New South Wales Supreme Court CITATION : Re Nerida [2001] NSWSC 1196 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 13613/01 HEARING DATE(S) : 17/12/01 JUDGMENT DATE : 17 December 2001 PARTIES : In Person (Pl) Department of Community Services (Def) JUDGMENT OF : Kirby J COUNSEL : In Person (Pl) P Singleton (Def) SOLICITORS : In Person (Pl) I V Knight (Def) CATCHWORDS : Application for certiorari in respect of refusal of leave by Children's Court - Considerations in the granting of leave under s90(2) of the Act to revoke or vary a care order Children and Young Persons (Care and Protection) Act, 1995 LEGISLATION CITED : Justices Act, 1902 Local Courts (Civil Claims) Act, 1970 DECISION : Summons dismissed - no order as to costs Extempore - Revised IN THE SUPREME COURT OF NEW SOUTH WALES common law DIVISION KIRBY J Monday 17 December 2001 13613/01 - RE NERIDA JUDGMENT 1 KIRBY J: This is an application concerning a child who will be given the pseudonym "Nerida" (s105(1) Children and Young Persons (Care and Protection) Act, 1995 ("the Act"). The application is by the father of the child ("Mr S"). Mr S has appeared unrepresented. He has been assisted by his wife ("Mrs Renee S") who has been seated at the Bar Table alongside him. 2 The matter has a long history. Pursuant to an order made by Beazley JA on 19 November 2001, Mr S filed a Summons in the Common Law Division seeking the following orders: "1. I'm seeking prerogative relief. 2. I wish for the decision of Judge Black, and Magistate Zdenkowski be over-turned. 3. I'm seeking a complete variation of the order made at the Campsie Children's Court on the 10th October 2000. And to ask that my daughter .. be returned to her natural father ... full time." 3 The first order sought is for an order in the nature of Certiorari (s69 Supreme Court Act, 1970). The utility of seeking such an order (as opposed to a Parens Patriae order in the Equity Division) was explored. As explained to Mr S, were he successful in obtaining such an order, the matter would be remitted to the Local Court to determine according to law. Mr S, however, was not happy with the Local Court. He wanted, rather, a merits determination in this Court, which is not available, except in Equity. Notwithstanding these discussions, Mr S appeared anxious to proceed. The application was therefore heard. Background 4 Nerida was born on 28 July 1999. Mr S is the father and his wife, Mrs Renee S, the mother. Allegations of domestic violence were made against Mr S in late 1999. As a consequence, on 28 January 2000, Nerida was removed from the care of her parents by the Department of Community Services. On 31 January 2000, a Care Application was lodged with the Campsie Children's Court. With the consent of the parents (but without admission as to the allegations of domestic violence) an interim care order was made by the Children's Court on 15 March 2000. On 22 June 2000, Nerida was placed in the care of her maternal grandmother, where she remains. On 1 July 2000, Mr S and Renee S married. 5 On 10 October 2000, the matter came before Mr Barnett, Local Court Magistrate, to determine the final order in respect of the placement of the child. After a hearing, Mr Barnett ordered that Nerida remain in the care of her maternal grandmother. She was to be subject to the supervision of the Department. The natural parents were to have access to her. 6 Mr Barnett provided reasons for the orders he made. Two matters were given prominence. First, the mother of Nerida had a history of drug taking, including heroin. She gave evidence that she was now drug free. However, his Worship had said, on a previous occasion, that he would require urine analysis to support such an assertion. No such material was produced. The Magistrate, therefore, was plainly not satisfied on that issue. Secondly, there was an issue as to domestic violence by Mr S towards his wife. In respect of that issue, his Worship said this: "I am satisfied on the evidence that there has been a history of domestic violence. The evidence is far too strong to accept the denials that have been offered to me from the witness box by the natural parents." 7 His Worship also referred to the reluctance of the parents to be supervised, according to the Department. He determined, therefore, that the paramount interests of the child required that custody should remain with the maternal grandmother. 8 An appeal was lodged against that decision in the District Court. It was heard by his Honour Judge Puckeridge on 28 November 2000. The appeal was a hearing on the merits. It lasted at least three days. On 30 November 2000, Puckeridge DCJ dismissed the appeal and confirmed the orders made by the Children's Court. 