Supreme Court New South Wales

• Medium Neutral Citation: Re Bailey and Blake [2011] NSWSC 1390
• Hearing dates: 4 November 2011
• Decision date: 09 November 2011
• Jurisdiction: Equity Division
• Before: Rein J

Decision

See [27] and [28]

• Catchwords: CHILDREN - care proceedings - application for declaratory relief, an order in the nature of certiorari and an order for remittal of the proceedings to the Children's Court - appeal against Children's Court magistrate's decision to allow into evidence a parenting assessment report privately commissioned by the mother - whether the report contains an assessment or expert opinion of the children the subject of care proceedings and whether, if it did, it infringed Chapter 5 Division 6 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - issue of lack of consent by persons with parental responsibility for the children not a basis asserted in the Children's Court for rejection of the report but consideration of its significance
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW); Evidence Act 1995 (NSW)
• Cases Cited: KF v Parramatta Children's Court [2008] NSWSC 1131; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Re Oscar [2002] NSWSC 453
• Category: Principal judgment
• Parties: Father of Bailey (plaintiff); Children's Court of New South Wales (first respondent); Director-General, Family and Community Services, Department of Human Services (second respondent); Mother of Bailey and Blake (third respondent); Father of Blake (fourth respondent); Independent legal representative of Bailey and Blake (fifth respondent)
• Representation: N Moir (plaintiff); M England (second respondent); M Neville (third respondent); P Guterres (fifth respondent); Submitting appearances by the first and fourth respondents; Neisha Shepherd Solicitor (plaintiff); Crown solicitor (first and second respondents); Baker Love Lawyers (third respondent); Robert Gol Lawyer (fourth respondent); Adams & Associates (fifth respondent)
• File Number(s): SC 2011/282129
• Publication restriction: All names and references to the children have been anonymised

Judgment

1 These proceedings concern the decision of the Children's Court of New South Wales ( "the Children's Court" ) sitting at Broadmeadow on 5 August 2011, to admit into evidence in care proceedings a report of a social worker, Ms Susan Foley, dated 27 June 2011 ( "the Report" ). By summons dated 31 August 2011 and filed on 1 September 2011, the plaintiff seeks relief in the form of a number of declarations, an order in the nature of certiorari in relation to the impugned decision and an order for remittal of the proceedings to the Children's Court to be decided in accordance with law. The Children's Court proceedings are listed for further hearing later this month.

2 Mr N Moir of counsel appears for the plaintiff. Ms M England of counsel appears for the Director-General, Department of Family and Community Services ( "Director-General" ) who is the second respondent. Ms M Neville of counsel appears for the third respondent, who is the mother of the children. Mr P Guterres of counsel appears for the fifth respondent, who is the independent legal representative for the children. The Children's Court, which is the first respondent, and the fourth respondent, Blake's father, have filed submitting appearances.

3 At the hearing before Magistrate Williams in the Children's Court, his Honour considered the contentions of the plaintiff which were that:

(1) the Report of Ms Foley was an assessment of the children who are the subject of the proceedings (referred to as Bailey and Blake in their anonymised form);

(2) the Report did not meet the requirements of Division 6 of Chapter 5 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ( "the Care Act" ) (at T14.27-35 of the Children's Court proceedings); and

(3) by virtue of (1) and (2) above the Report should not be admitted into evidence.

The plaintiff also relied on s 68(1) of the Care Act which provides that a party "may, with the leave of the Children's Court, file further documentary evidence in connection with a care application" which Mr Moir argued supported his assertion that the Children's Court should have control of these matters.

4 Magistrate Williams rejected the submission principally on the basis that the Care Act did not preclude assessments being made of children without an order being made pursuant to s 53 of s 54, and admitted the Report into evidence. His Honour's reasons are found at pages 98-104 of Exhibit A. Mr Moir then asked that the rules of evidence be applied and the Report be rejected because of various matters, including an alleged failure to meet the requirements of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 and an assertion of Ms Foley's lack of relevant expertise. Those aspects of the learned magistrate's decision are not the subject of the present application.

5 The following facts are not in dispute:

(1) The third respondent is the mother of Bailey and Blake. The plaintiff is the father of Bailey, who is the older child, but not the younger child, Blake.

(2) Blake is now fourteen months old. Bailey is now two years and nine months old.

