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NSW Crest

Children's Court
New South Wales

Medium Neutral Citation:
FaCS v Davidson and Simpson Children [2012] NSWChC 10
Hearing dates:
5 April 2012 (submissions only)
Decision date:
19 April 2012
Jurisdiction:
Care and protection
Before:
Magistrate Graham Blewitt AM
Decision:

In relation to the decision of Legal Aid NSW to reassign the grand of legal aid, in the absence of a power under the Legal Aid Commission Act 1979, it was inappropriate, in my view, for Legal Aid NSW to make the decision to reassign the grant of legal aid to the Aboriginal Legal Service without making an application to a Court to have Mr Shirley's appointment as the legal representative for the children revoked.

Catchwords:
CHILDREN - care proceedings - children under parental responsibility of Minister - matter referred to Care Circle - dispute over legal representation of three younger children - Legal Aid reassigned funding for the three children to the Aboriginal Legal Service - ss 5, 6, 9, 98, 99, 99A, 99B, 99C, 99D Care Act - Aboriginality
Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998
Category:
Interlocutory applications
Parties:
The Director-General
Jamie, Anna, Andy and Andrea (the children)
Helen Davidson (the mother)
Andrew Macintosh (father of the 3 eldest children)
Harry Matthew Simpson (father of the youngest child)
Representation:
Ms Askew for the Director-General
Mr Shirley (disputed) and Ms Slack-Smith (disputed) for the children Jamie, Anna and Andy
Mr Holden for the child Andrea Davidson
Mr Robinson for the mother, Helen Davidson
Ms Phillips for Andrew Macintosh the father of the 3 eldest children
Ms Lobegeier for Harry Matthew Simpson the father of the youngest child
File Number(s):
3-6/2007
Publication restriction:
Any information that names or is likely to lead to the identification of a child or young person who is reasonably likely to involved or mentioned in Children's Court or non-Court proceedings in any capacity must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of. This prohibition applies until the child or young person turns 25 years of age or dies.

Judgment

1On 17 January 2012 the Director-General commenced proceedings in the Nowra Children's Court relating to four children, Andrea Davidson aged 12, Jamie and Anna Davidson (twins) aged 7 and Andy Williams, aged 3.

2Helen Davidson is the mother of the four children. Andrew Macintosh is the father of the three eldest children. Harry Matthew Simpson is the father of Andy. Both fathers are Aboriginal, the mother is not.

3The matter was first before the Court on 19 January 2012. On that date Mr Holden appeared as the direct legal representative for the child Andrea Davidson (sections 99A, 99B and 99C of the Children and Young Persons (Care and Protection) Act 1998, hereafter referred to as the "Care Act"). Mr Shirley appeared as the Independent Legal Representative for the three younger children.

4The matter was adjourned to 9 February with an interim order being made placing all four children under the parental responsibility of the Minister until 4 PM that date.

5On 9 February the matter was in the list at Nowra. Mr Holden again represented the child Andrea and Mr Shirley represented the three younger children. On that date both Mr Holden and Mr Shirley agreed that the children were in need of care and protection, pursuant to section 71(1)(c)(d) and (e) of the Care Act. The father Mr Simpson indicated to the court that he would seek to have the matter referred to a Care Circle. The Court adjourned the proceedings to 23 February for Mr Macintosh to file replies and the Court extended the interim order until further order.

6On 23 February the Court made a finding, on a without admissions basis, that the children were in need of care and protection (ground section 71(1)(d)). The children were represented as outlined above, that is by Mr Holden and Mr Shirley. Most parties were agreeable to the matter being referred to a Care Circle, however, Mr Holden sought an adjournment to obtain instructions from the child Andrea. For this purpose the matter was adjourned to 8 March.

7On 8 March the Court referred the matter to a Care Circle. The children were again represented by Mr Holden and Mr Shirley.

8The matter subsequently came before a Care Circle, however, the matter was referred back to the Children's Court to resolve a dispute in relation to the legal representation in respect of the three youngest children.

