Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226
• Hearing dates: 27 June 2014
• Decision date: 15 July 2014
• Before: Basten JA at [1]; Ward JA at [64]; Emmett JA at [65]

Decision

(1) Set aside order 1 made by Olsson SC DCJ on 11 December 2013, dismissing the appeal.

(2) Otherwise dismiss the further amended summons filed by the applicant on 31 January 2014.

(3) Order the applicant to pay the costs of the Secretary, Family and Community Services and the third defendant (Felicity's Father), the latter to be assessed on the basis of a litigant in person, being costs incurred by those parties in this Court, to be assessed on the ordinary basis.

[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: ADMINISTRATIVE LAW - judicial review - appeal from Children's Court to the District Court - no appeal against judgment on statutory appeal to the District Court - whether error of law on the face of the record or jurisdictional error established; ADMINISTRATIVE LAW - procedural fairness - apprehended bias - allegation of failure by judge to consider applicant's submissions - direction by judge that litigant in person would be assisted by opposing counsel; ESTOPPEL - res judicata - issue estoppel - findings made about child when determining care order - application to rescind or vary care order - whether earlier findings can be re-examined - whether issue estoppel can arise when there is express jurisdiction to address changed circumstances -- Children and Young (Care and Protection) Act 1998 (NSW), s 90; FAMILY LAW AND CHILD WELFARE - rescission and variation of care orders - care order allocated responsibility for contacting child to Department - order expired when child reached a specific age - application by Department to extend period of responsibility - whether Director-General of department had standing to seek variation - leave to apply for rescission or variation granted where there has been a "significant change in any relevant circumstances" - whether circumstances establish a significant change - whether circumstances limited to those that were the basis for initial care order - Children and Young (Care and Protection) Act 1998 (NSW), s 90; JUDGMENTS - application to review decision of Children's Court after merit appeal to District Court - judgment of lower court superseded by judgment of appeal court - Wishart v Fraser [1941] HCA 8; 64 CLR 470 applied
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 34, 79, 90, 91, 104B, 104C, 105; Ch 2, Pt 3, Ch 4, Pt 1; Civil Procedure Act 2005 (NSW), ss 71, 99; Family Law Act 1975 (Cth), s 69ZK; Supreme Court Act 1970 (NSW), ss 69, 101; Uniform Civil Procedure Rules 2005 (NSW), r 36.16
• Cases Cited: Adoption Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629; Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374; Druett v Director-General of Community Services [2001] NSWCA 126; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; In the matter of Campbell [2011] NSWSC 761; Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282; Re Ellen [2013] NSWSC 1573; Re Felicity [2012] NSWSC 494; 84 NSWLR 25; Re Felicity [2013] NSWCA 21; Re Sophie (No 2) [2009] NSWCA 89; S v Department of Community Services [2002] NSWCA 151; Wishart v Fraser [1941] HCA 8; 64 CLR 470
• Category: Principal judgment
• Parties: FM (Felicity's Mother) (Applicant); Secretary, Department of Family and Community Services (First Respondent); Child's Independent Legal Representative/Felicity (Second Respondent); Felicity's Father (Third Respondent); District Court (Fourth Respondent); Children's Court of New South Wales (Fifth Respondent)
• Representation: Counsel: Mr G Potkonyak, Solicitor (Applicant); Mr M Anderson (First Respondent); Ms A Hall, Solicitor (Second Respondent); Third Respondent in person; Submitting appearances (Fourth and Fifth Respondents); Solicitors: Capellia Legal (Applicant); Crown Solicitor's Office (First Respondent); Legal Aid Commission NSW (Second Respondent); Third Respondent self-represented; Crown Solicitor's Office (Fourth and Fifth Respondents)
• File Number(s): CA 2013/339776

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2013-12-11 00:00:00
• Before: Olsson SC DCJ
• File Number(s): DC 2013/131697

Judgment

1 BASTEN JA: The subject matter of the present application is a judgment of the District Court in relation to proceedings brought under the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care and Protection Act"). The proceedings in the District Court involved an appeal from orders made in the Children's Court at Parramatta on 26 April 2013, which varied earlier orders made on 16 October 2009 in respect of a child known as Felicity (not her correct name). The use of a pseudonym is adopted in order to avoid facilitating an inadvertent contravention of the prohibition on the publication of the name of a child with respect to whom proceedings have been brought before the Children's Court, contrary to s 105 of the Care and Protection Act. For the same reason, the actual names of the mother and father will also not be used: cf s 105(4).

