Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: RC v Director-General, Department of Family and Community Services [2014] NSWCA 38
• Hearing dates: 9 December 2013
• Decision date: 07 March 2014
• Before: McColl JA at [1]; Emmett JA at [2]; Sackville AJA at [68]

Decision

The proceedings be dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - children in need of protection - guardianship of children - whether care order should have been made
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9, 44, 53, 54, 55, 56, 61, 71, 72, 79, 80, 83, 90, 91, 106A, 247; District Court Act 1973 (NSW), s 127; Supreme Court Act 1970 (NSW), s 69
• Cases Cited: Craig v South Australia (1995) 184 CLR 163; Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79; Re Victoria [2002] NSWSC 647
• Category: Principal judgment
• Parties: RC (Appellant); The Director General, Department of Family and Community Services (First Respondent); District Court of New South Wales (Second Respondent); JS (Third Respondent); L Miller (as independent legal representative for Child C) (Fourth Respondent)
• Representation: Counsel: Appellant (self-represented); J Harris (First Respondent); L Miller (Fourth Respondent); Solicitors: Unrepresented, litigant in person (Appellant); IV Knight, Crown Solicitor, Crown Solicitor's Office (First Respondent); (Submitted appearance) (Second Respondent); No appearance (Third Respondent); L Miller (Fourth Respondent)
• File Number(s): 2013/270765
• Publication restriction: Pursuant to s 7 of the Court Suppression & Non-publication Orders Act 2010, that there be no publication or disclosure of information tending to reveal the identity of the child who is a respondent to the proceedings.

Decision under appeal

• Date of Decision: 2013-07-05 00:00:00
• Before: Balla DCJ
• File Number(s): 2012/324025

Judgment

1 MCCOLL JA: I agree with Emmett JA's reasons.

2 EMMETT JA: The applicant (RC) seeks relief under s 69 of the Supreme Court Act 1970 (the Supreme Court Act) in respect of orders made in the District Court under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) in relation to a child (CG) of whom RC is the mother. On 22 July 2013, the District Court ordered that CG be placed under the parental responsibility of the Minister for Family and Community Services (the Minister) until he attains 18 years of age. The District Court also made ancillary orders under the Care Act in relation to CG.

3 RC originally commenced proceedings in this Court by notice of appeal filed on 8 July 2013. That appeal was incompetent (see RC v Director General [2014] NSWCA 36) and RC subsequently commenced these proceedings by summons filed on 6 September 2013, with an amended summons being filed on 18 September 2013.

4 The first respondent in these proceedings is the Director General of the Department of Family and Community Services (the Director General). The second respondent, the District Court, filed a submitting appearance. The third respondent (JS), who is the father of CG, did not appear, although he was served. The fourth respondent, Ms Leonie Miller, represented CG. Ms Miller supported the submissions made on behalf of the Director General. At the hearing of these proceedings, RC appeared in person, without legal representation.

5 At the commencement of the hearing of the proceedings, the Court gave the following directions:

(1) Pursuant to s 71 of the Civil Procedure Act 2005, the business of the Court in relation to today's proceedings be conducted in the absence of the public having regard to the fact that the proceedings concern the guardianship and custody of a minor.

(2) Pursuant to s 7 of the Court Suppression & Non-publication Orders Act 2010, that there be no publication or disclosure of information tending to reveal the identity of the child who is a respondent to the proceedings.

6 The present application under s 69 of the Supreme Court Act relates to proceedings in the District Court under s 91 of the Care Act. RC is the mother of eight children. Two statutory appeals under s 91 had been brought in respect of seven of RC's eight children. JS is the father of only CG, who is RC's seventh child, and is not the father of any of the other seven children.

7 Following oral argument, the Court ordered that the proceedings be dismissed and indicated that it would give reasons as soon as possible. These are my reasons for joining in those orders.

Background to these Proceedings

8 Following a telephone call made by RC to the Director General on 16 April 2011, caseworkers of the Director General attended RC's home and removed her then six children from her care. On 19 April 2011, the Director General placed the six children with authorised carers.