9For this purpose, the matter was listed on 5 April 2012, when the Court received submissions from Mr Shirley (oral and written), Ms Slack-Smith (on behalf of the Aboriginal Legal Service), Mr Robinson (on behalf of the mother), and brief oral submissions from Mr Holden and Ms Askew. Having regard to the unique, and important issues raised by Mr Shirley, I adjourned the matter for a decision on 19 April 2012.

Legal Aid NSW

10On 4 April 2012 the Acting Director Grants, Tracey Bosnich, Legal Aid, New South Wales sent a fax to the Registrar of Nowra Children's Court in the following terms:

RE:DAVIDSON CHILDREN
CHILDREN'S COURT PROCEEDINGS
I am writing to advise of a decision by Legal Aid NSW in relation to the funding of the Independent Legal Representative in the above matter.
I confirm that a grant of legal aid was initially approved to Mr Charles Shirley, a private practitioner who is appointed to the Legal Aid NSW's Care and Protection panel, to appear on behalf of the three youngest children who are the subject of these proceedings. However, subsequent to the grant of aid being approved and issued, Legal Aid NSW formed the view that it was more appropriate for this matter to be assigned to the Aboriginal Legal Service.
Accordingly, Legal Aid NSW has notified Mr Shirley that we will no longer be funding his involvement in this matter and have requested and engaged Ms Gemma Slack-Smith of the Aboriginal Legal Service to represent the interests of the children in this matter. The grant of legal aid has been transferred accordingly.
I apologise for any inconvenience that this decision has caused to the Court or the parties.

Yours sincerely

Tracey Bosnich
Acting Director Grants

The law

11For convenience, I set out the provisions of the Care Act relating to the appointment of legal representatives for children in the Children's Court, insofar as relevant to these proceedings:

Section 98 - Right of appearance
(1) In any proceedings with respect to a child or young person:
(a) the child or young person and each person having parental responsibility for the child or young person, and
(b) the Director-General, and
(c) the Minister,
may appear in person or be legally represented or, by leave of the Children's Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.
(2) ...
(2A) ...
(3) ...

Section 99 - Appointment of legal representative by Children's Court
(1) The Children's Court may appoint a legal representative to act for a child or young person if it appears to the Children's Court that the child or young person needs to be represented in any proceedings before it.
(2) A legal representative for a child or young person who has not been appointed by the Children's Court may appear only with its leave.
(3) The Children's Court may withdraw its leave at any time and for any reason (including the child or young person informing the Children's Court that he or she does not wish to be represented by the legal representative).

Section 99A - Legal representative to act as independent legal representative or direct legal representative
(1) A legal representative for a child or young person is to act as a "direct legal representative" if:
(a) the child or young person is capable of giving proper instructions, and
(b) a guardian ad litem has not been appointed for the child or young person.
(2) A legal representative for a child or young person is to act as an "independent legal representative" if:
(a) the child or young person is not capable of giving proper instructions, or
(b) a guardian ad litem has been appointed for the child or young person.
Note. ...

Section 99B - Child under 12 presumed incapable of giving proper instructions
(1) There is a rebuttable presumption that a child who is less than 12 years of age is not capable of giving proper instructions to his or her legal representative.
(2) However, the Children's Court may, on the application of a legal representative for a child who is less than 12 years of age, make a declaration that the child is capable of giving proper instructions.

Section 99C - Child 12 or older and young person presumed capable of giving proper instructions
(1) There is a rebuttable presumption that a child who is not less than 12 years of age, or a young person, is capable of giving proper instructions to his or her legal representative. This presumption is not rebutted merely because the child or young person has a disability.
(2) However, the Children's Court may, on the application of a legal representative for a child who is not less than 12 years of age, or a young person, make a declaration that the child or young person is not capable of giving proper instructions.

