Y v The Secretary, Department of Communities and Justice

Case •

[2020] NSWDC 674

•

06 November 2020

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674
Hearing dates: 27, 28, 29, 30 October; 2, 3, 4 & 5 November 2020
Date of orders: 6 November 2020
Decision date: 06 November 2020
Jurisdiction:Civil
Before: Judge Levy SC
Decision:

See paragraph [90] for orders.

Catchwords:

CHILD CARE APPEAL – summons commencing appeal from final orders made by the Children’s Court – refusal of application to dismiss on grounds of dilatory failure to prosecute;

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 9, s 90, s 91, s 94, s 99, s 105

Civil Procedure Act 2005 (NSW), s 56 to s 58

Cases Cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Markisic v Commonwealth of Australia [2010] NSWCA 273

Ren v Jiang (No 3) [2014] NSWCA 204

Richards v Cornford (No 3) [2010] NSWCA 134

Category:Consequential orders (other than Costs)
Parties: Y (Applicant - father)
M (Respondent - mother)
The Secretary, Department of Communities & Justice (Respondent)
Ms N Adams, Solicitor (Independent Legal Representative)
Representation:

Counsel:
Mr M Anderson (Respondent, The Secretary)
Ms L Spencer (5 November 2020)

Solicitors:
In person (Applicant)
M (Mother by audiolink)
The Crown Solicitor (Respondent)
Ms N Adams (Independent Legal Representative)
File Number(s): 2020/30525
Publication restriction: Non-publication order imposing restriction on publication of names and identifying details other than litigation pseudonyms: s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

Judgment

Non-publication order

  1. This care appeal is the subject of a non-publication order made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”), prohibiting the publication of the name of the child the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify the child who is the subject of the appeal.

The proceedings

  1. The appellant, the father of a girl aged one month short of her 12th birthday, seeks to displace final orders made by the Children’s Court at Parramatta on 12 December 2019 by which parental responsibility for the child was allocated to a person other than a parent. The child has been in temporary foster care since her removal from her father’s care on 20 August 2017. There is no dispute that in her present placement, having regard to her ethnicity, the cultural, religious and dietary considerations of her ethnicity are not being adequately met. At the outset, it must be said that given the age of the child, this is a most unsatisfactory circumstance insofar as the child’s wellbeing and development is concerned: s 9(2)(b) and (d) of the Care Act.

The parties

  1. To ensure anonymity, the ethnicity of the child and her parents is not identified in these reasons. In conformity with the non-publication order, the parties have been allocated litigation pseudonyms as follows:

  1. The appellant father, who is self-represented, will be referred to by the litigation pseudonym “Y”;

  2. The child the subject of the proceedings will be described by that term to maintain her anonymity;

  3. The mother of the child, the second respondent to the appeal will be referred to as the mother or by the litigation pseudonym “M”, depending on the context;

  4. The child is represented by Ms Natalie Adams, solicitor, as the Independent Legal Representative;

  5. The Secretary of the Department of Communities and Justice is represented by Mr M Anderson of counsel instructed by the Crown Solicitor for the State of New South Wales.

Overview of the factual background to the appeal

  1. It is unfortunate for all concerned, that the appellant has been unable to obtain legal representation to prosecute this appeal and is therefore self-represented. This has become an increasingly common and unhelpful phenomenon in care proceedings. It is an undesirable circumstance generally, but more particularly so in litigation involving the human rights of a child and a parent when the Court should be assisted by such representation in difficult cases such as the present case.

  2. The child’s family circumstances have involved an unsettled past. The parents are divorced. There have been family law proceedings which resulted in the appellant father being allocated parental responsibility for the child. She is the only child of her parents. Between 2014 and 2017, the father continued to care for the child until she was removed from his care on 20 August 2017 following a report of serious harm having been made by a staff member at the child’s school.

  3. The role of the school, as reported by the appellant, is concerning, in that prior to the events in question, the school Principal is said to have facilitated delivery of the child to the mother on a Friday afternoon before normal finishing time by driving the child in her private vehicle inside school hours to meet the mother, following which the mother attempted by stealth to take the child out of the country to a non-Hague convention destination. This was contrary to orders made by the Family Court of Australia. That attempt was thwarted due to the appellant’s prompt actions. The child’s name was placed on a border control watch list and the Australian Federal Police intervened appropriately.

  4. There is a dispute over the precipitating circumstances which have led to the child’s removal from the father’s care. The father claims there was a disproportionate over-reaction on the part of DoCJ to him having used corporal discipline on the child. There is a dispute as to the nature of this, and as to what characterisation should apply to the circumstances. The School authorities, DoCJ and the appellant had different viewpoints on this question. At this point it is not necessary to further describe that dispute other than to say that the Children’s Court considered those disputed circumstances and decided that the appellant father should no longer have parental responsibility for his daughter. The appellant’s appeal is on that very subject matter.

