Y v The Secretary, Department of Communities and Justice (No 2)

[2020] NSWDC 762

District Court

New South Wales

Medium Neutral Citation:

Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762

Hearing dates:

10 and 15 December 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [62] for orders.

Catchwords:

CHILD CARE APPEAL – interlocutory application by appellant father seeking interim orders pending determination of his substantive appeal from the final orders made by the Children’s Court allocating parental responsibility for his child to the Minister

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 99B(1), s 105

Cases Cited:

Aon Risk Services Australia Limited Australian National University [2009] HCA 27

Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674

Category:

Procedural and other rulings

Parties:

Y (Applicant - father)
M (Respondent - mother)
The Secretary, Department of Communities & Justice (Respondent)
Ms D Clark, Solicitor (Child’s Direct Legal Representative)

Representation:

Counsel:
Mr M Anderson (Respondent, The Secretary), and
Ms L Spencer, Solicitor (10 and 15 December 2020)

Solicitors:
In person (Applicant)
M (Non-participant in the application)
The Crown Solicitor (Respondent)
Ms D Clark, Solicitor (Child’s Direct 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 remains the subject of a non-publication order made on 26 October 2020 pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (“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.

Application pending final hearing of child care appeal

2. These reasons concern an interlocutory application filed by the appellant father in the course of a protracted part-heard child care appeal which initially commenced and proceeded on circuit in Newcastle between 26 October and 6 November 2020. The proceedings have become needlessly more complicated because the appellant father continues to appear without legal representation.

3. At the hearing in Newcastle, the Secretary, Department of Communities and Justice (“DoCJ”) made an application to have the father’s appeal dismissed for lack of merit and because of his failure to prosecute the appeal with due despatch. That application for dismissal was rejected on 6 November 2020: Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674.

4. Belatedly, in the course of the hearing in Newcastle, on 28 October 2020, the appellant father filed a notice of motion seeking an extensive series of interim orders in circumstances where there were obvious procedural difficulties with his appeal. That application was stood over to 10 December 2020 in order that it be heard in Sydney. This was because the allocated circuit sittings were taken up almost entirely with the consideration of the father’s actions and inactions, and his COVID-19-related complications which prevented the appeal from proceeding to a conclusion in a conventional manner.

5. On 13 November 2020, a remote procedural listing took place with the appellant appearing via AVL. Subsequently, on 2 December 2020, a directions hearing was listed to take place in Sydney. The dual purpose was the progress of the father’s preparation for the completion of the ultimate hearing of the appeal in light of his earlier procedural defaults, including his non-filing of evidence, which he claimed to have been due to his inability to access relevant records, and to deal with the father’s urgent request for interim variations concerning contact and related matters.

6. On 2 December 2020, it transpired the father was not ready to proceed with the present application. He had not filed the evidence as was required of him. This was despite the efforts of the Crown Solicitor to assist him with the provision of documents.

7. In ordinary circumstances of litigation, in light of the father’s persistent procedural defaults, the present interlocutory application was vulnerable to being dismissed: Aon Risk Services Australia Limited Australian National University [2009] HCA 27.

8. However, I considered that the requirement for procedural fairness to be afforded to the child as well as to the father indicated that a different and more lenient course was required in this case, although this necessitated an unavoidable protraction of the proceedings.

9. The 10 December 2020 date for the scheduled hearing of the father’s interlocutory application was selected because by that date the child who is the subject of the appeal achieved the age at which she was entitled to be heard directly as to her wishes concerning what she considered should occur in the substantive appeal brought by her father: s 99B(1) of the Care Act.

10. On 10 December 2020, the father obtained leave to present and rely upon an untimely served and unaffirmed affidavit to support his application. In those belated circumstances, in order to facilitate progress, he was allowed to affirm the content of that affidavit in Court. Much of the content of that affidavit was unreliable, if not objectionable, but in view of the relative informality of the procedure for this type of case, a practical course was nevertheless taken to receive it rather than incur further protracted delays in the proceedings whilst dealing with objections in the more conventional manner of litigation. Given the context of care proceedings, the affidavit was read subject to considerations of weight in light of obvious and readily identifiable objections.

11. Unfortunately the matter could not conclude on 10 December 2020. This was because the Direct Legal Representative (DLR) of the child, who had only been appointed a few days earlier following the child’s 12^th birthday, could not appear due to her own untimely indisposition before she had the opportunity to meet with the child to take her instructions.

12. Those circumstances were not due to any fault on the part of the DLR. In those circumstances, the father proceeded to make and to complete his submissions on his application pending input from the DLR who was to be provided with a transcript. In those circumstances, submissions were made by the solicitor for the Secretary in response to the father’s submissions. The application was then stood over part-heard to 15 December 2020 to await the input of the DLR.