9 His Honour's judgment dealt with the issues of concern to the Local Court Magistrate. They were issues which were also plainly relevant on the appeal. First, in respect of domestic violence, there was corroboration for the assertion that there was such violence. The present carer, the maternal grandmother, had witnessed incidents of violence between the mother (her daughter) and the natural father, in the presence of the child. His Honour said that it could not be doubted that injuries had been received by the natural mother. His Honour adverted to one aspect concerning the material before the Local Court, which required correction. A psychologist, in a report tendered before Mr Barnett, stated the view that Mr S had what was described as an "anti-social personality". His Honour saw no evidence to support that suggestion. 10 So far as the drug addiction of the mother was concerned, his Honour made the following comment: "Certainly the drug testing in recent times has shown that she is free of heroin." 11 However, his Honour came to the view that the appeal should be dismissed. He thought the application premature. He said this: "I have come to that conclusion on the basis that the natural mother's present drug free condition has not been sustained for a sufficient period of time so as that a court could objectively come to the view that her drug free condition has reached a stable point. I have also come to the conclusion that the relationship and the tension which still remains between the natural mother and nature father in relation to the drug taking by the natural mother, is such that the Court would have to be concerned as to the stability of that relationship." Application for Leave for Recision 12 On 18 December 2000 (that is, within three weeks), an application was filed under s90 of the Act for recision of the order made by Puckeridge DCJ. Such an application requires the leave of the Children's Court (s90(1)). The basis upon which leave should be granted is set out in s90(2), which is in these terms: "s90(2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the order was made or was last varied." 13 That section requires, first, an identification of "relevant circumstances", and, secondly, a determination as to whether there has been significant change in such circumstances since the care order was made. 14 The Minister identified the objective of these provisions in the Second Reading Speech in these words: (Hansard: 11 November 1998, p9762) "The ability of the court to vary or rescind orders it has made in response to changed circumstances is an important feature of the court's work. However, this does have the potential to greatly expand the work of the court. A criticism of the current Act was that, regardless of the merits of the case or changed circumstances, there was no limit on the number of applications a party could file for rescission or variation. This generated significant work for the court and for the department and was often very unsettling for the child or young person. Clause 90 of this bill now provides that an application for rescission or variation of an order may only be made with leave of the court." 15 The application for leave was heard in the Children's Court by Mr Mitchell, Magistrate. Leave was refused. In refusing the application, Mr Mitchell said this: "The father's case essentially is that there is now a good relationship with the mother but that they are not living together, that he therefore has a safe home in which to provide for the child and in his affidavit material he expressed a view that he was unsure whether the mother would remain abstinent so far as heroin was concerned, a habit which he said she had suffered from since the age of fourteen." 16 A number of certificates relating to the screening of Mrs Renee S were tendered. Notwithstanding that evidence, Mr Mitchell expressed the following view: "It seems to me overwhelmingly likely that the mother has had a heroin dependency since girlhood and continues to have it. I am not dissuaded from that point of view by the quite patchy screening in respect of which certificates have been issued." 17 An appeal against that decision was lodged with the District Court on 22 February 2001. It came before Knight DCJ on 21 March 2001. Objection was taken by the Department that the Court had no jurisdiction to entertain the appeal. The refusal of leave under s90(2) of the Act was not an "order" for the purposes of the appeal provisions of the Act. His Honour Judge Knight upheld that submission. He declined to entertain the application. Subsequent Litigation 18 A Summons was then issued which came before the Duty Judge, Hulme J, on 15 May 2001. His Honour ultimately dismissed the Summons. However, in an extempore judgment, he made a number of comments to which reference should be made. 19 First, his Honour referred to the jurisdictional difficulties which faced Mr S. They are the same difficulties that arise in the application before me. His Honour referred to s104(4) of the Justices Act, 1902 as a possible basis upon which Mr S may seek relief in this Court. That section is in these terms: "s104(4) Appeals in relation to interlocutory orders A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court." 