  5. This appeal, which is brought by the father as of right involves a new hearing. The resolution of that underlying dispute is central to the outcome of the appeal. That resolution is dependent upon the validity of assumptions made by a series of relevant persons within the array of dramatis personae involved in the case, including caseworkers and medical practitioners. In the appeal the father seeks to challenge the validity of those assumptions upon which the decision of the Children’s Court was based. That is not a paper-based exercise.

  6. The child’s mother is at present out of the jurisdiction. She remains overseas at this time. Her position in that regard has in the past vacillated as she sought to take the child overseas but the Family Court of Australia refused to allow that course. Her continued stay overseas is now said to be due to travel restrictions related to the current COVID-19 pandemic.

  7. The mother initially appeared at the commencement of the appeal via a tenuous telephone link. However, for expediency, at the commencement of the hearing she agreed that as her interest in the appeal was for the time being the same as that of DoCJ, she would not seek to take an active part in the proceedings via an AVL appearance, and that she would instead receive updates of the progress of the proceedings as communicated to her from time to time by the solicitor for the DoCJ.

  8. The appellant is plainly a highly intelligent man who holds advanced tertiary degrees in science and engineering. Unfortunately, in these proceedings he adopted an emotional, querulent and confrontational stance. This extended to him making a series of disrespectful disparaging and at times scandalous remarks attributing mala fides to multiple persons and entities, including the Court, the Secretary, DoCJ, Court staff and legal practitioners. He made recurrent claims of having been denied procedural fairness and claimed he was being interrupted and intimidated in the proceedings. He also made criticisms of what he characterised as “fake” documents in the Exhibits tendered in the Children’s Court proceedings.

  9. In my assessment, having observed the appellant in Court over a number of days, the applicant’s forensic approach as described above, seems to have been borne out of anxiety and frustration on his part. The situation may well have been different if he had the benefit of appropriately skilled legal representation. The appellant’s circumstances in the lead-up to the hearing were unfortunately complicated because of his self-representation with all the disadvantages that are entailed in this type of case.

  10. Those complications comprised the appellant’s necessarily limited insight into the legal steps required to be taken in prosecuting his appeal. In particular, this included the need for timely and appropriately structured affidavit evidence to support his appeal and the need to make appropriate forensic decisions as to what challenges should be made to the evidence that is tendered against his interests and how, and to what extent, such challenges should be made.

  11. Compounding those circumstances, unfortunately, there were months of delays in the parties obtaining the transcripts of the Children’s Court proceedings, as well as delays whilst the hearing was pending regarding access to records produced to the Court. This latter complication arose due to COVID-19 restrictions that affected access to the Court Registry and to inspection of documents in the Registry. In addition, the appellant was burdened by some longstanding painful physical ailments from an earlier industrial injury. He also faced the challenge of dealing with thousands of pages of documents the details of which would pose forensic challenges even for skilled legal practitioners.

  12. A relevant background factor to this appeal is that the appellant had exhausted his financial resources due to disparate tranches of litigation in the Family Court, the Local Court and the Children’s Court.

  13. The appeal was listed for a hearing de novo in Newcastle on 26 October 2020 with a 7 day estimate. In my view, given the way the case proceeded in the Children’s Court, this was a significant underestimate to say the least. In this Court, the appellant’s documents lacked structure and content, and lacked the necessary affidavit evidence that was required.

  14. That said, it was abundantly clear from the sincere passion and persistent ardour with which the appellant presented his account of the facts and his related arguments, that he believed his appeal had merit. On an intellectual level he understood the need for cogent affidavit evidence. That evidence was in large part lacking. At the outset of the hearing, the appellant intimated that the appeal was not ready for hearing: T14.22. This created an initial impression that he was pursuing a delaying tactic. He subsequently persuaded me that was not the case.

Setting aside of appellant’s subpoena for production of documents

  1. At the commencement of the hearing the appellant sought to call upon a subpoena for the production of an extensive array of documents held by DoCJ. That subpoena was the subject of objection by DoCJ. Following argument, the subpoena was set aside on grounds of invalidity and because of the self-evident impossibility of compliance on the face of the document because of the way it had been drawn. If that subpoena had been prepared by a litigation lawyer the result would most probably have been different. My reasons for setting aside the subpoena were delivered ex-tempore on 27 October 2020. In the resulting circumstances, the appellant was left in a most difficult position.

