SM v DOCS

[2009] NSWDC 33

CITATION:	SM v DOCS [2009] NSWDC 33
HEARING DATE(S):	6 February 2009
EX TEMPORE JUDGMENT DATE:	6 February 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	1. Grant SM leave to file appeal within 28 days 2. Grant SG leave to file appeal within 28 days 3. Grant leave to each applicant to file a cross summons within 28 days
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - CHILDREN'S COURT - Procedural fairness - right to cross examine
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Children and Young Persons (Care & Protection) Act 1998
CASES CITED:	Jankowski v The Department of Community Services Syme ADCJ 4 November 2008 Stead v State Government Insurance Commission (1986) 67 ALR 21 re Katherine [2004] NSWSC 899
PARTIES:	SM (Applicant) Director General, Department of Community Services (Respondent) CG (Respondent) KG (Respondent) SG (Respondent/Applicant)
FILE NUMBER(S):	5152 of 2008
COUNSEL:	D Chapman, solicitor (SM) M Anderson (DOCS) E Moran, solicitor (Independent Legal Representative for CG and KG) D Barry (SG)
SOLICITORS:	D J Chapman Solicitors, Gosford (SM) I V Knight, Crown Solicitor (DOCS) Coast Law, Gosford (CG and KG) Grant and Co Solicitors, Gosford (SG)

JUDGMENT

1 HIS HONOUR: This is an application by SM for leave to appeal out of time against an order of the Children’s Court at Woy Woy on 22 August last year. The orders were made in relation to two children: KG, born in 2005, and CG, born in 2003. There is also an application before me by SG, who is the natural father of the children, for leave to appeal out of time.

2 The Children’s Court made its orders in terms of an amended draft minute of a care order dated 26 June 2008. That order placed the two children under the care of the Minister and made no other orders for contact with either of the natural parents.

3 Ms M appeared in the Children’s Court proceedings and was represented there, as she is today, by Mr Chapman. Mr G was represented by Mr Grant, a solicitor, who instructs Mr Barry in this application. At the time of the Children’s Court proceedings, he was in custody, having been convicted of a driving offence, or possibly more than one driving offence.

4 The Rules under the Civil Procedure Act require an appeal to be lodged within 28 days, and clearly that was not done.

5 Both Ms M and Mr G are legally aided in respect of this application, but both of them had difficulties obtaining Legal Aid. In their affidavits they explain that they were refused Legal Aid and appealed. Ultimately, those appeals were successful and when the appeals succeeded the application for leave was lodged.

6 I have been referred to a decision of Syme ADCJ in Jankowski v The Department of Community Services, delivered on 4 November last year. The facts of that case were rather different, although it was also an application for leave to commence proceedings out of time. In that judgment, where her Honour reserved her judgment, and was able to cite chapter and verse of the relevant legislation, she sets out the relevant legislative provisions, and then she made some remarks about the desirability of an applicant who wishes to appeal, at least to lodge an appeal within the time stipulated by the Rules, even though the position with respect to Legal Aid remains unclear. Ideally, that would be so, and, indeed, in that decision there is a reference to the applicant having been involved previously in legal proceedings.

7 At the hearing of this case, Mr G was in custody, although he was legally represented. I think it is notorious, at least to any judge of this Court, that the capacity of inmates in correctional centres to instruct legal practitioners is frequently interrupted because of administrative and industrial concerns in the correctional centres, and the difficulty of communicating in any event. One cannot have the same expectation of inmates of correctional centres as one does have of other people.

8 But even so, the evidence before me is that Ms M, although she certainly was not in custody, was a young woman who had a number of difficulties, some of which led to these proceedings. She had the advantage of legal advice from Mr Chapman, but it is readily understandable that a person in her position, seeking to appeal to a higher court after a long and fairly complex proceeding in the Children’s Court, might feel reluctant to have to approach those proceedings not knowing whether she was entitled to Legal Aid. I am satisfied, on the material before me, in the case of both Ms M and Mr G, that the delay in seeking leave to appeal has been adequately explained.

9 In the case of Mr G, the application was filed in Court. Mr Barry, who appears, did explain that there was some confusion about the proceedings. However, all the parties, I think with the exception of Ms M, agree that if leave is to be granted in the case of one of the parents, it should also be granted in the case of the other, so that there should not be duplication of proceedings, and all the proceedings should be dealt with at once. That is both in the interests of the parties, and for the convenience of the Court and the Department, and it is a view with which I thoroughly agree.

10 The orders made by the learned magistrate certainly do not contemplate restoration of either of these children to either parent. It appears to me, however, that the issue of contact between each of the parents and the children was an issue, and will be an issue, if leave is granted to pursue the appeal.

11 I need to refer to some of the provisions of the Children and Young Persons (Care and Protection) Act 1998, which govern these proceedings. The general principles to be applied in the administration of the Act are set out particularly in s 9 and in s 10, and clearly the primary consideration of any court dealing with these issues must be in the best interests of the child, or as the Act puts it, “the safety, welfare and well being of the child or young person must be the paramount of consideration” and that, of course, binds me.