20 With respect, the terms of that section, and the structure of s104, make it plain, in my view, that the term "defendant" in s104(4) is a person facing criminal or quasi criminal proceedings (cf s104(1)). Appeals in respect of civil proceedings are dealt with in s104(5) which is in these terms: "s104(5) Appeals by parties to civil proceedings A party to any proceedings under the Local Courts (Civil Claims) Act 1970 may appeal under this Division to the Supreme Court as provided for by section 69 of that Act." 21 That section directs one to s69 of the Local Courts (Civil Claims) Act, 1970. The terms of that section make it clear that it has no application to the refusal of leave under s90 of the Act. In short, I do not believe that the Justices Act provides jurisdiction in the context of the present application. 22 Justice Hulme, secondly, dealt with the evidence before Mr Mitchell LCM at the time he refused leave on 19 February 2000. His Honour criticised the reliance by the Magistrate upon a report to the Department by two of its officers, Ms Siobhain Egan and Ms Deanne Boyd. The report was dated 12 February 2001. Mr Mitchell said in his judgment that the assertions in the report were disturbing and "substantially unexplained". The information in the report was apparently provided to the Department by the police "for information only". Hulme J considered it so inherently unreliable "that no Court should have placed reliance on statements of (that) nature ...". As mentioned, his Honour nonetheless, in the exercise of his discretion, dismissed the Summons. He believed the appropriate course was for the applicants to commence a fresh application before a different Magistrate. 23 An appeal was lodged against that decision. It came before the Court of Appeal on 25 June 2001. The appeal was dismissed (Mason P, Davies AJA and Grove J). In the course of his judgment, Mason P said this: "The right of appeal to the Supreme Court invoked in the present case exists to correct a limited class of errors. It is not the role of the Supreme Court to exercise the original jurisdiction of the Children's Court." 24 The President added (para 7) that, like Hulme J, he believed that the applicant would be "better served by making a fresh application" which he could expect to come before a different Magistrate. 25 Shortly before the dismissal of the appeal, that is on 19 June 2001, a Summons was filed by Mr S asserting perjury against the author of the reports which had been the subject of Hulme J's comments. The Summons came before Simpson J on 2 July 2001. Her Honour found there was no jurisdiction to entertain such an application. The Summons was dismissed. Further Application for Leave 26 Mr S lodged a further application for recision or variation under s90(1) of the Act. The application came before Mr Zdenkowski on 3 September 2001. Leave was refused in terms which I will consider shortly. 27 An appeal against that decision was lodged in the District Court. It came before his Honour Judge Black on 26 September 2001. Judge Black, adopting the reasoning of Knight DCJ, held that the refusal to give leave under s90(1) of the Act was not an order which was amenable to appeal. The appeal was therefore dismissed. His Honour, however, mistakenly suggested that if Mr S were dissatisfied, he could go to the Court of Appeal. 28 Mr S therefore lodged a further appeal to the Court of Appeal. The matter came before her Honour Judge Beazley in the Court of Appeal on 22 October 2001 on an application for leave. On 19 November 2001, her Honour refused leave to appeal. However, she remitted the matter back to the Common Law Division, subject to Mr S filing a fresh summons, which he has now done. The Summons Before the Common Law Division 29 The matter has proceeded before me on the Summons to which I have previously made reference (supra: para 2). Mr S relies upon an affidavit of 22 November 2001 together with certain annexures, which for convenience have been marked Exhibit B. The Department relies upon a folder of material (Exhibit 1) which contains the various applications that have been made, and decisions given, as set out in this chronology. 30 Mr S complains that the decision by Mr Zdenkowski was infected by a number of errors of law which make it appropriate to grant a writ of certiorari. 31 In broad terms the basis upon which Mr S complains is as follows. First, it is plain from the terms of his Worship's decision that he relied upon the two reports of the Community Services officer (Siobhan Egan) dated 12 February 2001 and 20 March 2001. Mr S characterises those reports as "lies", and draws attention to the comments upon their reliability by Justice Hulme, to which I have referred. 