District Court New South Wales

• Medium Neutral Citation: GA v. Director General, Department of Human Services & Ors [2011] NSWDC 57
• Hearing dates: 27 June 2011
• Decision date: 01 July 2011
• Jurisdiction: Civil
• Before: Colefax SC DCJ

Decision

No jurisdiction; appeal summons dismissed.

• Catchwords: Child care appeals - Interlocutory Application - whether District Court has jurisdiction to hear an appeal at conclusion of establishment phase and before placement phase in Children's Court care hearing
• Legislation Cited: Children & Young Persons (Care and Protection) Act 1998
• Cases Cited: Re Alistair [2006] NSWSC 411; S v Department of Community Services [2002] NSWCA 151
• Category: Procedural and other rulings
• Parties: Department of Human Services (Applicant); GA (Respondent)
• File Number(s): 2011/70347
• Publication restriction: Non-publication order of names

Judgment

Introduction:

1 The Children & Young Persons (Care and Protection) Act 1998 ("the Act") provides the statutory framework by which children and young persons can be removed from the care of their parents.

2 The court which initially determines such applications is the Children's Court. A party to proceedings who is dissatisfied with an order of the Children's Court (other than an interim order) may appeal to the District Court against that order (cf section 91 of the Act).

3 Proceedings for the removal of children and young persons are called care applications.

4 As was helpfully explained by Kirby J in Re Alistair [2006] NSWSC 411 (a decision to which I shall return later in these reasons), care applications are determined by means of a two stage process.

5 The first or threshold stage is to determine whether the child is in need of care and protection such as to warrant the intervention of the court. This stage is commonly referred to as "the establishment phase".

6 If the court determines the question posed in the preceding paragraph in the affirmative, it proceeds to the second stage during which it considers what final orders ought be made to safeguard the child or young person consistent with the statutory objects and principles underpinning the administration of the Act. This second stage is variously called "the welfare stage", "the placement phase", or the "disposition phase".

7 Frequently the Children's Court considers the establishment phase and the placement phase in the same hearing - although there may be an adjournment of the hearing between those two stages (for example, to permit the Director General of the Department of Human Services to prepare a care plan, cf sections 78 and 80 of the Act) and a different judicial officer may conduct the hearing at each stage.

8 The question which arises for consideration in the present proceedings by way of a Notice of Motion filed by the Director General of the Department of Human Services is whether an appeal can be brought to this court at the conclusion of the establishment phase and before the Children's Court determines the placement phase.

The Parties to the Present Application:

9 The parties to the present application are:

(a) the father of the child (the plaintiff);

(b) the Director General of the Department of Human Services (the first defendant);

(c) the Minister for Community Services (the second defendant);

(d) the mother of the child (the third defendant);

(e) the independent legal representative of the child; and

(f) the maternal grandmother of the child (the fourth defendant - although this lady has not participated in "the appeal" to date).

The Factual Background:

10 The child was born on 28 July 2010.

11 On 2 August 2010 the Director General made an application to the Children's Court for a care order.

12 The grounds upon which that application was made were that:

(i) "the child's basic physical, psychological or educational needs are not being met or are likely not to be met by his parents";

(ii) "the child is suffering or likely to suffer a serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he is living."

13 Amongst other things, the application asserted that:

"A drug screen done by the hospital showed the baby tested positive for amphetamines and opiates. The hospital was monitoring for withdrawal symptoms. In a phone call with the Newborn Centre for Care on 2 August 2010 reported that he was showing no signs of withdrawal and would stop monitoring for that today."

14 The application also alleged that the Department of Community Services had received a number of reports to the effect that the child was at risk of harm. The reports, in summary, asserted that the child's mother was using illicit drugs during the pregnancy and that there was a history of domestic violence between the mother and the father.

15 On 4 August 2010 the Children's Court made interim orders allocating parental responsibility for the child to the Minister for Community Services.

16 On 29 October 2010 the Children's Court commenced the establishment phase of the hearing of the care application. That aspect of the hearing ultimately concluded on 4 February 2011, at which time the Children's Court made a finding that it was satisfied that the child was in need of care and protection in that the child's basic physical, psychological or educational needs were not being met or were not likely to be met by his parents.

17 The Children's Court did not then immediately proceed to undertake the placement phase of the hearing. Rather, the matter was adjourned to 18 February 2011. In between those two dates a mediation was ordered for 15 February 2011; however, the mediation was not successful.

18 On 18 February 2011 the father filed the Appeal Summons in this court. Although the filing of such a Summons does not operate as a stay (cf section 91(7) of the Act) the Children's Court declined to continue the proceedings until the Summons was determined.

19 On 28 April 2011 the Director General filed her Notice of Motion. The orders sought are: a declaration that this court has no jurisdiction to determine the purported appeal; and a consequential order striking out the Summons as an abuse of process. It seems to me, however, that if the court has no jurisdiction the appropriate consequential relief is not to strike out the proceedings but to dismiss them as an abuse of process. The relief sought in the Notice of Motion is opposed not only by the father but also by the mother and the independent legal representative for the child.