Section 99D - Role of a legal representative
Without limiting the role of a legal representative for a child or young person in proceedings before the Children's Court:
(a) the role of a direct legal representative includes the following:
(i) ensuring that the views of the child or young person are placed before the Children's Court,
(ii) ensuring that all relevant evidence is adduced and, where necessary, tested,
(iii) acting on the instructions of the child or young person, and
(b) the role of an independent legal representative includes the following:
(i) if a guardian ad litem has been appointed for the child or young person-acting on the instructions of the guardian ad litem,
(ii) interviewing the child or young person after becoming the independent legal representative,
(iii) explaining to the child or young person the role of an independent legal representative,
(iv) presenting direct evidence to the Children's Court about the child or young person and matters relevant to his or her safety, welfare and well-being,
(v) presenting evidence of the child's or young person's wishes (and in doing so the independent legal representative is not bound by the child's or young person's instructions),
(vi) ensuring that all relevant evidence is adduced and, where necessary, tested,
(vii) cross-examining the parties and their witnesses,
(viii) making applications and submissions to the Children's Court for orders (whether final or interim) considered appropriate in the interests of the child or young person,
(ix) lodging an appeal against an order of the Children's Court if considered appropriate.

12Section 9 of Children's Court Practice Note Number 5, relating to Case Management in Care Proceedings is also relevant. It provides:

9. Representation of children and young persons in care proceedings.
9.1 The appointment of a legal representative to act for a child or young person under section 99(1) of the Care Act shall be deemed to have been made to a solicitor or barrister employed or engaged by Legal Aid NSW on the filing of a care application.
9.2 When a legal practitioner has appeared on the record as the legal representative of a child or young person in an application for an emergency care and protection order (ECPO) that legal practitioner is taken to be the child's or young person's representative for all future proceedings and must be notified by the applicant of any subsequent care application regarding that child or young person.
9.3 When a legal practitioner has filed a notice of appearance or notice of acting as a child's or young person's legal representative in any proceedings concerning or relating to a care application, that legal practitioner is taken to be the child's or young person's representative for all future proceedings and must be notified by the applicant of any subsequent care application regarding the child or young person.

13Section 6 of the Procedure Guide for Children's Court Care Circles is also relevant in relation to the referral of matters to a Care Circle, and is set out below. It is to be noted that it is the Children's Court Magistrate who determines whether a matter is to be referred, taking into account the submissions of the parties, including the willingness of the parties, including the children, to participate. The Guide provides:

6. Selection of a matter for a Care Circle
6.1 As soon as possible in a care matter which involves an Aboriginal family (or a family in which one or more of the mother, father or child identifies as Aboriginal), the Department of Family and Community Services, Community Services lawyer (or any other legal representative) will advise the Magistrate or Registrar and other legal representatives of the parties to this fact and the possibility that this is a matter which may be suitable to proceed to a Care Circle.
6.2 Where an Aboriginal child has a sibling child involved in care proceedings at the same time - then all siblings should be subject to the same care circle - even where the sibling child may not be Aboriginal.
6.3 Once a determination has been made that a child or young person is in need of care and protection and prior to the matter being listed for final orders any party may apply, or the Magistrate may upon the Magistrates own decision, determine that the matter is suitable to refer to a Care Circle. The Magistrate will hear submissions as to why such a decision should, or should not, be made. These submissions may include information on the willingness of the parents of the child or of the child or young person to participate.
6.4 In making a determination that the matter is suitable to refer to a Care Circle the Magistrate will consider...... (the remainder of the Procedure Guide is not relevant for present purposes).

14Section 5 of the Care Act is also relevant in relation to the meaning of "Aboriginal" and provides as follows (relevant parts only):

Section 5 - Meaning of "Aboriginal" and "Torres Strait Islander"
(1) In this Act:
"Aboriginal" has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983.
"Aboriginal child or young person" means a child or young person descended from an Aboriginal and includes a child or young person who is the subject of a determination under subsection (2).
"Torres Strait Islander" means a person who:
(a) ...
(b) ...
(c) ...
"Torres Strait Islander child or young person" means ...
(2) Despite the definition of "Aboriginal person" in the Aboriginal Land Rights Act 1983, the Children's Court may determine that a child or young person is an Aboriginal for the purposes of this Act if the Children's Court is satisfied that the child or young person is of Aboriginal descent.
(3) Despite the definition of "Torres Strait Islander" ...

Mr Shirley's submissions

15Turning to Mr Shirley's submissions, he opposes strenuously the decision of Legal Aid NSW to reassign the grant of legal aid to the Aboriginal Legal Service.

