TF v Department of Family & Community Services

[2015] NSWSC 694

Supreme Court

New South Wales

Medium Neutral Citation:	TF v Department of Family & Community Services [2015] NSWSC 694
Hearing dates:	29 May and 1 June 2015
Date of orders:	01 June 2015
Decision date:	01 June 2015
Jurisdiction:	Equity Division - Protective List
Before:	Young AJA
Decision:	See [78]
Catchwords:	FAMILY LAW AND CHILD WELFARE – proceedings in Children's Court – interference by Supreme Court – parens patriae jurisdiction of Supreme Court – invocation of parens patriae jurisdiction JUDICIAL REVIEW - whether the Children’s Court had jurisdiction to make orders under the Children and Young Persons (Care and Protection) Act 1998, sections 4(a) and 4(c) CERTIORARI – discretionary – quashed order of Children’s Court of New South Wales – jurisdictional error – usurping of jurisdiction
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Billington v Secretary Department of Families [2013] FCA 480 Keil v Keil [1947] VLR 383 Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 Victoria v Commonwealth(Payroll Tax case) [1971] HCA 16, (1971) 122 CLR 353
Texts Cited:	M J Leeming – ‘Resolving Conflict of Laws’, 2011, Federation Press
Category:	Principal judgment
Parties:	TF – plaintiff Department of Family & Community Services – first defendant Minister for Family & Community Services – second defendant Children’s Court of New South Wales – third defendant AF – fourth defendant Counsel for the Independent Children’s Lawyer – fifth defendant Attorney-General of New South Wales - intervener
Representation:	Counsel: Mr M Anderson – for the plaintiff Ms M Neville – for the first and second defendants Submitting appearance for the third defendant Mr R McLachlan (solicitor) – for the fourth defendant Ms S Mahony – for the fifth defendant Ms K Richardson – intervener for Attorney-General of New South Wales Solicitors: Jacqui Griffin – for the plaintiff Crown Solicitor for NSW – for the first and second defendants Submitting appearance for the third defendant Ellis McLachlan Solicitors – for the fourth defendant Mahony Lawyers – for the fifth defendant Crown Solicitor’s Office - intervener
File Number(s):	2014/299190

Judgment

1. This is an application for certiorari, principally against the Children's Court of New South Wales. That entity has filed a submitting appearance. The plaintiff is the mother of a female child who is now 17 months old. We have called her "Robin" in these proceedings, which is not her real name. The mother, whom I will refer to as "TF", is now married to the father, who is the fourth defendant, and I will refer to him as AF. The mother has had six previous children, none of whom are still in her care, though the sixth child, CF, is apparently the subject of current litigation as to who should have his care. The mother has had a drug problem which she says is now conquered. The Department of Family and Community Services (FACS) has difficulty accepting this and has requested TF to undergo some tests, which TF was reluctant to do because she said her medical condition makes undergoing such tests painful. Nothing bad is said about AF, except that in the Department's view he appears to be a person who too readily accepts what TF tells him and follows her lead.

2. Certiorari is an ancient but still useful tool for the Supreme Court to control lower ranked Courts and Tribunals. It is not granted just because a lower Court may have made a mistake of law. It is granted where there has been a usurping of jurisdiction or a denial of natural Justice. In the latter case at least it is discretionary.

3. The present summons is in the Protective List of the Equity Division. This is unusual as certiorari is a common law remedy. However, one reason why the case is here is that if certiorari is granted, the plaintiff asks this Court to exercise its Parens Patriae jurisdiction and restore the child, presently in the custody of the second defendant, the Minister responsible for FACS, to the parents of the child.

4. Parens Patriae is the Latin for "parents of the country" and an ancient jurisdiction of the equity Court is to act when needed as the parent of every child within New South Wales. However, the firm policy of this Court is generally not to exercise the Parens Patriae jurisdiction while a case is properly within the jurisdiction of a specialised body. Palmer J set out fully the reasons for this in the seminal case of Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157, and that case has been followed on many occasions since.

5. I will first deal with the basal facts and then with the question as to whether the Children's Court had jurisdiction to make the orders it did. Then, if necessary, with the question as to whether I should exercise the Parens Patriae jurisdiction.

