Supreme Court New South Wales

• Medium Neutral Citation: Re June (No.2) [2013] NSWSC 1111
• Hearing dates: 02/07/2013 and 09/07/2013 Written submissions 12 and 19 July 2013
• Decision date: 16 August 2013
• Jurisdiction: Equity Division
• Before: McDougall J

Decision

Detailed reasons given for decision to quash orders of Children's Court. Costs orders made (see at [245]).

• Catchwords: CHILD WELFARE - care proceedings - application by foster carers challenging decision of the Children's Court - whether magistrate erred in rejecting evidence - need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence - whether magistrate failed to apply s 79(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether magistrate took into account, and acted on, irrelevant considerations; CHILD WELFARE - care proceedings - where statutory 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); EVIDENCE - care proceedings - admissibility - assessment reports - where assessment report obtained outside the assessment process outlined in the Children and Young Persons (Care and Protection) Act 1998 (NSW) - where report was not prepared pursuant to court order - relevant principles - Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 52, 53, 54, 55, 56, 57, 58, 59
• Legislation Cited: Children and Young Persons (Care and Protection Act) 1998 (NSW); Child Welfare Act 1939 (NSW); Civil Procedure Act 2005 (NSW); Coroner's Act 1980 (NSW); Legal Aid Commission Act 1979 (NSW); Supreme Court Act (1970) (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Attorney-General v Maksimovich (1985) 4 NSWLR 300; Crinion v IG Markets Ltd [2013] EWCA Civ 587; J v Lieschke (1987) 162 CLR 447; Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639; Maksimovic v Walsh [1983] 2 NSWLR 656; Re Alan [2008] NSWSC 379; Re Bailey and Blake [2011] NSWSC 1390; Re Bailey and Blake (No.2) [2012] NSWSC 394; Re June [2013] NSWSC 969; Re Kerry (No.2) [2012] NSWCA 127; Re Kerry (No.2) - Costs [2012] NSWCA 194; Re Georgia and Luke [2008] NSWSC 1277; Re Oscar [2002] NSWSC 453; Re Tracey [2011] NSWCA 43; Secretary, Department of Human Services v Children's Court of Victoria and Ors [2012] VSC 422; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
• Texts Cited: Stein, Locus Standi (Law Book Company, 1979); Thio, Locus Standi and Judicial Review (Singapore University Press, 1971)
• 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 of the child); Solicitors: Neil Jones Solicitors (Plaintiffs); NSW Crown Solicitors (First Defendant); Thompson Madden Solicitors (Second and Fourth Defendants); Longman Hill Solicitors (Independent Legal Representative of the child)
• File Number(s): 2013/199535

Judgment

1 HIS HONOUR: On 9 July 2012, I made an order quashing orders made by the Children's Court of New South Wales at Orange relating to the child known as June. I gave outline reasons for doing so (re June [2013] NSWSC 969), and said that I would give more detailed reasons in writing. What follows (from [2] to [221]) are those more detailed reasons. Those paragraphs are followed by my reasons for making the costs orders set out at [245].

Background

2 June was born in hospital on 18 August 2012. She is the third defendant in these proceedings. Her mother is the fourth defendant, and her father is the second defendant.

3 June and her mother were discharged from hospital on 20 August 2012. A community nurse visited June and her parents on 21 August 2012. June was found to be insufficiently clothed, hypothermic, dehydrated and barely responsive. She was immediately returned to hospital, where she remained for a further 2 ½ weeks.

4 The Department of Family and Community Services (the Department) was notified. It asked the plaintiffs to act as authorised carers for June, and the plaintiffs accepted. Accordingly to the first plaintiff's affidavit filed in these proceedings, "it was indicated to [the plaintiffs] that the care arrangement was intended to be long term".

5 The first plaintiff was not cross-examined on that affidavit. Nor did anyone from the Department swear an affidavit in reply. Mr Moore of Counsel, who appeared with Mr Tzatzagos of Counsel for the first defendant, the Director General of the Department, submitted that the "long term" evidence was not unchallenged, because there were statements to the contrary in reports contained in an exhibit proved by the Department's acting manager, case work, Ms Davidson. In circumstances where there was no cross-examination on the issue, I accept the first plaintiff's evidence. On that basis, I conclude that the plaintiffs were indeed told "that the care arrangement was intended to be long term".

6 On 27 August 2012, the Director General made an application (the principal application) to the Children's Court. One of the orders sought was that June be placed under the parental responsibility of the Minister until age 18. An interim order giving parental responsibility to the Minister was made on 28 August 2012.

7 The plaintiffs commenced visiting June in hospital from about 29 August 2012. She was discharged into their day to day care on 5 September 2012, and has remained with them since then.

8 On 21 September 2012, the Children's Court made a finding, by consent but without admissions, that June was in need of care and protection (see s 72 of the Children and Young Persons (Care and Protection Act) 1998 (NSW) (the Care and Protection Act)).

9 At some stage, the Children's Court made an "assessment order" in respect of June, pursuant to ss 53 and 54 of the Care and Protection Act. Such a report was prepared by Ms Jane Irving, an "Authorised Clinician", on 12 December 2012. That report was made available on about 20 December 2012. It recommended, among other things, that June be restored to the care of her parents. The recommendation said that:

For this to occur, both parents with [June] would need to complete a Tresillian type programme with a reported positive outcome. They are being referred to the QEII program in Canberra... Random urinalysis is also suggested.

10 The recommendation for random urinalysis was no doubt prompted by the parents' reported history of use of cannabis.

11 The plaintiffs made application, pursuant to s 98 of the Care and Protection Act, to be legally represented in the principal proceedings, with concomitant rights of examination and cross-examination of witnesses. That application was heard by his Honour Magistrate Williams (the first Magistrate) on 19 April 2013. His Honour gave judgment on 26 April 2013, dismissing the application.

12 I interpose to note that, when these proceedings were commenced, the plaintiffs sought relief under s 69 of the Supreme Court Act (1970) (NSW) in respect of the first Magistrate's order dismissing their application. Ultimately, that ground of relief was not pressed. The plaintiffs were wise not to press it.

13 The first Magistrate was concerned with the exercise of a statutory discretion. His reasons indicate that he paid careful attention to, and balanced, relevant considerations. It does not appear that his Honour took into account any irrelevant material, or failed to take into account relevant material. Nor is there apparent any other error of law, or misapprehension of the principles relevant to the exercise of the discretion. There was no submission of "Wednesbury" unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 (Lord Greene MR)). And the submission, if made, must have failed.

14 It may be - I express no view - that another judicial officer undertaking the same task might have come to a different view. But that is not to the point. In my opinion, there was no basis shown for impugning the first Magistrate's discretionary decision, and the application, had it been pressed, must have failed.

15 It is however important to note an aspect of the first Magistrate's reasoning. His Honour noted that an Independent Legal Representative (ILR) had been appointed for June. His Honour clearly took the view that the evidence on which the plaintiffs would rely (were they joined to the principal application) and the arguments that they would put would be advanced, on the hearing of that principal application, by the ILR. His Honour said at [26]:

The [ILR] also opposes the restoration proposal, and his arguments will be based on the same information and evidence that is now available [through the evidence tendered by the plaintiffs] to the Court. If the clinician is called at the hearing, the [ILR] can put the same propositions to him/her, as could any other party who opposes restoration. The [ILR's] opposition will be based on the same evidence that would be available to the [plaintiffs] if they were joined.

16 In substance, as the matter then stood before the first Magistrate, his Honour was satisfied that the evidence to be led from or through, and submissions to be put on behalf of, the plaintiffs would in fact be put before the court, by the ILR.

17 At some stage, the parents separated. The care plan proposed for June was amended accordingly. The amended care plan provided for her to be restored to the care of her father alone.

18 I should note that, over the period of time that I have so far covered, June had had "contact" with her parents. Initially, that contact was for a limited period, during the day, and was supervised by representatives of the Department. After the parents separated, the contact between June and her father extended to overnight contact. That was done, as I understand it, only after the Department was satisfied that the father, with the assistance of a member or members of his family, was able to give proper care to June.

Proceedings before the second Magistrate

19 The principal application came before his Honour Magistrate Lucas (the second Magistrate) on four occasions: 24 May, and 14, 24 and 26 June 2013.

20 On 24 May 2013, the principal application was given a hearing date, 24 June 2013. As one would expect, there was discussion of the likely duration of the hearing. In this context, the ILR made it clear, and the person then appearing for the Department accepted, that the clinician (Ms Irving) would be required for cross-examination on her report. The father had sworn an affidavit or affidavits (as, I think, had the mother). There was no suggestion that the father was required for cross-examination.

21 The hearing on 14 June 2013 was a "compliance check": as I understand it, a short hearing to ensure that the matter would be ready to proceed on 24 June. It was confirmed that the clinician would be required for cross-examination. Again, there was no reference made to any requirement for the father to attend for cross-examination.

22 The substantive hearing took place on 24 June 2013. It seems that the second Magistrate had other matters in his list. Accordingly, he stood the application (in relation to June) down to 12 noon.

23 At some time before 12 noon, the ILR informed the Magistrate that the clinician was "available to give evidence between 11 and 12 today by telephone if that's suitable to the court" (T2.13). The second Magistrate confirmed that the matter was stood down, and suggested that the clinician should make herself available between 12 noon and 1pm.

24 When the hearing commenced, the first issue of significance discussed (leaving aside access to documents produced under subpoena) was an affidavit sworn by the plaintiffs. That was the affidavit which, among other things, annexed a report of a psychologist, Ms Caro.

25 Mr Dalla, who was appearing for the Department, said that the affidavit "gives me great cause for concern because, one, the material contained in that affidavit does not go to the test that your Honour is required to apply..." (T4.11).

26 There were then exchanges between the second Magistrate, Mr Dalla and the ILR. It appears from those exchanges that the plaintiffs had filed the affidavit and given it to the ILR, and that the ILR had served it on (among others) the Department. However, the ILR had not participated in the preparation of the affidavit.

27 This last circumstance appeared to excite Mr Dalla, because he objected to the affidavit on a basis that included that the ILR "had no input into the affidavit" (T5.15). Quite why that would be a basis for objection, even in proceedings where the rules of evidence apply (and, by s 93(3) of the Care and Protection Act, those rules do not apply unless the Children's Court determines otherwise), is a matter of some obscurity.

28 Mr Dalla noted, further, that the plaintiffs had sought leave to be a party, and that their application had been refused. He said that "[n]ow off their own beck and back [sic] they have filed an affidavit in this matter". However, as is apparent from the whole of the passage from which I have taken these brief quotations (T5.13-.28), it seems to be that Mr Dalla's real objection was to the fact that the person seeking to read the affidavit (the ILR) had "nothing to do with the preparation of the affidavit" (T5.21).

29 In fairness, Mr Dalla continued to observe (T5.30-.34) that there might "at its highest... be one paragraph... that may be relevant to anything before the court or any of the issues that the court is required to consider".

30 Thereafter, Ms Thompson, who appeared for the parents, indicated that she too objected to the reading of the affidavit.