16He submits that the Court directly appointed him as the Independent Legal Representative for the three younger children on 19 January 2012 (pursuant to section 99(1) of the Care Act) when the duty solicitor for children was not available to represent the children in this case. Whether Mr Shirley was directly appointed by a specific order of the Court is not reflected on the Court's Daily Bench sheets. This does not mean that he was not, as such matters are rarely recorded unless there is a specific issue. A transcript may resolve this issue if the alleged appointment occurred in the Court, but not if it occurred during the call over before the Children's Registrar. Notwithstanding, Children's Court Practice Note 5, section 9 - as quoted above - would operate to deem that Mr Shirley was appointed under section 99(1) of the Care Act.

17Further, the remaining provisions of section 9 of Practice Note Number 5, clearly demonstrate that the legal representative appointed under section 99(1) of the Care Act will remain in that capacity throughout the entire proceedings.

18Accordingly, I find that Mr Shirley was appointed as the Independent Legal Representative for the three younger children on 19 January 2012, pursuant to section 99(1) of the Care Act.

19Mr Shirley further submits, and there seems to be no dispute, that on the first date that the matter was before the Court, the Department conceded that the three youngest children did not identify as being Aboriginal, despite their fathers being Aboriginal. The three children are currently placed with, and wish to remain with, the maternal grandmother, who is not Aboriginal.

20Mr Holden, the Direct Legal Representative for the eldest child Andrea, informed the Court that she also does not identify as Aboriginal, but nevertheless she agreed to the matter being referred to a Care Circle on the basis that her father was Aboriginal.

21Mr Shirley was in error in his oral and written submissions when he said that the Children's Registrar referred the matter to a Care Circle. It appears that the matter was discussed at a call over before the Registrar on 8 March 2012 and the matter was then referred to the Court and I referred the matter to a Care Circle that date. Mr Shirley says that he did not agree to the matter being referred to a Circle because the children did not identify as Aboriginal. This is not reflected in the Court's Bench Sheets for 8 March, either before the Children's Registrar or the Court. Only a transcript will resolve this issue, however, it is not relevant for present purposes. The fact is that the Court did refer the matter to a Care Circle on 8 March 2012.

22Mr Shirley informed the Court of the steps he had taken subsequently to prepare an "agreed summary of matters to be considered by the Care Circle" as required by the Care Circle Procedure Guide. It is not relevant for present purposes to detail these matters.

23Mr Shirley informed the Court that he was refused permission to attend the Care Circle, as the three younger children were being represented by the Aboriginal Legal Service. It would appear that a heated argument took place on that occasion about the issue of the children's legal representation. The matter was then referred back to the Children's Court to resolve this issue.

24Mr Shirley submits that Legal Aid NSW has no right to arbitrarily replace him as the Court appointed Independent Legal Representative for the three children, without an order from a Superior Court, on proper grounds being established, justifying his replacement.

25Mr Shirley agrees that he was informed by Legal Aid NSW that the reason he was replaced was because it was considered that the children should be represented by the Aboriginal Legal Service.

26Mr Shirley submits that the Children's Court is functus officio in relation to the decision made on 19 January 2012 appointing him as the Independent Legal Representative for the three children, and cannot now make an order appointing another Independent Legal Representative. Such an order, he submits, can only be made on application to a superior court, namely the Supreme Court of NSW. He further submits that an administrative body (Legal Aid NSW) which is not a party to the proceedings, cannot replace him arbitrarily.

27Mr Shirley is concerned that if the Aboriginal Legal Service is appointed to represent the three children, who do not identify as being Aboriginal, they may decline to accept such representation. They may end up being unrepresented if they do reject the Aboriginal Legal Service and if Legal Aid NSW thereafter withholds legal aid funding.

28Prior to the Care Circle, Mr Shirley said that he interviewed the twins to ascertain their wishes. The children had turned 8 years of age and indicated that they did not identify as being Aboriginal. They expressed their firm wish that they be allowed to remain together, that is all four children together, with their maternal grandmother, and they did not wish to be placed with an Aboriginal family. He did not seek to interview the youngest child, Andy, because of his age (now 5).