6. Robin was born in Melbourne on 3 January 2014. From August 2012 to December 2013 TF and AF appeared to have been living with AF's parents in Casula, New South Wales. However, there is some suggestion that TF originally lived in Melbourne. TF and AF decided to have their baby in Melbourne and in June to August 2013 TF had prenatal care in Melbourne.

7. On 19 December 2013 TF moved to an apartment in North Melbourne. However, in a preadmission form to the hospital at which she was to give birth she gave her address as in Greenacre NSW, but when she was admitted to hospital she gave her address as North Melbourne.

8. When FACS became aware of Robin's birth it notified the corresponding Victorian Department. That department made application to the Victorian Children's Court, which made an interim supervision order for three months on 21 February 2014. That order expired on 21 May 2014 and was not renewed.

9. I should pause to say here that although I am dealing with some factual matters, I find some awkwardness about this as I heard no oral evidence and no cross-examination. What I record as facts are derived from the affidavits and other documents filed in the proceedings which have not been tested before me and what I state as a fact in these proceedings should not be taken as giving rise to any issue estoppel.

10. TF came to New South Wales for a few days in January 2014 and again in March 2014. However, Robin, TF and AF lived in rental accommodation in Carlton, Victoria until about 24 May 2014, when they returned to New South Wales and resumed living at Casula. On 2 June 2014 Robin commenced childcare at Casula.

11. FACS maintained interest in the family and visited them in June and July 2014. However, on a visit on 23 July 2014 by caseworkers from FACS, seems to have disturbed AF and TF, and on 24 July 2014 Robin, TF and AF flew to Melbourne and recommenced living in North Melbourne. On 24 July 2014 TF signed a leasing agreement for 12 months for premises at East Melbourne.

12. It would seem that on 23 July 2014 the FACS case workers indicated that they would be seeking at least some supervision order with respect to Robin. The previous history between TF and FACS is not relevant to these proceedings, but it would appear that TF was not impressed with the activities of FACS (and probably it was not impressed with her), and she was more amenable to having any supervision done by the corresponding department in Melbourne. Indeed, in addresses counsel for TF indicated that any supposed removal of TF and her family from New South Wales was not to avoid supervision but to avoid supervision by the New South Wales Department, the family considering that they got far more sympathetic treatment from the corresponding Department in Melbourne. However, the removal from New South Wales on 24 July clearly irritated some of the officers of FACS.

13. On 29 July 2014 FACS commenced the present proceedings in the Parramatta Children's Court for a parenting order. The jurisdiction of that court was challenged, but as I will note shortly, that challenge was dismissed. The Court then made an interim order committing Robin to the care of the Minister.

14. Robin at that time was living in Melbourne. FACS then moved the Federal Circuit Court for an order that the Federal Police remove Robin from her parents' care and bring her to New South Wales. The Federal Circuit Court obliged, though it does not appear that the judge was told that there had been a challenge as to the Children's Court's jurisdiction and that whilst FACS believed that TF had "absconded" to Melbourne, there are other facts about the family's removal to Melbourne that the Federal Circuit Court judge does not appear to have been told. The Federal Circuit Court order was made without Robin or her parents being given notice of the hearing.

15. I should add that TF told the FACS officers that the family would be returning to Melbourne for a follow up with TF's surgeon, and to live. The FACS people told TF of their intention to seek a supervision order from the New South Wales Children's Court, as I have said, on 23 July 2014 and it is conceded that the family moved to Melbourne so that that application would be frustrated. But as I have said, counsel says, and it seems to be the fact, that this was not to escape all supervision but to escape supervision from the NSW FACS.

16. The current application for certiorari came on before me last Friday 29 May. Mr MW Anderson of counsel appeared for TF. Mr R McLachlan solicitor appeared for AF. Ms M Neville appeared for the Secretary of FACS and the Minister responsible for FACS. Ms S Mahony of counsel represented Robin, and Ms K Richardson appeared for the NSW Attorney General as intervener. I will deal with why there was an intervention later in these reasons.