31 Mr Dalla then elaborated further on his reasons for objecting to the affidavit. In summary, those reasons (T6.10-.38) were:

(1) the plaintiffs were not parties to the application before the Children's Court;

(2) the affidavit had been filed "without any input from" the ILR;

(3) the affidavit referred to the clinician's report and to other reports or material, relating to the QEII course to which I have referred earlier, undertaken by the parents;

(4) the plaintiffs' "have then presented the child to Caro Consultancy or whatever they want to call themselves, for a parenting capacity assessment, what it appears to be, of the mother";

(5) the plaintiffs had no authority to do that;

(6) in so acting, the plaintiffs went beyond the rights they had as foster carers under "s 158" of the Care and Protection Act; and

(7) s 58 of the Care and Protection Act provided (in my words, not Mr Dalla's) an exclusive code for the preparation of such reports.

32 After stating that confused, and in my view (as will appear) misguided, set of objections, Mr Dalla submitted that there was "a decision of Re Oscar of the Supreme Court which... basically says that any report that does not follow the exceptions is [not] admissible and should not be considered by the [Children's] Court" (T6.45-.48).

33 Mr Dalla's submissions on this point (T6.10-7.35) included a statement (T7.34) that the Caro report was one that had been obtained illegally: a submission repeated after the ILR, not surprisingly, had objected to it.

34 Mr Dalla made further submissions thereafter. They included the proposition that the affidavit "can only be a backdoor attempt by the intervenors to get re-involved in the matter and I'm cranky about this too your Honour and I'm cranky because I'm put in this position when I should not have been" (T8.1-.4).

35 Mr Dalla's submissions also included an assertion which appeared to call into question whether the ILR was indeed seeking to represent the best interest of the child (T8.18-.22). Mr Dalla's submissions ended with the assertion that "these proceedings needs [sic] to be brought to an end forthwith" (T8.22).

36 Reading Mr Dalla's submissions in their entirety, I have the very strong impression that his attitude was adversarial and partisan. It does not seem to have occurred to anyone that, under s 9(1) of the Care and Protection Act, the paramount concern was June's safety, welfare and wellbeing. Nor, it seems, was anyone's attention focused on s 93(1) of the Care and Protection Act: "[p]roceedings before the Childern's Court are not to be conducted in an adversarial manner".

37 The transcript conveys the very strong impression that Mr Dalla regarded the application as adversarial litigation, and (inappropriately) conducted it accordingly. I do accept however that transcript is, at best, an imperfect medium for assessing the way in which proceedings were conducted.

38 In circumstances where Mr Dalla was not represented in the hearing before me and has not been given any opportunity to deal with these matters, I propose to leave the point at the level of impression. Further, I should make it clear that the reason I refer to those matters is to give context to the decision that the second Magistrate made in relation to the plaintiffs' affidavit in general, and the report by Ms Caro in particular.

39 Ms Thompson concurred in the submissions made by Mr Dalla, and added some brief comments of her own.

40 The ILR was then heard. He summarised what had happened, on the hearing, before the first Magistrate, of the plaintiffs' application for leave to intervene. After dealing with some of the more hyperbolic and inflammatory submissions put by Mr Dalla, the ILR submitted that the second Magistrate should receive the affidavit into evidence and take from it what was relevant to the real question with which he was faced. As will become clear, I think that, in the absence of any evidence of prejudice to the other parties, that was a proper approach to take.

41 The second Magistrate then gave reasons for rejecting the affidavit (T9.39-49):

Rules of evidence do not strictly apply in relation to these types of proceedings. The question for my determination at this time, is the affidavit that has been placed before the court today and I asked Ms Thompson prior to Mr Dalla arriving, well the general thrust of my enquiry was whether it was relied upon by any of the parties, apart from Mr Hill of course, who as he has indicated was the only party who was in a position to file this affidavit. As I said, I have read this over the morning tea adjournment, and I am of the view that quite simply, whilst there is some benefit to the court in accepting the affidavit, well quite simply Mr Hill himself described it as less than pristine in relation to the material contained within. As such, I am for the reasons of the various sections of the Act, and for service not allow [sic] it into evidence.

42 I shall return to those sections of the Care and Protection Act that deal with assessment reports, and to the "various sections of the Act" that had been referred to in the course of submissions. It is sufficient to say at this point, in relation to the last (and apparently dispositive) section of the second Magistrate's reasons, that:

(1) there is nothing in the scheme of the Care and Protection Act which states expressly that a report obtained outside the assessment process contained in ss 52 to 59 of the Care and Protection Act is inadmissible, let alone illegal;

(2) in any event, the real inquiry is not simply as to the mechanics of obtaining the evidence in question but, rather, as to its relevance and probative value; and

(3) notwithstanding the "late service", it was plain, from Mr Dalla's submissions, that he was able to deal with the affidavit, because he had an affidavit in reply (T5.25) and had prepared submissions on the issue (T8.8).

43 The next matter to occupy the attention of the court was the position of the clinician. The second Magistrate made it clear that his preference was for a witness such as the clinician to give evidence in person rather than by telephone so that he could "check the witness", "watch what a witness says when cross-examined etc" (T10.15,10.25). That is, if I may say so, entirely understandable. Unfortunately, it seems, the clinician was only available to give evidence by telephone.

44 That question was not immediately resolved. Attention was then turned to the cross-examination of the father. The ILR indicated what were the areas on which he wished to cross-examine the father. The second Magistrate said that those were "covered to a large, not completely but a large degree by his affidavit" (T13.11). If that were the reason for refusing leave to cross-examine (in circumstances where the father was present and where it was not suggested that there was any prejudice arising from late notification) it is somewhat unusual: one of the purposes of cross-examination is to test the evidence-in-chief.

45 Be that as it may, the issue as to the father was not resolved. The second Magistrate said that "[w]e'll argue the toss on [the father] later" (T13.32). Unfortunately, that never happened.

46 It seems that the second Magistrate accepted that, notwithstanding his distaste for the procedure, the clinician could give evidence by telephone. However, technical difficulties ensued which prevented that from happening. There was discussion of taking her evidence on a later date. Unfortunately, it appeared that she would not be available to give evidence in person until 8 July. The Magistrate decided to take her evidence then, but Mr Dalla objected to that course. He appeared to take the view that since the clinician had given her views, there was no need to delay the matter (T16.7-.23). His submission concluded with the words:

Therefore why would we want to delay these proceedings any further for the clinician to now give evidence.

47 The second Magistrate pointed out, succinctly and correctly (T16.25):

Procedural fairness to the other party...

48 Mr Dalla responded to that by stating that time was of the essence, and the matter should be finalised (T16.36-.41):

... And time is of the essence, back in December time was of the essence, six months later time is so much of the essence. And in my submission your Honour should not grant an adjournment and the matter should be finalised and if your Honour wants to have submissions now and give a decision later on it in the week then so be it, but we should be finalising the matter today by way--

49 The ILR submitted, not unreasonably, that the purpose for cross-examining the clinician was "to test her assessment" (T16.45). It was clearly his position that some of the material on which Ms Irving had based her assessment was factually inaccurate, and he wished to cross-examine her as to the impact that this would have on her opinions.

50 Thereafter, after hearing from Ms Thompson and (again) from Mr Dalla, the second Magistrate gave reasons as follows (T17.46-18.17):

Prior to the luncheon adjournment, the parties are well aware of what transpired, no need to repeat that here. Having considered the matter over the morning tea adjournment (as said) what is the purpose in having the clinician attend to court. One, is one of the parties or all of the parties may cross-examine the particular views put before the clinician or put forward by the clinician based upon the evidence that she has been given and the - or he has been given and the evidence has been presented within the court through cross-examination.

Quite often it ha been my experience, that a clinician, expert witnesses that they are, will simply go to the particular question as to what is asked by the legal practitioner, example being, "If you had been told this would your view have been such". That is the basis of the matters before the court.

I have considered [the ILR's] application ..., in order to have that witness present. There is in my view, merit in respect of Mr Dalla's submission that 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].

To that end, I am proposing to finalise the matter today, after asking each of the practitioners if they wish to add anything else prior to the court's decision.

51 Mr Dalla and Ms Thompson then indicated that they had no further submissions (apart from their written submission).

52 The ILR then made detailed and cogent submissions. He referred to various matters in the evidence which, in his submission, were at odds with the recommendation of the clinician, and made the point, as to some of them, that that was why he had wished to cross-examine the father.

53 After some further matters of no significance, the second Magistrate adjourned the proceedings to 26 June 2013 for decision. The reasons that he gave on that day were as follows (T2.36-3.28):

HIS HONOUR: Thank you for your attendance. All right dealing with the care proceedings before the court. In regards [June]. Quite simply there is a number of issues before the court. I'd like first to thank Mr Dalla for his written submissions and his placing of the Department's position on the previous date and dates, Mrs Thompson again, for her submission before the court and [the ILR] for your involvement in relation to this matter as the independent children's representative.

I considered all the material, and I will indicate that it was certainly not - was not one of the Care matters that I personally have - enjoyed is not the correct word, but...(not transcribable)...

[The ILR's] submissions certainly add a great ring of truth to the court, I then reserved - or resumed the enquiry into the matter that [June] is in need of care, that is not doubted, ..(not transcribable).. child in need of care finding has already been made.

I am also persuaded by his Honour Justice Marion [sic] who is or was the chief of the Children's Court, who is as the Children's Court Magistrate is certainly a binding person that I [must] listen to. That being that these matters should be finalised within nine or twelve months depending on the type of child that is involved. This one being a nine month,.. (not transcribable).. two years of age.

I've noted the affidavit for the various parties, the parents, the completion of the QE2 course on separate occasions, the clinician who has indicated on close reading of her report a number of issues that - as I say were of great concern to the court, and certainly was in relation to [the ILR's] submissions before the court.

Quite simply I agree with [the ILR's] submissions to a great deal, however I am bound by the law, and by the chief judge of the Children's Court. His time table, the legal time table, the case law time table 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 timetable available, having considered the evidence that the court is able to glean from the departmental, the parents, the course that have been posed, [the ILR] and the Children's Court Clinician Report, 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.

The issues for decision

54 Mr Anderson of Counsel, who appeared with Mr Longworth of Counsel for the plaintiffs, stated the issues as being whether:

(1) the first Magistrate erred in the exercise of his discretion, on the plaintiffs' application for leave to intervene, and whether the plaintiffs were entitled to relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of that decision.

(2) The second Magistrate's decision was erroneous in point of law, in a number of respects, so as to require orders under s 69 of the Supreme Court Act. The errors of law were said to be:

(a) the way in which, and the basis upon which, the second Magistrate dealt with the plaintiffs' affidavit (including the report of Ms Caro);

(b) the way in which his Honour dealt with the application to cross-examine the clinician, Ms Irving, and his Honour's refusal to adjourn the proceedings for that purpose;

(c) his Honour's reasons for deciding the application as he did showed that he had regarded the question as determined by administrative guidelines issued by the then or former President of the Children's Court;

(d) alternatively, his Honour's reasons were so inadequate as to amount to a failure of the duty to give reasons, and thus to show error of law; and

(e) his Honour, being required to do so, did not take into account s 79(3) of the Care and Protection Act.