Secretary’s application for dismissal of the proceedings – the present motion

  1. On the fourth day of hearing, on 30 October 2020, following successive and significant delays to the progress of the hearing, in circumstances where beforehand the appellant had been dilatory in his preparation in the months leading up to the hearing, where he had failed to comply with a series of case management orders made by Registrars and other Judges of the Court, requiring him to file his evidence in support of his appeal by 30 September 2020, the respondent DoCJ filed a motion returnable instanter, seeking that the appellant’s summons initiating the appeal be dismissed.

  2. That application sought the following orders:

  1. This motion be heard instanter;

  2. That the summons commencing the appeal received by the Court on 7 January 2020 and filed on 3 February 2020 be dismissed pursuant to the Uniform Civil Procedure Rules, r 12.7, r 13.4, 14.28 and s 94 of the Children and Young Persons (Care and Protection) Act 1998;

  3. Such further orders as the Court sees fit.

  1. The remainder of these reasons are concerned with that motion.

Rejection of appellant’s application for judicial recusal

  1. The hearing of the Secretary’s motion seeking dismissal of the appellant’s summons was for a time interrupted by the appellant’s application that I recuse myself from the further hearing of his appeal.

  2. In the course of that application, whilst in a state of obvious upset at a time he was under immense pressure, the appellant made a litany of scandalous and at times intemperate assertions concerning the Court, Court staff, the opposing legal practitioners, DoCJ staff and the Secretary, variously asserting mala fides, intimidation and incompetence, the asserted detail of which need not be repeated here. When those matters are viewed in perspective, it was clear that those circumstances most probably arose from the appellant’s utter frustration with his situation in this litigation. I have decided to overlook those statements.

  3. Following a consideration of the appellant’s submissions on the application for recusal, that application was refused: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63. My reasons for refusal of the application for recusal were delivered ex tempore on 2 November 2020.

Counter-motion filed by appellant

  1. On 2 November 2020, when the Secretary’s motion for dismissal was to be heard, the appellant drew attention to a motion that he had filed online on 28 October 2020 during the currency of the hearing. That motion did not come to attention until the matter resumed on the morning of Monday 2 November 2020. At that time the appellant filed a further copy of that motion in Court.

  2. The appellant’s motion sought the following orders:

  1. The motion be heard instanter;

  2. That Appellant be allowed to inspect complete court file in the presence of a court staff member and able to copy any document present in the file without any exclusions;

  3. That Appellant be allowed to inspect and copy any subpoenaed material received as part of children’s court proceedings. Appellant be allowed to file new evidence, subpoenas and affidavits in this matter in response to viewing court file and documents lodged;

  4. That Appellant seeks an order for Parenting capacity assessment to be undertaken by a Psychologist/clinician who has already had interviewed child & both parents. (Paul Witzerman)

  5. That department is to assess alternate care arrangements for the child including extended family members and kinship arrangements that meet the physical, emotional, cultural and social needs of the child;

  6. Appellant intends to re-agitate his previous application for clinical assessment of child by an independent court appointed clinical to determine if current placement is meeting the needs of the child;

  7. Current ILR to be discharged with immediate effect. Respondent’s Notice of motion be dismissed;

  8. That Appellant be allowed to organize and pay for child’s extra-curricular activities such as sport, Art, coding and language. DCJ / Carer’s to facilitate the same and apprise the Father of child’s progress;

  9. Appellant be allowed to have twice a week direct unsupervised contact with child at location other than FACS office facilitated by Carer gradually increasing by a day every month;

  10. Appellant be allowed to have contact virtually outside school hours twice a week facilitated by DCJ / Carer’s. In addition, Appellant be allowed to celebrate upcoming child’s birthday at a location other than FACS office in line with child’s wishes;

  11. That Matter be listed for hearing later after all the parties have had a chance to respond to Appellant new evidence, affidavits and assessments.

  1. The orders sought by the appellant essentially identified some of the objections that he was seeking to achieve in his appeal. I have set them out in full to identify the broad range of issues that stand to be determined in the substantive appeal.

  2. The appellant’s motion, which for convenience, and in light of the order in which it came to attention, is described by me as a counter-motion, was supported by an affidavit sworn by him on 28 October 2020. That affidavit was read on 2 November 2020. The appellant’s affidavit in support of his motion raised allegations and criticisms that distracted from the issues. I took the appellant’s vehement reference to those matters to be driven by his sense of extreme and utter frustration and obvious sense of outrage as to his predicament in the litigation.

  3. In the face of the two competing notices of motion, a procedural determination was made that on the balance of convenience, the Secretary’s motion should be heard and determined first. If the Secretary’s motion succeeded, the appellant’s notice of motion would become otiose. If the Secretary’s motion failed, further case management orders would be required.