(3) Blake was admitted to a hospital in Newcastle on 20 November 2010 when he was about three months old. Clinical investigations revealed that he had three fractures: one of his tibia, one of his rib and one of his skull. The Director-General considered those fractures to be unexplained after interviews with the mother and her then-partner, Blake's father, who is the fourth respondent to these proceedings, were conducted by a joint task force known as the Joint Investigation Response Team ( "JIRT" ).

(4) The Director-General assumed the care of the children on 24 November 2010. Following a care application filed on 29 November 2010 by the Director-General, an interim order was made by the Children's Court on 30 November 2010 that the Minister for Family and Community Services ( "the Minister" ) has parental responsibility for both children.

(5) On 17 February 2011, an interim order was made by consent (on the plaintiff's application), that he and the Minister have joint parental responsibility for Bailey. That order remains in place.

(6) On 17 March 2011, a determination was made by consent that the children were in need of care and protection (on a without admissions basis on behalf of the mother and the fourth respondent who was at the time her partner).

(7) At no time was any assessment order sought or made pursuant to Chapter 5 Division 6 of the Care Act .

(8) The Report was served on the parties on 7 July 2011, having been requested on behalf of the mother and obtained with the consent of Blake's father, the fourth respondent. Both children attended a meeting with Ms Foley for the purposes of the Report but the plaintiff did not provide consent to his child, Bailey, attending.

(9) The hearing in the Children's Court commenced on 5 August 2011. On the same day the learned magistrate delivered an ex tempore decision that the Report would be admitted into evidence. The Children's Court proceedings were adjourned until 4 November 2011 and 15 November 2011 for further hearing, although the hearing date of 4 November 2011 has been vacated because it is the date of the hearing in this Court last Friday.

6 There is a lack of clarity about whether or not the Director-General's representative consented to either of the children attending for the purpose of observation by Ms Foley: see T4-T5 and T43. The Director-General's counsel advised the Children's Court that it had, but the Director-General's position now is that the factual question of whether the Director-General's representative was aware that Blake and Bailey were required by Ms Foley to attend for the purposes of the Report needs to be investigated.

7 Mr Moir, in the Children's Court, informed the magistrate that his client had not consented to Bailey being present at the interview with Ms Foley and he referred to that aspect at page 94 (line 32-33) of Exhibit A.

8 The learned magistrate was not, "on a limited view" (page 99 line 40 of Exhibit A), convinced that the Report did contain an assessment of Bailey and Blake, but his decision was principally based on the view that there was nothing in the Care Act which precluded a party from obtaining their own privately arranged reports which involve an assessment of a child and parents or prospective parents.

9 In support of his argument before the Children's Court and again here, Mr Moir relied on the decision in Re Oscar [2002] NSWSC 453 . The only other decision which was relied on below and here was KF v Parramatta Children's Court [2008] NSWSC 1131. The Director-General, the mother and the children's independent legal representative all oppose the application brought by the plaintiff.

10 Chapter 5 Division 6 of the Care Act is in the following terms:

" Division 6 Examination and assessment orders

52 Definition of "assessment order"

In this Division:

(a) an order made under section 53 is referred to as an assessment order, and

(b) a reference to assessment includes, in the case of an order for the physical, psychological, psychiatric or other medical examination of a child or young person, a reference to such examination.

53 Making of assessment orders

(1) The Children's Court may make an order for:

(a) the physical, psychological, psychiatric or other medical examination of a child or young person, or

(b) the assessment of a child or young person,

or both.

(2) An assessment order authorises a person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.

(3) The carrying out of a medical examination under such an order is not limited to an examination made only by use of the senses but includes the taking and analysis of samples and the use of any machine or device that enables or assists in the examination of a person.

(4) Despite subsections (2) and (3), if a child or young person is of sufficient understanding to make an informed decision, the child or young person may refuse to submit to a physical, psychological, psychiatric or other medical examination or an assessment.

54 Assessment of person's capacity for parental responsibility

(1) The Children's Court may, for the purposes of an assessment order, appoint a person to assess the capacity of a person with parental responsibility, or who is seeking parental responsibility, for a child or young person to carry out that responsibility.

(2) Such an assessment may be carried out only with the consent of the person whose capacity is to be assessed.

(3) This Division applies to such an assessment in the same way as it applies to the assessment of a child or young person.

55 Application for order

(1) An assessment order may be made on the application of:

(a) the Director-General, or

(b) if a care application has been made in respect of the child or young person, a party to the application.

(2) An assessment order may be made whether or not an application has been made for any other care order, including an emergency care and protection order, in respect of the child or young person.

