Supreme Court New South Wales

• Medium Neutral Citation: Re Cameron [2012] NSWSC 1453
• Hearing dates: 23 November 2012
• Decision date: 23 November 2012
• Before: Young AJ

Decision

Summons Dismissed

• Catchwords: JUDICIAL REVIEW - certiorari - construction of s 44 Children and Young Persons (Care and Protection) Act 1998 - application of s 69 (3) and (4) Supreme Court Act 1970 - whether the magistrate considered s 70A Children and Young Persons (Care and Protection) Act 1998
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; Supreme Court Act 1970
• Cases Cited: M v M [1988] HCA 68; (1988) 166 CLR 69; Re Louise and Belinda [2009] NSWSC 534 Re Tracey [2011] NSWCA 43; Re Alistair [2006] NSWSC 411; Re Frieda and Geoffrey [2009] NSWSC 133
• Category: Principal judgment
• Parties: Cameron's mother (First Plaintiff); Cameron's father (Second Plaintiff); Director General, Department of Family and Community Services (First Defendant); Minister for Family and Community Services (Second Defendant); Children's Court of New South Wales, Campbelltown (Third Defendant); Cameron (Fourth Defendant)
• Representation: Counsel: P R Glissan (First and Second Plaintiffs); G W Moore (First and Second Defendants); E Boyle (Fourth Defendant); Solicitors: Crown Solicitor (First, Second and Third Defendants)
• File Number(s): 2012/255802

EX TEMPORE Judgment

1 HIS HONOUR: This is an application for certiorari in respect of a very young child, a child who was born in August of this year. The child who will be referred to as Cameron (not his real name) is the son of a married couple who are the plaintiffs. I will refer to them as Cameron's mother and Cameron's father.

2 Cameron's mother has had a sad history. Amongst other problems she has had is that she was living with a man, Mr H, by whom she had three children. Mr H, it would appear, interfered with one of the female children. She left Mr H and now lives with Cameron's father and, indeed, has married him.

3 The relevant government department, of which the first respondent is the Director General, and the second respondent, the relevant minister, was very concerned with the three children of Cameron's mother's former relationship and was not at all happy with the way in which Cameron's mother was caring for them. When it was apparent that Cameron was on his way, the Department took a special interest in her.

4 When Cameron was born the case worker employed by the respondents was concerned with Cameron's well-being and issued some directions called a Care Plan. These directions she contends, Cameron's mother was not keeping and the prime problems in the case worker's eyes were that Cameron's mother was not getting up at night to attend to the feeding of the baby or to change his nappy regularly. The case worker initially told Cameron's mother that she was not making any direction with respect to taking Cameron out of his parents' care, but after coming to the view that the mother's conduct in not feeding the baby regularly at night and not changing his nappy regularly and other things that she was told by the nursing staff at Campbelltown Hospital, that she issued an order or a direction purporting to be under s 44 of the Children and Young Persons (Care and Protection) Act 1998, which I will refer to as the Care Act and which had the effect of the Director General assuming the care responsibility of the child and that the child would be remaining in the hospital.

5 The plaintiffs seek to quash that direction, and they also seek to quash a subsequent interim order made by the Children's Court sitting at Campbelltown. I will first deal with the application to quash the section 44 direction.

6 Section 44 of the Care Act provides as follows.

(1) If the Director General:

(a) suspects on reasonable grounds that a child or young person is at risk of serious harm, and

(b) is satisfied that it is not in the best interests of the child or young person that the child or young person be removed from the premises in which he or she is currently located,

the Director General may, instead of removing the child or young person from the premises under a power of removal conferred by or under this Act, assume the care responsibility of the child or young person by means of an order in writing, signed by the Director General and served on the person...who appears to the Director General to be in charge of the premises.

7 I assume and I have not checked, that a delegate of the Director General has the power of the Director General to make such a direction.

8 The evidence shows that the case worker acting as a delegate of the Director General signed a form on 14 August 2012 with respect to Cameron. So far as is relevant, the form reads as follows:

The above-named child/children and/or young person/s who is/are currently in premises known as

(a) is/are suspected on reasonable grounds for being at serious risk of harm, and

(b) the Director General is satisfied that it is not in the best interests of the child/children and/or young person/s that the child/children and/or young person/s be removed from the premises in which he or she is currently located.

Therefore, the Director General has assumed the care and protection of the child/children and/or young person/s under section 44...

Later on the form reads in print:

Reasons for the assumption of care and protection of child/children and/or young person/s

then in handwriting:

"not complying ĉ " medical treatment, not following recommendations of safety plan, not willing to engage ĉ support services in the home.

9 Unfortunately, this form does not carry out the Care Act. The Care Act does not require someone to consider whether there is a serious risk of harm. What it requires is for the Director General to suspect that the child is at risk of serious harm, which is a different matter. It is also very disturbing that such a serious matter of removing a child from parents is dealt with in a printed form where the person filling out the printed form has not even taken the trouble to complete it properly. Then the so-called reasons for the assumption have nothing to do with what is supposed to be suspected or the best interests of the children.

10 Now, I understand that very often the offices of the first and second defendant have a very heavy caseload, but the whole process does seem not to be in accordance with the spirit of the Care Act which is to make sure, as far as possible, that the best is done for the children. And I would respectfully suggest that whoever is in charge of the system pay serious consideration to reforming it.