2 At the commencement of the hearing, this Court made an order that the proceedings be conducted in the absence of the public, excluding persons other than those with a direct interest in the proceedings, but not so as to exclude the news media. An order in that form reflected the statutory provisions with respect to the Children's Court, applicable in such proceedings: Care and Protection Act, ss 104B and 104C. That order was made pursuant to s 71(c) of the Civil Procedure Act 2005 (NSW).

3 On the advice of counsel that the first respondent was now the Secretary, Family and Community Services, rather than the Director-General, the Court directed that the title of the proceedings be amended accordingly. However, where historical references are being discussed the old title is used below. The legislation still uses the old title.

Procedural background

4 The child was born in November 2003. On 16 October 2009 a Children's Court magistrate made orders allocating parental responsibility (including responsibility for contact) to the Minister until Felicity attained the age of 8 years. The orders also allocated to the father parental responsibility for all aspects other than contact until she attained 8 years of age. Provision for the allocation of parental responsibility jointly and for the separate allocation of specific aspects of parental responsibility is provided by s 79 of the Care and Protection Act.

5 Felicity attained the age of 8 years in November 2011: accordingly, the operation of these orders has long since expired. However, reliance was placed in this Court on a "notation" that accompanied the 2009 orders, in the following terms:

"D. That upon the child attaining the age of eight (8) years that the contact move to an unsupervised arrangement and occur at a frequency and for a duration based upon the child's expressed wishes."

6 On 10 August 2012 the Director-General, Family and Community Services, filed an application with respect to Felicity in the Children's Court, pursuant to s 90(2) of the Care and Protection Act, seeking to vary orders said to have been made on 2 November 2009. The variation sought was "as to contact only", the intention being that that aspect of parental responsibility be allocated to the Minister until Felicity attained the age of 18, with all other aspects of parental responsibility being retained by her father. On 26 April 2013 an order was made, in the terms sought by the Minister, but with parental responsibility for contact being allocated to the Minister only until Felicity attained the age of 14 years.

7 The mother appealed from the judgment of the Children's Court, pursuant to s 91 of the Care and Protection Act. That appeal was to be dealt with by way of a "new hearing": s 91(2). Those proceedings were conducted over four days in November 2013, the primary judge, Judge Olsson SC delivering judgment on 11 December 2013. The terms of the `orders made will be addressed below but, in short, the mother was unsuccessful.

8 There is no right of appeal from that judgment: Druett v Director-General of Community Services [2001] NSWCA 126; Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 at [8]. Accordingly, the proceedings now before this Court invoke the supervisory jurisdiction of the Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). To obtain relief in that jurisdiction, the applicant mother must establish an error of law on the face of the record of the court below, or jurisdictional error.

9 Before turning to the matters relied on by the applicant, it is necessary to note one other aspect of the procedural history. One the 2009 orders continued to have operation beyond November 2011, namely order 4 which was in the following terms:

"4. Upon the expiration of Orders 1, 2 and 3 and pursuant to Section 79(1)(a)(i), the Court orders that the child be placed under the parental responsibility of the father until the child attains the age of eighteen (18) years."

10 Because of the continued operation of that order, the 2012 application to the Children's Court was an application for variation of a care order; leave was required: s 90(1). On 17 September 2012 the Children's Court granted leave on the basis that there had been significant changes in the relevant circumstances since the orders were made in October 2009.

11 On 29 April 2013, that is five days after the final orders of the Children's Court, the applicant filed an appeal in the District Court challenging the grant of leave to seek the varied orders and the orders themselves. At some stage a direction was presumably given directing that the challenge to the grant of leave be heard separately from and before the other issues arising on the appeal. No order to that effect is recorded in JusticeLink but that issue alone proceeded to a hearing before Judge Balla. However, Balla DCJ noted that "[t]he only issue listed for hearing before me was their appeal from the grant of leave in 2012."

12 In giving judgment on 7 August 2013, Balla DCJ expressed satisfaction that "leave should be granted to the Director-General." That judgment did not dispose of the appeal. The order of the Court, as entered on JusticeLink was:

"Confirm decision of the Children's Court to grant leave."