56 Matters for consideration in making an assessment order

(1) In considering whether to make an assessment order, the Children's Court is to have regard to the following:

(a) whether the proposed assessment is likely to provide relevant information that is unlikely to be obtained elsewhere,

(b) whether any distress the assessment is likely to cause the child or young person will be outweighed by the value of the information that might be obtained,

(c) any distress already caused to the child or young person by any previous assessment undertaken for the same or another purpose,

(d) any other matter the Children's Court considers relevant.

(2) In making an assessment order, the Children's Court must ensure that a child or young person is not subjected to unnecessary assessment.

57 Information concerning assessment

(1) A child or young person must be informed about the reasons for the assessment in language and a manner that he or she can understand having regard to his or her development and the circumstances.

(2) The parties to an application for an assessment order are to be given an opportunity to provide the Children's Court with relevant information for consideration by the person who is to carry out the assessment.

58 Provision of assessment reports and other information

(1) If the Children's Court makes an assessment order, it is to appoint the Children's Court Clinic to prepare and submit the assessment report concerning the child or young person to it, unless the Children's Court Clinic informs the Children's Court that:

(a) it is unable to prepare the assessment report, or

(b) it is of the opinion that it is more appropriate for the assessment report to be prepared by another person.

(2) If the Children's Court Clinic informs the Children's Court that it is unable to prepare the assessment report or that it is of the opinion that it is more appropriate for the assessment report to be prepared by another person, the Children's Court is to appoint a person whose appointment is, so far as possible, to be agreed to by the child or young person being assessed, the parents or other persons who have parental responsibility for the child or young person and the Director-General.

(3) The Children's Court may, of its own motion, order:

(a) the Children's Court Clinic, or

(b) a person appointed under subsection (2),

to provide the Court with such other information as may be within the expertise of the Children's Court Clinic or the appointed person (as the case requires) to provide.

(4) The Children's Court may order the Children's Court Clinic to provide any such information regardless of whether an assessment order has been made in relation to the child or young person concerned.

(5) Any information provided to the Children's Court pursuant to an order under subsection (3) is taken to be a report to the Children's Court rather than evidence tendered by a party.

59 Evidentiary status of assessment report

An assessment report submitted to the Children's Court under this Division is taken to be a report to the Children's Court rather than evidence tendered by a party."

11 In Re Oscar, the Children's Court made an order for assessment pursuant to ss 53 and 54 of the Care Act . There was some ambiguity and confusion about the orders made, but one thing was clear and that was that the terms of s 58(1) of the Care Act were not complied with because the Children's Court did not appoint the Children's Court Clinic to prepare and submit the assessment report to it, and the Children's Court Clinic did not inform the Children's Court that it could not prepare the assessment report or that in its opinion it was more appropriate for some other person to prepare the report. Hamilton J held that the failure to comply with s 58 meant that that there was an appointment without compliance with the provisions of that section and that it went beyond the power of the Children's Court. His Honour held that the orders made under s 53 of the Care Act were invalid. His Honour then put in a regime of appointment which would comply with the requirements of the Care Act .

12 I have, with respect, no doubt that his Honour's conclusion in Re Oscar was correct. However, there was no consideration in that case of the issue which is currently before this Court, namely whether the Care Act permits the retainer of an expert privately by the parties, ie outside of Chapter 5 Division 6, although it might be thought that Re Oscar proceeded on the assumption that the Care Act does not permit such assessments.

13 The Care Act does not expressly state that Chapter 5 Division 6 is the only means by which a child or a person whose parenting capacity can be assessed. Section 58(1) commences with the word "If". As Ms Neville, counsel for the mother of the children, pointed out, an assessment of parenting capacity can only be made under s 54 if there is an order made under s 53. This has the effect that in the absence of an order for assessment of the child under s 53 there can be no assessment of the parents (or prospective parents) if the view of Chapter 5 Division 6 advanced by the plaintiff is correct.

14 I think it is significant that by s 59 of the Care Act , the status of the Report is that of a report to the Children's Court and not evidence tendered by a party. This tends to indicate that Chapter 5 Division 6 is concerned only with genuinely independent reporting of a child and parents.

15 Section 56 of the Care Act , in dealing with matters for consideration in making an assessment order, requires the Children's Court to take into account various matters, including whether the assessment is likely to cause distress to the child (see s 56(1)(b)). The Care Act makes no provision for considerations relevant to assessment of children for the purposes of a privately commissioned expert report. This omission is surprising unless it was intended that the only assessment of a child would be undertaken by the Children's Court Clinic or someone nominated by the Children's Court Clinic.