32 Secondly, Mr S says that Mr Zdenkowski wrongly regarded the application as one in which his wife's parenting skills were relevant. He therefore adverted to her history of drug taking. He insisted that it was his application for custody. It was not that of his wife. He is living separately from his wife. It was wrong for his Worship to take account of those matters. 33 Thirdly, it is said that his Worship denied Mr S procedural fairness. The denial as the consequence of reliance upon the reports of Ms Egan, and an alleged failure to take account of the submissions made by Mr S. 34 Dealing with these issues, the reports of Ms Egan were part of the evidentiary material tendered by Mr S. It was appropriate that the Magistrate should refer to them. His Worship was conscious of the remarks of Hulme J. He said this: "Judicial officers in different courts have made various comments which the S.... have interpreted positively. For example ... the observation - by Justice Hulme - that a magistrate in an earlier case may have given more weight to certain evidence than was appropriate in the circumstances." 35 Turning to the second complaint, it is plain from the terms of Mr Zdenkowski's judgment, that he appreciated that the application was that of Mr S. He said this: "This is an application by Richard S for leave to lodge an application for recision from an existing care order pursuant to s90 of the Children and Young Persons (Care and Protection) Act 1998." 36 Later, his Worship said this: "Although Mr S alone was the applicant for leave no objection was taken to Renee S (the child's natural mother) sitting at the bar table or for her participation in the proceedings." 37 Still later, in the context of comments concerning the drug taking of Mrs S, Mr Zdenkowski said the following: "Renee S ... is, of course, not the applicant in this case." 38 The fact that Mr S was the applicant did not make the domestic violence towards Mrs S, or her drug taking, irrelevant. The arrangements contemplated by Mr S included access by his wife, she being the mother. The nature and extent of the access was not defined. Depending upon the precise arrangements, it was likely that there would be a degree of interaction between Mr and Mrs S in the context of the child. 39 I do not believe there was a denial of procedural fairness. One cannot discern such a denial simply from the fact that the decision which was given was adverse. The learned Magistrate gave a careful and considered judgment, adverting to the submissions made by Mr S. 40 I therefore do not find error upon the bases identified by Mr S. 41 The only issue that has troubled me is the extent to which, on a leave application, his Worship embarked upon an evaluation of the evidence in a manner appropriate to an investigation of the merits, once leave had been given. The application by Mr S identified three issues as amounting to significant changes, justifying leave under s90(2). They were: · First, the finding by Puckeridge DCJ that Mr S did not suffer from an anti-social personality. · Secondly, the fact that Mr and Mrs S had not been living together since 5 January 2001. · Thirdly, the fact that Mrs Renee S had been drug free for a period of 15 months. 42 Mr Zdenkowski dealt with each issue. The care order, in respect of which Mr S was seeking revocation, was made by Puckeridge DCJ on 30 November 2000. Puckeridge DCJ accepted that there was no evidence that Mr S had an anti-social personality. His Honour, nonetheless, made a care order for other reasons. His Worship made the following observation, with which I agree: "In my view this last mentioned basis has no substance. A finding in the judgment of 30/11/00 cannot relevantly constitute a significant change in terms of s90(2) which contemplates a change between 30/11/00 and the date of the application for leave..." 43 So far as the other matters are concerned, certainly the separation of Mr S and Mrs Renee S was a matter which had arisen since the decision of Puckeridge DCJ. Its relevance depended, however, upon the nature of the arrangements that had been established between Mr S and Mrs Renee S, so far as they may impact upon the child, were the child given into the custody of Mr S. 44 It was appropriate that his Worship evaluate that matter and determine the extent to which, on the material before him, it could be characterised as having significantly changed as a relevant circumstance. His Worship dealt with that issue. He reached a conclusion which does not, to my mind, suggest error. 