9 Under s 71 of the Care Act, the Children's Court may make an order in relation to a child if it satisfied that the child is in need of care and protection for any reason, including the reasons specified in s 71(1). On 20 April 2011, the Director General made an application to the Children's Court under that provision in relation to RC's six children. In the application to the Children's Court, the Director General relied on the following grounds:

RC acknowledged that she had serious difficulties in caring for her six children and, as a consequence, the children were in need of care and protection;

the six children had been or were likely to be physically abused or ill-treated; and

the six children's basic physical, psychological or educational needs were not being met or were likely not to be met by their parents.

10 On 27 May 2011, the Children's Court found the six children to be in need of care and protection on the grounds set out in the Director General's application. RC consented to that finding on a "no admissions" basis.

11 Under s 54(1) of the Care Act, the Children's Court may appoint a person to assess the capacity of a person with parental responsibility, or who is seeking parental responsibility, for a child or young person to carry out that responsibility. Such an order is referred to in the Care Act as an assessment order. On 8 July 2011, the Children's Court made an assessment order in respect of the six children and on 24 August 2011, Ms Aneeta Kogekar, a clinical psychologist, prepared an assessment report for the Children's Court. In that report, Ms Kogekar said that there was no realistic possibility of restoration of the children to RC.

12 A final hearing of the Director General's application under s 71 in respect of the six children took place in February 2012. The Children's Court heard evidence from RC, from the father of four of the six children, as well as from caseworkers and Ms Kogekar. The Children's Court reserved its decision.

13 In the meantime, CG was born on 4 March 2012. On 6 March 2012, while CG was still in hospital, the Director General assumed care responsibility for him under s 44 of the Care Act. However, RC left the hospital with CG, in defiance of the assumption order. CG was subsequently removed from RC by the Director General and was placed with authorised carers.

14 On 9 March 2012, the Director General commenced proceedings under s 61 of the Care Act for a care order in respect of CG. Those proceedings were listed before the Children's Court on 20 March 2012, when JS appeared. JS has never had any contact with CG and played no further part in the proceedings in the Children's Court or in the subsequent appeal to the District Court.

15 Also on 20 March 2012, the Children's Court found that there was no realistic possibility of restoration of any of the six children to any of their parents. The proceedings were adjourned to 30 March 2012 in order to obtain further information in connection with contact between RC and the six children. On 30 March 2012, the Children's Court made final orders placing each of the older six children in the parental responsibility of the Minister until they attain 18 years of age.

16 The s 61 application in respect of CG was also listed for directions before the Children's Court on 30 March 2012. The Director General relied on s 106A of the Care Act, which provides, relevantly, that evidence that a parent of a child the subject of a care application is a person from whose care and protection a child was previously been removed under the Care Act and to whose care and protection the child has not been restored is prima facie evidence that the child the subject of the care application is in need of care and protection. At that stage, no application was made for an assessment order under s 54 of the Care Act in relation to CG. More specifically, Ms Kogekar was not asked to prepare a further report in relation to CG.

17 On 20 August 2012, the Children's Court found that CG was in need of care and protection. The basis of the conclusion was that CG's basic physical, psychological or educational needs were not being met or were not likely to be met by his parents.

18 A final hearing of the s 61 care application in respect of CG commenced on 20 December 2012. At the time, RC was pregnant with her eighth child, although during the course of the hearing on 20 December 2012 she gave evidence to the effect that she was not pregnant. The hearing continued on 14 February 2013. RC's then partner, who is the father of her eighth child, also gave evidence. However, Ms Kogekar was not called to give evidence. On 26 February 2013, the Children's Court found that there was no realistic possibility of restoration of CG to either of his parents. The Children's Court made final orders placing CG in the parental responsibility of the Minister until he attained the age of 18 years.