16 In KF , the Children's Court was faced with an application by a mother who wished to obtain a parenting assessment, and for that purpose, was seeking to provide to an expert, for the purpose of the expert preparing a report, departmental material relevant to the child (who had been found to be in need of care). That application followed an earlier application for an order for a parenting assessment under Chapter 5 Division 6 of the Care Act . Both applications were refused. The second refusal was the subject of an application to the Supreme Court. Hidden J held that the mother was entitled to provide the material. His Honour said at [8]:

"It needs hardly be said that, ordinarily, a party to legal proceedings does not need the leave of the court to refer material to an expert in the preparation of his or her case. If there is such a requirement in care proceedings in the Children's Court, it must be found in the Act. Its only possible source would be s 105, which inhibits the publication of the name of a child or young person involved in proceedings of this kind."

17 The approach taken in KF is inconsistent with the contentions of the plaintiff in this case since no distinction is drawn between an assessment under s 54 or under s 53. The plaintiff's submission, incidentally I should note, accepts that an assessment of parenting capacity can be obtained outside of the requirements of Chapter 5 Division 6 of the Care Act and it was not submitted that KF was itself wrongly decided . I have referred to Ms Neville's point at [13] above. Given that the Care Act does not expressly permit parenting reports under s 54 without an order for assessment of the child under s 53, the plaintiff's concession undermines his argument that there can be no assessment of children outside the requirements of the Care Act.

18 I have some doubt as to whether the Care Act contemplated any privately commissioned reports in this area but Re Oscar is not authority for there being no such scope and KF is authority supporting the availability of privately commissioned reports.

19 Ms Neville, counsel for the mother in this case, drew to my attention the terms of Practice Note No. 6 entitled "Children's Court Clinic Assessment Applications and Attendance of Authorised Clinicians at Hearings, Dispute Resolution Conferences and External Mediation Conferences" issued by the President of the Children's Court which is in these terms at paragraphs 2 and 3:

" 2. Nature of Clinic assessments

2.1 Whilst the Care Act states that the Children's Court may make orders for ' the physical, psychological, psychiatric or other medical examination of a child or young person' (section 53(a)), the Clinic is not resourced to provide physical or medical examinations.

3. Examination and assessment of children and young persons

3.1 A child or young person who is the subject of care proceedings must not be examined or assessed for the purpose of placing evidence before the Court without the leave of the Court, except pursuant to an assessment order made under section 53 or 54 of the Care Act.

3.2 If the Court gives leave for such assessment, the Court may make such directions as it considers appropriate for the provision of any report of that assessment."

20 This Practice Note was, I am informed, introduced some time after the decision of the Children's Court in this matter. It proceeds upon the basis that Chapter 5 Division 6 of the Care Act is not the sole basis for reports of children and parents, but also recognises, correctly in my view, that it is not appropriate to have examinations conducted of children the subject of the Children's Court's jurisdiction without involvement of the Children's Court and the opportunity consider, for example, matters of the type specified in s 56 of the Care Act . In saying that, I do not intend to comment on the appropriateness of receiving evidence of observations of persons of the behaviour of children who are the subject of proceedings where those persons have observed the children in the context of performance as authorised carers of the children or are performing duties in relation to the child on behalf of the Department. I think that consideration needs to be given by the legislature as to whether there should be any scope for expert assessment by anyone other than the Children's Court Clinic or at its nomination. The absence of resources to the Children's Court Clinic may be a matter which the legislature would take into consideration in determining whether the legislation should preclude reliance on privately arranged and funded reports of that kind.

21 It follows that I accept that the conclusion, which the learned magistrate reached, that children can, on the state of authority, be assessed by someone arranged by a party to proceedings. I do not accept, however, that the assessment can be obtained without agreement of all persons who have parental responsibility for the child or children, and in the absence of such agreement, without the leave of the Court.

22 Mr Moir has cited a number of paragraphs in the Report which he submits are presented as an assessment of or opinion concerning the children and which cannot be characterised as mere observations: see paragraphs 8-20 of the plaintiff's written submissions. I will give five examples from the Report but using the anonymised names:

"51. [Bailey] did not demonstrate any discomfort or fear relating to [the mother's parents] and [the mother]. He indicated to them what he wanted, verbally and non-verbally. He approached them and played with them, spoke with them and enjoyed being carried by each of them. These open communications are all indications of a safe and secure attachment with these family members.

...