(3) The plaintiffs had standing to entitle them to relief under s 69 of the Supreme Court Act; their standing (he submitted) followed from the fact that they stood to some extent "in loco parentis" to June.

(4) Alternatively, if the court were persuaded that the second Magistrate's decision had miscarried in one or more of the respects alleged, then in the exercise of the parens patriae jurisdiction it could grant relief under s 69 in any event, regardless of the plaintiffs' standing.

(5) Finally, the plaintiffs had a statutory right to be heard under s 87 of the Care and Protection Act, and in the way that the hearing before the second Magistrate worked out, they had been denied this right.

The parties' submissions

55 Mr Anderson developed each of those issues in detailed submissions, both written and oral. It is not necessary to go to that detail.

56 Mr Moore submitted that, in all the circumstances, the Magistrate had dealt appropriately with the evidentiary issues raised before him. I should note that Mr Moore did not seek to controvert the proposition that the submission put by Mr Dalla to the second Magistrate, to the effect that this Court's decision in Re Oscar [2002] NSWSC 453 (see at [83] to [88] below) required that he disregard Ms Caro's report, was incorrect and in that sense misleading.

57 However, the principal points addressed by Mr Moore's submissions were whether the plaintiffs had standing to seek relief (under s 69 of the Supreme Court Act), the associated question of the nature of their "right" under s 87 of the Care and Protection Act, and whether in the circumstances there was shown a basis for the exercise of the parens patriae jurisdiction (were that necessary) as a gateway to relief under s 69.

58 Ms Sproston of Counsel, for the parents, adopted Mr Moore's submissions. She submitted, in addition, that the plaintiffs' right under s 87 had been satisfied in "numerous ways and also at different times" during the proceedings:

(1) because they were interviewed by the clinician, Ms Irving, who recorded their views, and whose report was in evidence before the second Magistrate;

(2) because his Honour "read the affidavit" (it seems that, by this, Ms Sproston meant that the second Magistrate had looked at it for the purpose of deciding whether to admit it or reject it, not that it had been admitted into evidence; she conceded that it had not been admitted into evidence);

(3) as a variant of the proceeding submission, that the plaintiffs had been given an opportunity to be heard because of the debate over whether or not their affidavit should be admitted into evidence;

(4) because they had been given the opportunity to put their views to the ILR (notwithstanding that, as it appeared, the views of the ILR were in some respects at odds with the views of the plaintiffs); and

(5) when their application to be joined as parties was considered (and refused) by the first Magistrate.

59 Ms Spain of Counsel, for the ILR, adopted the submissions of Mr Moore and Ms Sproston. She submitted, further, that the ILR was entitled to change his mind or his position: an incontrovertible proposition.

First issue: the first Magistrate's exercise of discretion

60 I have noted that, ultimately, this challenge was not pressed, and that, had it been pressed, it must have failed.

Second issue: did the second Magistrate err in law?

61 In my view, the second Magistrate did err in law, so as to provide a basis for relief under s 69 of the Supreme Court Act.

The plaintiffs' affidavit

62 I start with the argument in relation to, and decision on, the admissibility of the plaintiffs' affidavit: in particular, the report of Ms Caro.

63 It is difficult to escape the conclusion that the second Magistrate was much influenced by what he perceived as the irregularity of the way in which the affidavit had come before the court. It was the plaintiffs themselves who had filed the affidavit, notwithstanding that they had been refused leave to intervene. That, together with the fact that the person who sought to read the affidavit, the ILR, had played no part in its preparation, seems, from the second Magistrate's reasons, to have been a significant factor justifying rejection of the evidence. The other matter of significance to his Honour seems to have been "the various sections of the Act".

64 The starting point is that the Children's Court is not bound by the rules of evidence unless, in a particular case or in relation to particular evidence, it determines otherwise. See s 93(3) of the Care and Protection Act. It has not been suggested that, in this case, there was any such determination.

65 Thus, in deciding whether to admit or act on evidence, one - perhaps, the principal - question of significance is the relevance and probative value of that evidence. That is not to say that there are no other relevant considerations. For example, prejudice: if the evidence were sought to be adduced at such a time or in such a way as to take parties to the application by surprise, or to prevent them from dealing with it or responding to it, that would be a relevant matter to take into account.

66 In this context, prejudice is to be assessed bearing in mind the paramount principle stated in s 9(1) of the Care and Protection Act, not just having regard to the individual interests of the other parties (as it would be in ordinary, adversarial, civil litigation).

67 As I have noted already, Mr Dalla made it clear that the Department was in a position to respond to the plaintiffs' affidavit if it were admitted into evidence: he had available an affidavit in reply. Prejudice of the kind to which I have just referred does not seem to have been relevant.

68 Although the submissions that Mr Dalla put did from time to time touch on the question of relevance, it is, I think, fair to say that relevance (or probative value) did not feature at their forefront.

69 More importantly, it does not appear from the second Magistrate's reasons that his Honour considered whether, and if so to what extent, the material in the affidavit (including, in particular but not exclusively, the Caro report) might be relevant to the ultimate decision that he was required to make. In this context, it does seem, unfortunately, that the learned Magistrate was persuaded, by the enthusiastic but inaccurate submissions of Mr Dalla, that the "various sections of the Act" that had been referred to required the rejection of the evidence.

The legislative scheme

70 Thus I turn (as I said I would do) to those sections.

71 Chapter 5 of the Care and Protection Act deals with proceedings in the Children's Court. Part 2 deals with care applications. Division 6 of that Part deals with examination and assessment orders. An assessment order is defined (by s 52) to be an order made under s 53. Section 53 reads as follows:

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.

72 Sections 54 to 57 deal with matters relevant to applications for and the making of an assessment order. Section 58, on which (before the second Magistrate) Mr Dalla relied and to which he referred specifically, deals with the provision of reports and other information:

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.

73 Section 59, which is the last section falling within Div 6 of Pt 1 of Ch 5, deals with the evidentiary status of an assessment report:

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.

74 Although Div 6 appears in Pt 1, and Pt 1 by its heading, seems to be concerned with "emergency protection and assessment", I do not think that this limits the generality of Div 6.

75 Section 59 does not in terms give evidentiary status to an assessment report prepared pursuant to an order made under s 53. Nonetheless, it may be assumed, such a report, when prepared and submitted, may be received in evidence in proceedings in the Children's Court.

76 There is nothing in Div 6, or elsewhere in the Care and Protection Act, to which I was taken, to indicate expressly that any report dealing with the matters that may be the subject of an assessment report ordered under s 53 is inadmissible, let alone "illegal".

77 Mr Dalla's submissions to the second Magistrate referred also to s 158 of the Care and Protection Act. That section, which appears in Pt 4 of Ch 8 of the Care and Protection Act (a chapter dealing, as its heading indicates, with out-of-home care) has nothing to do with the matter: its subject is "physical restraint of child or young person". It was common ground before me that Mr Dalla might have been intending to refer to s 157, which deals with "care responsibility".

78 As I understand it, Mr Dalla intended to submit that, because s 157 did not authorise the plaintiffs to procure an assessment report in respect of the child, the report was thus illegal and inadmissible.

79 Section 157 reads as follows:

157 Care responsibility

(1) The authorised carer of a child or young person has authority to do any of the following:

(a) to consent to medical treatment, not involving surgery, for the child or young person on the advice of a medical practitioner,

(b) to consent to medical treatment involving surgery that a medical practitioner certifies in writing needs to be carried out as a matter of urgency in the best interests of the child or young person,

(b1) to consent to dental treatment (including treatment involving minor dental surgery) that a dentist has advised needs to be carried out for the child or young person,

(b2) to consent to dental treatment involving dental surgery other than minor dental surgery that a dentist certifies in writing needs to be carried out as a matter of urgency in the best interests of the child or young person,

(c) to correct and manage the behaviour of the child or young person, subject to the regulations,

(d) to give permission to participate in activities, such as school excursions, that are organised for the child or young person,

(e) to make other decisions that are required in the day-to-day care and control of the child or young person.

(2) The authorised carer of a child or young person has authority to exercise any aspects of parental responsibility that are delegated to the authorised carer in accordance with this Act.

Note. Aspects of parental responsibility that may be delegated include:

(a) the power to give consent to medical and dental treatment involving surgery, other than urgent treatment, and

(b) the power to make decisions concerning the education and training of the child or young person, and

(c) the power to give a consent on behalf of the child or young person, or to make an application on his or her behalf, for any purpose for which the consent or authorisation of a parent is required, other than:

(i) an application for a passport, or

(ii) consent to marriage.

(3) The exercise of a function under this section by an authorised carer is subject to any written direction given by the designated agency that placed the child or young person in the daily care and control of the authorised carer, or the Children's Guardian.

(4) An authorised carer:

(a) may provide a child or young person with whatever religious instruction (if any) the authorised carer considers to be appropriate, and

(b) may allow the child or young person to participate in religious activities,

unless a direction to the contrary has been given to an authorised carer by the designated agency responsible for the placement of the child or young person or the Children's Guardian.

(5) In this section:

minor dental surgery means a tooth extraction, the filling of a decayed tooth, root canal work or a repair to a broken or chipped tooth.

Note. Section 177 gives protection to medical and dental practitioners in relation to children in respect of whom consent is given by the authorised carer under this section, but not in relation to young persons in respect of whom such consent is given. In the case of young persons, the young person's consent is also required.

80 It may be accepted that s 157 limits the authority of authorised carers of a child or young person, in accordance with its terms. But it does not follow that, where the child (as in this case) has become the subject of an application to the Children's Court, the authorised carers, on whose interests the Court's decision may have a significant impact, may not procure a report from an appropriately qualified person on the issues likely to be raised on the hearing of that application.

81 I can understand the proposition that it would not be open to the authorised carers of a child or young person to take that young person to, for example, a psychologist, for the psychologist to interview and test the child. But it is not suggested that anything of the kind occurred here; nor could it have occurred, bearing in mind June's age at the time.

82 It is neither possible nor desirable to lay down the circumstances in which it may be appropriate for an authorised carer to adduce expert evidence dealing with issues such as those confronting the second Magistrate on the hearing of the application. It is sufficient to say that, in this case, there is nothing in the Child Protection Act to which I was taken which in terms would have the consequence that Ms Caro's report, not being one made pursuant to an assessment order under s 53 of the Care and Protection Act, was thus and without more inadmissible.

The authorities

The decision in Re Oscar

83 As I have noted, Mr Dalla submitted to the second Magistrate that the decision of this court in Re Oscar "basically says that any report that does not follow the exceptions [to s 58 of the Care and Protection Act] is inadmissible and should not be considered by the court" (T6.47-.48).

84 In Re Oscar, Hamilton J was faced with a situation very different to that arising in respect of Ms Caro's report. In Re Oscar, the Children's Court had made an order under s 53 of the Care and Protection Act that the child known as Oscar be assessed. By s 58(1), that assessment was to be carried out by the Children's Court Clinic unless the conditions set out in that subsection were met.

