Supreme Court New South Wales

• Medium Neutral Citation: Re Bailey and Blake No 2 [2012] NSWSC 394
• Hearing dates: 23 April 2012
• Decision date: 27 April 2012
• Jurisdiction: Equity Division - Protective List
• Before: Ball J

Decision

See paragraph 40 of this judgment.

• Catchwords: ADMINISTRATIVE LAW - order in the nature of certiorari quashing the decision of a Children's Court magistrate - alleged error in admitting expert report independently obtained by party without consent to assessment by all parties with parental responsibility. CHILDREN - care proceedings - whether expert report independently obtained by a party is admissible - whether consent of all persons with parental responsibility necessary - paramountcy of the interests of the children the subject of the proceedings - need to balance principle that probative evidence should be admitted against principle that evidence should not be admitted in contravention of the law - appropriate to consider the requirement that Children's Court proceedings be conducted with as little formality and technicality as possible.
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW); Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW); Evidence Act 1995 (NSW); Supreme Court Act 1970 (NSW)
• Cases Cited: Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; Martin v Medical Complaints Tribunal [2006] TASSC 73; Re Bailey v Blake [2011] NSWSC 1390
• Category: Principal judgment
• Parties: Father of Bailey (Plaintiff); Children's Court of New South Wales (First Defendant); Director General Family and Community Services (Second Defendant); Mother of Bailey and Blake (Third Defendant); Father of Blake (Fourth Defendant); Independent Legal Representative (Fifth Defendant)
• Representation: PAR Santone (Plaintiff); Ms MT England (Second Defendant); Ms MB Neville (Third Defendant); PJ Guterres (Fifth Defendant); Neisha Shepherd Solicitor (Plaintiff); Crown Solicitor's Office (Second Defendant); Baker Love Lawyers (Third Defendant); Adams and Associates (Fifth Defendant)
• File Number(s): 2011/401623

Judgment

1 This is an application under s 69 of the Supreme Court Act 1970 (NSW) for an order in the nature of certiorari quashing the decision of a magistrate of the Children's Court to admit an expert report in proceedings (the Care Proceedings) for a care order under s 71(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act) and for ancillary orders.

2 In the Care Proceedings, the Director-General of the Department of Family and Community Services seeks an order that the third defendant be divested of parental responsibility for her two children, who I will refer to by their anonymised names of Bailey and Blake, on the ground that, while in her care, they had been, or are likely to be, physically or sexually abused or ill treated. The expert report was obtained by the third defendant from Ms Susan Foley, a social worker. In her report, Ms Foley expresses opinions on, among other matters, the risks that would be posed in the future should Bailey and Blake be returned to the care of the third defendant or the fourth defendant, who is the biological father of Blake. The plaintiff in these proceedings is the biological father of Bailey. The Children's Court has made interim orders vesting parental responsibility for Bailey in the plaintiff and the Minister for Family and Community Services. It has made interim orders vesting the parental responsibility for Blake in the Minister.

Background facts

3 Bailey and Blake are now 3 years and 2 months old and 19 months old respectively. On 20 November 2010, Bailey was admitted to hospital. Clinical investigations revealed that he had three fractures: one of his tibia, one of his rib and one of his skull. After conducting interviews with the third defendant and the fourth defendant, who was then the partner of the third defendant, the Director-General considered those fractures to be unexplained. As a result, the Director-General assumed the care of both children on 24 November 2010. Following a care application filed on 29 November 2010, an interim order was made by the Children's Court on 30 November 2010 that the Minister have parental responsibility for both children.

4 On 17 November 2011, an interim order was made by consent on the plaintiff's application that he and the Minister have joint parental responsibility for Bailey.

5 Section 53 of the Act gives the Children's Court power to make an order for the physical, psychological, psychiatric or other medical examination of a child or young person or the assessment of a child or young person or both. Such an order is known as an "assessment order": s 52. Division 6 of Chapter 5 of the Act contains various provisions concerning the circumstances in which an assessment order should be made, the procedure to be followed if an order is made and other matters relating to the examination or assessment the subject of the order and any report arising out of the examination or assessment.

6 Relevantly, section 54 of the Act provides:

(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.

7 Section 56 of the Act provides:

(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.