29Mr Shirley appears to believe that there are ulterior motives behind the decision to reassign the grant of legal aid to the Aboriginal Legal Service. No such motives are apparent.

30He strongly believes that the Aboriginal Legal Service should not be forced on the children, who have maintained the position of not identifying as being Aboriginal.

Submission of other parties

31Ms Slack-Smith, on behalf of the Aboriginal Legal Service, submitted to the Court that she has be properly appointed in accordance with Children's Court Practice Note 5, section 9.1, as set out above, namely:

The appointment of a legal representative to act for a child or young person under section 99(1) of the Care Act shall be deemed to have been made to a solicitor or barrister employed or engaged by Legal Aid NSW on the filing of a care application.

32Ms Slack-Smith made no submission relating to the significance of Mr Shirley's earlier appointment under the same provisions, except that pursuant to section 99(3) of the Care Act, the Children's Court may withdraw leave for Mr Shirley to appear.

33Mr Robinson, on behalf of the mother, submitted to the Court that Mr Shirley was not appointed by the Court to represent the three younger children on 19 January. Mr Robinson informed the Court that on that date, he was the duty solicitor appointed to represent children and young persons in fresh care matters, but he was unable to act in that capacity as he had a conflict and was representing the mother. Mr Shirley was asked to appear and that his appointment was deemed to have been made pursuant to section 99(1) in accordance with Children's Court Practice Note Number 5, section 9.1, as mentioned above.

34Mr Robinson submitted that there was some support for Mr Shirley's submission that once appointed as the independent legal representative for the younger children, it is not open to Legal Aid NSW to cancel such an appointment.

35Mr Robinson submitted however that the Children's Court has a wide discretion pursuant to section 99 of the Care Act to appoint legal representatives for children and to withdraw leave at any time and for any reason for them to continue to appear. Mr Robinson concludes therefore that there is no basis for Mr Shirley's submission that the Children's Court is functus officio in relation to his appointment, and accordingly there is no basis for the submission that only the Supreme Court has the power to remove Mr Shirley as the independent legal representative for the children.

36In response, Mr Shirley submits that section 99(3) of the Care Act only applies to situations covered by section 99(2), namely in situations where a legal representative for a child, who has not been appointed by the Children's Court, may only appear with leave of the Court. It is only in such circumstances, Mr Shirley submits, that Court has the discretion to withdraw its leave at any time and for any reason. Mr Shirley submits that section 99(3) does not apply to appointments under section 99(1) which does not involve the granting of leave to appear:

(S.99(1) The Children's Court may appoint a legal representative to act for a child or young person if it appears to the Children's Court that the child or young person needs to be represented in any proceedings before it.)

37I find, in accepting Mr Shirley's submission in this regard, that section 99(3) only applies to the circumstances covered by section 99(2) and not section 99(1).

Aboriginality

38As mentioned above, Mr Shirley informed the Court that the twin girls do not identify as and do wish to be identified as Aboriginal.

39Mr Holden also informed the Court that the eldest child, Andrea does not identify as Aboriginal, but she accepts that her father is, and she is also agreeable for the matter to be referred to a Care Circle.

40Mr Robinson informed the Court that the mother and maternal grandmother are not Aboriginal, but the mother regards all her children as being Aboriginal. Both fathers are Aboriginal.

41Mr Robinson also reminded the Court of the provisions of section 5(2) of the Care Act, namely despite the "definition of "Aboriginal person" in the Aboriginal Land Rights Act 1983, the Children's Court may determine that a child or young person is an Aboriginal for the purposes of this Act if the Children's Court is satisfied that the child or young person is of Aboriginal descent".

42Mr Robinson indicated to the Court that the mother has consented to the matter being referred to a Care Circle, as she believes the children to be Aboriginal, however, she will withdraw her consent if Mr Shirley remains in the matter. Mr Robinson submitted that the matter cannot return to a Care Circle if a party believes they are not Aboriginal.