85 It seems that the Clinic did prepare an assessment. However, the assessment did not cover all the matters that the Court had required. Accordingly, the Court made further orders for assessment, including of the child. Those orders were not directed to the Clinic. They required, rather, psychiatric examination "by a Child psychiatrist".

86 Hamilton J concluded that any assessment ordered under s 53 must be performed by the Clinic except in the circumstances set out in paras (a) and (b) of s 58(1). It was only if one or other of those paragraphs applied that the Children's Court could appoint another person to carry out the assessment (under s 58(2)).

87 In essence, Hamilton J held that the Children's Court had no power to order assessment other by the Clinic unless the requirements of s 58 were met. It followed, those requirements not having been met in the case before his Honour, that the orders for the making of the report were invalid.

88 That analysis makes it clear why Re Oscar has nothing to do with Ms Caro's report. It was not a report prepared pursuant to any order made by the Children's Court. Thus, the question of invalidity considered by Hamilton J had no application to Ms Caro's report.

The decisions in Re Bailey and Blake

89 A case closer to the present on its facts came before Rein J in Re Bailey and Blake [2011] NSWSC 1390. In that case, the mother of the children known as Bailey and Blake commissioned an expert report, in the nature of an assessment of the children, from a social worker. The report was tendered before the Children's Court Magistrate and the Magistrate admitted it into evidence on the basis (see Rein J at [4]) that the Care and Protection Act "did not preclude assessments being made of children without an order made pursuant to s 53 of s 54...".

90 Rein J was referred to the decision of Hamilton J in Re Oscar. He said that that decision had nothing to do with the facts before him: see at [12] of his Honour's reasons:

[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, that is, outside of Ch 5 Div 6, although it might be thought that Re Oscar proceeded on the assumption that the Care Act does not permit such assessments.

91 After further discussion, Rein J concluded at [21] that the Magistrate in that case had been correct to conclude "that children can, on the state of authority, be assessed by someone arranged by a party to proceedings". However, as Rein J said, it did not follow "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".

92 Rein J did not decide what were the consequences of relying on an assessment obtained without relevant agreement or leave. His Honour's reasons at [23] make this clear, where his Honour said:

... 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 is applicable...

93 Thereafter, the matter having gone as far as it did, the parties agreed as to the orders that should be made, and the question of admissibility remained unresolved.

94 Thus, the decision of Rein J in Re Bailey and Blake does not stand as authority for the proposition that a report which amounts to, or includes, an "assessment" for the purposes of the Care and Protection Act, but which is obtained by a party rather than by order of the court without the agreement of those who have parental responsibility for the child, or the leave of the court, as the case may be, is inadmissible.

95 Nor was that issue resolved when the same question came before Ball J in Re Bailey and Blake (No.2) [2012] NSWSC 394.

96 When the admissibility of the report was agitated for a second time in this court, Ball J proceeded on the basis that the report should not have been prepared without the informed consent of those having parental responsibility, and that such consent had not been given. Nonetheless, his Honour concluded, this did not make the report inadmissible. He said at [26] that Rein J did not adopt "a universal principle that if an assessment occurred without parental consent then the report should be rejected". I respectfully agree.

97 At [28], Ball J said that "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". Again, I respectfully agree. Ball J said, in the same paragraph, that this must be undertaken by reference to the paramount principle identified in s 9(1) of the Care and Protection Act with respect, that must be so.

98 It will be noted that Ball J referred to "the principle that evidence should not be obtained in contravention of the law". The principle is undoubted. But on my reading of his Honour's reasons, his Honour did not decide that the report in question had been "obtained in contravention of the law". His Honour was apparently prepared to assume, for the purpose of deciding the issues before him, that the report could be thus characterised. But he did not decide that the characterisation was appropriate.

99 Thus, it seems to me, the decision of Ball J in Re Bailey and Blake (No.2) does not stand as authority for the proposition that a report obtained in the circumstances referred to at [94] above is inadmissible.

Analysis

100 To the extent that Ms Caro's report was considered, the consideration assumed that it was "an assessment" for the purposes of, or as that term is used in, the Care and Protection Act. That is not perhaps surprising, since the report is headed "Psychological Assessment" and uses the language of "assessment" throughout. Nonetheless, what the report does is:

(1) set out a history of "background information" given by the plaintiffs to Ms Caro;

(2) advert to some aspects of a "Care Plan" and "Restoration Risk Assessment" prepared in relation in June;

(3) set out concerns held by the plaintiffs in relation to contact between June and her parents, and in relation to the prospect of restoration to her parents;

(4) set out observations made by Ms Caro of interaction between the plaintiffs (and the then 17 year old daughter of one of them) and June; and

(5) offer an opinion as to the risks inherent in breaking the bond between June and the plaintiffs, by restoring her to her parents, and to other possible risks that might follow on restoration.

101 The submissions before me did not touch on the question of whether or not, in the circumstances, Ms Caro's report should be regarded as an "assessment" for the purposes of the Care and Protection Act, so that the consent of the Department or the leave of the Court, was required for its production. Those submissions appeared to proceed on the basis that the report was to be treated (as it termed itself) as an assessment, and that consent or leave was thus required.

102 In circumstances where the question was not addressed, and where to deal with it would require careful attention to the facts, I am not prepared to find that Ms Caro's report is an "assessment" for the purposes of the Care and Protection Act. Nor am I prepared to find that consent or leave was required for its preparation. Thus, I am not prepared to find that the report should be regarded as one obtained in contravention of the law.

103 Assuming, for present purposes, that Ms Caro's report had been obtained in contravention of the law, what was required was a balancing exercise of the kind to which Ball J referred in Re Bailey and Blake (No. 2) at [28]. No one referred the second Magistrate to his Honour's decision. No one suggested that the learned Magistrate should undertake such an exercise. Thus, the second Magistrate (who as I have said was not a specialist Children's Magistrate) did not do so.

104 The second Magistrate noted that the rules of evidence did not apply (his qualification, "strictly", is difficult to understand). Thus, it was incumbent on his Honour to consider whether the affidavit, including Ms Caro's report, had probative value in that it sought to put relevant material before the court. If he had concluded that it did, then his Honour was required to consider whether, having regard to the circumstances in which the affidavit (in particular, the report) was obtained, it should be admitted or rejected. That analysis was required to proceed on the basis of the paramount principle identified in s 9(1) of the Care and Protection Act.

105 In those circumstances, I conclude that the second Magistrate's decision, whether to admit or reject the plaintiffs' affidavit (including, in particular, the annexed report of Ms Caro) miscarried in a fundamental way. The consequence of that is that the second Magistrate deprived himself of potentially relevant, and indeed significant, evidence without any proper basis for doing so. It meant that the expert evidence was all one way. Unfortunately, as will be seen, the effects of that error in approach were compounded by the failure to permit cross-examination of Ms Irving, and the failure to permit (more accurately, perhaps, to decide whether to permit) cross-examination of the father.

106 Had that cross-examination occurred, then the views expressed by Ms Caro could have been put to Ms Irving. The second Magistrate would have had the benefit of hearing the extent (if at all) to which Ms Irving, as an independent expert, thought that there was weight in the views expressed by Ms Caro.

107 It does seem to me that the plaintiffs' affidavit in general, and the Caro report in particular, contained material relevant to the decision on June's future. If that be so, then rejection of the material on the basis of the circumstances in which it was obtained and put before the court could only be justified if those circumstances were so inimical to the paramount principle that to allow the proponents of the material to benefit from its admission would undermine that paramount principle. I find it difficult to understand how this could be so, but I do accept that, in light of the abbreviated way in which the matter was dealt with before the learned Magistrate, it is not possible to express a concluded view.

Cross-examination of the father

108 Much the same may be said of the failure to deal, at least on a final basis, with the application to cross-examine the father. At least some of the material in Ms Caro's report was based on instructions given to her by the plaintiffs, as to the father's capacity (immediately and in the future) to care adequately for June. Those instructions may or may not have been correct. If the father had been cross-examined on the underlying facts, it is likely that the second Magistrate would have been given a fuller picture of his parenting capacity. Again, that would have allowed some assessment to be made of the risks of restoration.

109 Likewise, had the father been cross-examined, Ms Irving could have been asked about the impact, on her opinions, of any relevant matters emerging from that cross-examination.

Cross-examination of the clinician

110 In my view, the second Magistrate's reasons for proceeding with the hearing in the absence of the clinician (and, thus, proceeding on a basis which meant that (on his instructions or understating) the views expressed by the clinician could not be tested in cross-examination) were unsound. His Honour appears to have proceeded on the following bases:

(1) it was unlikely that the clinician would say anything different to what was expressed in her report; and

(2) it was imperative to proceed with and finalise the hearing of the principal application as quickly as possible.

111 I accept that it is extremely important that applications such as the one considered by the second Magistrate are dealt with as quickly as is reasonably possible. But, at the risk of undue repetition, the hearing must be conducted bearing in mind, among other things, the paramount objective set out in 9(1) of the Care and Protection Act.

112 The ILR (when, finally, he was allowed an opportunity to put submissions on this point) indicated that there were real issues to be tested in the cross-examination of the clinician. He indicated that she had based her views on matters that (on his instructions or understanding) were not entirely accurate, including, as to the father's medical condition and as to the extent to which he had complied with recommendations for undertaking parenting courses.

113 In my view, it was inappropriate to dismiss the application for cross-examination (when, as is clear from the transcript, the second Magistrate had been prepared to adjourn the hearing to permit cross-examination to occur) simply on the bases I have indicated.

114 In this respect also, the hearing before the second Magistrate miscarried. Coupled with the matters to which I have referred already (rejection of the plaintiffs' affidavit, and failure to deal with the application to cross-examine the father) the result is that the hearing proceeded to finality on an inadequate evidentiary basis.

The decision was based on an irrelevant consideration

115 When one goes to the second Magistrate's reasons for making the order that he did on 26 June 2013, it seems to be clear that his Honour regarded, as a consideration of dispositive significance, what appear to have been the guidelines issued by the former president of the Children's Court "that these matters should be finalised within 9 or 12 months". If there were such guidelines, they were not in evidence. No-one suggested that they were to be found in the Care and Protection Act.

116 The second Magistrate said that the (former) president "is certainly a binding person that I [must] listen to" and that he was "bound by the law, and by the chief judge of the Children's Court".

117 As I have indicated, I was not taken to whatever guidelines may have been issued for the finalisation of applications such as the present. Nor was it suggested, in submissions, that there was some authority, binding on the second Magistrate, that such applications must be finalised within some fixed period of time. It may be noted that, even if there were some binding limit, that an application must be finalised within 12 months of its being filed them, as the ILR submitted, there were still about 2 months to go before that limit would be reached. Thus, as a matter of fact, the second Magistrate's reliance on temporal considerations, as a reason for coming to the decision that he did (and as a reason for declining to adjourn the hearing to permit cross-examination of the clinician), was unsound.