17. The jurisdiction of the Children's Court of New South Wales is conferred by section 4 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), which I will hereafter just refer to as "the Act". That section provides as follows:

Children and Young Persons to Whom this Act Applies:

The functions conferred or imposed by this Act and the regulations may be exercised in respect of children and young persons:

(a) who ordinarily live in New South Wales, or

(b) who do not ordinarily live in New South Wales, but who are present in New South Wales, or

(c) who are subject to an event or circumstance occurring in New South Wales that gives or give rise to a report.

18. Section 3 defines "report" as, "report means a report made under sections 24, 25 or 27." Section 24 provides that:

A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Director General.

19. Section 25 deals with prenatal reports and section 27 deals with mandatory reporting from a health or education professional who has reason to suspect that a child is at risk of significant harm. I should also deal with section 23 which is governing how one assesses that a child or young person is at risk of significant harm. Subsection (1) provides that a child is at risk of significant harm if current concerns exist for the safety, welfare or well-being of the child because of the presence of one of seven circumstances that are then set out. The circumstance in section 23(1)(f) is:

The child was the subject of a pre-natal report under section 25 and the birth mother of the child did not engage successfully with support services to eliminate, or minimise to the lowest level reasonably practical, the risk factors that gave rise to the report.

20. I think the only other sections to which I need refer are sections 72 and 106A. Section 72(1) provides:

A care order in relation to a child or young person may be made only if the Children's Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection;

(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed....

21. Section 72(2) provides, “If a Children's Court is not so satisfied, it may make an order dismissing the application."

22. Section 106A, which is applicable because TF has had six previous children who have been the subject of care and protection orders or applications, provides in subsections (1) and (2):

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

(a) is a person

(i) from whose care and protection the child or young person was previously removed by a court under this Act...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....

(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.

23. In other words, in the Children's Court of New South Wales and only in the Children's Court of New South Wales the onus of proof in a case such as the present is virtually reversed.

24. In the application before the Children's Court, the Department relied only on section 4(c), that is that the child was the subject of a jurisdiction because of circumstances that gave rise to a report. Before me, the first and second defendants and, indeed, the advocate for the child also sought to rely on section 4(a). I need to consider, accordingly, whether section 4(c) is made out or, alternatively, section 4(a) if it is capable of being argued before this Court when it was not argued before the Court below.

25. What section 4(c) focuses on is an event or circumstances in New South Wales that give rise to a report. Neither "event" nor "circumstances" is defined. Where there is an alleged report (and I have already dealt with the definition of "report") the report must be of a child or young person at risk of serious harm. Two reports are relied on (a) an antenatal report which was the report on which the Victorian Children's Court made an interim supervision order and (b) a report received from a person who had a duty of mandatory reporting which suggested that although a doctor had prescribed Phenergan for the child, that person considered that it was unsafe to give such a young child Phenergan.

26. So far as the antenatal report is concerned it is clear that the Victorian Department was concerned with that report and obtained an interim supervision order. It then, doubtless, monitored the situation and at the end of the three months it decided not to do anything further. Ms Neville submits that the Victorian authorities only ceased intervention because they understood that TF and AF would be returning to reside with Robin's grandparents in New South Wales. There is some evidence of that, but I must confess not sufficient to show that that was the reason why Victoria ceased to intervene. One would have thought - and as I have said earlier, I am hampered by the fact that there has been no cross-examination of the various witnesses and I have to rely a bit on statements that have not been tested in various reports - I would have thought that any responsible Department would not rely on the verbal statement of a mother that she would be returning to New South Wales, but that if there was a real concern about the child the Department would either check on that, make sure that the mother had gone or, alternatively, take some action to protect a child that was in Victoria and whose plight had been directed to their attention.

27. I cannot see how I can conclude that there was any reason other than the fact that the Victorian authorities considered no further action was needed for them to take the attitude that they did.

28. On that basis, as it is conceded that the Victorian Department was within section 23(1)(f) "support services" that the child did, as a result of the report or otherwise, get into the situation where the effect of the prenatal report was at least minimised, and accordingly the report is not one that is capable of coming within section 4(c).