13. On 15 December 2020, following completion of the Secretary’s submissions, the child’s DLR appeared and made submissions based on her recent and extended meeting with the child, at which time she received clear instructions that the child did not want the father’s appeal to succeed. The DLR made cogent submissions along those lines. She also conveyed the child’s instructions that she did not want to be subjected to further assessments or legal procedures, including giving evidence, in connection with the matters raised in the father’s appeal.

14. During the course of his submissions in reply, the father sought to call upon and agitate for compliance with a subpoena calling for the production of documents addressed to the Secretary: Exhibit “C” on the motion.

15. At that time the Secretary indicated there were objections to that subpoena, and she also indicated an intention to move to have the subpoena set aside if its ambit could not be narrowed by agreement. For reasons given following argument on that issue, I ruled that the documents sought by the subpoena related to the substantive appeal rather than to the present motion, and that in any event, in connection with the hearing of his notice of motion, it was procedurally too late for the father to take the course he had adopted. Hopefully, a more practical course will be taken at the ultimate hearing.

Orders sought by the appellant father

16. The father’s notice of motion initially raised eleven elements on which he sought relief in the form of orders. At the hearing on 10 December 2020 the father sought to add a twelfth element to his claims for interlocutory relief. In aggregate, his interlocutory requests were as follows:

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.”

12. That the orders made by the Children’s Court be stayed pending the determination of the appeal.”   

    17. Adopting the enumeration set out at paragraph [16] above, I now turn to a consideration and determination of the remaining individual elements of the father’s claim for interlocutory procedural relief.

(1) Request for a hearing instanter

18. The father has successfully achieved a hearing instanter. Therefore, no further elaboration or consideration of this ground for relief is required.

(2) Request for an inspection of the complete court file

19. At the Newcastle component of the hearing, the father had already been granted inspection and copying access to the complete file of the Children’s Court proceedings and he has had ample opportunity to pursue that course. Therefore, no further elaboration or consideration of this ground is required.

(3) Request for inspection and copying of subpoenaed materials

20. The father has already been allowed to inspect and to copy subpoenaed materials received as part of the Children’s Court proceedings and he has been permitted to file new evidence if he considered it appropriate to do so. It would have been preferable if he had legal advice and assistance to enable him to achieve appropriate focus, relevance and selectivity in that regard.

21. It appears that the father encountered some administrative difficulties in obtaining photocopy access to the extent that he has not yet had copying access. To overcome those administrative difficulties and to facilitate the hearing of the substantive appeal, an enabling order was made whereby the Crown would arrange for copying and distribution of those materials. No further orders are required in that regard. The documents will be relevant to the ultimate hearing of the substantive appeal.

(4) Order for a parenting capacity assessment to be undertaken

22. Since the last parenting assessment was undertaken, and since the previous refusal of the father’s successive applications for a further parenting capacity assessment to be undertaken, much has occurred to indicate it would be in the best interests of the child if a further parenting capacity report were to be undertaken so that the Court can be reliably informed on that question.

23. Factors of relevance which inform that view include the father’s evidence as to his subsequent efforts at pursuing education on parenting responsibilities, the mother’s continued absence from the jurisdiction, the extended duration of what was only intended to be a temporary placement for the child, the child having reached the age of 12 years, which has a statutory significance, and the father’s concerns that the child’s cultural, language, religious and related dietary needs are not being adequately addressed.

24. The father initially sought an order that the parenting capacity assessment be undertaken by a named Queensland psychologist who has already interviewed the child and both parents in connection with earlier Family Court proceedings. That would obviously be a desirable course but it may not be practicable to achieve this as the clinician identified by the father had previously undertaken that task in the context of his appointed role in relation to the previous Family Court proceedings in Queensland.

25. It is not known as to whether that clinician is registered to carry out that task in this State, or even whether he remains willing or able to do so, including within the time constraints that are now required for a timely resolution of these already protracted proceedings.

26. Practical arrangements of that kind must be left for the consideration and determination of the Director of the Children’s Court Clinic.

27. I am informed that a parenting assessment generally requires some 6 to 8 weeks to obtain. A delay of that order would be counter-productive and ill-advised in this case given the child’s adamant instructions as conveyed in the submissions made by the DLR.

28. That said, the father indicated his willingness for the purposes of the appeal to obtain at his own expense a parenting assessment report from an appropriately skilled practitioner. That is a decision that is open to him to make. In the described circumstances I do not propose to make an order for a further parenting assessment to be undertaken. If the father produces an assessment of that kind in a timely manner it will be considered on its merits.

(5) Request for an assessment of alternative care arrangements

29. The father has asserted that the physical, cultural and social needs of the child are not being adequately met in her present temporary placement, which has become unusually prolonged.

30. The child’s adamant instructions, as communicated by the DLR do not support the father’s assertion. The Secretary’s position did not support the father’s assertion.