8 Although no assessment order was made under s 53, the third defendant, as I have said, arranged to obtain a report from Ms Foley concerning her capacity and the fourth defendant's capacity to discharge their parental responsibilities. That report was obtained with their consent, although the fourth defendant (who did not appear before this court) now objects to the report being admitted into evidence. For the purpose of preparing the report, Ms Foley met with the third and fourth defendants and other family members. Bailey and Blake attended that meeting, although it appears that Blake remained in the waiting room outside Mrs Foley's office with his maternal grandparents during the meeting. Nonetheless, Ms Foley made observations of both children during that time. Although her report is principally concerned with the ability of the third and fourth defendants to discharge their parental responsibilities, in expressing opinions on that matter, Ms Foley also expressed conclusions concerning Bailey and Blake and their relationship with the third and fourth defendants.

9 The hearing in relation to final care orders commenced in the Children's Court on 5 August 2011. At that time, the plaintiff took objection to the admission of Ms Foley's report. Children's Magistrate Williams concluded that the report should be admitted into evidence. That conclusion was reached largely on the basis that there was nothing in the Act which precluded a party from obtaining their own privately arranged reports which involved an assessment of children and parents or prospective parents. The plaintiff applied for a review of that decision. That application was heard by Rein J. His Honour delivered his decision on 9 November 2011: see Re Bailey v Blake [2011] NSWSC 1390. His Honour concluded:

(a) That the Act did not prevent a party to the Care Proceedings from obtaining their own independent report concerning matters that may be the subject of an assessment order: at [21];

(b) An assessment of a child cannot be obtained without agreement of all persons who have parental responsibility for the child, and, in the absence of such agreement, without the leave of the court: at [21];

(c) It was necessary to give consideration to whether the report should be rejected wholly or in part by reason of the circumstances in which it was obtained: at [23];

(d) The Magistrate had failed to consider those circumstances in admitting the report and consequently the matter should be referred back to the Magistrate to reconsider his decision.

10 In reaching his conclusion, Rein J observed that there was some uncertainty about whether the Director-General had given his informed consent to the assessment. It was clear, however, that the plaintiff had not given his consent. In addition, Rein J expressed the view that Ms Foley's report did seek to offer an opinion or assessment about Bailey and Blake. However, his Honour went on to say (at [23]):

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.

11 After receiving fresh evidence and hearing fresh submissions, the Magistrate again determined on 24 November 2011 that Ms Foley's report should be admitted into evidence in its entirety. It is that decision that is challenged in the current proceedings.

The Magistrate's decision

12 The Magistrate concluded that neither the Director-General nor the plaintiff gave their consent to the assessment of either Bailey or Blake and that, although the Director-General was aware that Blake was attending the location at which the assessment was carried out, the Director-General was not aware that Bailey was attending for the purpose of the assessment. The Magistrate also concluded that neither the Director-General nor the plaintiff was aware that Blake was attending the premises of Ms Foley.

13 The Magistrate also recorded in his reasons that no party took issue with the view that the report was an assessment of the children.

14 The Magistrate identified three principles which were to be applied in reaching his decision. The first was s 9 of the Act which sets out the principles to be applied in the administration of the Act. In particular, the Magistrate referred to the following principle said to be set out in s 9(a):

In all actions and decisions made under this Act, whether by legal or administrative process concerning a particular child or young person, the safety, welfare and well being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.

In fact, that provision of the Act was repealed by the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW) and replaced with section 9(1), which provides:

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.

Nothing, however, turns on the different wording. Both provisions make it clear that the interests of the child are paramount; and that is the principle on which the Magistrate relied.

15 The second principle referred to by the Magistrate was that contained in s 94(1) of the Act which provides:

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.

16 The third principle is that set out in s 93 of the Act which his Honour summarised in the following terms:

... the proceedings are to be conducted with as little formality and legal technicality as possible and further that the Court is not bound by the rules of evidence unless the Court determines otherwise.

17 His Honour also observed that, in the absence of guidance concerning what matters a person with parental responsibilities should take into account in determining whether to give consent, a useful guide was provided by the principles set out in s 56(1) concerning the circumstances in which the Children's Court should make an assessment order.

18 Applying these principles, his Honour reached the following conclusions:

(a) There was no evidence to suggest that the manner in which the children were taken to the assessment or the manner in which the assessment was conducted was in any way oppressive or improper or that any duress was imposed on the children or that they suffered any distress: at [40];

(b) There was no suggestion that Ms Foley entertained some bias in favour of the third defendant or against the plaintiff or that she was not qualified to undertake the assessment that she did: at [42];

(c) The requirement to conduct the proceedings with as little formality and technicality as possible and the requirement to conduct the proceedings as expeditiously as possible favoured admission of the report: at [43];

(d) There was no intention to deceive the Director-General or the plaintiff in relation to the assessment: at [47];

(e) The report was relevant to the proceedings and of probative value to matters in issue before the court: at [48];

(f) The report predominantly deals with the third and fourth defendants independently of Ms Foley's observation of the children: at [50];

(g) The safety, welfare and wellbeing of the children was not compromised: at [51].