29. So far as the Phenergan matter is concerned there was information read that a doctor had prescribed Phenergan for Robin, but some unidentified person in the health system reported that he or she did not consider that that was safe. One would have thought that if a doctor prescribes something, then the view of some unknown person working in the health system who thought it was unsafe would be checked, and it does not appear that that ever happened. There does not appear to be any other medical advice by a qualified person given.

30. In any event, the taking of Phenergan would not seem to have come within a substantial risk of harm, even though there might be differing opinions as to the use of that medication for a child that was so young. Accordingly, it does not seem to me that there was any situation where under section 4(c) there was a report which came within the meaning of the Act.

31. On 29 July 2014 the Children's Court was given a document, which was called a “report”, from the officers of DOCS. I need to refer to that in some detail because that is the beginning of the proceedings against which certiorari is sought. Paragraph 16 of the report says.

On 18 June 2014, Community Services received a report in relation to Robin. This report was in relation to Physical Poisoning. The report indicated that Robin was suffering from a cold for approximately one week and she did not appear to be improving. It was further reported that TF had disclosed that she had been administering doctor prescribed Phenergan to Robin, nightly for one week. Further concerns related to the appropriateness of Phenergan being prescribed to a child of Robin's age when there were no reported allergies.

32. Paragraph 19:

During the home visit (that is 20 June 2014) Robin was sighted and both parents were interviewed for the purpose of conducting an initial safety assessment. The following information was obtained:

(a)   The parents denied giving Phenergan to Robin or having any conversation with other persons in relation to Phenergan.

(b)   TF stated she was currently on methadone, 60 mls as prescribed to her by Dr Tan at Fairfield and that she was drug free.

(d) When asked if TF would participate in a urine analysis screening for drug use, she declined, indicating that (the reason was then given).

(h)   A safety assessment was conducted and Robin was assessed as safe.

(i) The parents were further advised that case workers would conduct a further home visit on Monday 23 June 2014.

33. Paragraph 20:

On 23 June 2014 Community Services records indicate that case worker Mr F obtained information that Robin had not presented to the centre (I think that is childcare centre) that morning and that TF had indicated Robin would not be attending day care from 23 June and was unlikely she would return for the remainder of the week due to TF travelling to Melbourne, as she urgently required medical attention...additional information indicated that TF applied for housing in Victoria and that she had secured full-time employment in Lidcombe NSW starting 21 July 2014.

34. Paragraph 24:

On 23 July 2014 TF and AF were asked to present to Bankstown Community Services to discuss ongoing assessment of risk to Robin. The following is a summary of the interview that took place...

(i) The parents were reassured that Community Services would continue to work with them to support Robin's placement in their care. However, ongoing supervision would be required given the historical concerns and recent findings in the Children's Court in relation to Robin's six older siblings.

(j) The parents informed not to take Robin outside of NSW as Community Services would be filing a care application seeking a supervision order with undertakings from each parent. The parents agreed."

35. Paragraph 29:

Case workers then spoke to the maternal grandmother and they were informed that the grandmother stated that her daughter had been "hounded" by Community Services and had gone to Victoria.

36. The application came before his Honour Judge Johnstone, the President of the Children's Court, on 29 July. However, his Honour was given very little help as to the case and I will deal with some of the transcript of the proceedings before his Honour. A solicitor, whom I will merely call Ms Z, appeared for the Department. A solicitor appeared for the child, and the plaintiff's current solicitor, Ms Griffin, appeared for the mother TF, but there was no appearance of AF and no indication that he was ever served.

37. The judge asked which part of section 4 did Ms Z rely on. Ms Z replied, "Well, your Honour, what Miss Griffin says, with all due respect, is not correct."

HIS HONOUR: Can you answer my question?

MS Z: In relation to?

HIS HONOUR: Jurisdiction.

MS Z: Well, there was a notification of that child, in New South Wales.

HIS HONOUR: What do you mean by 'notification'?

MS Z: A report was received.

HIS HONOUR: Then you are relying on section 4(c)?

MS Z: Well, the child was here.

HIS HONOUR: Have you got section 4 in front of you?

MS Z: No, I don't, your Honour.

HIS HONOUR: Maybe it is a good start...