19 Section 91(1) of the Care Act provides that a party to proceedings who is dissatisfied with an order, other than an interim order, of the Children's Court may, in accordance with the Rules of the District Court, appeal to the District Court against the order. Such an appeal is to be by way of a new hearing. Fresh evidence, or evidence in addition to or in substitution of the evidence on which the order was made, may be given on the appeal. Under s 91(4), the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has. In particular, the District Court may confirm, vary or set aside the decision of the Children's Court. The decision of the District Court in respect of an appeal is taken to be the decision of the Children's Court and has effect accordingly.

20 On 18 October 2012, some five and half months out of time, RC filed a summons in the District Court, seeking to appeal from the orders made by the Children's Court in relation to her six older children. On 18 January 2013, the District Court extended the time to appeal and the matter was adjourned to 22 February 2013 for directions. On that day, the appeal was listed for hearing on 20 March 2013 on an expedited basis in view of RC's pregnancy. The District Court also ordered that any appeal in relation to CG be listed at the same time. On 8 March 2013, RC filed a summons in the District Court seeking to appeal in respect of the orders made by the Children's Court in relation to CG and that appeal was also listed for hearing on 20 March 2013.

21 On 19 March 2013, the day before the day fixed for the hearing of the appeals, RC went into labour with her eighth child and the hearing had to be abandoned. The appeals were re-listed for hearing on 1 July 2013 and the appeals were heard together over three days commencing on that day. The Court heard evidence from caseworkers of the Director General, RC and RC's then partner, the father of her eighth child. The District Court also considered the transcripts, affidavits and exhibits filed in the two proceedings in the Children's Court.

22 Ms Kogekar had been ordered to give evidence at the hearing on 2 July 2013. However, the parties were informed on 27 June 2013 that, because of emergency surgery, Ms Kogekar would not be able to give evidence. No application was made at that stage by any party to adjourn the proceedings fixed for 1 July 2013.

23 On 5 July 2013, after the three-day hearing, the District Court found that there was no realistic possibility of restoration to RC's care of any of the seven children. The District Court invited the parties to prepare orders that the children be placed in the parental responsibility of the Minister. On 22 July 2013, orders were made accordingly in relation to all seven children. No order was made in relation to RC's eighth child.

24 At the end of August 2013, RC informed the Director General that she did not want any further contact with any of her six older children. There has been no further contact between RC and those children.

25 Section 90(1) of the Care Act provides that an application for the rescission or variation of a care order may be made with leave of the Children's Court. Under s 90(2), the Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. Section 90(2A) sets out matters that the Children's Court must take into consideration before granting leave to vary or rescind a care order. Persons who may make an application include the Director General, the child and a person having parental responsibility for the child, as well as a person from whom parental responsibility for the child has been removed.

26 On 4 October 2013, RC filed an application for leave to rescind or vary a care order made in relation to CG. That application was dismissed on 8 October 2013. It was not considered on its merits. The ground for dismissal appears to be that the present s 69 proceedings were on foot.

These Proceedings

27 By her amended summons filed on 18 September 2013, RC claimed the following relief:

(1) District Court orders 22/07/2013 to be set aside; and

(2) For a "judicial review".

As indicated above, the orders made by the District Court on 22 July 2013 relate to the six older children, as well as to CG. However, when the hearing of these proceedings commenced, RC made clear that she was seeking no relief in relation to the orders insofar as they affect the older six children. She seeks relief only in respect of CG.

28 A statutory appeal under s 91 of the Care Act is not an "action" for the purposes of s 127 of the District Court Act 1973. Accordingly, there is no general right of appeal to the Court of Appeal from an order made under s 91. Nevertheless, apart from its parens patriae jurisdiction, this Court has power to grant relief under s 69 of the Supreme Court Act. Section 69 relevantly provides that where the Court formerly had jurisdiction to grant any relief or remedy by way of writ, whether of prohibition, mandamus, certiorari or of any other description, the Court is to continue to have jurisdiction to grant that relief or remedy, but is not to issue any such writ, but is to grant the relief or remedy by way of judgment or order under the Supreme Court Act and the Rules. Thus, the Court has jurisdiction to make an order in the nature of certiorari removing proceedings in an inferior court or tribunal into this Court, with a view to quashing orders made by the inferior court or tribunal. The Director General accepts that that is, in effect, the jurisdiction that has been invoked by the proceedings commenced by RC.

