Supreme Court New South Wales

• Medium Neutral Citation: Re June [2013] NSWSC 969
• Hearing dates: 09/07/2013
• Decision date: 09 July 2013
• Jurisdiction: Equity Division
• Before: McDougall J

Decision

Orders of Children's Court quashed. Remit matter to be heard according to law and by a different magistrate.

• Catchwords: CHILD WELFARE - care proceedings - application by foster carers challenging decision of the Children's Court - whether magistrate erred in failing to admit relevant evidence - where unadmitted evidence raised significant issues - need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence - whether magistrate failed to comply with s 9(2)(c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether magistrate failed to properly apply s 79(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - where indication that magistrate regarded time as a dispositive consideration in decisions to admit evidence; CHILD WELFARE - care proceedings - where an Act confers opportunity to be heard on matters of significant impact - whether foster carers were entitled to that opportunity - what constitutes an opportunity to be heard - Children and Young Persons (Care and Protection) Act 1998 (NSW) s 87; CHILD WELFARE - care proceedings - whether foster carers have standing to seek relief under s 69 Supreme Court Act 1970 (NSW) - if not, whether manifest defects in hearing before and reasons of Children's Court constitute "exceptional circumstances" - whether Supreme Court may, in the exercise of parens patriae jurisdiction, grant relief under s 69 Supreme Court Act 1970 (NSW)
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW); Supreme Court Act 1970 (NSW)
• Cases Cited: Maksimovic v Walsh [1983] 2 NSWLR 656; Re Bailey & Blake (No 2) [2012] NSWSC 394; Re Kerry (No 2) [2012] NSWCA 127; Re Tracey [2011] NSWCA 43
• Category: Principal judgment
• Parties: Foster Father (First Plaintiff); Foster Mother (Second Plaintiff); Director General, Department of Family and Community Services (First Defendant); Father (Second Defendant); Child (Third Defendant); Mother (Fourth Defendant)
• Representation: Counsel: M W Anderson / J Longworth (Plaintiffs); G W Moore / V Tzatzagos (First Defendant); L J Sproston (Second and Fourth Defendants); C Spain (Independent Legal Representative); Solicitors: Neil Jones Solicitors (Plaintiffs); NSW Crown Solicitors (First Defendant); Thompson Madden Solicitors (Second and Fourth Defendant); Longman Hill Solicitors (Independent Legal Representative)
• File Number(s): 2013/199535

Judgment (EX TEMPORE - REVISED 9 July 2013)

1 HIS HONOUR: The plaintiffs have the foster care of the child known as June. By order of the Children's Court made on 26 June 2013, parental responsibility for June has been allocated to the Minister for Family and Community Services for 12 months, and thereafter to her father for a period of 3 years. The plaintiffs challenge that decision. They seek relief under s 69 of the Supreme Court Act 1970 (NSW), and in addition, invoke the court's parens patriae jurisdiction.

2 I note that when the case was first before me, the plaintiffs also sought to challenge an antecedent decision of the Children's Court, rejecting their application for leave to intervene. That application was made to invoke the discretion given by s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Act). Although that application was not pressed, it is only proper that I record that in my view it has not been shown that the discretion of the magistrate involved in that application, to refuse the plaintiffs leave to intervene, miscarried in any respect which would attract the supervisory jurisdiction of this Court.

3 Unfortunately, the same cannot be said in relation to the decision of 26 June.

4 At my request, the transcript and other matters before the magistrate in the hearing which led up to the decision of 26 June were put before this Court. I have come to the clear view, looking at that matter as a whole, that the proceedings before the second magistrate (if I may call his Honour that)

miscarried.

5 There are a number of reasons why that is so. First, the plaintiffs, in de facto, if not de jure exercise of what they say is their right to be heard under s 87(1) of the Care and Protection Act, had sought to put to the Children's Court an affidavit sworn by one of them which in turn proved a report prepared by a psychologist, Ms Caro. That affidavit was relied upon by the independent legal representative appointed for June. The learned magistrate rejected the application to rely on the affidavit, including in particular Ms Caro's report. The submissions that were put (including, I regret to say, on behalf of the Department of Family and Community Services (the Department)) did not assist the learned magistrate. Indeed, insofar as those submissions indicated that there was a decision of this Court which "basically says that any report that does not follow the exceptions [to admissibility] is inadmissible and should not be considered by the Court" the submissions were wrong. Mr Moore of counsel, who appeared with Mr Tzatzagos of counsel for the Department today, conceded as much.

6 The reasons given by the magistrate for rejecting the report indicate, to my mind, that he failed to consider the relevant question as it was stated by Ball J in Re Bailey & Blake (No 2) [2012] NSWSC 394.

7 In substance, Ball J said, bearing in mind that the Children's Court is not bound by the rules of evidence, what needed to be balanced was the probative value of the evidence in question as against the circumstances, said to be in contravention of the Care and Protection Act, in which it was obtained. That approach requires balancing the advantages of admitting probative evidence against the disadvantages of admitting what was said to be improperly obtained evidence. No doubt in part because of the way that the matter had been put by the representative of the Department, the learned magistrate did not take that course.