38. That, with great respect, is just quite unsatisfactory for a case where a judge is to deal with a question of jurisdiction to be given no help at all and the Department not even having their solicitor with a copy of the Act so that she can address his Honour with some sort of authority.

39. The matter went on. The solicitor for the child gave his Honour a little more help. Then Ms Z said at page 5 of the transcript, page 22 of the Court book:

The report was in relation to physical poisoning. The report indicated that Robin was suffering from a cold for approximately one week. She did not appear to be improving. It was further reported that TF...

HIS HONOUR: Was Robin in New South Wales on 18 June?

MISS Z: That was in New South Wales, your Honour.

MS GRIFFIN: It doesn't actually say that.

HIS HONOUR: It doesn't actually say what?

MS GRIFFIN: Where the child was when this report was made, about giving her a flu tablet or a tablet to her.

Ms Z: It's not a flu tablet. She has been given Phenergan on a daily basis. The report, your Honour, is my friend would have the documents in relation to the stage 1 bundle.

HIS HONOUR: There is no such thing as a stage 1 bundle...

MS Z: But your Honour my friend has had this bundle for quite some time.

HIS HONOUR: No, just show it to her. Anyhow, I don't need to hear any more.

MS GRIFFIN: Yes, there's an allegation that Phenergan...

HIS HONOUR: Okay. It seems to me that the threshold under this very section is relating to the allocation of interim - consequently the Minister are lower than the standard of proof required for a finding. As far as I am concerned there is more than enough to justify the making of an interim order.

MS GRIFFIN: I would ask that the mother be given the opportunity to respond to these allegations. Particularly when we are talking of an allegation at quarter to five.

HIS HONOUR: Well she can have an opportunity but I am going to allocate an interim responsibility for the child to the Minister.

MS GRIFFIN: The child is in Victoria living with her mother.

HIS HONOUR: I have heard your submissions, Miss Griffin.

MS GRIFFIN: And they are not intending to come back.

HIS HONOUR: You don't need to repeat your submissions I have heard them. I am making the order.

40. Unfortunately his Honour really just did not go far enough. There was little material in view of the very unsatisfactory way in which the Department's case had been presented to show that there was a report within the meaning of the Act. Had his Honour - and it may well be that this case was being heard urgently at quarter to 5 in the afternoon and it had been a very long day, had his Honour gone further and actually questioned Ms Z, (whether he would have got any satisfactory reply from her is questionable), he would have come to the conclusion that there was no report that came within the Act and he had no jurisdiction. So apart from the rather cavalier way in which this application was made, there was no jurisdiction to make the order.

41. However, what followed is almost one of the worst abuses of a power that one could ever imagine. The Department knowing that there was a contest as to the jurisdiction, that there had been a very summary hearing, that the mother opposed the application, that the judge had said that he didn't want to hear any further submissions, in fact he never heard any submissions from the mother, at that stage the Department approached a Federal Circuit Judge, apparently giving him very little information. The Circuit Court Judge then authorised the Federal Police to go to Victoria to seize the child from her parents and bring her into New South Wales. Now as things turned out that may be a very expensive exercise for the State of New South Wales, but that is not something that I need to consider further in these reasons, except that I have to be very careful about making statements of fact because it may well be that in the long run some jury in this State will have to make the relevant findings in the consequential damages case.

42. It may be, and probably is, that his Honour Judge Johnstone thought that the question of jurisdiction could be thoroughly dealt with when the matter came back next time in the Court. However, I am told that the presiding Magistrate at the next time declined to consider the question of jurisdiction as he considered that Judge Johnstone had already dealt with it.

43. Mr Anderson’s submissions set out what happened after the order, in paragraphs 17 to 21, which I will quote:

17. The domicile of Robin was Victoria and the child was ordinarily residing in Victoria prior to her removal to New South Wales under the recovery order granted by the Federal Circuit Court on 7 August 2014.

18. On 18 August Magistrate Sbrizzi in the Children's Court of NSW refused to hear argument about the jurisdiction of the Children's Court to make or to continue the interim orders.

19. Robin was removed to NSW by police and officers and agents of the first defendant on 11 August 2014 and placed with authorised carers.