Further orders were made by way of directions relevant to the remainder of the appeal.

13 The significance of that step for present purposes lies in the fact that on 5 November 2013 the applicant filed a summons seeking leave to appeal from the decision of Balla DCJ given on 7 August 2013. The summons was described as "amended", although it was the first document filed in this Court. The explanation for that curiosity requires reference to another procedural step in the saga of the mother's litigation.

14 On 4 September 2013, a summons seeking similar relief had been filed in the Equity Division. That summons intervened between the judgment of Balla DCJ and the hearing before Olsson DCJ. Lindsay J refused an application for a stay of the proceedings in the District Court and further ordered that the proceedings before him be removed into this Court. In so doing, he directed that an "amended summons" be filed in this Court no later than 5 November 2013, which step was taken challenging the judgment of Balla DCJ of 7 August 2013. As appears from the judgment of Lindsay J, the appeal of 29 April 2013 challenged not only the District Court decision with respect to the grant of leave, but also the orders made by the Children's Court on 26 April 2013: Re Ellen [2013] NSWSC 1573 at [18].

Background to variation order

15 Much weight has been placed by the applicant mother on the terms of notation D to the 2009 orders, which Olsson DCJ described as reflecting "an aspiration" that contact after the age of 8 be "unsupervised" and that the timing and duration reflect Felicity's expressed wishes. There was evidence before the District Court that, whilst contact visits occurred, Felicity "enjoyed spending time in her mother and half sister's company and engaged happily with them": at [36]. Judge Olsson inferred that she wished to see them, although there was some doubt as to the continuation of that view because the mother ceased to attend contact visits in October 2011. The mother thereafter made no attempt to contact her daughter. The father said that Felicity initially asked about her mother, "but has not mentioned her at all in recent times": judgment at [36].

16 The mother's position was that she wanted unsupervised access; the father, supported by the Director-General and the independent legal representative for the child, opposed unsupervised contact. The concern was that, if permitted unsupervised access, the mother would poison Felicity's mind in relation to her father with whom she was living.

Grounds for relief

(a) standing of Director-General

17 The first order sought was a declaration to the effect that the Director-General had no standing to commence the proceedings in the Children's Court pursuant to s 90 of the Care and Protection Act. (Each of the substantive orders sought by the applicant was accompanied by an alternative which was the converse of the order sought: the alternative orders were not sought by any party and may be disregarded.)

18 The submissions in support of this ground treated the interest of the Director-General as restricted to the period during which an element of parental responsibility was allocated to that officer, namely until Felicity's eighth birthday. After that date, it was submitted (correctly) that parental responsibility lay with the father, pursuant to order 4 made in October 2009. However, the Director-General's powers were unrelated to the existence of care orders: the power of the Director-General depended upon the formation of an opinion that Felicity was a person "in need of care and protection" for the purposes of s 34(1) of the Care and Protection Act. Once that opinion was formulated, the Director-General had power to take necessary action to safeguard or promote the safety, welfare and wellbeing of the child. That action included seeking appropriate orders from the Children's Court: s 34(2)(d).

19 Further, as counsel for the Secretary noted, the Director-General had a statutory entitlement to be a party to any rescission or variation application. Not only was there specific provision for that officer to make such an application, by s 90(3), but further, where any application was made by someone other than the Director-General and the Director-General was not a party the applicant was required to notify the Director-General, who was entitled to become a party: s 90(3A).

20 The applicant's solicitor sought to argue, apparently as an independent point, that once the Director-General ceased to be involved in the care and protection of Felicity, he had no interest in any further proceeding. After her eighth birthday, he exercised no parental responsibility, he was not required to be given reports relating to Felicity, and there was no evidence that he received a report that she was at risk. Any disagreement between the parents with respect to parental responsibility was to be dealt with between them or, if assistance were required, by approaching an appropriate court.

21 This submission appeared to rely more upon ideology than legal principle. It took no account of the roles of the Minister and Director-General as set out in Ch 2, Pt 3 of the Care and Protection Act, nor the manner in which requests for assistance were to be dealt with (Ch 3), nor the conferral of powers on the Director-General under Ch 4, Pt 1. It is clear that the statutory scheme is inconsistent with the applicant's submission.