118 It seems to me to be clear that the second Magistrate regarded himself as bound by what he regarded as directives issued by the former president of the Children's Court, as to the time within which applications should be finalised. It is entirely unclear why it was that those guidelines required that the ILR's apparently powerful and persuasive submissions (with which the second Magistrate agreed "to a great deal") should be put to one side.

119 On that analysis, the second Magistrate appears to have regarded the outcome as predetermined by an irrelevant consideration. To put it another way, the second Magistrate appears to have regarded the exercise of the statutory discretion, in relation to the care application, as fettered by the supposed 12 month limit, to the extent that this limit assumed decisive importance.

120 It may be of course that the second Magistrate was not expressing a reason for deciding the application in the way that he did but, rather, a reason for deciding it at the time that he did. If his references to time limits were intended to explain only the latter point then there would be no error by taking into account irrelevant matters. But on this basis, one is left to scour what remains of the reasons to understand why it was the second Magistrate came to the decision that he did.

The failure to give reasons

121 I turn to the complaint based on failure to give reasons. I start by observing that I am unwilling in the extreme to impose any greater burden on a very busy court, and its very busy judicial officers, then those which already afflict them. Nonetheless, judicial officers are obliged to give reasons for their decisions, and those reasons must be sufficient to enable the reasonable, and reasonably well informed, reader to understand the basis on which the decision was reached.

122 Of course, as Mahoney P pointed out in Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 at 640, there may be cases where "the issue may appear, or may have become, unarguable; in such cases there is no need to deal with it". This cannot be said to be such a case.

123 Further, as Mahoney P pointed out inferentially, in the same case at 642, the function of reasons should be to leave the parties in no real doubt as to why the court decided as it did. In this case, it seems to me, the second Magistrate's reasons are so scanty as to give no clue as to the basis on which he preferred to the position for which the Director General argued to the position for which the ILR argued.

124 In this context, as Sir Stephen Sedley (with whom Longmore LJ agreed) said in Crinion v IG Markets Ltd [2013] EWCA Civ 587 at [38]:

To simply adopt [a] party's submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost. Such an omission is not generally redressed by a perfunctory acknowledgment of the latter's arguments. Even a party without merit is entitled to the measure of respect which a properly reasoned judgment conveys.

125 In the same case, Underhill LJ (with whom Longmore LJ also agreed, and with whose reasons and orders Sir Stephen Sedley also agreed) said at [16] that even where a judge effectively adopts the submissions of one party, nonetheless:

... the judge should take care to make it clear that he or she has fully considered such contrary submissions as have been made and has brought their own independent judgment to bear.

126 In this case, the second Magistrate's acknowledgment of the ILR's submissions does not explain why, nonetheless, his Honour preferred the submissions for the Director General. There is no demonstrated process of consideration and independent judgment, based on a proper evaluation of the competing positions.

127 I acknowledge that the second Magistrate's reasons were brief, no doubt because there were many pressing matters for his Honour to deal with, and because of the urgency (real, and not merely perceived) of making a final decision as to June's future. But it does not seem to me that these matters, understandable as they are, can be relied on in some way to supplement the reasons that the second Magistrate gave, or to infer that his Honour did indeed give full consideration to, and reason appropriately between, the competing submissions.

128 Where a decision maker, being obliged to do so, gives reasons for a decision, there is a presumption that the reasons given are the whole of the reasons for reaching that decision. See Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [130] (Hayne J, with whom McHugh and Gummow JJ agreed):

"... because the primary judge was bound to state the reasons for arriving at the decisions reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result."

129 The troubling feature of this case is that, in his reasons given on 26 June 2013, the second Magistrate twice acknowledged the force of the submissions put by the ILR. Those submissions (taken from the transcript of 24 June 2013 at 18.37-20.27) raised the following issues:

(1) the matter had been forced through too quickly;

(2) the fundamental question was whether restoration should happen now or later;

(3) for restoration to happen now, the court needed to be satisfied that the father had complied with the various conditions or requirements set out in the clinician's report, the care plan and the QEII report;

(4) none of those requirements had been satisfied in full (or at all);

(5) the evidence that the father had overcome "his previous heavy cannabis use" was unconvincing;

(6) contrary to the position stated in the clinician's report, the father had little family support;

(7) again contrary to the position stated in the clinician's report, the father had not completed the courses which Ms Irving had thought were appropriate;

(8) in circumstances where it was clear that June was "thriving" with the present plaintiffs, the was simply no basis for concluding that it was in her best interests that she be restored, effectively immediately, to the care of the father.

130 The second Magistrate said that these submissions "certainly add a great ring of truth to the court" and that he agreed with them "to a great deal". He did not explain why it was that, despite the force of those submissions, he came to a contrary view: except by saying that he was "bound by the law, and by the Chief Judge of the Children's Court".

131 Otherwise, all the second Magistrate said was that he had considered the timetables, the evidence, and "the matter at some length", and on that basis had decided "that the departmental position is what must be followed in this particular matter". He did not say why this was so in the face of the apparently weighty submissions of the ILR.

132 To my mind, that is not an adequate reasoning process to show why it is that, in the particular circumstances of this case, the safety, welfare and well-being of June were best served by taking her away from the people who had been her carers for virtually the whole of her short life, and giving her back into the care of her biological father. It does not show why June's interests were best served by taking her away from people with whom she had bonded, and who apparently were able to provide for her materially (and, so far as the evidence goes, emotionally), and giving her to someone whose ability to do either - at least, without significant external support - was very much open to question.

133 The reason for taking June from her biological parents was that, as a result of their inability (at least) to care for her adequately, she was near death when she was taken to hospital. The reason for giving her to the plaintiffs as foster carers when she was discharged from hospital was that it was plain that her biological parents were still not able to care for her. The second Magistrate's reasons offer no insight as to why the position had changed, to such an extent, in the intervening months, so as to justify the conclusion that one of those parents was able to care for her appropriately.

134 The position seems to me to be analogous to that with which Hayne J dealt in Fitzgibbon at [131]. In that case, the primary judge had to deal with a conflict in the medical evidence. He concluded, to paraphrase what Hayne J said, that the evidence of one medical practitioner should be preferred to that of others, "but disclosed no reasoning supporting that conclusion". As Hayne J noted, "[n]o analysis was made of the competing evidence and no explanation proffered for rejecting it".

135 In this case, the second Magistrate was faced with competing submissions. It was not a case where one set of submissions was so obviously unarguable as not to require elaboration for its rejection. The submissions put by the ILR were forceful and weighty, and the second Magistrate accepted this.

136 In those circumstances, some analysis of the competing submissions was required, and some reasoning process needed to be shown for preferring one to the other. That is what was lacking.

Section 79

137 I turn to the debate over s 79 of the Care and Protection Act, calling up the provisions of s 9(2)(c). For convenience, I set out the whole of ss 9 and 79:

9 Principles for administration of Act

(1) 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.

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:

(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(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.

(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

79 Order allocating parental responsibility

(1) If the Children's Court finds that a child or young person is in need of care and protection, it may:

(a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility:

(i) to one parent to the exclusion of the other parent, or

(ii) to one or both parents and to the Minister or another person or persons jointly, or

(iii) to another suitable person or persons, or

(b) make an order placing the child or young person under the parental responsibility of the Minister.

(2) The specific aspects of parental responsibility that may be allocated by an order of the Children's Court include, but are not limited to, the following:

(a) the residence of the child or young person,

(b) contact,

(c) the education and training of the child or young person,

(d) the religious upbringing of the child or young person,

(e) the medical treatment of the child or young person.

(3) The Children's Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9 (2) (c) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.

(4) The Children's Court must not make an order allocating parental responsibility for a child or young person if the order would be inconsistent with any order in relation to the child or young person made by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children.

(5) The Children's Court may only make an order that allocates parental responsibility for a child or young person to a designated agency if the designated agency (or principal officer of the agency) is the person specified in an emergency care and protection order made under section 46 in respect of the child or young person.

138 Mr Anderson relied on the decision of the Court of Appeal (Barrett JA, with whom Tobias AJA and Schmidt J agreed) in Re Kerry (No.2) [2012] NSWCA 127. Mr Moore relied on the decision of Giles JA (with whom, on this issue, Spigelman CJ and Beazley JA agreed) in Re Tracey [2011] NSWCA 43.

139 In Re Kerry (No.2) the court was concerned with an application for relief under s 69 of the Supreme Court Act in respect of a decision of the District Court of New South Wales given on appeal from the Children's Court.

140 The application to the Children's Court was brought under s 79 of the Care and Protection Act, for the allocation of parental responsibility. That, too, was the basis on which the "new hearing" involved in the appeal to the District Court (see s 91(2) of the Care and Protection Act) proceeded. Thus, the Court of Appeal was concerned, as I am concerned, with an application under s 79 of the Care and Protection Act.

141 One of the grounds on which it was sought to impeach the decision of the primary judge (in the District Court) was that, contrary to the requirement of s 79 of the Care and Protection Act, her Honour had failed to apply, and indeed had disregarded, the requirements of s 9(2)(c). Barrett JA dealt with that at [43] and following.

142 It appears from the reasons of Barrett JA at [45] that the conclusion of the primary judge, that s 9(2)(c) did not apply, was based on the reasoning of Giles JA in Re Tracey.

143 Barrett JA said at [52] that the requirement of s 79(3), that the court not make an order without giving particular application to the principle in s 9(2)(c), required "particular consideration" of the principle, and not necessarily its application. That is to say, as I understand it, if, after ("particular") consideration of the principle, the court decided that it was not dispositive, then the requirements of s 79(3) were satisfied; and this would be so, a fortiori, if the court considered that the subsection was factually irrelevant.

144 Barrett J looked at the "least intrusive intervention" principle at [55], and summarised the decision-making function called up at [57]. I set out those paragraphs:

[55] Another aspect of the s 79(3) directive must now be mentioned. The directive requires that "particular consideration" be given to "the least intrusive intervention in the life of the child ... and his or her family" consistent with the stated paramount concern. It is the "life" (in the singular) of the child and the other persons constituting his or her family that is in contemplation. A matter of importance, therefore, is the relationship in fact (that is, beyond the circumstance of blood tie) that exists between the child and those other persons. Where a child has lived since birth in what is sometimes called a "nuclear family", there exists one kind of "life" of the child and the child's family. Another kind of "life" of the child and his or her family exists where the parents do not live together and the child lives at times with each separately. Yet another kind of "life" of the child and the child's family exists where, as here, the child has lived with the parents or one of them for only the first few months of life and has otherwise lived with other persons. The "life" of such a child and his or her parents is, in a real sense, two parallel lives in which the child has, through the circumstance of having been cared for very largely by others, had no opportunity to form any substantial bond with either parent while each parent, for his or her part, has been unable to play the role that would have been played in another form of "life". What represents "the least intrusive intervention" will differ according to the nature of the "life" concerned.

...