12 The orders that were made by the learned magistrate were made pursuant to Part 2 of the Act, which deals with care applications, and the plan which the learned magistrate approved was made upon the grounds set out in s 71 (1)(c ), (d) and (e) of that Act. They relate to the likelihood of the children being abused, ill-treated, their needs not being met, or the likelihood of serious developmental impairment or psychological harm. In my view, there is no question that the evidence before the learned magistrate justified the making of a care order of some sort, and almost certainly an order placing the children in the care of the Minister.

13 In the Children’s Court the issue of contact, however, was a live issue, particularly in the case of Ms M, although it was raised by Mr G, who did not offer evidence in the proceedings. He was present for part of the proceedings by audiovisual link, and he was legally represented. Clearly, he was a person who was interested in those proceedings and attempted to participate in them.

14 The procedure in the Children’s Court is covered by the Act in s 93 and I think I should read at least the first subsections of that section.

“(1) Proceedings before the Children’s Court are not to be conducted in an adversarial manner.

(2) Proceedings before the Children’s Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.

(3) The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts.

(4) In any proceedings before the Children’s Court, the standard of proof is proof on the balance of probabilities.”

I omit subs (5).

15 That is commendable. However, the basic ground of Ms M’s application is that, although she would concede that the rules of evidence do not apply, she says that the rules relating to procedural fairness do apply, and in this case were not followed.

16 I wish to go to the proceedings, which were conducted on the basis of a number of affidavits, mostly affidavits filed by officers of the Department of Community Services, who had had some contact with the children and, indeed, with Ms M and Mr G. It was clear from the outset of the proceedings in the Children’s Court, that Mr Chapman’s instructions were that he should cross examine a number of the court appointed experts and the DOCS officers, and at page 11, line 27 of the transcript, he put the Court on notice of those matters.

17 He also made it clear, at several stages in the proceedings, at p 13, line 26, and again at p 14, line 30 and following, that he did not wish the DOCS officers that he hoped to cross examine, to be present in Court while his client was giving evidence. Then, at p 34, line 13 - Mr Chapman and Mr Grant were talking to the magistrate about various aspects - and his Honour said this:

“HIS HONOUR: And I am not going to, unless Mr Chapman tells me with more detail, I am not going to require the departmental officers to give any evidence unless he can be clear with me about what cross examination is about. The decision here [sic] about restoration and then about placement. Restoration is a matter for his client I would have thought and the evidence she has given today, not about examination of DOCS officers.”

18 Again at p 58, line 42, Mr Chapman indicated that his instructions were to cross examine the DOCS officers, and then at p 59 he gave details of the names of the officers that he wished to question, and the matters about which he wished to question them, and he did so in some detail. His Honour’s response was as follows:

“HIS HONOUR: We know what’s happening in contact with the kids, we know that. We know what assistance has been offered. That’s dealt with in your client’s affidavit and in the DOCS affidavits. We know what referrals she’s received and what’s happened to them. Aboriginality is not in issue. CG’s aggression, that’s been dealt with in the DOCS material and your client’s material. As far as KG’s concerned, contact, insight, KG’s behaviour, mother’s behaviour during contact and specific instances of contact area are all dealt with in DOCS material as well.”

CHAPMAN: I can’t take it any higher than I’ve taken it with you.

HIS HONOUR: Housing, I accept that she’s got appropriate housing. We know about the DV program. We know about domestic violence on the mother. I don’t know what relevance the insight issue has.

CHAPMAN: Your Honour my instructions are to seek -

HIS HONOUR: Some of the DOCS material is as I said been dealt with by way of your client’s own affidavit so I don’t see how any of the cross examination of those witnesses, based on the material before the court is going to assist in the fundamental issue of restoration.

CHAPMAN: Well that’s the course that you - I can’t cavil with your view your Honour.”

19 Now, with respect, those remarks, in my view, contradict a fundamental principle of the way in which courts, any courts, receive evidence. It is quite clear that the Children’s Court, in this instance, is not sitting as a court of criminal jurisdiction. It is sitting to perform its functions in a way that the Act requires but, nevertheless, it is fundamental that a court must act in accordance with general principles of fairness.

20 In Stead v State Government Insurance Commission (1986) 67 ALR 21, the Full Bench of the High Court, Mason, Wilson, Brennan, Deane and Dawson JJ, considered a number of cases dealing with the question of miscarriage of justice. At p 23 they said this:

“The general principle applicable in the present circumstances was well expressed by the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 at 67, in these terms:
‘There is one thing to which everyone in this country is entitled and that is a fair trial at which he can put his case properly before the judge. No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.’”

The High Court continued,

“That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial would entitle the aggrieved party to a new trial.”

21 I will leave the quote there. I think that is the appropriate general principle, but in the context of applications such as this, it was a matter which Studdert J considered in the case of re Katherine [2004] NSWSC 899 on 29 September 2004. In that case, the plaintiffs sought to set aside orders made in the Children’s Court, on the basis that they were denied procedural fairness in the Children’s Court. His Honour went on to determine, in some detail, the alleged breaches of the principles of procedural fairness. At para 15 he said this:

“The expression ‘procedural fairness’ was observed by Mason J, as he then was, in Kioa v West (1985) 159 CLR 550 at 585 as an expression conveying ‘the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case’. Whether procedural fairness is afforded is to be considered in context having regard to the nature of the proceedings. In the present case it is relevant to heed the statutory provisions referable to care applications to be found in Chapter 5, Pt 2 of the Children and Young Persons (Care and Protection) Act .”