22 The challenge to the Director-General's standing is without substance.

(b) absence of "care and protection jurisdiction"

23 The second basis for seeking relief was that there had been no "significant change to the relevant circumstances" since the making of the orders with respect to contact in October 2009. It was submitted that everyone knew in 2009 that, upon Felicity attaining 8 years of age, those orders would cease to operate. Accordingly, their cessation was not a significant change in circumstances for the purposes of s 90(2) of the Care and Protection Act.

24 The relevant statutory provision was in the following terms:

90 Rescission and variation of care orders

(1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court.

...

(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.

25 It was assumed (no doubt correctly) that satisfaction of the Children's Court as to the condition specified in s 90(2) was a necessary precondition to the grant of leave. The applicant's submissions focused on the phrase "any relevant circumstances" in which there had to be a significant change. She submitted that those circumstances were restricted to the circumstances which formed the basis for making the care order in the first place.

26 That submission cannot be accepted. If fresh circumstances arise which make an extant order no longer appropriate, in order to provide care and protection necessary for the safety, welfare and well-being of the child the subject of the order, that is sufficient to permit the rescission or variation of the order. So understood, the phrase "any relevant circumstances" refers to any circumstances relevant to the safety, welfare and well-being of the child. That reading conforms to the primary object of the Act: s 8(a).

27 By way of example, a child placed in the care of one parent because the other parent was overseas might become the victim of domestic violence. The applicant's solicitor, proposed that, in such a circumstance, a fresh application for a care order would be made. However, no care order could be made inconsistent with an existing care order without rescinding or varying the existing order. Section 90 must be read to permit an application in such circumstances.

28 Slattery J, dealing with an appeal from the Children's Court presided over by a District Court judge, considered the scope of s 90(2) in In the matter of Campbell [2011] NSWSC 761. With respect to the phrase "relevant circumstances" Slattery J noted that the "range of relevant circumstances will depend upon the issues presented for the Court's decision": at [42]. He continued, noting that "[t]hey may not necessarily be limited to just a 'snapshot' of events occurring between the time of the original order and the date the leave application is heard." To say that they are not so limited, at least implies that the relevant circumstances include arising after the original orders were made. That reasoning is entirely inconsistent with the applicant's proposition that "relevant circumstances" are limited to those relevant to the making of the original order. Accordingly, neither principle nor authority supports the applicant's contentions.

29 The significant change in circumstances relied upon in the present case was not the cessation of the orders, but the fact that the applicant refused to have further contact with her daughter unless the contact was unsupervised. The result was that contact, which was beneficial to Felicity, ceased. On one view, it ceased when it did because at that point the requirement for supervision emanated from the father who had full parental responsibility, rather than as the result of a court order. The purpose of the application by the Director-General was to restore the status quo under the court orders. Balla DCJ treated these circumstances as involving a significant change warranting a variation application.

30 Judge Balla set out the history of the matter in some detail. At p 2, the judge noted:

"Since 5 November 2011, the father has offered the mother supervised contact with the child. The father has refused to permit the child to have unsupervised contact with the mother. ... The mother refused to attend supervised contact."

31 Judge Balla also noted that, before 22 October 2011, the mother had regular supervised contact with the child approximately once per month, but that the child had had no contact with her mother or her sister since that date: judgment, p 3.

32 After setting out further aspects of the procedural history and the terms of s 90, the judge asked whether there had been "a significant change in a relevant circumstance". Noting that the primary submission made by the applicant's solicitor was that the "notation" to the 2009 orders envisaged unsupervised contact after Felicity's eighth birthday, a submission which was rejected as irrelevant, the judge continued:

"Accordingly I find that there are currently no Orders in relation to contact and the father will not consent to the mother having unsupervised contact. The mother will not attend supervised contact. I am satisfied that the absence of an order for contact since November 2011 is a significant change in relevant circumstances."

33 The judge then recognised that satisfaction of that condition was a necessary but not a sufficient condition for the grant of leave and considered other matters relevant to the exercise of the power. It is apparent that Balla DCJ applied the correct legal test, made a finding as to the necessary precondition to exercise of the power, by reference to what appear to have been largely undisputed facts.