[57] The decision-making function in which ss 79(3) and 9(1) play the parts I have outlined will therefore entail assessment of the particular person willing to act as parent and of the whole of the implications of the termination of existing parental responsibility and the allocation of such responsibility instead to the particularly identified person. In giving effect to the statutory directives, the court's paramount duty, imposed by s 9(1), is to assess whether allocation of parental responsibility to the particular person is consistent with the "safety, welfare and well-being of the child". If it is not, the allocation in question will not be made. If, however, that primary assessment is positive, the next step is to embark upon the "particular consideration" required by s 79(3) and to look at and weigh up against the s 9(2)(c) principle the nature and extent of the intervention in the life of the child and the child's family that will result from the particular allocation.

145 Against that background, Barrett JA said that the question, on the application before the Court of Appeal, was whether that the primary judge had failed to give particular consideration to the principle in s 9(2)(c). His Honour said at [61] that her Honour did not so fail, because "[s]he paid very close attention to the welfare and wellbeing of the child and to issues of intervention in the family".

146 In short, as I understand it, Barrett JA concluded (contrary to the view of the primary judge) that s 9(2)(c) was relevant, but that in fact her Honour had satisfied the requirements of s 79(3) because she had looked closely and carefully at the underlying facts.

147 I turn to the reasons of Giles JA in Re Tracey, on which the primary judge had relied.

148 Re Tracey was not a case relating to an application under s 79. In that case, care orders had been made in relation to the child known as Tracey. What was sought was rescission or variation of the orders made, under s 90 of the Act. Section 90 does not contain any prescription, as it found in s 79(3), requiring "particular consideration" to be given to s 9(2)(c).

149 It was against that background that Giles JA said (at [79]) that s 9(2)(c) did not prescribe a principle of least intrusive form of intervention in the circumstances with which [the primary judge] was concerned". That principle arose, his Honour said, when action was required to protect a child or young person from harm: in those circumstances, the least intrusive intervention principle did apply.

150 At [80], his Honour referred to s 79(3) as giving support to this approach.

151 At [81], Giles JA acknowledged that the principle of least intrusive intervention would have "obvious relevance to the paramountcy principle [in s 9(1)]". But, his Honour said, s 90 "does not have the statutory prescription of least intrusive intervention found in s 9(2)(c)."

152 Accordingly, I do not agree with Mr Moore's submissions, based on the decision of Giles JA in Re Tracey. What Giles JA said at [80], concerning s 79(3), shows why.

153 It follows that the second Magistrate was required to give particular consideration to s 9(2)(c), and to reach the state of satisfaction set out in s 79(3) of the Care and Protection Act. Of course, that would only arise if there were a question of protection of June from harm. But this was very much in issue, even on the material that was in evidence before the second Magistrate. Part of the discussion in the clinician's report was directed to this very question.

154 Accordingly, I conclude that, in addition to the errors that I have identified to date, the second Magistrate erred in omitting any consideration of s 79(3) and the principle of least intrusive intervention.

155 It may be that the second Magistrate could have concluded that there was no risk of harm. If that question had been examined, and conclusion drawn, then there would be no further room for the operation of the principle of least intrusive intervention. But unless and until that situation were reached, the principle was one that required consideration.

Conclusion on alleged errors

156 The hearing before the second Magistrate miscarried in a significant way, in each of the respects on which Mr Anderson relied. It follows that there has not been a hearing according to law of the primary application.

Section 87

157 It is convenient to deal with s 87 before turning to the question of standing to seek relief under s 69 of the Supreme Court Act.

The legislative scheme

158 Section 87 of the Care and Protection Act reads as follows:

87 Making of orders that have a significant impact on persons

(1) The Children's Court must not make an order that has a significant impact on a person who is not a party to proceedings before the Children's Court unless the person has been given an opportunity to be heard on the matter of significant impact.

(2) If the impact of the order is on a group of persons, such as a family, not all members of the group are to be given an opportunity to be heard but only a representative of the group approved by the Children's Court.

(3) The opportunity to be heard afforded by this section does not give the person who is heard the status or rights of a party to the proceedings.

159 There are other provisions of the Care and Protection Act that may throw some light on the application, in a particular case, of the command of s 87(1).

160 Section 93 describes the "general nature of proceedings" before the Children's Court. It specifies, among other things, that those proceedings "are not to be conducted in an adversarial manner". (For the reasons that I have indicated, I have some doubt that this command was obeyed in the present case.) I set out s 93:

93 General nature of proceedings

(1) Proceedings before the Children's Court are not to be conducted in an adversarial manner.

(2) Proceedings before the Children's Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.

(3) 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.

(4) In any proceedings before the Children's Court, the standard of proof is proof on the balance of probabilities.

(5) Without limiting subsection (4), any requirement under this Act that the Children's Court be satisfied as to a particular matter is a requirement that the Children's Court be satisfied on the balance of probabilities.

161 Section 96 empowers the Children's Court to require the child or young person, parents and others to attend:

96 Attendance of child or young person, parents and others

(1) In proceedings before it with respect to a child or young person, the Children's Court may, on its own initiative or at the request of any party to the proceedings, require the attendance at the court house where the proceedings are conducted:

(a) of the child or young person and of any parent of the child or young person, or

(b) of any other person who has, or has had, care responsibility for the child or young person, or

(c) if the whereabouts of the child or young person is unknown to the Children's Court-of any other person the Children's Court has reasonable cause to believe knows, or has information concerning, the whereabouts of the child or young person.

(2) If a child or young person does not wish to be present before the Children's Court during the hearing of any proceedings, the child's or young person's wishes are to be taken into account by the Children's Court.

(2A) The fact that a child or young person is presumed by section 99C (1) to have the capacity to instruct his or her legal representative does not of itself mean that the child or young person is required to attend the Children's Court to give those instructions. Such a child or young person is required to attend only if required under this section.

(3) A child or young person is not required (except as provided by subsection (4)) to give evidence in the Children's Court.

(4) Despite subsection (3), the Children's Court may require a parent of the child or young person who is the subject of the proceedings who is himself or herself a child or young person to give evidence in the Children's Court.

(5) A person referred to in subsection (1) (c) may be required to give to the Children's Court such information that the person has about where the child or young person is or may be located.

(6) If the Children's Court decides to require any person to attend a court house under subsection (1) it may issue to the person a notice in accordance with Part 2 requiring the person to attend as directed in the notice (a care proceedings attendance notice).

Note. Section 109B enables the Children's Court to issue a warrant for the arrest of a person who fails to attend as directed by a care proceedings attendance notice.

(7) In this section:

parent of a child or young person includes a birth parent, or an adoptive parent, of the child or young person who does not have parental responsibility for the child or young person.

162 Section 97 makes it clear that a failure to attend on notice does not prevent the court from proceeding:

97 Effect of failure of attendance

If a parent of a child or young person who has been given notice under section 64 does not attend the Children's Court on the hearing of the application, the Children's Court may proceed in the absence of the parent.

163 Section 98 deals with the "right of appearance" before the court:

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) However, if the Children's Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A) If the Children's Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children's Court is to appoint a guardian ad litem for the person under section 100 or 101 (as the case may require).

(3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children's Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children's Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

164 The plaintiffs' application to intervene, which was heard and determined by the first Magistrate, was made under s 98(3).

165 There are no doubt many other provisions which may be relevant in a particular case.

Natural justice

166 The decision of the High Court of Australia in J v Lieschke (1987) 162 CLR 447 established that the predecessor of the Children's Court, being the Children's Court established for the purposes of the Child Welfare Act 1939 (NSW), was obliged to afford natural justice to a person whose rights might be affected by its order. See Brennan J (with whom, on this point, all other members of the court agreed) at 456. However, as Brennan J said at 456 however, as Brennan J said at 456:

That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified...

167 Brennan J said at 457 that "[i]f an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred, the application of those principles would have to be qualified...".

168 His Honour explained a particular application of this:

In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; e.g., it may be necessary to keep a welfare report confidential... . But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred.

169 The present issue does not concern the common law right to natural justice. As is made clear in the judgment of Brennan J in Lieschke, that principle is called up where a decision may affect "the rights of a person". It was clear, in his Honour's view (see at 458), that an order removing a child from the care of its parents would affect "[t]he natural parental right to discharge parental duties and to exercise parental authority".

170 I do not think that s 87 is to be read as applying only to "rights" of the kind that are amenable to protection by the principles of natural justice. The section does not talk in terms of rights: contrast, for example, s 98. Section 87 seems to me to recognise that there may be people affected by the making of an order who do not have "rights" of the kind that the common law would protect.

171 Section 87 may be viewed as extending the ambit of that protection to such persons.

Section 87 applies to the plaintiffs

172 Of course, ss 87 and 98 cannot be read as mutually exclusive codes. In the present case, it seems to me, it is plain that the plaintiffs (in the language of s 98(3)) have "a genuine concern for the safety, welfare and wellbeing of" June. Equally, it appears to me to be plain that the making of the orders sought by the Department would have "a significant impact" on the plaintiffs', of the kind recognised in s 87.

173 I do not think that the first proposition is contested; and in any event, there is an abundance of evidence to support it. As to the second proposition:

(1) the plaintiffs have had the care of June for virtually the whole of her short life;

(2) at least on Ms Caro's evidence, it is clear that June has bonded with the plaintiffs and at least one member of their blended family;

(3) on their evidence, the plaintiffs were told that the care of June would be a long-term arrangement; and

(4) on that basis, the plaintiffs, it may be thought, have come to regard June as their child.

174 In those circumstances, a decision to take June away from the care of the plaintiffs would undoubtedly have a significant psychological and emotional impact on them.

175 Thus, it seems to me, the plaintiffs had the right to be "given an opportunity to be heard on the matter of significant impact": that is to say, on the question of whether June should be taken from them and restored, ultimately, to the parental responsibility and care of her father.

Section 87 overlooked

176 It does not appear that anyone gave consideration to s 87 in the proceedings before the second Magistrate. There was no appearance (in the non-technical sense) by or on behalf of the parents, asserting their entitlement under s 87. In those circumstances, it is hardly surprising that no one's attention was focused on s 87.

177 It seems to me that the explanation for this can be found in the prior history. It is a fair reading of the first Magistrate's decision, on the plaintiffs' application under s 98(3) of the Care and Protection Act, that his Honour considered that the plaintiffs' position would be put fairly and squarely before the court upon the hearing of the substantive application.

178 At the time the first Magistrate dealt with the application under s 98(3) the position of the plaintiffs and the ILR was substantially the same. Each opposed restoration. The obvious corollary of this was that June would remain in the foster care of the plaintiffs. Thus, the first Magistrate proceeded on the basis that, on the hearing of the substantive application, the ILR would present the plaintiffs' evidence on this point, and would put submissions that, effectively, would advocate the outcome for which the plaintiffs would also contend. The first Magistrate said at [26] of his reasons:

[26] However eloquently the Applicant's submission has been put, I find no reason why they should be joined to advance those arguments. The ICL also opposes the restoration proposal, and his arguments will be bashed on the same information and evidence that is now available to the Court. If the Clinician is called at the hearing, the ICL can put the same propositions to him/her, as could any other party who opposes restoration. The ICL's opposition will be based on the same evidence that would be available to the Applicants if they were joined.

179 The first Magistrate took the view that the likelihood of delay to the proceedings (if the plaintiffs were represented at the hearing of the substantive application) outweighed such benefit as might accrue from having "two independent heads" that might "provide a more considered perspective".