20. On 1 September 2014 Robin was placed in the care of an authorised carer who had the care of her sibling, that is CF.

21. On 9 September 2014 the Children's Court at Parramatta (Mulroney CCM) declined to entertain an application concerning the disputed jurisdiction of the Court and made directions for the contested hearing in relation to whether Robin is a child in need of care and protection.

44. The proceedings have continued at Parramatta and I have not looked at them in depth, but it would appear that there have been two full days of hearing, including evidence given by live witnesses.

45. The first and second defendants say that TF has now conceded that there is a case to answer as to whether Robin is in need of care and protection. Now that is true, but I agree with what counsel for the plaintiff and the solicitor for the father say, that it is only true because of the effect of section 106A of the Act, a section which only applies to the NSW Children's Court, which effectively reverses the evidentiary onus when the child concerned is a sibling of other children of a parent who has previously been dealt with by the Children's Court.

46. Every Australian has the right to produce children and to have those children in their care and custody. Australians are appalled at totalitarian regimes which in the past have assumed children are just units of production and remove them from their families. However, the right that I have mentioned is circumscribed in the case where there is a real risk of substantial harm to a child if left in his or her present care. That circumstance must be demonstrated to a competent Court by substantial material. Mere suspicion, mere departmental feeling that a parent is telling untruths is almost always insufficient.

47. Now TF is doubtless not the most capable mother that has come to the Department's attention. She has been a drug user and is on methadone treatment and Robin was born, herself, with a drug problem.

48. However, it would appear that TF was not uncooperative with the Victorian Department supervision and that until TF left the State of New South Wales FACS was also content with leaving the child in the parents' care and with supervision. However, the fact is that what sparked the change of attitude which led to the case being mounted and a child at seven months being seized by Federal Police, removed from their parents and kept away from them for ten months, at a time of her life when she should be bonding, was the fact that the Department thought that the plaintiff and her husband had "absconded". That is a possible view but not one, in my view, that is able to be held if one is looking at the evidence on the balance of probabilities.

49. The balance of probabilities are that they did go to Victoria and that was at least partly motivated by their problems in the past and present with supervision by the NSW Department, that they were quite content to have the child continue to be supervised in Victoria if that was necessary. And, indeed, the Department up until the time the parents left for Victoria were content to leave the child with the parents subject to some supervision, and it would appear that there was not any resistance to some sort of supervision.

50. Getting back to the question of jurisdiction. I have already indicated that I cannot find any report on the evidence that comes within sections 24, 25 or 27 and thus a report within the meaning of section 4 of the Act and accordingly section 4(c) was irrelevant.

51. The Department now seeks to rely on section 4(a) as well. It did not do so before Judge Johnstone. Indeed, one of the solicitors involved did refer to section 4(a) but his Honour just said "at the very least there would have to be a dispute in relation to section 4(a)" and the matter was abandoned.

52. Although Mr Anderson in his submissions said in paragraph 17, which I have set out, that the domicile of Robin was Victoria, I would have thought that, assuming that there is still New South Wales domicile, that more likely than not Robin was domiciled in New South Wales. That is because her domicile of origin was a domicile of her parents. Her parents had been living in New South Wales for some time with AF's parents. They had only just moved to Victoria and their movements may have been sufficient in due course to have a domicile of choice in Victoria, but they were moving between the States relatively frequently and the odds are that the domicile of Robin was New South Wales.

53. This raises a very interesting question, one which was not argued, as to whether a child who is domiciled in New South Wales, but who is resident in Victoria is denied the assistance of the New South Wales Children's Court. There would seem to be a good argument that under section 117 of the Australian Constitution, that is discriminating against a person on the ground of where she resides, however that question was just not argued before me. I merely note it so that people will know that I have not overlooked it.

54. There is also a problem, of course, as to whether there is any such thing as New South Wales or Victorian domicile. If the views of Barwick CJ and Windeyer J in the Victoria v Commonwealth (Payroll Tax case) [1971] HCA 16; (1971) 122 CLR 353 is correct, all States are just administrative divisions of the one country, Australia, and New South Wales and Victorian domicile may no longer exist and there is only Australian domicile. But, again, that question was not argued and, accordingly, I say nothing except to note its possibility.