34 Whether the District Court was correct in forming the views that it did on the factual evidence before it is not a matter for review in this Court. It is sufficient that such findings were open in the District Court. It could not have been submitted (nor was it) that such findings were manifestly unreasonable or otherwise revealed relevant legal error. On the basis of the limited argument before this Court, the findings as to significant change were soundly based.

35 To the extent that the third and fourth declarations sought appeared to raise a similar argument about the absence of significant changes to the relevant circumstances, declarations 2, 3 and 4 must be refused.

36 Paragraph 5 sought leave, if required, "to call the record of the ... District Court ... to this Court and its decision of 7 August 2013 be quashed". This Court has said on more than one occasion that because writs of certiorari are no longer available, pursuant to s 69 of the Supreme Court Act, it is neither necessary nor appropriate to make an order "calling up" any record from the District Court: see eg Re Sophie (No 2) [2009] NSWCA 89 at [84]. In any event, as none of the declarations sought in the preceding paragraphs of the summons is to be made, the relief sought in paragraph 5 must be refused.

(c) declaration 6

37 Paragraph 6 claimed a declaration that the District Court "was precluded from hearing and determining the matter on the same evidence and issues as those considered in the proceedings in the Children's Court leading to the making of the orders of 16 October 2009". This, it seems, was an attempt to invoke principles of res judicata or issue estoppel.

38 This submission was confused. On the one hand, the findings made in 2009 as to the risks involved in the applicant having unsupervised access to Felicity were indeed relevant in the 2013 proceedings. Assuming that the Court in 2013 was precluded from making different findings with respect to the evidence proffered in 2009, that could not assist the applicant. On the other hand, notation D to the 2009 orders, though having no legal consequence, suggested that the magistrate hoped that the attitudes and insight of the applicant would improve over time, with the possibility of unsupervised visits being held out as an incentive.

39 The assumption is, however, incorrect. The 2013 proceedings were to be determined on the basis of the evidence before the Court on that occasion. That evidence might (and in fact did, as found by the magistrate and two judges in the District Court) allow for new findings which may well have been inconsistent with the hopes of the magistrate in 2009 as to the future.

40 Acceptance of the proposition that it was open on the evidence for the courts to conclude that there had been a significant change in relevant circumstances disposes of any question of issue estoppel which might arise, favourably to the applicant. The relief sought in paragraph 6 must be rejected.

(d) effect of notation

41 The seventh paragraph sought a declaration to the effect that the notation D annexed to the orders of 16 October 2009 "reflects the finding by that Court that as of the date on which the child [Felicity] attains 8 years of age there would be no need for the supervision of the contact between her and her mother".

42 This ground is also misconceived on a number of levels. First, the notation did not in terms constitute a "finding", nor did it "reflect" a finding. Secondly, even if the Court had made such a finding, it was open to be reviewed in the light of subsequent events. Thirdly, although it was not, as the applicant suggested, a "mere aspiration by the parties" it may have reflected an aspiration of the magistrate in 2009. It had no legal relevance in 2013. No declaration in the form sought in paragraph 7 is appropriate.

(e) procedural challenges

43 Paragraph 8 sought declarations of two kinds. The first involved a denial of procedural fairness by the judge "failing to direct her mind to the merits of the arguments" presented by the applicant.

44 The first basis of the allegation was the rejection of the applicant's submissions with respect to the standing of the Director-General and whether the matter was still a care and protection matter, being the issues dealt with under paragraphs 1 and 2. The arguments were properly rejected, for the reasons given above. Their rejection did not demonstrate some form of apprehended bias.

45 Secondly, the applicant relied upon "an apparently insignificant suggestion to the father, who appeared in person, that, if he needed guidance on procedural matters ... counsel for the Director-General would help him." The description of the suggestion was entirely apt: it gave rise to no possible apprehension of bias.

46 Thirdly, the applicant sought to rely upon passages in the course of argument before Olsson DCJ which do more to demonstrate the confusion of Mr Potkonyak, appearing for the applicant, than any error, let alone bias, on the part of the trial judge. Both counsel for the Director-General and the judge were in no doubt as to two propositions. First, the orders which were the subject of the appeal were those made in April 2013; secondly, the appeal was a new hearing, for the purposes of which the Director-General was required to make good the claim for orders varying the 2009 orders. To say as the applicant did in written submissions that the appeal had "nothing to do with the orders of 26 April 2013" was simply fallacious.