(h) Taking those matters into account and other submissions made by the parties, the report should be admitted: at [51].

The plaintiff's grounds for relief

19 The plaintiff relies on the following grounds for the order he seeks:

1. The learned Magistrate erred in his application of section 138 of the Evidence Act 1995.

2. The learned Magistrate erred in considering whether or not the assessment of the children was oppressive or improper were relevant considerations when admitting the assessment report into evidence.

3. The learned Magistrate erred in considering that the views of the parties were relevant considerations to be taken into account when deciding to admit the assessment report.

4. The learned Magistrate erred in considering it relevant that the requirement to conduct the proceedings with as little formality and technicality and as expeditiously as possible warranted admitting the assessment report.

5. The learned Magistrate failed to identify what facts in issue the assessment report were probative to.

6. The learned Magistrate erred in apportioning probative value to the assessment report without properly taking into account the inherent flaws that arose as a result of the impropriety of the evidence admitted.

7. The learned Magistrate erred in his application of the Common Law as it relates to improperly obtained evidence.

8. The learned Magistrate erred in his determination as to the extent to which the children were assessed.

9. The learned Magistrate fell into error admitting the report into evidence.

20 Before dealing with these specific grounds, it is necessary to make some general comments on the way in which the case was put.

21 First, the parties before me agreed, as they had done before the Children's Court, that Ms Foley had conducted an assessment of the children.

22 Second, no issue was taken with the conclusion reached by Rein J that an assessment of the children could not occur without the informed consent of those who had parental responsibility for the children. Nor was it disputed that that consent was not given in this case.

23 Third, s 93(3) of the Act provides:

The Children's Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children's Court determines that the rules of evidence, or such of those rules as are specified by the Children's Court, are to apply to those proceedings or parts.

It was not suggested that the Children's Court had made any determination of the type contemplated by s 93(3) in relation to the rules of evidence. The result is that the rules of evidence do not apply to the Care Proceedings.

24 Fourth, at the heart of the plaintiff's submissions was the contention that the conclusion reached by Rein J was that, if those with parental responsibility for the children had not given their informed consent to the assessment, then the report should be rejected. On the other hand, both the Director-General and the third defendant submitted that, in circumstances where the rules of evidence did not apply, the report should be admitted if it contained logically probative evidence. In support of that submission, Ms England, who appeared for the Director-General, referred me to the following statement of principle by the Court of Appeal in Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 at [82]-[83] per Beazley JA (with whom Giles and Tobias JJA agreed) (a case concerning a decision of the Workers Compensation Commission):

[82] Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. ...

[83] In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. ...

See also Martin v Medical Complaints Tribunal [2006] TASSC 73 at [14] per Evans J.

25 In my opinion, neither the approach of the plaintiff nor that of the Director-General is correct in this case.

26 I do not accept that Rein J adopted a universal principle that if an assessment occurred without parental consent then the report should be rejected. If that had been the principle that his Honour thought should apply, then there would have been no point in referring the matter back to the Magistrate for his consideration since it was clear that the plaintiff, at least, had not given his consent. Although his Honour indicated that he was "minded to set aside the receipt of the Report into evidence" (at [23]), in my opinion he made it clear that that was a matter for the Magistrate to determine.

27 As to the approach advocated by the Director-General, in my opinion, Beazley JA's statements must be considered in context. Her Honour was concerned with cases where the expert report did not comply with the rules of evidence directed at ensuring that the evidence was sufficiently reliable and probative to justify its admission. Her Honour's statements did not apply to an exclusionary rule which was designed to achieve some other policy objective - such as the policy that evidence should not be obtained in contravention of the law. Even if the rules of evidence do not apply, a tribunal faced with evidence which is obtained improperly must still consider whether that fact alone provides a ground for excluding the evidence or whether it raises policy considerations in favour of exclusion that must be weighed against the policy considerations in favour of admitting probative evidence.

28 In the present case, there is no applicable exclusionary rule in respect of improperly obtained evidence. In those circumstances, in my opinion, the appropriate approach is to balance the principle that applies in non-evidence-based jurisdictions that probative evidence should be admitted against the principle that evidence should not be obtained in contravention of the law. In the present context, in my opinion, the Magistrate was correct to identify a number of principles relevant to that balancing exercise. The paramount principle, as identified in s 9(1) of the Act, is what is in the best interests of the children.