8 In particular, the learned magistrate did not consider whether the probative value of Ms Caro's report was such as to raise any issue as to opinions expressed by a court appointed clinician, Ms Irving, in her report (a report on which, it appears, the learned magistrate heavily relied).

9 Secondly, the independent legal representative made an application to cross-examine June's father. That was of some significance, because (as I have indicated) the application made contemplated that the child would be given into the parental responsibility of her father. The legal representative then appearing for the father opposed cross-examination, apparently on the basis of late notice. It was not suggested that there was any actual prejudice flowing from the late notice. Nor in my view could it be said that there was prejudice. The matter was heard on a Monday (24 June 2013). The notice had been given the previous Friday. If it were desired to prepare the father for cross-examination, there was, on the face of that chronology, ample time.

10 The learned magistrate indicated that the question, in relation to the cross-examination of the father, could be argued at a later time. Unfortunately, he did not return to that, notwithstanding that in final submissions, the independent legal representative reminded the magistrate that he would have liked to cross-examine the father on certain matters that, on the face of things, were of direct relevance to the application before the magistrate.

11 Further, there was a question of cross-examination of the clinician, Ms Irving. It was common ground that she had been required to attend for cross-examination. There was apparently a difficulty in arranging her attendance. The magistrate dealt with this in what in my opinion was a most unsatisfactory way. He asked, rhetorically, "what is the purpose in having the clinician attend...?". He pointed out that in his experience an expert witness "will simply go to the particular question as to what is being asked by the legal practitioner". The magistrate gave an example of that. He did not explain why this had anything to do with the issue of whether or not she should be required for cross-examination. Nonetheless, he decide to proceed without any such cross-examination.

12 In truth, I think, the real reason why the magistrate took this course was that he accepted a submission put by the representative of the Department which the magistrate summarised as being "this matter is of the essence, time is of the essence and quite simply, it is in the best interest of [June] in order to have this matter solved [sic]".

13 I accept that it was very important to resolve the matter as quickly as possible. But it was also important to resolve it on the basis of a proper understanding of the evidence. In circumstances where the submissions of the independent legal representative had raised some very serious issues, declining the application for cross-examination on the basis of "time is of the essence" seems to me to be entirely unsatisfactory.

14 In this context, it may be noted that the independent legal representative submitted that "this matter has been forced through too quickly". He pointed out that, even taking into account certain guidelines (which were apparently administrative guidelines prepared by the Children's Court or its former President, his Honour Judge Marien, not guidelines under the Care and Protection Act), there was still some two months' time within which the matter could be finalised.

15 Finally, when I turn to the reasons given by the learned magistrate for the decision to allocate parental responsibility (ultimately) to the father, it is completely unclear why, or on what balancing of the factors, he came to this view. Indeed, the magistrate said that he agreed with the submissions put by the independent legal representative "to a great deal". Had the magistrate accepted those submissions, he could not have made the decision that he did. His reason for rejecting them appears to be that he was "bound by the law" (undoubtedly, correct), "and by the Chief Judge of the Children's Court". That was a reference to the timetable, or guidelines for disposing of such applications, apparently imposed as a matter of administrative necessity. The learned magistrate said of this timetable that:

...the legal timetable, the case law timetable that said the court must make a decision. The court has before it a number of viable opportunities. Which one of those opportunities on the evidence before me am I able to make a determination on. Again I thank the practitioners for their assistance and guidance in this matter.

Having considered the timetables available, having considered the evidence that the court is able to glean from the departmental, the parents', the courses that have been posed, [the independent legal representative] and the [clinician], that quite simply having consider matter at some length I can indicate I am of the view that the departmental position is what must be followed in this particular matter on the evidence before me.

16 There are a number of problems with this reasoning. The first is that the reference to "the evidence before me" overlooks the position that, for one reason for another, potentially relevant evidence was not availed of. That follows from what I have said as to the report of Ms Caro, the cross-examination of the clinician and the cross-examination of the father.

17 Secondly, I have the very uncomfortable impression, both from this passage and from earlier passages, that the magistrate regarded the administrative timetable for disposing of applications as being the dispositive consideration.

18 Thirdly, the magistrate gives no indication of any other reasoning process that led to the view that he indicated.

19 Fourthly, s 79(3) of the Care and Protection Act (which is the section under which the application before the learned magistrate had been brought) provides that the Children's Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in s 9(2)(c) and is satisfied that any other order would be insufficient to meet the needs of the child.

20 Section 9(1) of the Act provides that the safety, welfare and wellbeing of the child are paramount in the administration of the Act.

21 Subject to that paramount principle, s 9(2) sets out other principles to be applied in the administration of the Act. Paragraph (c) reads as follows:

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.