47 The submissions further stated that granting of leave in the District Court was "a prerequisite for the hearing of the application" before that Court; "[g]ranting of leave cannot be appealed pursuant to s 91." Accepting for the moment that the latter proposition is correct, the applicant's appeal with respect to the grant of leave, heard by Balla DCJ, was apparently misconceived. Authority for the proposition that a grant of leave cannot be appealed was said to be found in Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374. That is wrong.

48 First, there is no authority for the proposition that, if leave were granted by a magistrate in the Children's Court and the grant were not challenged, there needed to be a separate grant of leave to pursue the proceedings brought by the respondent to the original application. Secondly, Dousi had nothing to do with that question. It was entirely devoted to a consideration of whether a decision to refuse a claimant an extension of time within which to commence proceedings (the relevant limitation period having expired) was an interlocutory or final order, and, if interlocutory, one requiring leave pursuant to the Supreme Court Act, s 101(2)(e).

49 The applicant also referred to the decision of this Court in S v Department of Community Services [2002] NSWCA 151; 29 Fam LR 144. In that case the Court (Davies AJA, Heydon and Hodgson JJA agreeing) held that an appeal under s 91(1) lay to the District Court against an order of the Children's Court refusing leave under s 90(2): at [55]. On one view, the decision in S was clearly against the proposition being put by the applicant; on another view, it was simply beside the point. That was because leave had not been refused in the present case, but granted. Generally, an interlocutory order which affects the final result of a proceeding can be challenged in an appeal against the final judgment: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [6] (Gaudron, McHugh and Hayne JJ). That is precisely what the applicant did in the present case.

50 The proposition that Olsson DCJ did not give adequate consideration to the submissions on behalf of the applicant was simply a misrepresentation of her reasons for judgment. In her assessment of the evidence at [66]ff Olsson DCJ commenced by considering aspects of the applicant's evidence. She noted evidence that supervised contact visits were "humiliating" and "traumatising": at [69]. She further noted the applicant's refusal to participate in a professional assessment, with the result that there was no current independent expert's report before the Court: at [73]. The judge then turned to consider the reports and references tendered on behalf of the applicant noting at [75] that they were "impressive so far as they go." She dealt with what she described as the report of "most significance": at [77]. She accepted that the evidence favourable to the applicant "must be balanced with that of the other witnesses": at [79]. No specific passage in the judgment was relied upon, nor was there reference to specific submissions which were disregarded.

51 Finally in relation to this matter, there was complaint about rulings with respect to evidence. The first matter concerned reference made in cross-examination of the father by the applicant's solicitor to an interview of the father by officers in the Department of Community Services on 17 July 2009. The father could not recall details of the conversation and the applicant's solicitor sought production of the record of the interview. The judge refused the request. The ruling was referred to in the judgment of 11 December 2013 at [33]. No error of law is demonstrated.

52 Secondly, there was reference to a "submission by the child's solicitor in relation to a report by a former child's lawyer relating to her interview of [Felicity]." It was said that the applicant's solicitor requested production of that document but the judge refused to make such an order. No reference is made to any passage in the transcript, or in the reasons for judgment. No attempt was made before this Court to demonstrate that such an order was made, let alone that it was infected by some legal error. The complaints of procedural unfairness border on the frivolous. They must be rejected.

53 Paragraph 9 of the summons sought relief in the nature of a quashing order, on the basis that one of the grounds set out above was made good. None was and there is no cause for such an order. Order 10 was consequential upon the need to remit the matter to the District Court, a circumstance which has not come to pass.

(f) "optional relief"

54 No written submissions were made in support of the "optional relief" set out in paragraphs 11 and 12 of the summons but they were referred to in submissions in reply and apparently not abandoned.

55 The first claim for "optional relief" sought the joinder of the "proceedings in the Children's Court of 2, 3 and 4 April 2013", so that the orders made could be quashed. No such order should be made, because the premise on which it is based is a misconception. Where there is a full appeal on fact and law by way of a fresh hearing, the order of the appellate court supersedes the order made at first instance: Wishart v Fraser [1941] HCA 8; 64 CLR 470 at 476-477 (Rich ACJ), at 478 (Starke J) and 482 (Dixon J) and 489 (Williams J agreeing with Rich ACJ and Dixon J). Indeed, the orders of the Children's Court no longer exist, as they were set aside by Olsson DCJ in the District Court and replaced with orders of that Court.