Evidence

  1. In support of the Notice of Motion filed by DoCJ seeking dismissal of the appellant’s summons, DoCJ relied upon the following evidence:

  1. Two folders of materials incorporated into Court Books assembled for the proceedings tabbed 1 to 38, pp 1 – 1752 which were marked MFI “1” in the substantive case and Exhibit “A” on the Secretary’s motion. Those materials included transcripts and Exhibits which related to a twelve day hearing that had proceeded on various dates in the Children’s Court between 17 December 2018 and 6 September 2019. Those documents formed a substantial part of DoCJ’s evidence in the substantive appeal. In the appeal, the appellant father intended to challenge and revisit much of that evidence to have it viewed in a different light;

  2. A bundle of administrative correspondence to the appellant variously comprising emails from my Associate and from the Registrar of the Court with the appellant concerning arrangements for the hearing and various replies from the appellant. Those emails were marked MFI “7” in the proceedings. Those communications concerned the appellant’s request, on the second day of the hearing, to give his evidence remotely via an AVL connection on account of his need for a COVID-19 test concerns which ultimately proved to be negative, but which nevertheless caused additional delay in the progress of the hearing. Those documents were marked Exhibit “B” on the Secretary’s motion;

  3. The bundle of emails were marked Exhibit “C” on the substantive motion.

  1. The Secretary’s notice of motion seeking dismissal of the appellant’s summons was accompanied by a supporting affidavit sworn on 30 October 2020 by Ms Sheliza Nasser, a solicitor in the employ of the Crown Solicitor for NSW.

  2. The appellant objected to portions of the affidavit of Ms Nasser which largely recited procedural and timetabling matters concerning the appellant’s non-compliance with procedural timetables. Those objections were overruled for reasons given at the time. This was in circumstances where the rules of evidence did not bind these proceedings, which are required to be conducted with as little formality and legal technicality and form as the circumstances permitted: s 93(1) and (2) of the Care Act.

  1. The appellant claimed naivety concerning procedural matters but nevertheless demonstrated forensic prowess on some aspect of the case in the course of his arguments. The process would undoubtedly have been better served if he had appropriate legal representation.

  2. The appellant gave oral evidence as part of his resistance of the Secretary’s motion filed by DoCJ seeking the dismissal of his summons. He was cross-examined by counsel representing DoCJ. He was inexplicably resistant to answering some questions asked of him by counsel for DoCJ, and in addition, he was repeatedly resistant to answering some questions I had asked of him in order to clarify aspects of his evidence. In those responses he revealed himself to be an argumentative witness. In this consideration I have overlooked those matters as they seemed to have arisen as a result of his sense of frustration in his very stressful situation. That is yet another reason why he needs an appropriately skilled lawyer to represent him.

  3. Counsel for the Secretary made the submission that it was evident from the unfolding circumstances that the appellant had embarked on a course of delaying tactics. This appeared to be because he was unprepared and did not have the evidence he needed for his appeal. Ultimately, I was not persuaded that motive can be fairly attributed to the appellant in the circumstances of this case.

  4. At the end of the fifth day of the hearing, after all evidence on the motion for dismissal had concluded to a point well beyond normal court sitting hours, the parties were informed that addresses would commence the following morning, on 3 November 2020, at 10.00am. On resumption, on the sixth day of the hearing the appellant made an application that he be given the opportunity to cross-examine Ms Nasser on the content of her affidavit sworn on 30 October 2020. That course was objected to by counsel appearing for the Secretary.

  5. After argument, the appellant’s application to cross-examine Ms Nasser was rejected for several reasons. First on its face, the course proposed by the appellant was a dubious forensic undertaking. Secondly, cross-examination on interlocutory matters is a procedure that requires leave and insufficient grounds had been shown to justify such leave: Ren v Jiang (No 3) [2014] NSWCA 204, at [11]; Markisic v Commonwealth of Australia [2010] NSWCA 273, at [31]. Thirdly, to allow such cross-examination of a non-party was contrary to the spirit of s 93(2) of the Care Act.

  6. Notwithstanding that the appellant was not permitted to cross-examine Ms Nasser, nevertheless, in his subsequent submissions, he proceeded to make critical submissions of the chronological events that were referred to in that affidavit. In my view, nothing turns on those submissions as the focus of Ms Nasser’s affidavit was to document the chronological events concerning the historical Court orders that were the subject of non-compliance by the appellant in the lead-up to the hearing.

  7. On 4 November 2020, counsel for DoCJ made submissions as to why the appellant’s summons initiating the appeal should be dismissed: T163 – T170. In reply, on 4 and 5 November, the appellant made his submissions in resistance to those arguments. He did so with vigorous ardour, dense content, and with unrelenting criticism of the position taken by DoCJ: T174 – T231; T240 – T26. In the course of the appellant’s submissions, which traversed evidence, asserted facts and interpretative conclusions, he also referred to his affidavit of 3 November 2020. It is not necessary to refer to the details of that affidavit at this point.