55. I will come back to the question as to why the Attorney for New South Wales is here in due course, but it was not because of either of the two constitutional questions that could arise noted above.

56. I have set out the facts, as I understand them, as to Robin's travels during the first half of 2014. She may well have been domiciled in New South Wales when she was born in Victoria. She lived in Victoria for three months except for two visits to New South Wales for a few days and then lived in New South Wales for two months, 24 May to 24 July. Whether she should be said to be a person who ordinarily lives in New South Wales as of 27 July 2014 is a question of fact. The onus was on the Department to show that the Court to which it applied for an order had jurisdiction. Although Ms Neville has set out in her submissions, which I have repeated, the factors which might support an order under section 4(a) the material is far short of what would be necessary to establish jurisdiction under section 4(a). The child was, it would seem to me, more likely to be resident in Victoria, even though she might have been domiciled in New South Wales on 29 July 2014. Thus there was no jurisdiction to hear the case under section 4(a) either.

57. Now I regret making this finding as the Children's Court has spent, I think, four days considering the matter, but questions of jurisdiction are questions of law, though based on facts and on the material before the Court and before me, the probabilities are that the Court did not have jurisdiction, neither under section 4(a) nor under section 4(c).

58. Certiorari, however, is discretionary. If the situation were that the Children's Court could now hear the proceedings because it is quite clear that since she was captured in Victoria on 11 August 2014 she has been living in New South Wales, it might be said that she is now within 4(a) as ordinarily resident in New South Wales. However, she is in New South Wales because she was forcibly brought here. There are a series of cases dealing with people like prisoners of war as to whether they are ordinarily resident in the place to which their captors have brought them. There are some authorities such as Keil v Keil [1947] VLR 383 which say that even though you are a prisoner of war, you may be resident in the country where you are a prisoner, but the question is always a question of fact and there is, doubtless, a lot of facts that would have to be put into the mix before one could decide that Robin was now ordinarily resident in New South Wales.

59. It would seem to me that his Honour Judge Johnstone was aware of this when he told the solicitors appearing before him that the matter was a bit difficult to establish.

60. There is also the further complication, that is, under the construction of section 72 of the Act. A question is whether, if a person becomes a resident of New South Wales during the course of a hearing, but was not a resident of New South Wales as at the date of filing of the hearing, or the commencement of the hearing, has the Court got jurisdiction.

61. I would have thought that there is some argument that it did have jurisdiction, but Ms Neville distinctly abandoned any reliance on any such principle and she did so because of the way in which she and, indeed, all counsel and solicitors in this case, have construed section 72, because of their reading of what the Court of Appeal said in VV v District Court of New South Wales [2013] NSWCA 469.

62. In that case, the District Court Judge accepted that he had to consider whether the child in that case was in need of protection as at the date of the application. He accepted it because all counsel before him told him that that was the situation. The debate was over what was to be done if the child had ceased to be in need of protection at the date of the hearing.

63. At [43] of the decision of the Court of Appeal, the Court said that the primary judge had correctly construed the section. Now, I am not at all sure that the Court of Appeal meant that if this was a case where there was no jurisdiction at the start of the hearing, but the child then became resident in New South Wales, the Court still did not have jurisdiction. Indeed, section 72 actually uses verbs in the present tense, which indicates a view contrary to what was argued in the present case.

64. However, the point was not argued before me and everyone in this case before me accepted that there was no jurisdiction, unless there was jurisdiction at the time of the institution of the proceedings and I must accept that. I have said what I have said. In future cases, particularly, future cases that end up in the Court of Appeal, section 72 on this particular point might be fleshed out a little bit more.

65. Accordingly, the discussion I have just had means that it is not any use now suggesting that the New South Wales Childrens Court continue with the hearing. I considered the question as to whether I could ask the Children's Court to give me a report as to what was happening and to make findings of fact and then, under the Parens Patriae jurisdiction, I could make the orders, but do not consider I have any jurisdiction to request that a lower court makes the Supreme Court a report in the same way as used to happen when we had Masters in the Equity Division of this Court.

66. Accordingly, what I have just dealt with in the last ten minutes or so has really led up a blind alley. I have got to the situation where there was no jurisdiction in the Children's Court that I should make an order for certiorari. The next question is what should I do.