56 At paragraph 12, leave was sought to "reopen" the proceedings dealt with by White J in the Equity Division, judgment being delivered on 1 May 2012: Re Felicity [2012] NSWSC 494; 84 NSWLR 25. The applicant had earlier sought leave to appeal from that decision but leave was refused by the President and Macfarlan JA: Re Felicity [2013] NSWCA 21. Apart from a submission in reply which was pejorative but empty of content, no reason was proffered why an extraordinary order permitting a second application for leave should be entertained. The invitation should be declined. There may be an unresolved question as to the limits of s 69ZK of the Family Law Act 1975 (Cth) and the extent to which it preserves the jurisdiction of State courts under child welfare laws, where the order of the State court allocated elements of parental responsibility only between parties to a marriage, with no involvement of State welfare authorities; but no such question arises in this case which involves an order relating to a child who is not a child of a marriage and which allocates an element of parental responsibility to a State authority: cf Adoption Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629 at [42] and [45] (Brereton J).

57 In any event, the leave sought by paragraph 12 of the summons was premised on a grant of relief pursuant to paragraph 9, which has already been rejected.

Orders

58 There remains a specific concern, raised by the Court and not by any of the parties. It is that, on 11 December 2013, an order was entered on JusticeLink in the terms which appear on the frontsheet of Judge Olsson's judgment as order 1, namely "Appeal dismissed." The orders made on 20 December 2013 in the District Court followed the form of the orders proposed by Olsson DCJ at [90] in her reasons for judgment of 11 December 2013. Those orders were also duly entered. The first provided "That all previous care orders be discharged." There followed paragraphs in similar terms to those made in the Children's Court on 26 April 2013, but with an operation extending until Felicity attains the age of 18 years (rather than 14 years).

59 The order of dismissal of the appeal could not stand with these orders, nor is it appropriate to leave inconsistent orders on the formal record of the Court. Accordingly, relief should be granted setting aside order 1 made and entered on 11 December 2013. Otherwise, the summons must be dismissed.

60 There remains a question as to the costs of the proceedings in this Court. In the event that the summons was dismissed, the Secretary and the father sought orders for their costs against the applicant. Those orders were resisted on the basis that the applicant was impecunious, but that provides no ground for resisting an order. (The independent legal representative for the child did not seek an order as to her costs.)

61 Although a variation of the orders made in the District Court has been necessary, due to a mistake on the part of that Court, the summons must be dismissed. The applicant has been entirely unsuccessful. She must pay the costs of those respondents seeking orders against her.

62 The parties seeking costs foreshadowed applications for orders against Mr Potkonyak, the solicitor for the applicant, personally. Such orders may be made pursuant to s 99 of the Civil Procedure Act, but the application must await the delivery of this judgment and provision of a reasonable opportunity to the legal practitioner to be heard: s 99(2). As the orders for costs which are now to be made impose sole liability on the applicant, any order against her solicitor would involve a variation of the order against her. Accordingly, any relevant application must be made within 14 days of the entry of the orders which will be made immediately this judgment is delivered: Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A).

63 The Court should make the following orders:

(1) Set aside order 1 made by Olsson SC DCJ on 11 December 2013, dismissing the appeal.

(2) Otherwise dismiss the further amended summons filed by the applicant on 31 January 2014.

(3) Order the applicant to pay the costs of the Secretary, Family and Community Services and the third defendant (Felicity's Father), the latter to be assessed on the basis of a litigant in person, being costs incurred by those parties in this Court, to be assessed on the ordinary basis.

64 WARD JA: I agree with Basten JA.

65 EMMETT JA: The applicant seeks orders under s 69 of the Supreme Court Act 1970 (NSW) in respect of a judgment of the District Court. That judgment concerned proceedings brought under the Children and Young Persons (Care and Protection) Act 1998 (NSW) in relation to contact between a child and her mother, the child then being in the general care of her father. I have had the advantage of reading in draft form the proposed reasons of Basten JA. I agree with the orders proposed by Basten JA for the reasons proposed by his Honour.

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Decision last updated: 15 July 2014