22 His Honour read out s 93 which I have already referred to. One of the matters alleged to constitute a want of procedural fairness, in that case, was a refusal to allow cross examination. His Honour set out some relevant passages from the transcript. He also limited cross examination, and rejected the tender of further evidence. At para 40 Studdert J said this:

“I consider that the magistrate was in error in restricting cross examination of this witness in the manner in which it was restricted and that the error resulted in procedural unfairness. I observe that once procedural fairness has been denied, the need for intervention is established unless the Court is satisfied that had there been no procedural unfairness the outcome would have been no different: Stead v State Government Insurance Commission (1986) 161 CLR 141 . In my view it is not possible to conclude that had counsel for the plaintiffs not been unduly restricted in her cross examination, the outcome may not have been different.”

23 So, clearly, the question that I have to consider here is, if Mr Chapman had been allowed to cross examine the DOCS officers, as he wished, and as he indicated to the learned magistrate, would the outcome have been different? Mr Anderson, for the Minister, argues that the outcome would have been no different because, on the evidence before the learned magistrate, there was no possibility that the children would have been restored to the mother. With respect, I would have to agree with that submission, but that was not the only issue in the proceedings, even though the learned magistrate seemed to consider that it was.

24 The draft care order, which was before the magistrate, also contemplated the question of contact. The question of contact with natural parents is always a matter that must be considered when considering the best interests of the child. It is quite clear that, in some cases, the best interests of the child require that there be no contact, or minimal contact, or supervised contact with the natural parents, because of the adverse effect that such contact may have. In this case, there was considerable material before the Children’s Court, relating to contact with both of the natural parents. Mr Paris, the court appointed expert, had observed contact between the children and both their parents, and he made comments on it. There was considerable evidence that each of the natural parents had been involved with contact with the children, which was clearly deleterious in some ways to the children, at various times. But, at other times, it was clear that the children had a relationship with each of their natural parents, and that this was important to them.

25 In the material before me, which includes the transcript of the proceedings, the learned magistrate, with respect, did not consider those issues at all. He simply made orders in terms of the draft care plan, and he did not consider issues of contact.

26 It is clear, from the affidavit material which is before me on this application, and from the submissions of Mr Chapman, that originally the only matter which Ms M wished to contest was the issue of contact, although her instructions changed in the course of proceedings, and she instructed Mr Chapman to seek restoration. Mr G’s interest, at all times, was contact.

27 The historical matters which are contained in the DOCS officers’ affidavits, and I omit Mr Paris, because he was cross examined and no criticism can be made of that, but there was material which did relate to contact between the children and Ms M, and I consider, also between Mr G and Ms M, not that it is relevant to Mr Chapman’s application, but which certainly was relevant to the issue of contact. It is not possible to say that if Mr Chapman had been permitted to cross examine DOCS officers, the outcome would not have been different.

28 The principle of the testing of evidence in our courts is fundamental and important. It is true that the standard of proof in these proceedings is the balance of probabilities, but nevertheless, unless evidence is tested by cross examination, it cannot have the status of anything beyond mere assertion. The Court cannot be confident that what is stated, without being subject to cross examination, will stand up to the test that is necessary, particularly where the issues involved are so important as the welfare and well being of children, and the relationship between children and their parents.

29 As Mr Anderson put in his submissions, it is not really the effect on the parents with which the Court should be concerned, as the effect upon the children. However, the Court is concerned with the fairness of proceedings. It is fundamental that justice must not only be done, but it must be seen to be done, and it is quite clear that Ms M believes, with good reason in the circumstances of this case, that she has not had a fair hearing, because her legal representative was precluded from testing the evidence of the DOCS officers.

30 I should say that there should be no criticism, on the material that I have seen, of the Department or any of the DOCS officers, who appear to have acted with thoroughness and professional detachment, at all times, but they are no different from anybody else when it comes to the giving of evidence before the Court. That evidence must be subject to testing, if a party wishes to test it and, with great respect to the learned magistrate, this is a case in which a fair trial could not have been achieved in the circumstances where Mr Chapman indicated, on a number of occasions, that his instructions were to cross examine the officers, and he was prevented from doing so. There was a breach of procedural fairness which, in my view, vitiated these proceedings, and those matters should be properly aired before a properly constituted court. I, therefore, grant leave to Ms M to file her appeal within 28 days.

31 If Mr G’s application had stood on its own, I am not certain that I would have made the same order because, in my view, he was not affected by want of procedural fairness in the same way as Ms M was, but as I have said, all parties agreed that, if these matters are to be re-agitated, Mr G’s application should be dealt with at the same time, and I therefore grant his application.

32 In each of the cases, the order that I make is that leave be granted to the applicant to file a cross summons within 28 days from today.

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