45 The remaining matter concerned the suggestion that for 15 months Mrs S had been drug free (that is, since approximately June 2000). That period embraced the time during which Mr Barnett made the original care order (October 2000), as well as the appeal heard by Puckeridge DCJ (30 November 2000). In respect of that issue, his Worship said this: "It is certainly commendable that Renee S has made efforts to deal with her heroin problem. To some extent these efforts are contradicted by Exhibit 6 (one of the update reports by Siobhain Egan) which the applicant tendered in his own case. In relation to the applicant's claim that Renee S's drug-free status amounts to a significant change since 30/11/00 within the terms of s90, I am not so satisfied. This is because (a) this is not a fresh development but, at best, a continuation of a former state (b) it is evidence which at best indicates an improvement in the health and well being of Renee S (c) there is contradictory evidence which I cannot ignore that Renee S is not drug free (d) there is no satisfactory evidence of her prospective role in relation to (the child) (e) there is no satisfactory evidence of the precise ramifications of the clamed drug free status for the welfare of (the child). Accordingly I find that this round does not amount to a significant change." 46 Recognising whether, upon the basis of material placed before a Magistrate, there has been change, and characterising that change as either significant or not significant, inevitably involves an evaluation of such evidence. His Worship recognised that the matter needed to be looked at from the viewpoint of Mr S, taking his case at its highest. I do not believe that there was error. 47 As explained to Mr S, even were I to find error, I would then be obliged to remit the matter to the Children's Court to redetermine the matter according to law. Options Open to Mr S 48 These reasons, in an abbreviated and somewhat different form, were delivered extempore. Part way through their delivery, and at the point where I had indicated my view that I did not see error on the part of the Magistrate, Mr and Mrs S left the courtroom. The transcript records these words: "Mr S: Thank you. I'm out of here." 49 One can readily understand the disappointment and frustration of Mr and Mrs S. However, believing as I do, that there has been no error, I am obliged to refuse the application for prerogative relief. 50 However, I should draw attention to certain matters that have occurred since Mr Zdenkowski gave judgment. They are, in my view, matters which are capable of being regarded as significant changes in relevant circumstances for the purposes of s90(2). I emphasise that the issue is one for the Children's Court, and not for me. However, the affidavit of Mr S, which was tendered before me, included the following: (Exhibit B) "C) I have full custody and sole responsibility of my 2 month old daughter ...by orders of the Parramatta Family Court, as from the 16th October 2001. D) My wife (Renee S) has regular contact with our daughter ... 4 days a week in my family home, as from the 16th October 2001. E) I have shared care of my son .... who is now 6 years old 4 days every fortnight, in my family home." 51 There was no suggestion by the Department of concern in respect of the child now in the care of Mr S. The fact that the mother has had access to that child may, arguably, provide a much more solid foundation for inference, as to the present relationship between Mr S and his wife, than was available before the birth of this child. 52 In these circumstances, Mr S may apply to the Children's Court for leave under s90(1) of the Act to make an application to revoke the care order of Puckeridge DCJ of 30 November 2000. That issue would be determined, no doubt, by someone other than Mr Barnett or Mr Zdendowski. Mr S should appreciate that, in such an application, the Court would be likely to require evidence in respect of at least the following issues: · The domestic arrangements between Mr S and his wife. · The access arrangements between Mr S and his wife in respect of their new child. · The issue of domestic violence. · Whether Mrs S is still taking drugs and, if not, documentation of tests undergone to demonstrate that she is drug free. · Access to Nerida. 53 The alternative to such an application is that Mr S should, by Summons, seek to have the Equity Division of this Court exercise the Parens Patriae jurisdiction of this Court. The difficulties with such an application are, first, that the view may be taken, as a matter of discretion, that Mr S should use the jurisdiction which has been established by the Act, namely the Children's Court, and that no good reason has been demonstrated as to why a different Magistrate could not appropriately deal with a fresh application under s90. Secondly, such an application is likely to take some time. It took three days before Mr Barnett, and approximately the same time before Puckeridge DCJ. There has been an accumulation of history since then. An early hearing in the Children's Court, in these circumstances, may be more likely than in this Court. Order 1. The Summons is dismissed. 2. The Director General does not seek costs and therefore no order is made as to costs. ********** Last Modified: 12/24/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.