29 However, that relief is available only if RC can establish a ground upon which this Court would interfere with the decision of the District Court. It would be necessary for RC to establish a ground such as jurisdictional error, failing to observe applicable requirements of procedural fairness, fraud or error of law on the face of the record (see Craig v South Australia (1995) 184 CLR 163 at 175).

30 RC filed submissions in support of her claims for relief in these proceedings. Having regard to her lack of legal qualifications, it is not surprising that her submissions are neither informative nor helpful. In essence, the submissions suggest that RC is seeking a review by this Court on the merits. Clearly, she is not entitled to any relief on that basis.

31 RC's written submissions also include complaints about the conduct of the Director General's staff. The present proceedings are not appropriate for the ventilation of such complaints. Unless the complaints in some way gave rise to jurisdictional error on the part of the District Court, or a denial of procedural fairness or fraud, they are irrelevant. No basis for suggesting that the complaints give rise to such grounds has been advanced. In addition, RC's submissions asserted that she has completed counselling with a psychologist and has completed parenting courses and has also started assessment for other therapy. Those matters are clearly not relevant to the questions before this Court.

32 When invited to address the Court in support of her claims, RC asserted she did not agree with "the clinician's report" and said that the clinician did not treat her and that she had done no more than spend one hour with the clinician. Nevertheless, RC said, the clinician's report influenced the decision of the District Court.

33 RC's reference to "the clinician's report" must be understood as a reference to Ms Kogekar's assessment report. That report, of course, related only to the six older children. It did not relate to CG, who had not been born when the report was prepared. While it had been expected by the parties that Ms Kogekar would give evidence in the District Court, she was not available to do so, for the reasons indicated above.

34 RC's submissions disclose no basis upon which this Court could intervene in the orders of the District Court. However, the Director General has, quite properly, in order to assist the Court, endeavoured to distill from RC's complaints five grounds upon which she says this Court should interfere with the orders of the District Court in relation to CG. It is convenient to deal with those grounds separately.

Ground 1

35 RC asserts that on 16 April 2011 she contacted the Department Helpline seeking a break from "the children". She said that she contacted the Department for help, only to have the children permanently removed from her sole care. She complains that if she had not made that phone call she would not be in the situation in which she now finds herself. The Director General asserts that RC has consistently stated that the six children were only taken from her care because she made that telephone call to the Department.

36 The Director General says that while the telephone call undeniably led to the attendance of Director General's caseworkers on that day, it is not necessarily the case that, but for the telephone call, the Director General would never have taken any action. The Director General relies on findings made by the District Court that there had been a number of prior reports about RC's family and the Director General had already taken prior action.

37 In any event, regardless of how the Director General became involved or what RC wanted to happen, once the matter was before the Children's Court and the District Court, both courts were required to consider the provisions of the Care Act before making any orders. The Care Act requires the Court to address five matters prior to making a final care order. Those matters are as follows:

Section 72(1) of the Care Act requires that the Court must first determine whether the children are in need of care and protection.

Section 83(1) of the Care Act requires the Director General to make an assessment as to whether there is a realistic possibility of restoration of a child to a parent's care. The Court's role is then to decide whether to accept the Director General's assessment. The Court must have regard to the child's circumstances and to evidence about whether the parents are likely to be able to address the issues that led to the child being removed.

Section 83(7)(a) requires that the Court not make a final care order unless it expressly finds that permanency planning for the child has been appropriately and adequately addressed.

Section 80 of the Care Act requires the Court to consider a care plan presented to it by the Director General.

Under s 79(3), the Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle that the course to be followed must be the least intrusive intervention in the child's life and his or her family that is consistent with the paramount concern to protect the child from harm and promote the child's development, and must be satisfied that any other order would be insufficient to meet the child's needs.