29 Against that background, it is now possible to consider the specific grounds on which the plaintiff relies for the orders he seeks.

Ground 1

30 In my opinion, there is no merit in this ground. The rules of evidence, including s 138 of the Evidence Act 1995 (NSW), did not apply. The Magistrate did observe that the parties seeking admission of the report submitted that, although the Evidence Act did not apply strictly, the common law and s 138 "gives guidance as to the considerations relevant in these circumstances": at [28 i]. His Honour gave effect to that principle by weighing the advantages of admitting the evidence against the disadvantages of admitting improperly obtained evidence. In my opinion, his Honour was correct to do so.

Ground 2

31 In my opinion, the Magistrate was correct to consider the effect of the assessment on the children. The paramount consideration for the Magistrate was the interests of the children. In considering their interest, it was relevant to consider the effect of the assessment on them. If, for example, the assessment had caused them distress that would be a reason for refusing to admit the report.

Ground 3

32 In support of this ground, the plaintiff refers to paragraph [26] of his Honour's judgment (incorrectly referred to as [24] in the plaintiff's written submissions) which records the position the various parties take on the admissibility of the report. However, it is clear that that paragraph of his Honour's judgment simply provides background. It is not part of his Honour's reasoning process.

33 Later in his judgment (at [34]) his Honour states that if both the plaintiff and the Director-General had consented to the admission of the report he would have had no hesitation in admitting it, notwithstanding the opposition of the fourth defendant. However, that statement simply amounts to acceptance of the proposition that those persons whose consent was required were entitled, in effect, to ratify what had happened once they knew all the facts. That was unquestionably correct.

Ground 4

34 In my opinion, it was appropriate for the Magistrate to consider the requirement to conduct the proceedings with as little formality and technicality and as expeditiously as possible; and it was open to the Magistrate to conclude that those matters favoured the admissibility of the report in this case, which is what his Honour did. If the report had not been admitted, there was at least a possibility that the third defendant would have made an application for an assessment order, and, if such an application had been made, that almost certainly would have caused additional delay. The Magistrate was entitled to weigh that consideration against other matters including the extent to which the children were actually involved in the assessment process in determining whether to admit the report.

Ground 5

35 In my opinion, there is no merit in this ground. It is clear that the report goes to an issue that is at the heart of the case - that is, the suitability of the third and fourth defendants to have parental responsibility for the children. The Magistrate did not fall into error by failing to state the obvious.

Ground 6

36 The plaintiff does not identify the "inherent flaws" in the report that are said to arise from the failure to obtain consent. The Magistrate considered one possible flaw - that is, the fact that those with parental responsibility were deprived of the opportunity to be involved in the selection of the person who conducted the assessment. However, in relation to that matter, his Honour concluded that there was no evidence that Ms Foley exhibited some bias or that she was not appropriately qualified. Consequently, the flaw that the requirement of consent may have avoided did not occur. His Honour was entitled to reach that conclusion. No other flaw is identified in the assessment process which is said to arise from the absence of consent.

Ground 7

37 This ground is not entirely clear. If what is meant is that the Magistrate erred because he failed to apply the Common Law rules of evidence in relation to improperly obtained evidence, the ground must fail because the rules of evidence did not apply. If what is meant is that the Magistrate failed to take the correct approach to the admissibility of the report, then, for the reasons I have given, I do not accept that he did.

Ground 8

38 There are two aspects to the assessment of the children. One is the process by which the children were assessed. The other is the nature and extent of the actual assessment. The Magistrate describes the process in his reasons for judgment. In particular, he observes that the process consisted of observation of the children during the meeting. No submissions are made that the Magistrate's description of the process was in error. The Magistrate does not describe the conclusions reached by Ms Foley in relation to the children in any detail. He does say, so far as the children are concerned, that Ms Foley's assessment was based on very brief observations and that that fact would go to the weight of the report, which would be a matter for submissions by the parties. His Honour also says that the report predominantly deals with the third and fourth defendants, not with the children. No submissions are advanced for why that statement involves an error. In any event, having read the report, in my opinion it does not.

Ground 9

39 This ground is a catch-all ground that adds nothing to the other grounds.

Conclusion

40 The plaintiff has failed to make out any of the grounds for the relief he claims. In those circumstances, the proceedings must be dismissed with costs.

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Decision last updated: 03 May 2012