180 Thus, I have no doubt, the plaintiffs were left with the impression that their evidence would be put before the court on the hearing of the substantive application, and the position for which they would argue - no restoration - would be put by the ILR. For the reasons I have explained, neither of those things occurred. I repeat, as to the second, that this involves no criticism whatsoever of the ILR, who I have no doubt took a position that he thought was in June's best interests.

181 Had matters proceeded as the first Magistrate contemplated, the plaintiffs would have been given the practical equivalent of their s 87 right to be heard, because their position would have been put before the court. I note, in passing, that the evidence that the plaintiffs wished to put before the court seems to me to have gone well beyond "the matter of significant impact". But since nothing of present significance turns on this, observation, I take it no further.

182 Thus, in the way in which matters developed, the plaintiffs did not seek to exercise their statutory right under s 87, on the hearing of the substantive application; but neither did they receive the effective equivalent of that right. The parties' submission did not focus on the consequences of this, in terms of standing. Since (for the reasons given in discussing standing below) it is not necessary to resolve that issue, I do not propose to take it further.

Content of the opportunity to be heard

183 Mr Moore submitted that I should say something as to the content of "opportunity to be heard on the matter of significant impact". I am reluctant to do so, because, in the way that this matter has developed, the plaintiffs were not given any opportunity to be heard in the hearing before the second Magistrate. (I shall return to Ms Sproston's submissions on this topic for the purpose of showing why that is so.) There are however some points that can be made.

184 The first point is obvious enough: that the opportunity to be heard is limited to "the matter of significant impact". In this case, the significant impact on the plaintiffs was the impact of removing June from their care, in the circumstances in which she had been given into their care. Thus, a question of judgment arises as to the extent to which the evidence that the plaintiffs wish to put before the Children's Court went to that matter, as opposed to other matters.

185 I note, in passing, that the first Magistrate was clearly of the view that the plaintiffs' evidence may have gone beyond the issues that were to be canvassed on the substantive hearing. If this be correct then, a fortiori, it would seem to me that it went beyond the question of significant impact.

186 The second point to note is that the opportunity to be heard is not the opportunity to participate in the proceedings either as a party as of right (s 98(1)) or as someone given leave (s 98(3)). Thus, it does not follow that the opportunity to be heard includes the right to examine or cross-examine witnesses, at least generally.

187 However, if the question of significant impact is one that is the subject of evidence, and if there are direct conflicts in that evidence, then, in a particular case, the opportunity to be heard may extend to permitting cross-examination on that particular point.

188 Section 87 is silent as to whether the exercise of the opportunity to be heard must be made by the affected person personally, or whether that person may have legal representation. In the ordinary way, it might be thought that the person affected would put his or her case personally. However, there will, no doubt, be cases where for one reason or another it is appropriate (and perhaps very desirable) for that person to have the benefit of legal assistance. It seems to me that this question is one to be considered on a case by case basis. The Court would be entitled to consider, among other things, the complexity of the issue, what is involved in that particular case in giving an appropriate opportunity to be heard, the impact on the duration of the hearing and, in addition, the matters to which I refer in the next paragraph.

189 In considering the content of the statutory opportunity to be heard given by s 87, it is necessary to bear in mind the requirements of s 93, as to the general nature of proceedings before the Children's Court. It is also necessary to bear in mind at all times the paramount principle set out in s 9(1). The content of the statutory right given by s 87 cannot override that paramount principle.

190 Finally, as Dixon J pointed out in Secretary, Department of Human Services v Children's Court of Victoria and Ors [2012] VSC 422 at [13] (omitting citations):

It is well established that the content of the common law requirements of natural justice and procedural fairness may vary, requiring adjustment according to the circumstances of the particular case. What may constitute an opportunity to be heard may be informed by the conduct of the parties prior to or during a hearing. An evaluation of the realities and not the legalities of the situation is required when dealing with the question of what fairness demands in the circumstances.

191 Although his Honour was speaking of the common law requirements of natural justice, in my respectful opinion what was said is equally applicable to the specific requirement of s 87 of the Care and Protection Act.

192 Thus, the content of the opportunity to be heard cannot be specified in some a priori way. What is required in a particular case will depend very much on the facts of that particular case. And what is sufficient in one case, to satisfy the statutory entitlement, may well be insufficient in another.

The plaintiffs did not have any opportunity to be heard

193 I turn to Ms Sproston's submissions as to the ways in which, she said, the plaintiffs were given an opportunity to be heard on the matter of significant impact to them. For the reasons just given (at [190]), I accept that, in deciding whether an opportunity to be heard was given, it is necessary to consider, among other things "the conduct of the parties prior to or during a hearing", and that what must be evaluated are "the realities and not the legalities".

194 Taking Ms Sproston's points (see at [58] above) one by one:

(1) it is correct to note, as Ms Sproston submitted, that the clinician had spoken to the plaintiffs, and that they had put views, as to June's care and future, before her. But that was not the matter (or the whole of the matter) of significant impact on the plaintiffs. And the statutory opportunity is one to be heard by the Court, not to be heard by a clinician appointed by the Court.

(2) It is wrong to say that the plaintiffs' evidence was before the second Magistrate, in circumstances where his Honour rejected it. It is not enough that his Honour read the affidavit for the purpose of considering whether or not to reject it. As Ms Sproston eventually accepted in the course of submissions, reading an affidavit for the purpose of rejecting it does not amount to putting it into evidence.

(3) Nor was it sufficient that the plaintiffs had communicated their views to the ILR. It was always a possibility that the views of the plaintiffs and the views of the ILR might diverge. In this case, whilst initially they appeared to have coincided, by the time of the hearing before the second Magistrate, they did not. I express no view as to whether, if the substantive hearing had proceeded as the first Magistrate thought it might, with the plaintiffs' evidence being admitted and with the outcome for which they contended being put to the second Magistrate, that would have been a sufficient discharge of the command of s 87. What is clear is that, in the way that the substantive hearing actually proceeded, the plaintiffs' position was not put through the ILR. And again, the ILR was not concerned with the matter of significant impact on the plaintiffs; he was concerned, rather, with the best interests of June.

(4) Ms Sproston's last submission, that the plaintiffs were given an opportunity to be heard through the application under s 98(3), is difficult to follow. The first Magistrate was concerned with the exercise of the discretion given by s 98(3). For that discretion to be enlivened, he had to find (as he did) that the plaintiffs had a genuine concern for the safety, welfare and well being of June. It was not necessary for him to find, and he did not in terms find, that the orders sought would have a significant impact on the plaintiffs. That may well have followed, as a matter of fact or logic, from the findings that he did make. But that does not seem to me to be relevant. The significant point is that the first Magistrate was not considering whether or not to make orders that would have that significant impact. Thus, he did not consider that impact before making the orders. That was a matter to be dealt with in the course of the substantive hearing.

195 In summary, the plaintiffs did not seek an opportunity to be heard before the second Magistrate, and the second Magistrate thus did not give them any opportunity to be heard. His Honour may well have come to the view that if the plaintiffs had a further application to make (relying on their rights under s 87), they would have made it before him.

Standing

196 I turn now to the question of standing. The plaintiffs were not parties to the application, in the sense recognised by s 98(1) of the Care and Protection Act. They did not have rights under s 98(3) similar to those of parties, because their application under that subsection was dismissed. They were, at the most, persons who had a right to be heard on a matter of substantial impact, but who did not seek to exercise that right on a substantive hearing. Thus, if it be necessary to show standing, the plaintiffs' right, under s 87, of an opportunity to be heard, may not be sufficient to confer it.

197 However, Mr Anderson submitted that standing was not necessary. He relied on the decision of Clarke J in Maksimovic v Walsh [1983] 2 NSWLR 656, in particular at 658 - 659.

198 In that case, the plaintiff sought to restrain a coroner from proceeding in a manner not authorised by the Coroners Act 1980 (NSW). There was a question raised as to his standing, apparently on the basis that the plaintiff was seeking relief under s 65 of the Supreme Court Act (under which the Court may order a person to fulfil a duty, in the fulfilment of which the person seeking the order is personally interested).

199 Clarke J said at 658 - 659 that the primary relief sought was relief in the nature of prohibition, to restrain the coroner from acting in excess of his jurisdiction, or in a manner prohibited by the Coroners Act. The power to grant that relief is (and then was) found in s 69 of the Supreme Court Act.

200 Clarke J said at 659 "that the better view is that a stranger has the necessary standing to seek the issue of a writ of prohibition". As he pointed out, where a stranger sought prohibition, the court might in its discretion refuse to grant relief; but, "[n]evertheless that applicant... has the standing to seek the issue of a writ". The texts to which his Honour referred (see at [207] below) and the authorities referred to in those texts support those views.

201 His Honour continued by observing that if "the applicant, described as a stranger because he is not a party to the proceedings in respect of which relief is sought, is likely to be adversely affected by the determination in those proceedings then that discretion [to grant relief in the nature of prohibition] is likely to be exercised in his favour". Again, the texts and authorities support that view.

202 His Honour's decision went on appeal, under the name Attorney-General v Maksimovich (1985) 4 NSWLR 300. Kirby P noted at 301 that although the standing of Mr Maksimovich to maintain the proceedings had been challenged at first instance, the decision of Clarke J, that Mr Maksimovich did have standing, was not challenged on appeal.

203 It may be that what Clarke J said, as to standing to seek prohibition, was not essential to his Honour's conclusions on standing. I say that for two reasons:

(1) on one reading of his Honour's reasoning on this topic, he was expressing a tentative rather than a concluded view; and

(2) in any event, as appears from 659 - 660, his Honour appeared to base his conclusions, as to standing, on the basis that the plaintiff had shown that he was a person interested, for the purposes of s 65 of the Supreme Court Act.

204 The second point is difficult, because his Honour had said earlier that the relief was not sought under by s 65, but, rather, s 69. But be that as it may, his Honour did say at 659, after considering the question of personal interest (in relation to prohibition) that "whether the plaintiff is required to show personal interest or not I am of opinion that he has demonstrated his right to maintain the action". Those words were followed by the analysis, based on s 65, to which I have referred. They appear to indicate that the question of standing was to be resolved by that analysis and not by the perhaps tentative views as to standing, in relation to prohibition.

205 In any event, the primary relief sought by the plaintiffs in this case was certiorari. Prohibition may be sufficient when all that is sought is to prevent (for example) a prosecutor from proceeding upon a conviction that is vitiated by error of law. But in this case, what is required is that the application be heard and determined according to law. Thus, because the decision of the second Magistrate has miscarried in a way that is susceptible to review, certiorari is the appropriate relief. Unless and until the decision is quashed, there can be no further hearing.

206 Clarke J did not deal with the question of standing in relation to certiorari.

There are suggestions in the texts that the question of standing may differ, as between prohibition on the one hand and certiorari on the other.