38 RC has not pointed to any error in the approach of the District Court in dealing with those matters. Each of them was addressed by the District Court before making care orders in respect of the six older children, as well as in respect of CG.

39 The District Court dealt with the question of RC's telephone call. The primary judge observed that while RC now says that at the time when the six older children were removed she only needed a break, her Honour was satisfied that RC's conduct on 16 April 2011 was an acknowledgement that she was having serious difficulties in caring for the six older children.

40 In any event, the Director General asserts, RC's acknowledgement that she was not coping was not the only reason why the six older children were found to be in need of care and protection. The primary judge also found that the children had been or were likely to be physically abused or ill-treated and that the children's basic physical, psychological and educational needs were not being met or were not likely to be met by their parents. Further, as the Director General contends, the finding that the six older children were in need of care and protection was not directly relevant to CG. The fact that the six older children were removed from RC's care and had not been restored was, under s 106A of the Care Act, prima facie evidence that CG was in need of care and protection.

Ground 2

41 RC asserted in her submissions that, as a result of the telephone call of 16 April 2011, the six older children were in care and when CG was born he was removed "just because of the legislation" and not because of RC's parenting. The reference to "the legislation" appears to be a reference to s 106A of the Care Act. The Court is required to admit any evidence that a child was previously removed from a parent's care and has not been restored and that is prima facie evidence that a child the subject of a care application is in need of care and protection. The parent may rebut such presumption by establishing, on the balance of probabilities, that the circumstances that gave rise to the previous removal no longer exist. That is the effect of s 106A(3). However, s 106A is not a separate ground for making a care order. The Court must be still be satisfied that a ground under s 71 has been established.

42 The primary judge found that s 106A(1) and s 106A(2) were engaged and that RC had not addressed the issues that led to the removal of the six older children. RC had therefore failed to rebut the effect of the prima facie evidence that CG was in need of care and protection.

43 The primary judge correctly observed that the presumption is not itself a ground for making a care order. Her Honour found separately that CG was in need of care and protection. The basis of the findings made by her Honour was that it was likely that RC would continue, with CG, the pattern of parenting of the six older children. Ground 2 does not entitle RC to the relief sought.

Ground 3

44 RC complains that she has been given no opportunity to care for CG and has been given no chance to show that she can be a parent to CG. She asserts that she has always met CG's needs in contact visitations and that she maintains a strong bond with and attachment to him.

45 The Care Act does not expressly require that the opportunities afforded to parents to care for their children be taken into consideration when determining whether to make a care order. Rather, it requires the Director General to act in circumstances where he considers a child to be in need of care and protection. While the fact that RC may not have been given a chance to care for CG may have been relevant to the determination made by the Children's Court or the District Court, it could not be determinative.

46 The Director General accepts that the reasons of the District Court do not explicitly address the quality of the contact between RC and CG. However, the primary judge referred to RC's submissions that she had never had the opportunity to care for CG and pointed out that her Honour did not have the assistance of any expert evidence in relation to whether there was a realistic possibility of restoration if RC was looking after only CG. Nevertheless, as I have said, her Honour concluded that it was likely that RC would continue, with CG, the pattern of parenting of the six older children. RC has not demonstrated any basis for s 69 relief that could impugn that finding. No basis for this Court's interference has been established in relation to this ground of complaint.

Ground 4

47 RC also asserts that she has addressed all the issues stated in Ms Kogekar's assessment report and has done more than was recommended in the report. This complaint appears to be no more than an invitation to this Court to entertain an application under s 90 of the Care Act.

48 As I have indicated, s 90 authorises the Children's Court, not this Court, to grant leave to apply for a decision or variation of a care order if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. Section 90(2A) sets out the matters that the Children's Court must take into consideration. It remains open to RC to make an application under s 90 notwithstanding her failure in these proceedings If she is able to demonstrate that her circumstances have changed, it may be open to the Children's Court to vary the care order made in relation to CG.