67. Before answering that question, I should deal with the reason why the New South Wales Attorney is here. As a result of dicta of Logan J in the unreported decision of Billington v Secretary Department of Families (2013) FCA 480, notices under section 78B of the Judiciary Act 1903 (Cth) were given to the Federal and State Attorneys. Only the Attorney General of New South Wales took up the invitation to appear.

68. The reason why the notices were given because it appeared to the plaintiff's advisers that, because the Victorian Children's Court had made some orders in respect of Robin's birth, that somehow or other, by some doctrine analogous to full faith and credit, the Victorian Court thereafter had jurisdiction to the exclusion of New South Wales. That argument, as I say, was based on dicta of Justice Logan in Billington's case, a case concerning a child who was born in Tweed Heads, but had connection with Queensland. There is nothing in this argument for the present case, as everyone in this hearing realized, and no argument has been put to it.

69. The principles of law to be applied where there is an apparent conflict between the laws of two States are set out in Justice Leeming's book, Resolving Conflict of Laws, Federation Press 2011, Chapter 6. As the learned author points out, there is considerable uncertainty in this area and relatively little case law.

70. There is no conflict in the present case, so there is no need to consider the matter, but it is noteworthy that Leeming JA says at page 200, that, probably, there is no constitutional question involved in such a question of conflict, though this is not completely clear.

71. I return to the question what should I do. I have already referred to re Victoria. However, I have ruled that the Children's Court did not have jurisdiction. Since then the child has come into New South Wales, but only because of the actions of the Federal Police. There is doubt that an application made to the Children's Court now would not satisfy section 4(a) because it could be said that the child was not voluntarily ordinarily resident in New South Wales. Her parents appear still to be in Victoria and she may be classed to be ordinarily resident in Victoria. It is not a particularly useful exercise to have that debated before the Children's Court and, possibly, on appeal, instead of getting to the real question as to what is best for Robin.

72. The Victorian Children's Court may also no longer have jurisdiction and, again, there may be arguments if proceedings are taken there. On the other hand, it may be that the parents would be content to be supervised by the Victorian Children's Court.

73. There is a disturbing feature in the evidence in this case. For reasons I have already given, I do not think so it is appropriate for me to make a finding, but there is strong suspicion that some of the officers of the Department took their eyes off the ball. The ball was what is best for Robin and whether she experienced a substantial risk by being left in her parents' care.    There is also great suspicion that the Department officers felt miffed at the parents' sudden move to Melbourne and the documents support this, with the description of the departure to Melbourne with the coloured word "abscond" and that the officers changed their attitude from leaving the child in the parents' care, subject to supervision, to having hear, not only put the custody of the Minister, but having the police forcibly take her from her parents and move her interstate.

44. Accordingly, although, reluctantly, it seems to me that this Court probably needs to make some order, perhaps just an interim order. It may be that there can be some agreement between the parties now that the child has been away from the mother for ten months, that the child can go back to the parents, provided that an undertaking is given to this Court that the child will be placed under the supervision of the Victorian Department, if the Victorian Department so agrees. Of course, an undertaking given to this Court means that if it is breached, the person who breaches the undertaking can go to gaol for an indefinite period.

45. It may be that no solution can be reached and that this Court will have to hear the proceedings.

46. I gave some hint of what I might do when I reserved judgment last Friday. Thus the parties have had a little time to consider the consequences of my proposed order. It seems to me that the most appropriate course is now to adjourn for half an hour so that the parties can consider what I have just said and then, at quarter to 12, hear any further submissions that might be made as to what I should do. It may be that those submissions merely are that I should stand the matter over for a week or so for more mature consideration, but I will deal with that at quarter to 12.

NOTE

77. On resumption it was accepted all round that this Court had jurisdiction to make an order for Robin’s care. It was suggested that an interim order be made and the case brought back on 17 June 2015.

78. His Honour made an interim order giving Robin’s care and control to the Minister, excused counsel for the Attorney-General of further appearance and adjourned the matter to 9.30 am on 17 June 2015.

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Decision last updated: 17 June 2015