207 Clarke J referred to two texts: Thio, Locus Standi and Judicial Review (Singapore University Press, 1971) and Stein (Ed), Locus Standi (Law Book Company, 1979). In each, the authorities (to the date of writing) are closely reviewed. As each review shows, questions of standing in the strict sense and discretion merge, with the result that a stranger may be given standing to prosecute an application for prohibition or certiorari, but the remedy may be withheld if the stranger cannot show that he or she is "a person aggrieved", or otherwise has some sufficient interest in the grant of relief.

208 If that were the applicable test then, it seems to me, the question of standing should be resolved in favour of the plaintiffs.

209 In the circumstances of this case, for reasons that will become apparent, I do not think that it is necessary to pursue the question of standing to a definitive conclusion. Accordingly, in circumstances where I did not have the benefit of detailed submissions on the point, I propose to move to what in my view is the appropriate basis in principle for the court's intervention.

The parens patriae power

210 As I have indicated already, the plaintiffs submitted that, regardless of the question of standing, if the court were satisfied that the decision of the second Magistrate was attended by error sufficient to justify the grant of relief under s 69 of the Supreme Court Act, then the court could do so, in the exercise of its parens patriae jurisdiction. I accept that submission.

211 The situation that has been reached is that I have concluded that the hearing before the second Magistrate miscarried in serious respects, and that his Honour's reasons did not disclose why it was that he had made the orders he did. There was thus no hearing according to law. Two things, of present relevance, flow from those conclusions.

212 First, the approach taken by the second Magistrate leading to the rejection of evidence, and the foreclosing of cross-examination of the father and the clinician, meant that the decision was not based on all the evidence that was reasonably available. It may very well have been the case that whatever came out in the course of cross-examination of those witnesses would not have deflected the conclusion to which his Honour came. Indeed, it is conceivable that evidence garnered by that cross-examination might have supported the conclusion. But that is no more than speculation, because there was no cross-examination.

213 Again, the second Magistrate's rejection of the plaintiffs' affidavit evidence (including, as I have said many times, the report of Ms Caro) meant that his Honour did not take into account what seems to me to be relevant material bearing on the ultimate question to which, by s 9(1) of the Care and Protection Act, his Honour's mind should have been directed. It may have been that, on balance, the second Magistrate would not have found Ms Caro's opinions to have sufficient weight to counterbalance the conclusions to be drawn from the rest of the evidence. But that is not to say that the views expressed by Ms Caro were irrelevant, or that they did not require examination.

214 Finally, on this aspect, each of what in my view were errors in relation to the course of the hearing interacted with, and compounded, each of the others. By way of example only: the failure to consider Ms Caro's evidence may have been mitigated if the clinician had been cross-examined and, having had the relevant opinions or matters put to her, had given reasoned responses to them.

215 Those deficiencies in the hearing necessarily undermine the conclusions reached by the second Magistrate, and make it impossible to say that, regardless of the separate problems in relation to the paucity of reasons, the orders nonetheless can be seen to be clearly in the best interests of June, and to serve the paramount purpose identified in s 9(1).

216 Again, that problem - arising from what in my view were serious errors in the hearing process - interacts with, and is compounded by, the problem in relation to reasons. Because the reasoning process is not adequately exposed it is impossible to conclude, with any degree of comfort, that the basis for the orders was so obvious, or so strong, that it would be likely to stand regardless of the errors that occurred in the course of the hearing.

217 The result is that I am not persuaded that it can be said, with any degree of confidence whatsoever, that the orders made were in June's best interests.

218 In circumstances where, as I have said, there was a significant body of material available which could suggest that the orders might not be appropriate, it seems to me that this court, in the exercise of its parens patriae jurisdiction, must do what it can to overcome the problem. There are in essence two ways of doing that. One is to remit the matter to the Children's Court to be considered and dealt with according to law. The other is for this court itself to undertake the task.

219 In the circumstances of this case, it is appropriate to remit the matter to the Children's Court. That is the specialist court set up to deal with cases of this nature. The authorities show that it is only in "exceptional circumstances" that this court should deal with such questions itself. In this case, there are exceptional circumstances sufficient to justify overturning the orders already made. But those exceptional circumstances arise from the various errors and deficiencies that I have articulated. It does not follow from them that the orders could not be supported, after a hearing according to law that took into account, and dealt with in a reasoned way, all available evidence.

220 Thus, the exceptional circumstances that to my mind justify relief in the nature of certiorari do not go further, and justify that, the decision of the Children's Court having been quashed, this court should continue and deal with the substantive question of June's future.

221 That completes my detailed reasons for making the orders that I did, on 9 July 2013. Since those orders did not deal with the question of costs, I turn now to that question.

Costs

222 When I had given my outline reasons and made the orders, Mr Anderson asked for costs against the first defendant, the Director General of the Department. His reasons for not seeking costs against the parents or the ILR was that they were legally aided.

223 At the request of the parties, and taking into account the time of day, I directed that the defendants' submissions on costs, and the plaintiffs' submissions in reply, be put in writing, on the basis that I would deal with the question of costs "on the papers" (although taking into account Mr Anderson's oral submissions made on that topic on 9 July 2013).

224 Section 98 of the Civil Procedure Act 2005 (NSW) gives the court a discretion as to costs, which is expressed to be "[s]ubject to rules of court and to this or any other Act".

225 Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), provides, with an irrelevant exception, that "if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs".

226 There is no doubt that the s 98 discretion arises to be exercised, and that r 42.1 applies according to its terms, in proceedings of this nature. See Barrett JA (with whom Tobias AJA and Schmidt J agreed) in Re Kerry (No.2) - Costs [2012] NSWCA 194 at [4], [5]).

227 In considering the question of costs, it should be noted (as Barrett JA pointed out in Re Kerry [No.2] - Costs at [12], that once the supervisory jurisdiction of this court is invoked under s 69 of the Supreme Court Act, the parties are conducting their dispute in "an arena as to which specific rules as to costs apply". In those circumstances, this court is required to "apply those rules without regard to principles that operate in relation to proceedings of other kinds".

228 Nonetheless, Barrett JA recognised, by reference to the decision of McCallum J in Re Georgia and Luke [2008] NSWSC 1277 and Gzell J in Re Alan [2008] NSWSC 379, where an application as to the fate of a child remains underdetermined, "and the overriding question of the best interests of the child... [has] not been addressed", that it may be inappropriate to make a costs order. See Barrett JA at [17], [18].

229 In this case, I think that the considerations just mentioned have particular significance as between the plaintiffs on the one hand and the parents on the other. The application in respect of June has been remitted to the Children's Court to be heard and determined according to law. It is at least conceivable that, as a result of whatever order is made, both the plaintiffs and the parents (or the father) may continue to have some involvement in June's life. In those circumstances, it would be obviously undesirable for relations between the plaintiffs and the parents to be poisoned by the making (and perhaps enforcement) of an order for costs.

230 In saying this, I accept that the parents are legally aided. However, by s 42 of the Legal Aid Commission Act 1979 (NSW), the court is required to make its costs order as if the parents were not legally aided.

231 I am not sure if Mr Anderson sought costs against the ILR. But in circumstances where the ILR has an independent duty to act in the best interests of the child, and where, in reality, the ILR's representation before me added nothing to the length or complexity of the hearing, I do not think that it is appropriate to make any order.

232 As to both the parents and the ILR, the circumstances that I mention next, in dealing with the application against the Director General, are also relevant.

233 Mr Moore submitted that the basis of the plaintiffs' application had changed substantially - indeed, fundamentally - from the time when it was first brought to the time when it was decided. That submission is correct. As the application was initially framed, the basis for relief was what was said to be the first Magistrate's error in dealing with the plaintiffs' application under s 98(3) of the Care and Protection Act. For the reasons that I have given, that application had no prospect of success; and as I have noted, it was (although only belatedly) withdrawn.

234 The application that was pressed was based, ultimately, on the errors that (as I have found) affected both the hearing before and the decision of the second Magistrate.

235 In those circumstances, and accepting that r 42.1 looks to the outcome of proceedings rather than to the fate of individual issues that lead to that outcome, nonetheless, the circumstances to which I have referred suggest very strongly that the plaintiffs should not have the whole of their costs against the Director General.

236 I do not think that considerations, of the kind relevant in Re Georgia and Luke and in Re Alan, and relevant in this case as between the plaintiffs and the parents, apply as between the plaintiffs and the Director General. There could be no suggestion that the Director General's attitude, or further conduct of the principal application, would be affected because a costs order had been made against him in these proceedings.

237 The Director General chose to appear and support the decision of the second Magistrate. In those circumstances, adapting the words of Barrett JA in Re Kerry [No.2] - Costs at [12], the Director General undertook a course which exposed him to the risk of costs.

238 Mr Moore submitted, correctly, that the Director General had sought to assist the court, by putting before it material which it requested (when the matter first came before me) to show what had happened in the hearing before the second Magistrate, and what were the second Magistrate's reasons both for the procedural decisions that he made and for his decision on the principal application.

239 I accept that the Director General has acted appropriately and responsibly in the conduct of the proceedings in this court, and, as a result, that the court's task was facilitated. But that is no more than one would expect from a Department of State. If that were a dispositive consideration in relation to costs, then on every occasion that the State acted in accordance with its duties as a model litigant, it might be thought to be exempt from costs even if the litigation went against it. That cannot be correct.

240 Mr Moore submitted, based on what Barrett JA had said in Re Kerry [No.2] - Costs at [18], [19] that this is no more than "an early step along the way to some final resolution of the question of the best outcome for" June. However, those observations were directed to "the inhibitions that a costs order against the parents might place in the way of the emergence of a just result". They were not directed to the position of a litigant such as the Director General.

241 Further, the issues in this court were discrete. They concerned the hearing before and decision of the second Magistrate. The issue was whether the hearing had miscarried, and whether, as a result or otherwise, the second Magistrate had erred in law. This court was the appropriate - indeed the only - court in which those issues could be agitated and resolved. Thus, it seems to me, the inhibitions to which Barrett JA referred should not apply.

242 The result is that the plaintiffs should have some part, but not all, of their costs. I am conscious of the many cases that warn against allocating costs on a "success or failure on individual issues" basis. Nonetheless, I cannot but be aware that, had the matter proceeded as the challenge was originally formulated, on the first day when it was before the court, then the plaintiffs would have failed. It was because, after discussion, the matter was adjourned to enable the challenge to proceed on a more informed basis that the plaintiffs were able to put the case that they did.

243 If the challenge had remained limited to the decision of the first Magistrate, it could have been dealt with on the first occasion when the matter came before me. All parties were represented, and (as it turned out) there was sufficient time to deal with the arguments.

244 In the result, the parties have been brought to court twice, to accommodate what has proved to be the fundamental and decisive change in the way that the plaintiffs put their case. In those circumstances, and acknowledging that the discretion as to costs is frequently one that may be incapable of either precise application or detailed exposition, I conclude that the appropriate order is that, as between the plaintiff and the Director General, the plaintiffs should have one half of their costs, but that otherwise costs should lie where they fall.

Costs orders

245 I make the following orders as to costs:

(1) order the first defendant to pay one-half of the plaintiffs' costs of the proceedings.

(2) otherwise, make no order as to costs.

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Decision last updated: 16 August 2013