43In my opinion, the NSW Care Circles Procedure Guide, as noted above, empowers the Children's Court Magistrate who refers matters to a Care Circle, to exercise his or her discretion to refer a matter to a Care Circle, notwithstanding the wishes of a parent or child or young person to participate (section 6.3 of the Procedure Guide).

44Having regard to the fact that both fathers in this case are Aboriginal persons and identify as being Aboriginal, and noting the position of the eldest child Andrea, namely that she does not identify as being Aboriginal but does not oppose the matter being referred to a Care Circle, and noting the ages of the other three children, I am of the further opinion that this is a case where it is appropriate for the Court to determine that the children are Aboriginal for the purposes of the Care Act, as I am satisfied that they are of Aboriginal descent.

45Notwithstanding the wishes of the twin girls in relation to the question of Aboriginality, I also maintain the opinion that this is a suitable case to be considered by a Care Circle. I have confidence that the Care Circle can take into account the position adopted by the children in this case.

The decision of Legal Aid NSW to reassign funding to the Aboriginal Legal Service

46This leaves the question whether Legal Aid NSW had the authority to reassign the grant of legal aid in respect of the three youngest children from Mr Shirley to the Aboriginal Legal Service.

47It is not difficult to understanding the logic behind the decision of Legal Aid NSW to do so, having regard to the fact that the two fathers of the children in this matter are Aboriginal and that the Court referred the matter to a Care Circle.

48Notwithstanding Mr Shirley's belief to the contrary, there is no apparent sinister motive behind the decision of Legal Aid NSW.

49I have already found that Mr Shirley was appointed as the Independent Legal Representative for the three younger children, pursuant to section 99(1) of the Care Act, on 19 January 2012.

50Further, I have found that the Children's Court does not have the power under section 99(3) of the Care Act to interfere with the appointment under section 99(1).

51Children's Court Practice Note Number 5, section 9.1, provides that "the appointment of a legal representative to act for a child or young person under section 99(1) of the Care Act shall be deemed to have been made to a solicitor or barrister employed or engaged by Legal Aid NSW on the filing of a care application.

52Further the provisions set out in section 9.2 and 9.3 of Practice Note Number 5, clearly demonstrate that a legal representative appointed under section 99(1) of the Care Act will remain in that capacity throughout the proceedings.

53The parties in these proceedings made no reference to the provision of the Legal Aid Commission Act 1979. Accordingly I am not aware whether Legal Aid NSW has a legislative power to reassign the grant of legal aid to the Aboriginal Legal Service in circumstances where another solicitor has been appointed by the Children's Court (either by direct order of the court or pursuant to the deeming provisions).

54In the absence of any such power under the Legal Aid Commission Act 1979, it was not proper, in my view, for Legal Aid NSW to make the decision to reassign the grant of legal aid to the Aboriginal Legal Service without making an application to the Children's Court, or a superior court, to have Mr Shirley's appointment as the legal representative for the children revoked, if such a power exists.

Decision

55As mentioned above, I find that Mr Shirley was appointed as the Independent Legal Representative for the three younger children on 19 January 2012, pursuant to section 99(1) of the Care Act.

56Further, as mentioned above, I find that the power conferred under section 99(3) of the Care Act to withdraw leave for a legal representative to appear for a child or young person, applies only to such a legal representative appointed pursuant to section 99(2) and does not apply to a legal representative appointed to act for a child or young person pursuant to section 99 (1).

57For the reasons outlined above, Pursuant to section 5(2) of the Care Act, I determine that the four children in this case are Aboriginal for the purposes of the Care Act, as I am satisfied that they are of Aboriginal descent.

58I maintain the Court's position declared on 8 March 2012 that this is a matter that is suitable to refer to a Care Circle.

59In relation to the decision of Legal Aid NSW to reassign the grand of legal aid, in the absence of a power under the Legal Aid Commission Act 1979, it was inappropriate, in my view, for Legal Aid NSW to make the decision to reassign the grant of legal aid to the Aboriginal Legal Service without making an application to a Court to have Mr Shirley's appointment as the legal representative for the children revoked.

**********

Amendments

17 September 2012 - Minor amendment requested by Magistrate
Amended paragraphs: Paragraph 23

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 17 September 2012