The Legislative Provisions:

20 The relevant legislative provisions are contained in Part 2 of the Act.

21 As the Court of Appeal observed in S v Department of Community Services [2002] NSWCA 151, Part 2 of the Act is concerned principally with "care orders" (as defined in section 60). However, they are not the only orders with which the Part is concerned.

22 In part, it is concerned with "interim orders" or "interim care orders" (cf ss62, 69(1) and (1A) and 70A).

23 In other parts it is concerned with:

(a) orders directing a person or organisation to provide support for a child (cf section 74);

(b) orders requiring attendance by a child under 14 years at a therapeutic program relating to sexually abusive behaviour (cf section 75);

(c) orders placing children in respect of whom a care application has been made (but not determined) under supervision (cf section 76); and

(d) (i) orders rescinding or varying a care order previously made

by the Children's Court; but

(ii) an application to so rescind or vary can only be made if the Children's Court makes an order granting leave to do so (cf section 90).

24 As S v Department of Community Services makes clear, orders of the kind referred to in subparagraphs (a) to (c) and (d)(ii) above are not final nor interim orders; they are interlocutory orders. (Although it was not directly stated in that case, there is no doubt in my opinion that an order of the kind referred to in (d)(i) is a "final" order.) Further, the decision in that case establishes that because the appeal provision in section 91 of the Act is not limited to "final orders" (an expression not used in the legislation) but relates to orders not being interim orders, interlocutory orders are therefore subject to that appeal provision.

25 The question in the present case is, therefore, whether a decision or finding that a child is in need of care and protection following the establishment phase of a care application hearing is an interlocutory order.

Consideration:

26 Nothing in S v Department of Community Services provides a specific answer to that question.

27 Re Alistair does, however, provide such an answer.

28 In that judgment Kirby J noted that the "hearing" of an application for a care order involved the two stages I earlier referred to: the establishment phase and the placement phase (expressions which I note are not contained in the Act) - which could be dealt with in the same hearing (but not necessarily at the same time).

29 Significantly, his Honour noted without disapproval the situation where two different judicial officers in the Children's Court might conduct each stage of that "hearing". This might seem an unusual (perhaps impermissible) procedure if the proceedings were adversarial. For example, absent an order for a separate determination of issues, one would ordinarily expect the judge determining the question of liability also to determine damages. However, proceedings in the Children's Court (and this court) are not to be conducted in an adversarial manner (cf section 93(1) of the Act). His Honour described the process as being "inquisitorial".

30 His Honour described a positive determination under section 72(1) as being an "order". In this context it might be noted that the earlier decision of S v Department of Community Services does not appear to have been brought to his Honour's attention. If it had, his Honour may well have chosen to use a different word to describe that determination. With respect, I think a better categorisation of it might be an "essential factual jurisdictional finding". An order of a Court (whether interim, interlocutory or final) is a pronouncement which binds the parties and requires compliance. Except in the case of injunctions, it requires action to be taken (and in the case of injunctions, it requires that specific action not be taken). There are penalties for non-compliance with an order. In the instant case, the relevant pronouncement by the Children's Court required no act to be done. Her Honour merely stated: "This Court however is satisfied on the balance of probability that [the child] was a child in need of care pursuant to s 71(D) on 2 August 2010 when the application was filed". In my opinion that pronouncement is not an order.

31 Whether his Honour's use of the word "order" is the appropriate term or not, his Honour was nevertheless clear that any such "order" was not appellable:

"The order under s72(1) was not an order from which there was an appeal, as the Director acknowledged. Any right of appeal comes at the end of the process, once final orders have been made (s91). The proceedings remained inquisitorial until the final orders, they being orders seeking an outcome in the best interests of the child. (at Alistair [81])"

32 In these circumstances I regard myself as being bound by the dicta of the decision in Re Alistair . I do not think that decision is in conflict with S v Department of Community Services . I note that the predecessor to the Act, the Children (Care & Protection) Act 1987, provided for a right of appeal to the District Court for any person "dissatisfied with a decision of the Children's Court" (cf section 81(1) of that Act). The change in wording in the present Act from "decision" to "order" confirms his Honour's - and my own - conclusion.

33 Consequently, in my view, this court has no jurisdiction to hear "an appeal" from the decision of the Children's Court made 4 February 2011. Accordingly, the proceedings constitute an abuse of process and should be dismissed.

Orders:

34 I make the following declaration and orders:

(1) Pursuant to Uniform Civil Procedure Rule 12.11(g), I declare this court has no jurisdiction over the first and second defendants in respect of the subject matter of the proceedings until final orders are made in the Children's Court in care application 025/11, Department of Human Services, Community Services and the child.

(2) Pursuant to Uniform Civil Procedure Rule 13.4, I dismiss the proceedings.

(3) To the extent necessary, I make a non-publication order in relation to the name of the plaintiff and the child.

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Decision last updated: 05 July 2011