  8. On analysis, the appellant’s submissions were essentially divided into five discernible categories. First, the appellant’s historical factual account of the events lead up to the removal of his daughter from his care, secondly, the appellant’s multi-faceted criticisms of the process from removal to the present time, thirdly, the appellant’s interpretation of those events as matters of contention deserving of a hearing on the merits, fourthly, his explanation for the procedural difficulties that have occurred which have led to his present predicament, and fifthly, what I took to be his sincere and desperately earnest submissions imploring the Court not to dismiss his appeal without a hearing on the merits.

  9. In light of the factual references within the appellant’s submissions that challenged the basis of the case that had proceeded in the Children’s Court, noting that those submissions did not constitute evidence in the formal sense, I determined that an unusual course was available in the circumstances.

  10. I explained to the appellant that the factual references in his submissions did not constitute evidence in the traditional sense, and that courts traditionally act on evidence. In those circumstances, he was invited to consider whether he was prepared to enter the witness box, take an affirmation and attest to the correctness and truthfulness of the facts which he had traversed that were contrary to the position taken by DoCJ. At that time, he was advised that if he did so, he could be exposed to cross-examination on the matters to which he had attested.

  11. The appellant took that opportunity with alacrity. He was not cross-examined in those circumstances. Plainly, Ms Spencer, who appeared for DoCJ at that time, took the pragmatic view that a model litigant would be expected to take in those circumstances, recognising that a significant interlocutory threshold had been reached. That position did not mean she accepted the correctness of the factual matters to which the appellant had attested.

  12. In those circumstances, the determination of the motion filed by DoCJ seeking dismissal of the appellant’s summons must be determined in light of the evidence in accordance with the requirements of the governing legislation, and in accordance with applicable case law.

Relevant legislation

  1. The jurisdiction for the appeal to this Court comes from s 91(1) of the Care Act. Section 94 of the Care Act, which requires expeditious finalisation of care proceedings, which includes appeals. That section provides:

94 Expedition and adjournments

(1) All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person.

(2) For this purpose, the Children’s Court is to set a timetable for each matter taking into account the age and developmental needs of the child or young person.

(3) The Children’s Court may give such directions as it considers appropriate to ensure that the timetable is kept.

(4) The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that—

(a) it is in the best interests of the child or young person to do so, or

(b) there is some other cogent or substantial reason to do so.

  1. Section 9(1) of the Care Act provides:

9 Principles for administration of Act

(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

  1. Section 9(2)(b) and (d) of the Care Act provides:

9 Principles for administration of Act

…

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows—

...

(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

...

(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

  1. Section 99B of the Care Act provides:

99B Child under 12 presumed incapable of giving proper instructions

(1) There is a rebuttable presumption that a child who is less than 12 years of age is not capable of giving proper instructions to his or her legal representative.

(2) However, the Children’s Court may, on the application of a legal representative for a child who is less than 12 years of age, make a declaration that the child is capable of giving proper instructions.

  1. Pursuant to s 91I of the Care Act, in an appeal from the Children’s Court, the District Court has all the functions and discretions of that Court and those of the Children’s Court under Chapter 5 of the Care Act, as follows:

91I Right of appeal

(1) A party to proceedings under this Part who is dissatisfied with a parent capacity order of the Children’s Court (including a parent capacity order made under section 90A) may, in accordance with the rules of the District Court, appeal to the District Court on a question of law.

(2) The District Court is to hear and determine the appeal and make such order as it thinks appropriate by reason of its decision, including, without limiting the Court’s power to make such orders, an order confirming, varying or setting aside the decision of the Children’s Court.

(3) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.

(4) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.

  1. Once the jurisdiction of the District Court has been engaged by an appeal of the kind under present consideration the procedural provisions of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 provide the relevant procedural framework for making determinations that require an application of the provisions of s 94 of the Care Act.

  2. Foremost amongst those procedural provisions are s 56 to s 58 of the Civil Procedure Act2005 (NSW) which requires the Court to have regard to the overriding purpose of that Act in order to facilitate a just, quick and cheap resolution of the real issues in dispute in the proceedings in accordance with the dictates of justice.

  3. UCPR r 12.7 provides:

12.7 Dismissal of proceedings etc for want of due despatch

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

  1. UCPR r 13.4 provides:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

  1. UCPR r 14.28 provides:

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

The pivotal issue to be determined at this interlocutory stage

  1. The application by the Secretary, DoCJ to dismiss this childcare appeal at this stage on grounds of procedural non-compliance raises a fundamental human rights question of whether the procedural right of the appellant father to pursue an appeal consequent upon his dissatisfaction with the orders made by the Children’s Court should be terminally curtailed without a hearing on the merits because of procedural defaults, delays and dilatoriness on his part when balanced and considered against the paramount best interests of his daughter who is the subject of the appeal.

