ZA v Director-General, Community Services Directorate (No 3)

[2021] ACTCA 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

ZA v Director-General, Community Services Directorate (No 3)

Citation:

[2021] ACTCA 39

Hearing Date:

6 October 2021

DecisionDate:

19 November 2021

Before:

Mossop J

Decision:

See [17]

Catchwords:

PRACTICE AND PROCEDURE – CARE AND PROTECTION PROCEEDINGS – Decision under appeal – application to excuse children’s representative from attending the remainder of proceedings – status of the children’s representative in the proceedings is unclear – uncertainty as to constitution of proceedings – not appropriate to excuse the children’s representative before procedural irregularities are resolved – application dismissed

Legislation Cited:

Children and Young People Act 2008 (ACT), s 700(1)(b)

Court Procedures Act 2004 (ACT), pt 7A, s 73

Court Procedures Rules 2006 (ACT), r 5404(1)

Cases Cited:

ZA v Director-General, Community Services Directorate [2021] ACTSC 243

ZA v Director-General, Community Services Directorate [2021] ACTCA 27

ZA v Director-General, Community Services Directorate (No 2) [2021] ACTCA 29

Parties:

ZA ( Appellant)

Director-General Community Services Directorate (First Respondent)

Children’s Representative (Second Respondent)

Representation:

Counsel

Self-represented (Appellant)

K Musgrove (Respondent)

J Banwell (Second Respondent)

Solicitors

Self-represented ( Appellant)

ACT Government Solicitor (First Respondent)

Legal Aid ACT (Second Respondent)

File Number:

AC 39 of 2021

Decision under appeal: 

Court/Tribunal:             Supreme Court

Before:  Loukas-Karlsson J

Date of Decision:          9 August 2021

Case Title:  ZA v Director-General, Community Services Directorate

Citation: [2021] ACTSC 243

MOSSOP J:

Introduction

1. This is an application in proceeding filed by the children’s representative on 30 September 2021 seeking an order:

That pursuant to section 73 of the Court Procedures Act 2004 (ACT) the Children’s Representative is excused from attending the remainder of the current proceedings.

1. This application in proceeding arises in the context of an appeal from a decision of a judge of this court: ZA v Director-General, Community Services Directorate [2021] ACTSC 243. There have been a number of interlocutory proceedings in relation to the appeal: see ZA v Director-General, Community Services Directorate [2021] ACTCA 27; ZA v Director-General, Community Services Directorate (No 2) [2021] ACTCA 29.

1. The order is sought on the grounds that the children’s representative has no further role in the current appeal and the children’s representative’s position in the proceedings before the primary judge is set out in written submissions filed in those proceedings. The position appears to be that having regard to the subject matter and nature of the appeal, no useful purpose would be served by submissions made on behalf of, or in the interests of, the children.

The procedural context for the application

1. The application arises in circumstances where the position of the children the subject of the proceedings and of the children’s representative may need to be addressed.

1. Section 700(1)(b) of the Children and Young People Act 2008 (ACT) provides that the child or young person the subject of proceedings is a party to an application under the Act. Part 7A of the Court Procedures Act contains specific provisions about the representation of children and young people in court proceedings.

1. On the material before me it is not clear how the proceedings in the Children’s Court were constituted. However, it is likely that the children were treated as parties in the proceedings before the Children’s Court and were represented by a lawyer from Legal Aid.

1. The published judgment of Loukas-Karlsson J, which is the subject of these appeal proceedings, identifies the “Children’s Representative” as the second respondent to the application and appeal. It is not clear whether this reflects the manner in which the application and appeal before her Honour were formally constituted.

1. The notice of appeal to the Court of Appeal does not identify either of the children as respondents to the appeal. The only respondent is identified as “The Director-General of Community Services Directorate (CYPS)”.

1. In relation to the necessity to join the children as parties to the appeal, r 5404(1) of the Court Procedures Rules 2006 (ACT) requires that:

Each party to the proceeding in which the order appealed from was made must be joined as an appellant or respondent to the appeal if the party is directly affected by the order sought by the notice of appeal or is interested in maintaining the order appealed from.

1. If the children were parties to the proceedings in the Supreme Court, then the prima facie position is that they ought to have been joined as parties to the appeal to the Court of Appeal.

1. The application put on by the children’s representative is said to be pursuant to s 73 of the Court Procedures Act. That section provides:

73Court may excuse parties from attending proceedings

(1)This section applies if a child or young person is the subject of a proceeding in a court.

(2)On the application of a party to the proceeding, the court may excuse the party from attending all or part of the proceeding.

(3)The court may, at any time and by notice given to the party, require the party to attend the proceeding.

1. Under this section, if the children were parties to the proceeding, then they could be excused. The effect of that would be to excuse any representative from the hearing.  

Submissions

1. The children’s representative has set out his position in the previous proceedings in written submissions filed 6 July 2021 and 5 August 2021 and is of the view that he has no further role in the current appeal.

1. The appellant does not oppose the children’s representative being excused from the proceedings but submits that this does not fall within s 73 of the Court Procedures Act because the representative is not a child or young person nor a party to the proceeding. The appellant submits that the children the subject of the proceeding did not agree to the appointment of the children’s representative, referring to the children’s right to choose their own lawyer or choose to represent themselves in court. The appellant’s written submissions then repeat submissions made previously, including submissions relating to physical and emotional abuse and neglect of the children and placing them back in the appellant’s care.

Decision

1. In my view, the uncertainty of the constitution of the proceedings in the Supreme Court and the apparent procedural irregularities in the constitution of the appeal to the Court of Appeal are such that it is not appropriate to make an order excusing the children’s representative from attending the remainder of the current proceedings. Rather, it appears to me to be important that the proceedings be properly constituted and that this may involve submissions from the parties and the children’s representative as to what, if any, orders are required to be made to achieve that goal. Therefore, I will dismiss the application.

1. The position outlined by the children’s representative was that the submissions made before the primary judge were recorded in the written submissions filed on 6 July 2021 and 5 August 2021. Nothing in these reasons should be taken as suggesting that the children’s representative must necessarily take an active part in the proceedings beyond any action required to ensure that the proceedings are properly constituted and that the procedural uncertainty to which I have referred is appropriately resolved. It may be the case at the hearing of the appeal that even if the children are formally joined as parties to the appeal, an order can be made excusing the children and their representative.

Orders

1. The order of the Court is:

1.     The application in proceeding dated 30 September 2021 is dismissed.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 19 November 2021

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Amendments

29 November 2021	Replace “Court Procedure Rules 2006 (ACT), rr 5404(1), 5410” with “Court Procedures Rules 2006 (ACT), r 5404(1)”	Legislation Cited
Delete “For reasons which are not clear, notwithstanding that the Director-General has been represented during interlocutory hearings for the purposes of the appeal, no notice of intention to respond has been filed pursuant to r 5410 of the Court Procedures Rules 2006 (ACT)”. Insert “of the Court Procedures Rules 2006 (ACT)” after “r 5404(1)”.	Paragraph: [8] Paragraph: [9]