22 Thus, the effect of s 79(3) is that when the Children's Court is asked to make an order allocating parental possibility, it must give particular consideration to what is necessary in order to protect a child or young person from harm, bearing in mind the principle of least intrusive intervention.

23 It was submitted that this had no application in the present case. Reliance was placed on the decision of the Court of Appeal in Re Tracey [2011] NSWCA 43. In that case, Giles JA looked at the question, in the context of an application under s 90 of the Care and Protection Act to rescind or vary a care order. His Honour said at [79] that s 9(2)(c) had no application in those particular circumstances. His Honour was careful to point out, however, that this applied to the s 90 application, but did not derogate from s 79(3). See his Honour's reasons at [80].

24 The significance of s 9(2)(c), in relation to s 79(3), was emphasised by Barrett JA in Re Kerry (No 2) [2012] NSWCA 127. His Honour made it clear that, when s 79(3) required that particular consideration should be given, in an application under s 79, to the principle in s 9(2)(c), it meant exactly what it said.

25 I regret to say that it does not appear that anyone drew this to the learned magistrate's attention. The result is that he failed to give it any, let alone any particular, consideration.

26 There is a real issue as to the ability of the plaintiffs, as foster carers, to seek relief in the nature of prohibition or certiorari. But, in my view, they are persons to whom s 87 of the Care and Protection Act applies. They were the foster carers of the child. On their uncontroverted evidence, they were told that it would be a long-term arrangement. But after about nine months into that long-term arrangement, they were told that the Department had apparently changed its mind, and was seeking to allocate parental responsibility to (first) both parents and (second) to the father.

27 In my view, it could not be denied that this would have a significant impact on the plaintiffs as foster carers.

28 That means that they had an entitlement to be heard on the matter of significant impact. But it does not mean that they have standing to complain about shortcomings in the decision, or to seek relief in the nature of prohibition or certiorari.

29 In my view, in the way in which this case developed, the plaintiffs were denied their s 87 right. Specifically, I do not accept that they were given an opportunity to be heard on the facts of this case, in circumstances where the evidence on which they sought to rely was rejected and where, ultimately, the position taken by the independent legal representative was at odds with the position which the plaintiffs would wish to take.

30 In saying this, I express no criticism whatsoever of the independent legal representative. It is his function to represent the interests of the child, not the interests of the foster carers.

31 However, regardless, the result is that the plaintiffs, who were given to understand by the first magistrate that their views and evidence would be put before the court on a final hearing, were denied that.

32 Whether or not that gives them some form of standing to seek relief under s 69 of the Supreme Court Act is doubtful. I am not sure that the decision in Maksimovic v Walsh [1983] 2 NSWLR 656 goes so far.

33 However, in circumstance where the parens patriae jurisdiction has been invoked, I am satisfied that there are exceptional circumstances shown for this court to intervene. I accept that it is the legislative intention that decisions in relation to parental responsibility for children should be made, so far as possible, by the specialist court set up for that purpose: the Children's Court. For whatever reason, the magistrate who made the decision in this case was not a specialist Children's Court magistrate. But that does not seem to me to take the matter much further.

34 Where (as I have concluded) proceedings before the Children's Court miscarry in a substantial way such that, if application were made (by a person having standing to seek it) for relief in the nature of prohibition or certiorari, it would be granted, then in my view that miscarriage may afford exceptional circumstances sufficient to justify this court in intervening under s 69. To do otherwise would seem to me to permit a decision which on its face is unsatisfactory, but which might have the most serious repercussions for, in particular, the child, to proceed unchallenged.

35 Thus, I conclude, the parens patriae jurisdiction does authorise this court to intervene, at least to the extent of granting relief under s 69.

36 The plaintiffs submitted that if I were to come to that conclusion, then I should retain the matter in this court and deal with the fate of June in the exercise of the parens patriae jurisdiction. I do not agree. I think that the appropriate course is to quash the decision made on 26 June 2012 and to remit the matter to the Children's Court to be heard and determined in accordance with law. It will be preferable for that to be done by a magistrate other than the second magistrate.

37 When I raised the possibility that the court would come to this conclusion with counsel, I was told that, if that were the outcome, then the present arrangements for June's day to day care would be maintained - that is to say, that she would be left in the care of the plaintiffs.

38 Accordingly, I do not propose to make any specific order to that effect. I will however reserve liberty to apply, in case that position should change.

39 The plaintiffs also sought that overnight contact with the father (or anyone else) should be suspended. I see no reason to do that.

40 I order that the order of the Children's Court at Orange made on 26 June 2013, relating to the restoration of the third defendant to the first defendant, be quashed. I remit the matter to the Children's Court to be heard and determined according to law. I direct that the application be heard by a magistrate other than the magistrate who made the order that has been quashed. I reserve liberty to apply on such notice as may be required.

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Amendments

19 July 2013 - Name
Amended paragraphs: coversheet

Decision last updated: 23 July 2013