49 However, the Director General submits that RC has not in fact addressed all of the issues identified by Ms Kogekar. The fact that there is an issue about that serves to emphasise that this ground involves a misconception on the part of RC as to the function of this Court in dealing with proceedings under s 69 of the Supreme Court Act. There is no substance in ground 4.

Ground 5

50 Finally, RC complains that Ms Kogekar's assessment report was made in August 2011, almost two years before the hearing in the District Court at the beginning of July 2013 and before CG was born. RC complains that she was not given the opportunity by the District Court to have a fresh assessment report provided. This ground of complaint, while it gives rise to initial disquiet, must also be rejected for the reasons given below.

51 Division 6 of Ch 5 of the Care Act deals with examination and assessment orders. Under s 53, the Children's Court may make an assessment order for the physical, psychological, psychiatric or other medical examination of a child or for the assessment of a child, or both. Under s 54, the Children's Court may, for the purposes of an assessment order, appoint a person to assess the capacity to carry out parental responsibility for a child of a person with parental responsibility or who is seeking parental responsibility. Section 55 provides that an assessment order may be made on the application of a party to a care application.

52 Under s 56, in considering whether to make an assessment order, the Court must have regard to the following:

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

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

(c) any distress already caused to the child by any previous assessment undertaken for the same or other purpose; and

(d) any other matter that the Court considers relevant.

Under s 91(4), the District Court has all the functions and discretions that the Children's Court has under Div 6.

53 In the course of addresses to the District Court, counsel for RC adverted to the fact that Ms Kogekar's assessment report was almost two years old. Counsel pointed out that Ms Kogekar had not had the opportunity to take into account that RC had continued to progress through education courses and had attempted to engage in a real way with the deficiencies that had been identified in the report.

54 Counsel for RC then dealt with the separate appeal in relation to CG and pointed out that CG's need for care and protection was established as a result of the application of s 106A. The submission was made that RC had never had the opportunity to care for CG and that the report that had been made was on the basis of her caring for the six older children. Counsel said that one of the difficulties in making a decision in relation to CG was that the Court did not have the assistance of any expert evidence in relation to whether there was a realistic possibility of restoration if RC was looking after CG alone and not the other children. The submission was made that it would be unsound for the District Court to proceed to a determination in relation to CG without the assistance of further expert evidence.

55 Counsel for RC then submitted to the District Court that the appropriate course would be for the Court to make a determination in relation to the six older children but to request an assessment report in relation to whether there was a realistic possibility of restoration of CG alone. Counsel submitted that such an assessment would not take too long and would not prevent the Court deciding and finalising the matter in relation to the six older children. It was said that since Ms Kogekar's assessment report was two years old and there was nothing specifically in relation to CG, a more satisfactory outcome would be to obtain a report from a new clinician, having regard to the medical difficulties experienced by Ms Kogekar.

56 In dealing with CG in her reasons, the primary judge adverted to the fact that Ms Kogekar was unexpectedly unavailable to give evidence because of her medical condition. Her Honour observed that no application had been made for an adjournment before or during the hearing of the appeals, but that counsel for RC had invited the Court to make a determination in relation to the six older children and in the meantime seek an assessment report in respect of CG, as described above.

57 The primary judge referred to the submissions on behalf of RC that she had never had the opportunity to care for CG and that the Court did not have the assistance of any expert evidence as to whether there was a realistic possibility of restoration if RC was only looking after CG. Her Honour referred to the submission that it was possible that a clinician might consider that there was a difference between a young woman having to look after six children and a more experienced and mature woman who had sought to address the deficiencies that led to the removal of the six older children.

58 The primary judge had regard to s 9(2)(e) of the Care Act, which provides that if a 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 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. However, her Honour was not persuaded, for the reasons that she had already given in relation to the six older children, that there had been any change in RC's parenting skills or insight. Her Honour said that the only issue was whether an expert might say that without the stress of six older children RC's deficits might have less impact on CG. Her Honour considered that that was highly unlikely.