31. The father has focussed on the fact that the child’s placement with the present carers is unsuitable due to the temporary nature of that placement and because the circumstances of that placement from time to time involve the comings and goings of other children in temporary care.

32. The father is also most concerned that the child’s religious, language, cultural and dietary related needs are not being adequately addressed in her present placement.

33. In addition to those considerations, the father is also concerned that a recent risk of harm from sexual activity has been identified and reported in relation to another child who has been at the residence of the carers. The father expressed the concern that his daughter may be vulnerable to being sexually assaulted.

34. The DLR has considered those matters and she has, on the child’s instructions, rebutted the father’s concerns. The child had instructed her that she is happy to remain in the placement, she is well cared for and well-accepted, and the reported risk of harm, which had not affected her in any way, is no longer a factor as the child concerned is no longer at the premises.

35. The Secretary has clarified the situation by explaining that the child’s initial temporary placement, which has since been re-classified as a suitable long-term placement, means that the father’s concerns over a claim of an unsuitability of the placement because it is an extended temporary placement, is unfounded.

36. In my view, in those circumstances, pending the hearing of the substantive appeal, a fresh assessment of the appropriateness of the present placement and care arrangements is not mandated. Similarly, neither is it necessary to consider possible alternative arrangements. I decline to order a re-assessment of the placement arrangements.

(6) Request for a clinical assessment of the child

37. The father’s request for an independent court-appointed clinician to determine if the child’s current temporary placement is adequately meeting the needs of the child is a matter that is not agreed to by either the child or the Secretary, as the Minister’s delegate. Since the Minister, who stands in loco parentis, does not consent to such an assessment I do not have the power to countermand that decision of the Minister. The father’s request in that regard must therefore be refused.

(7) Request for discharge of the Independent Legal Representative

38. The basis of the father’s request for an immediate discharge of the Independent Legal Representative was ventilated at the hearing in Newcastle. This issue has also been the subject of extensive comment by him, as was reflected in the decision concerning the first phase of the hearing of this case: Y v The Secretary, Department of Communities and Justice: [2020] NSWDC 674, at [88].

39. It now transpires, by reason of the advent of the child’s 12^th birthday, and the consequential statutory appointment of a DLR for the child, due to the effluxion of time, it is no longer necessary to consider and determine this aspect of the father’s application.

(8) Father’s request to organise child’s extra-curricular activities

40. The father complains that he should be allowed to organise and to pay for his daughter’s extra-curricular activities, such as sport, art, coding and language. He asks that the delegates of the Secretary, and the present carers, facilitate such arrangements, and apprise him of those matters.

41. Those issues raised by the father are ordinary instances or examples of parenting aimed at fulfilling the child’s needs. However, the fundamental difficulty with the father’s request in this regard is, as a result of the orders made by the Children’s Court, which allocated parental responsibility to the Minister, those orders must necessarily remain in place pending the determination of the substantive appeal. At present, the father does not have the legal right to make and to implement decisions on such matters, although his wishes as a parent in that regard are entirely understandable.

42. Therefore, pending the determination of the substantive appeal the father must exercise patience and forbearance on such matters. That said, the Secretary, and the carers, must seek to provide for the child’s reasonable needs with regard to those identified matters as the Minister and the Secretary stand in loco parentis to the child.

43. Having regard to considerations of ordinary human decency and the rights of the child, the expectation is that the child’s reasonable needs should be met concerning the activities identified by the father. If, pending the determination of the appeal, the father is willing and has the capacity to organise and pay for the identified extracurricular activities he proposes, there ought to be no substantive difficulty in allowing for such input from him, on certain conditions agreed with the caseworkers, subject always to the paramount considerations concerning the child’s safety and well-being.

40. Such matters are capable of being the subject of agreement. The arrangements for such activities and the timing of those activities, are matters that should be the subject of reasoned consensus between the father, the caseworkers and the carers. I do not propose to make prescriptive interim orders on this issue at this stage of the proceedings.

(9) Request for twice-weekly and incremental unsupervised contact

45. The father has requested that he be permitted twice-weekly unsupervised contact with the child followed by reasonable allowance for incremental contact that is to be structured over time. In good conscience, in the face of informed input from the child as submitted by the DLR, for the time being, it does not seem reasonable or appropriate that the father have unsupervised and incrementally increasing contact with the child as he suggests, whether at the offices of the Secretary, or otherwise. The present structure of the supervision arrangements has been put in place to address a risk of harm.

(10) Request for twice-weekly virtual contact

46. The father’s scheduled contact with the child on her 12^th birthday has already occurred. Regrettably, on that occasion, for unexplained reasons, the father attended at the location much later than at the appointed time, so that the contact was only for about 20 minutes. Those circumstances were unfortunate for all concerned. This was no doubt upsetting for the child.

