, child A is a party in his own right, as are each of his parents. Similarly, child J is a party in his own right in the application concerning him.
149 The submission that child A is a privy of child J, or, for that matter, his parents, in any of the senses discussed in the authorities, must be rejected.
G Conclusion
150 It will be evident from what I have said that the terms of the Magistrate’s ruling went beyond the extent to which any of the parties to the present applications ought be taken to be estopped in respect of the earlier determination of the Children’s Court on 1 August 2018. In that regard –
(a) no estoppel arises in the present application or applications concerning child A;
(b) an estoppel arises in respect of the present application concerning child J, but that does not extend beyond the finding earlier made that child J had suffered what the parties described as ‘actual harm’;
(c) that estoppel does not prevent the plaintiff from adducing evidence or calling witnesses in order to contest any proposition that particular injuries were suffered by child J or in respect of what might broadly be called the issue of ‘responsibility’ for harm of that type;
(d) the plaintiff may not contend that the earlier care by Secretary order was wrongly made.
151 In a way, it is regrettable that the present issue arose as it did. Whether or not the parents are strictly bound by an estoppel arising from any aspect of the making of the care by Secretary order in 2018 is one thing, but whatever that position might be it does not mean that the fact that such an order was earlier made unopposed does not have at least evidentiary significance in the present applications concerning child J and child A. In that regard, it is to some extent evident that the earlier order was made in circumstances where there was already some measure of underlying dispute concerning the injuries and any explanation for them, yet the order was made unopposed anyway. Ultimately, however, whether there is any significance in those matters or not must be a matter for the Children’s Court.
152 As I have noted, the present issue arose as a preliminary one in the applications concerning child J and child A respectively. In a sense, that having occurred, the proceedings have already been fractionated. For that reason, the usual concern about fractionating proceedings by taking points of the present kind does not arise with the same force.
153 In the circumstances, I am satisfied that the case is an exceptional one. The decision of the Magistrate concerning issue estoppel should be quashed and the present applications returned to the Children’s Court to be determined according to law.
154 I will hear the parties concerning the form of orders, and costs.
APPENDIX A
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