59 The primary judge referred to evidence of physical abuse of RC's oldest child before the others were born. Her Honour accepted that past behaviour can be used as a predictor and that the missing element in RC's case was her commitment to change on a significant level, which illustrated her lack of insight into the issues that culminated in the removal of the six older children. Her Honour also referred to the fact that RC had developed an antipathy to the Department, which meant that it was extremely unlikely that she would cooperate with close monitoring. Her Honour considered that CG, being a baby, needed to be protected. Her Honour was not persuaded that even if there were such expert evidence it would be of very great weight. For that reason, her Honour declined to adjourn the proceedings in order to obtain an assessment report under s 53 of the Care Act.

60 The Director General and Ms Miller each frankly acknowledged that the District Court was not referred expressly to the provisions of s 56 of the Care Act when the question of a further assessment arose. However, both contended before this Court that while there was no express reference to the provisions of s 56, a fair reading of the primary judge's reasons indicates that the matters required to be taken into consideration were in fact considered by her Honour.

61 Specifically, the District Court was required to consider whether the proposed assessment would be likely to provide relevant information that was unlikely to be obtained elsewhere. It is clear enough from her Honour's reasons that she addressed the submissions advanced by RC's counsel and formed the view that an assessment would not provide further relevant information. Her Honour said expressly that she was not persuaded that such evidence would be of great weight.

62 The decision as to whether or not to order a further assessment was a matter within the discretion of the District Court. Of course, if the District Court failed to give consideration to a matter that it was required to take into account, that would provide a ground for intervention by this Court under s 69 of the Supreme Court Act. However, in the circumstances as outlined above, I am not persuaded that there was a failure on the part of the District Court to have regard to a relevant matter. I do not consider that this final ground constitutes a basis for interfering with the decision of the District Court in relation to CG.

Parens Patriae Jurisdiction

63 While the amended summons does not expressly seek to invoke the parens patriae jurisdiction of the Court, the Director General advanced submissions as to why that jurisdiction should not be invoked. Section 247 of the Care Act provides that nothing in that Act limits the jurisdiction of the Supreme Court. Thus, the parens patriae jurisdiction is not diminished by the Care Act.

64 Clearly enough, the Court's supervisory power in relation to the jurisdiction conferred by s 69 overlaps with its parens patriae jurisdiction. The parens patriae jurisdiction is wider than the jurisdiction under s 69. An order quashing a decision of an inferior court could be made under the parens patriae jurisdiction, even if it could not be made under s 69.

65 The Court has power to act in the best interests of those who are incapable of taking care of themselves. However, the parens patriae jurisdiction should only be exercised in exceptional or extraordinary circumstances. Good reason must be shown before the Court would exercise jurisdiction to override the decision of another judicial officer, albeit a judicial officer of an inferior court. The Court would not interfere with a discretionary decision of a lower court unless the decision was plainly wrong or unless there was some error in the process leading to that decision, such as a denial of procedural fairness, an error of law or a failure to give adequate reasons. It is also significant that the Care Act provides for a specialist jurisdiction to determine issues relating to the welfare of children. Applications to this Court that would bypass the provisions of the Care Act should not be encouraged (see Re Victoria [2002] NSWSC 647 at [31] and Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 at [20]).

66 RC has not identified any circumstances that would enliven the Court's parens patriae jurisdiction. Nothing that has been said indicates any error on the part of the District Court that would justify interference with the decision made in relation to CG. No basis has been established for the exercise of the parens patriae jurisdiction.

Conclusion

67 RC has not established any basis upon which this Court should interfere with the decision of the District Court in relation to CG. The Director General did not make any submission in relation to costs. There should be no order as to the costs of the proceedings.

68 SACKVILLE AJA: I agree with Emmett JA.

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Amendments

20 May 2014 - Substitute Uniform Civil Procedure Rules 2005 for Civil Procedure Act 2005
Amended paragraphs: 5

Decision last updated: 20 May 2014