Principles to be applied

  1. In modern litigation, case management orders must be observed and complied with by litigants and if litigants consciously choose a forensic course that disregards the obligation to comply with such orders they do so at their peril: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.

  2. The principles of case management are not the sole determinants for resolving contested litigation, but they are nevertheless important considerations. That is so especially when the outstanding litigation has a deleterious effect on the health, welfare and wellbeing of a child who is not a party to the proceedings, but who is the subject of the proceedings. In this case, in that latter regard, the child’s Independent Legal Representative has identified a factual basis for concluding that in this instance there are such deleterious effects on the child. This is in circumstances where the child’s best interests, and her health, safety, welfare and wellbeing must be the paramount consideration: s 9(1) of the Care Act.

  3. The following statements of relevance concerning the stressful effects of litigation appear in the decision of the NSW Court of Appeal in Richards v Cornford (No 3) [2010] NSWCA 134, at [42] to [44]:

“42 The litigious process is inherently stressful for any party, in particular an individual. Ms Richards embarked upon a time-consuming, stressful and potentially very expensive process. Litigation can be described as “a costly and stressful, though necessary, evil”: White v Overland [2001] FCA 1333 at [4]. The wider passage and the paragraph in which this appeared as part of the reasoning were approved by this Court in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116 at [1], [28] and [39]. That stress includes the uncertainty and concern as to the effects of legal costs that can lead to bankruptcy and financial ruin. The reality of the personal strain of litigation is now clearly recognised by the Courts: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [37]; GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 715-716; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [100].

43 This being the nature of the process of litigation, the courts in this country in modern times, have sought to exercise control and supervision over litigation in order to see cases resolved in a relatively timely fashion. It cannot always be done. Parties, practitioners, courts and judges sometimes fall behind by reference to appropriate standards of efficiency and timeliness. Nevertheless, the need for the due despatch of the cases of litigants is ever-present and is a fundamental aim of the administration of justice.

44 To put the matter simply and bluntly, parties are entitled to expect that the costly and stressful, though necessary evil that is litigation be resolved with reasonable despatch so as to minimise, where reasonably possible, the time during which people are subjected to its rigours and strains.”

  1. Dismissal of proceedings at an interlocutory stage without a hearing on the merits should only occur in the clearest of cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69. That is a very high test that must be satisfied without ambiguity.

Submissions of the parties

  1. On behalf of the Secretary, it was essentially submitted that the time of reckoning for the appellant’s procedural defaults had arrived and passed and the state of the evidence justified that the summons commencing the appeal should be dismissed.

  2. That submission drew upon the underlying facts together the following elements. First, attention was drawn to the case-management timetable identified in the affidavit of Ms Nasser and the appellant’s non-compliance with that timetable. Secondly, attention was drawn to the statutory injunction within s 94 of the Care Act and related provisions requiring such matters to proceed expeditiously to minimise the effect of the proceedings on the child. Fourthly, attention was drawn to the fact that the appellant had the opportunity to cross-examine all witnesses in the Children’s Court. Sixthly, it was submitted the appellant had pursued a course that should be characterised as a delaying tactic. Seventhly, it was successively submitted that taking all the identified factors into account, it was difficult to see the merit in the appeal; it has not been prosecuted with due diligence; evidence in support of the appeal has not been filed and served; and it was argued that the continuation of the proceedings amounted to an abuse of process that may tend to bring the administration of justice into disrepute.

  3. Ms Adams as the Independent Legal Representative of the Child, supported the submissions made on behalf of DoCJ.

  4. The appellant’s submissions in effect sought a rejection of the approach to the appeal as was submitted on behalf of DoCJ and the Independent Legal Representative. The appellant’s initial submissions as identified at paragraph [40] above, were dense, intense, wide-ranging and delivered with passion, almost without apparent pause for breath: T[240] – T[275].

  5. For present purposes, the effect of the appellant’s submissions may be seen to be within distinct categories. He directed intense criticism at the caseworkers and the temporary care arrangements that have remained in place for 3 years. He identified a different factual construction to the underlying events leading to the removal of the child from his care although that different construction was not accepted in the findings of the District Court. He challenged the assertion by the Independent Legal Representative that the child was thriving in her current placement and pointed to contrary indications such as poor diet, regression in educational achievement in an otherwise intelligent child, and a lack of attention to cultural, religious and dietary requirements.

  6. Finally, and uncharacteristically compared to the appellant’s prior presentation, and with considerable humility, he imploringly begged for an opportunity to continue his appeal, acknowledging that there had been a degree of dilatory procedural default on his part, not all of it being due to fault on his part. I considered this ultimate acknowledgement in that regard to be genuine. In making those submissions he promised to, in effect pull out all stops, seek legal assistance, and prosecute the appeal if given the chance to do so.