47. The father’s request for twice-weekly virtual contact with his daughter and his related requests must also take into account and accommodate the child’s needs as well as the reasonable convenience of the carers and those public officials who are charged with the responsibility for supervision of those arrangements.

48. The DLR’s submissions have identified the child’s wishes on contact arrangements. She does not want changes to be made to the current regime. In my view, in those circumstances, it would be inappropriate to simply accede to the father’s request for more extended contact with the child.

49. The father’s vehement expressions of aggravation and complaint on this issue seem to be based on the proposition that the child already has twice weekly virtual contact with her mother, “M”, who is a respondent to the appeal, and who is presently resident in the USA where she has re-partnered and has a new family.

50. That unsupervised virtual contact with the mother is apparently allowed to occur with the concurrence of the Secretary, despite the mother’s reported unsuccessful attempt to take the child out of the country contrary to the orders of the Family Court.

51. I consider that the determination of this aspect of the father’s request must be dependent upon a consideration of the needs and wishes of the child, and the practical implications of such a request in terms of the child’s safety, well-being, and her need to participate in the many other activities of day-to-day life which might the adversely impacted by the father’s requests for expansion of the contact arrangements.

52. In the circumstances I decline to make an order in the terms that the father requests. To accede to the father’s request in this regard, would countermand the wishes of the child. I consider her wishes must be respected in that regard.

(11) Request for a resumed hearing

53. The fact that the hearing of the father’s appeal did not proceed to conclusion at the Newcastle sittings between 26 October and 6 November 2020 was entirely due to procedural defaults on the part of the father. The procedural difficulties he created at that time, and the difficulties he has created subsequently, could have in large measure been readily overcome if he had appropriate legal representation.

54. Whilst not ideal, in the interests of justice, the proceedings were brought back to Sydney part-heard with the intent that the hearing be completed around other existing listing arrangements. That course was decided upon as being the least undesirable and least disruptive option after appropriate enquiries were made as to the workload scheduled for future civil sittings in Newcastle for the remainder of 2020 and for early 2021.

55. The aim of those administrative enquiries was to seek to list the resumption and the final hearing of the appeal as soon as it became practicable to do so once all the necessary antecedent procedural and evidentiary steps have been undertaken in the child’s best interests.

56. The disadvantage of the present circumstances and the concomitant delay that has been incurred in finalising the proceedings has been due to procedural and evidentiary defaults on the part of the father. This has also been compounded by his need for COVID-19-related isolation and testing in Newcastle in October 2020.

57. Until the proceedings are ready for a resumed hearing on a date to be fixed, further case management supervision will necessarily be required in the interest of seeking finalisation of the proceedings whilst also seeking to minimise the scope for that objective to be further disrupted.

(12) Oral application for a stay of Children’s Court orders

58. Somewhat belatedly, on 10 December 2020, in the course of his submissions on his notice of motion, the father made an oral application for a stay of the final orders made by the Children’s Court. That application was re-agitated on at the hearing on 15 December 2020.

59. In my view, the time for a request for relief of that kind had long since lapsed. The legal limbo that would inevitably emerge if an order of the kind requested by the father were to be made at this late stage would in my view have undesirable consequences for the child. Such a course would also create compounding complications in the resolution of the appeal.

60. On balancing the request by the father for a stay of the existing orders of the Children’s Court when weighed against the paramount best interests of the child, I consider that the father’s belated request should be refused pending the determination of the substantive appeal.

Disposition

61. For the findings and reasons outlined above, I consider that the notice of motion filed by the father on 28 October 2020 must be dismissed.

Orders

62. I make the following orders:

1. I make no orders as to Prayers numbered (1), (2), (3) and (7) of the father’s notice of motion filed on 28 October 2020, because, due to the effluxion of time those matters are no longer relevant;

2. Prayers numbered (4), (5), (6), (8), (9), (10) and (12) in the appellant’s notice of motion filed on 28 October 2020, as amended on 10 December 2020, are refused;

3. No order is required in respect of Prayer numbered (11) which seeks a resumed hearing date as the proceedings remain under continued case management supervision by the Court pending an assessment of readiness for the resumption of the hearing;

4. I appoint a directions hearing before me during the Court vacation, that directions hearing is to take place at 10.00am on Friday 8 January 2021 for the purpose of the Court being informed:

1. that the required copying of documents has been completed and distributed;

2. of the arrangements and timing of any parenting capacity assessment arranged by the father;

3. confirmatory written evidence from the Secretary, of the change in the child’s initial temporary care to long-term care;

4. the availability and selection of a resumed date for hearing;

5. On 8 January 2021 I will hear the position of the Secretary and the DLR on the result of discussions concerning the practicalities of the father’s request to be involved in nominated extra-curricular activities for the child the subject of the appeal.

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Decision last updated: 18 December 2020