11 However, what does risk of serious harm mean? That is rather difficult. The High Court in M v M [1988] HCA 68; (1988)166 CLR 69 (at 78) indicate that in trying to assess phrases like "risk of serious harm" courts are probably trying to achieve a greater degree of definition than the subject is capable of yielding. In Re Louise and Belinda [2009] NSWSC 534 (at 49) Forster J said of another section of the Act which uses the word "harm":

The term 'harm' is not defined by the Act. However, some indication as to the meaning of the word may be found in section 23 which, albeit for the purposes of different sections of the Act, provides the child is 'at risk of harm' if current concerns exist for his or her 'safety, welfare or well-being'...accordingly, I construe the meaning of the word 'harm' in section 90(d) as indicating an adverse effect on the safety, welfare and well-being of a child.

12 That phrase was picked up by the Court of Appeal in Re Tracey [2011] NSWCA 43 at [83] without dissent. However, one has to be very careful with the term "well-being", because it may well be argued that it is for the well-being of a child it be taken from poor parents and given to rich parents. And, obviously, one should not give the word "well-being" such a wide connotation.

13 So one needs to have something with respect to the safety, welfare or well-being of a child which is serious. Now, it is quite clear that exposure to sexual abuse comes within the phrase. Obviously, physical violence is within the phrase. But I have great doubt as to how much further the phrase covers. Luckily for me anyhow I do not have to decide it. The reason why I am making these remarks is for the guidance of the Department in future matters. However, the reason I do not have to decide the point is that both Mr Moore for the Department and Ms Boyle for the children agree and, indeed, I think this is the only proper construction of s 44 and s 45 of the Care Act, that the determination under s 44 is only a provisional one. Under s 45 the Director General must within 72 hours make a care application to the Children's Court. And in my view the result is that the Children's Court then is seized of the matter and makes or does not make interim and final orders. And for all intents and purposes the direction under section 44 is spent. Now, it may be that there is some residual effect in that it has removed parental responsibility from the parents. But apart from perhaps a scintilla of effect in that area it is spent. Because it is spent, there is no purpose in the Court granting certiorari, because, just like equity, the Court of Common Law does nothing in vain in its supervisory jurisdiction.

14 So I now turn to the decision of the Children's Court. The matter was brought on before the Children's Court very quickly. It had to be. It was an urgent case. It came before her Honour Magistrate Carney on 20 August 2012. Magistrate Carney made it quite clear that she had a very heavy list, and when the matter came on at 1.30pm on that day she still had four juveniles in custody whose fate had to be determined at least provisionally that day. However, her Honour heard what material there was and she thanked Mr Glissan, who appeared again today, for the plaintiffs for his submissions. Mr Glissan reminded the Magistrate that what she was doing was hearing an application under s 69 of the Care Act and that she had to determine whether the child was in need of care and protection and that the Director General needed to satisfy her that it was not in the best interests of the safety, welfare and well-being of the child that he or she should remain with his or her parents. Mr Glissan also pointed out s 70A of the Care Act which reads:

An interim care order should not be made unless the Children's Court has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a final order or an order dismissing the proceedings.

15 Mr Glissan says that the Magistrate did not take cognizance of section 70A and accordingly committed some jurisdictional error. He said that when one reads the Magistrate's reasons one can see that she was concerned with the child but she did not direct her attention to the fact that she has to find that what she intended to do was necessary.

16 In my view I probably cannot look at the Magistrate's reasons when dealing with a matter of certiorari of the principal type because I am only able to look at the reasons as part of the record if s 69(3) and (4) of the Supreme Court Act 1970 are applicable, and they only apply to situations where there has been an ultimate determination. In the instant case there is only an interim order (Re Frieda and Geoffrey [2009] NSWSC 133; Re Alistair [2006] NSWSC 411).

17 However, ignoring the law for a moment and giving Mr Glissan the benefit of a small doubt, if one does look at the Magistrate's decision, although she does not use the word "necessary" and although she does not refer to s 70A of the Care Act and realising that she was acting under considerable pressure to deal with the case as quickly as she could without prejudice, seeing the rights of any party, seems to me that the reasons that she gives do show that she directed her mind to the real question.

18 It must be remembered that the word "necessary" is a bit of a weasel word. It can mean something that it behoves the court to do or it could mean something that is absolutely a requirement, or somewhere in between. I do not think it requires the decision maker to refer exactly to s 70A or to actually use the word "necessary", though doubtless if the Magistrate had more time she would have done so.

19 So it does not appear to me on the merits that this is a case where I should grant certiorari. But there is an even stronger reason. This jurisdiction to award certiorari is in the supervisory jurisdiction of the court. The Supreme Court supervises what are technically called inferior courts to make sure they keep within their jurisdiction and they do not deny natural justice. If there is some internal review procedure in the lower court, it is very rare to grant certiorari because the review process can usually cure any problem. In the case of an interim order where, as here, the government has clearly indicated that the Children's Court is the primary court to decide the welfare of children, and there is an interim order which will in due course be superseded by some final order, it requires some special case for this court to interfere either under its parens patriae jurisdiction or by way of certiorari. So that even if the merits were the other way, I would still have exercised my discretion in not granting certiorari for the reason that the best thing in this case is for the Children's Court to determine the matter as soon as it possibly can and in a final hearing.

20 I say that in this case with particular force because in a society such as Australia the right of people to bring up their own children is a very dear right and one which must be respected as far as possible. Where a young baby is taken from its parents at a very early age, the bonding with those parents early is a very, very important thing. So I would urge the Children's Court, if it cannot hear the matter at Campbelltown or some close town speedily, then special provisions should be made to hear it speedily as soon as the parties are ready.

21 Accordingly, I dismiss the summons.

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Decision last updated: 29 November 2012