  7. Those matters will be considered in the appropriate detail in the context that this is an interlocutory motion.

Factual summary and consideration

  1. The proceedings in the Children’s Court proceeded over the course of 12 non-continuous hearing days between 17 December 2018 and 6 September 2019. The case was difficult and complex to say the least. The mother was present for some of the time. The appellant was not present on the first day and his attendance on the second day was delayed. He stated that this was for medical reasons. He apologised to the Children’s Court for those circumstances: Exhibit “A”, Tab 7, pp 557.41 – 558.5. The initial judgment of the Children’s Court was delivered on 4 November 2019.

  1. In the described circumstances, the appellant’s medical excuse was considered by the Children’s Court to be unsatisfactory and enormously inconvenient. The appellant seemed to have bristled at that time. His earlier application for an adjournment was noted as having been refused: Exhibit “A”, Tab, pp 558.50 – 561.9.

  2. In these reasons, at this interlocutory stage, I do not propose to undertake a close analysis of the vast array of the evidence given in the Children’s Court as identified at paragraph [8] above. An overview is sufficient for present purposes. At this stage the focal point of inquiry is whether the appellant has an arguable case. That analysis is required in light of the application by DoCJ to have the appellant’s summons dismissed. A more close analysis will arise for consideration if the appeal remains extant following the determination of the present notice of motion.

  3. At this point it is sufficient to say that a fresh hearing of the matter on appeal will obviously involve the testing of evidence from a significant number of witnesses including caseworkers and experts. My overview of the gist of the evidence of those witnesses as given in the Children’s Court is that the challenges that the appellant seeks to make to their evidence on a fresh hearing is a legitimate forensic undertaking both on the underlying factual matters and the matters of assumption that have led expert witnesses to express key aspects of their opinions, including on fundamental medical opinions, the basis of which will plainly be in strong dispute. This is in circumstances where the decision of the Children’s Court acted on that evidence.

  4. The context of the present notice of motion for dismissal is that the appellant has an undeniable right on appeal to proceed to test and seek to contradict factual evidence given in the Children’s Court and in particular, the opinions of the experts on the basis of the acceptability of the factual matters the experts have assumed when forming their opinions: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. That right must of course be seen to be subject to him appropriately observing procedural regularity and also subject to him providing satisfactory evidence to explain the delays that have been incurred in progressing the matter to date.

  5. The evidence on the issue of delay discloses the following propositions:

  1. It was not until June 2020 that the complete array of materials including the transcript of the Children’s Court proceedings became available for the appellant’s consideration. Until then, work could not commence on the Exhibit books;

  2. A critical event occurred that had caused a significant element of delay. It raised a high level of suspicion in the mind of the appellant, namely the possibility that the Children’s Court may have considered extraneous material comprising the medical records of a child unconnected with this case where that material had been wrongly filed in the Children’s Court file. When that matter came to the attention of the appellant, understandably, he pursued the issue relentlessly. Ultimately, he obtained a written apology from the highest level of the administration of justice in this State for that unfortunate error. The appellant’s suspicions having been aroused in that regard, understandably, given what was at stake in these proceedings, he pursued a course of seeking access to the file in the District Court Registry in Newcastle to inspect it to ascertain or to confirm whether or not any similar form of factual contamination had occured in relation to the present appeal;

  3. Unfortunately, along that timetable COVID-19 issues intervened to thwart that quest. COVID-19 restrictions governing access to the Registry where the Court files were kept created some necessary restrictions. Consequently, administrative difficulties arose which had the effect of impeding the appellant’s access and ability to inspect the Court file. That difficulty was finally resolved by an order made on 27 October 2020, but in the time available, the appellant’s inspection of the file remained incomplete, including until now.

  4. In the chronology of events disclosed in Ms Nasser’s affidavit, the preparation delay incurred by the appellant can be seen to fall into the following two categories:

  1. The first period of delay which included the matters referred ot in sub-paragraphs (1), (2) and (3) above, was between the filing of the summons commencing the appeal on 7 January 2020 and a directions hearing on 14 August 2020. On the latter date case management orders were made by an Acting Judge of the Court requiring that the appellant to file his evidence in support of his appeal by 30 September 2020 in light of a 7 day hearing that was fixed to commence in a circuit list to commence in Newcastle before me on 26 October 2020;

  2. The second period of delay involved the appellant not filing his evidence by 30 September 2020 and thereafter up to the commencement of the hearing.

  1. In respect of the first period of delay as identified in sub-paragraph (4)(a) above I am satisfied that quite apart from the limitations affecting the appellant that were associated with the fact that he did not have legal representation (which is not in itself a valid excuse but nevertheless understandable in a very complex case) there were valid reasons for the delay as explained in the paragraphs that follow.