61. [Blake] was very comfortable with [the mother] and engaged with her, crawling to her and accepting affection from her...

...

67. [Bailey] presented as a very cute and confident little boy who enjoyed being with familiar people. There were no indications that [Bailey] is a timid or frightened boy in the company of his family members...

...

167. ...[Bailey] presented as a healthy and as a developmentally and psychologically well functioning little boy. He has indicators of a secure attachment to his mother and to his grandparents...

...

170. ...The major risk for [Bailey] will be the developmental, mental health and relationship impacts potentially arising from loss of his primary attachment should he not be restored to the care of his mother."

23 In my view, the Report does seek to offer an opinion or assessment about Bailey and Blake and I respectfully disagree with the learned magistrate's perhaps tentative view that it does not. Even if, contrary to my view, the comments of Ms Foley to which objection is taken are more aptly characterised as "observations", the point remains that they were given in aid of the mother's case (and the fourth respondent's case to a degree) and in circumstances where no consent was given by the plaintiff and informed consent may not have been given by the Director-General. In my view, it is necessary to give consideration as to whether the Report should be rejected wholly or in part by reason of the circumstances in which it was obtained. I do not express any final view on that aspect or whether, for example, s 136 of the Evidence Act 1995 (NSW) is applicable, firstly, because Ms England indicated that first the Department wishes to endeavour to clarify what the Department's knowledge was of the visit by the children to Ms Foley, and secondly because the absence of consent was not put to the magistrate as a ground for rejecting the Report or in the plaintiff's submissions to this Court and counsel wished to have an opportunity to consider it. Given that there is no dispute that the plaintiff did not consent to Bailey being assessed by Ms Foley, the precise position in respect of Blake is not as important as it might have been but I do accept the force of the second basis. I indicated that I was minded to set aside the receipt of the Report into evidence but leave it to the Children's Court to consider and determine the issue which I have identified.

24 I have given consideration as to how this problem is best dealt with in all the circumstances. One possibility is to excise all of the paragraphs of the kind to which objection has been taken by the plaintiff. I have encouraged the parties to see if agreement could be reached in that respect even though the plaintiff contends that without those paragraphs the basis for conclusions reached by Ms Foley will be affected and hence the whole report should be rejected. On Friday I indicated that I would today hear further from counsel on whether agreement can be reached on this.

25 Subject to any resolution of the matter inter partes and to hearing counsel on the appropriate form of orders, I was inclined to think that the decision to admit the Report should be set aside and that there should be:

(1) a determination by the Children's Court of whether the Director-General's representative was aware that Bailey and Blake were attending upon Ms Foley for the purposes of the Report and consented to that course; and

(2) fresh consideration of whether the Report or parts of the Report should be excluded by reason of the circumstances in which the children came to be present and the subject of assessment, including the absence of consent from the plaintiff to Bailey's attendance and if it be found to be the case, absence of informed consent from the Director-General's representative.

26 Having provided a copy of these reasons to the parties up to the preceding paragraph and after short argument on the form of orders, the legal representatives of the plaintiff, the Director-General, the mother of the children and the independent legal representative for the children were able to reach agreement as to the appropriate form of orders, together with a notation in the terms set out in short minutes of order and which are reproduced below.

27 The form of the proposed orders and notation in the short minutes of order are as follows:

"By consent of the Plaintiff and the Second, Third and Fifth Respondents, the Court orders:-

1. That, pursuant to s 69 of the Supreme Court Act 1970, the record of the Children's Court of New South Wales sitting at Broadmeadow in proceedings number 266-267/2010 be brought up to this Court.

2. That the decision of the Children's Court on 5 August 2011, to admit into evidence in the Third Respondent's case the report of Susan Foley dated 27 June 2011, be reconsidered in accordance with law and in light of the decision of this Court published on 9 November 2011.

3. That the Plaintiff's summons filed on 1 September 2011 be otherwise dismissed with no order as to costs.

The Court notes:

A. The Plaintiff and the Second, Third and Fifth Respondents agree that they will not oppose the Children's Court reconsidering its decision referred to in Order 2 above, including by taking fresh evidence and hearing fresh submissions, on the grounds that:

a) the decision was an interlocutory decision in relation to evidence; and

b) the Plaintiff, Second, Third and Fifth Respondents have not been heard in the proceedings in this Court in relation to the question of consent referred to in this Court's decision published on 9 November 2011."

28 I intend to make orders in accordance with the terms as set out in [27] above.

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Decision last updated: 17 November 2011