  2. Between January 2020 and June 2020 the appellant did not have the complete transcript of the Children’s Court proceedings and there were COVID-19-related difficulties in him accessing the files within the District Court Registry in Newcastle. Those files were housed in three archive boxes. An inspection of that file would have been a considerable and time-consuming undertaking.

  3. In respect of the second period of delay after 14 August 2020, as identified in sub-paragraph (4)(b) above, the appellant has ultimately acknowledged that he could have been more energetic about the preparation of his appeal. That said, there were still COVID-19-related difficulties at play.

  4. In that regard, the appellant has satisfactorily shown that the bench sheet containing the orders made by an Acting Judge on 14 August 2020 contained an ambiguity which required collateral explanation.

  5. The bench sheet in the Court file stated that the appellant had appeared in person on 14 August 2020. That statement was technically correct. However, the fact that the appearance was in person via AVIL was not stated. Whilst it was not suggested that it should have been so stated, other evidence confirms that, as was a common experience at that time due to COVID-19 issues, the AVL connection was intermittent, and this meant the appellant was not present at all times. The emails in evidence demonstrate this. As a result, the case management orders did not come to his attention for some days. Nothing turns on those events.

  6. It is plain that the antecedent problems concerning transcript availability and the restricted access to the Court file and COVID-19-related complications, in combination continued to have an adverse effect. The availability of the transcript was a matter that was fundamental to preparation for the appeal as the transcript would be the cornerstone of the appeal.

  7. Ultimately, in final submissions, the appellant acknowledged that he had been dilatory in his preparation, but he also pointed to the exhausting effect the multiple tranches of litigation had upon him and his financial resources also added to by pain issues he has due to an earlier industrial accident, and the fact that at present he is not working.

Disposition

  1. Applying the statutory and case law principles identified in paragraphs [45] to [59] above, I have reached the following conclusions.

  2. On the identified analysis, it cannot be reasonably concluded that the present appeal is frivolous, vexatious, or an abuse of process or is of a character that might bring the administration of justice into disrepute.

  3. The proceedings took a long time to reach a state of completion in the Children’s Court. The same problem seems very likely to be the case in this Court, but for different reasons that should be capable of being addressed by appropriate case management orders.

  4. In my view, the criticism of dilatoriness on the part of the appellant, should be confined to the period shortly after 14 August 2020 until now. However, the prevailing circumstances were also to a significant degree complicated, as has been identified in these reasons, and not all of the delay is due to fault on his part.

  5. A dismissal of proceedings based on a relatively short period of dilatoriness is an extreme step to take where it affects the human rights of a child and her parent, especially where it cannot be said the appeal constitutes a clear case of lack of merit: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69.

  6. I therefore decline to dismiss the appellant’s summons filed on 7 January 2020.

  7. This leaves the appellant’s notice of motion identified at paragraph [26] above, to be determined on a suitable date. Having regard to the requirements of s 56 of the Civil Procedure Act2005, there is an expectation that the parties will seek to narrow the wide-ranging areas of dispute by reaching sensible agreements in the interests of justice to those affected. Some of the matters identified ought to be achievable by consent.

Additional comments

  1. Before making orders, I consider some comments are required by the circumstances.

  2. In light of the fact that the child who is the subject of the appeal is now just 4 weeks short of her 12th birthday, I am troubled by the fact that I do not have a direct and detailed informed view of the child’s perspective of her present situation and her attitude to her father, where a prior precautionary AVO that had for a time previously affected the nature and extent of their contact has expired, and in the interim the appellant has undertaken parenting and other courses required of him by DoCJ. This is in circumstances where until the child’s 12th birthday, s 91I of the Care Act effectively precludes that information being made available to the Court. That has been an unhelpful circumstance in this case.

  3. It is hoped that from this point the appellant will be able to obtain the skilled legal assistance that is urgently required in this appeal to ensure that the interests of all persons affected are properly served. In the spirit of s 56 of the Civil Procedure Act2005, one lives in hope.

Orders

  1. I make the following orders:

  1. The notice of motion filed on 30 October 2020 by the Secretary, Department of Communities and Justice is dismissed;

  2. The substantive proceedings and the appellant’s notice of motion filed on 28 October 2020 remain part heard before me pending the fixture of a resumed hearing date;

  3. A directions hearing is appointed for 10.00am on Friday 13 November 2020 in Sydney, by AVL if required on application;

  4. Liberty to apply.

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Amendments

09 November 2020 - Typographical errors at paragraphs [8], [33], [72], [75] and punctuation error at paragraph [41]

10 November 2020 - Typographical error at paragraph [88]

Decision last updated: 10 November 2020

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