Re: Vincenzo [2002] NSWCA 349

New South Wales Court of Appeal

CITATION : Re: Vincenzo [2002] NSWCA 349 FILE NUMBER(S) : CA CA 40658/02 HEARING DATE(S) : 10 October 2002 JUDGMENT DATE : 10 October 2002

Director-General, NSW Department of Community Services - Claimant District Court of New South Wales - First Opponent PARTIES : Mother of child - Second Opponent Father of child - Third Opponent Separate representative for child - Fourth Opponent JUDGMENT OF : Meagher JA at 17; Giles JA at 1; Hodgson JA at 18

LOWER COURT JURISDICTION : District Court LOWER COURT DC 29/02 (Campbelltown) FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

G Moore - Claimant COUNSEL : L Rogers (Solr) - Father of child J P Meehan (Solr) - Separate representative for child I V Knight, Crown Solicitor - Claimant SOLICITORS : L D Rogers & Associates, Marylands - Father of child John Meehan Solicitors, Narellan - Separate representative for child CATCHWORDS : Provisional view on what orders District Court made - if so, summons to be dismissed - mother of child not present - opportunity to put submissions. DECISION : Provisional view published; adjourned to 28 October 2002.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40658/02 DC 29/02 (Campbelltown)

MEAGHER JA GILES JA HODGSON JA

Thursday 10 October 2002 RE: VINCENZO Judgment 1 MEAGHER JA: We are in a position to give judgment now and Giles JA will give the first judgment. 2 GILES JA: This is an application by the Director General of the Department of Community Services ("DOCS") for relief in the nature of certiorari in relation to a decision given by Delaney DCJ in the District Court on 26 June 2002. DOCS claims the relief on the basis that there is error of law on the face of his Honour's decision, or alternatively jurisdictional error in the giving of the decision. 3 It is necessary first to say something about the parties. 4 The decision was essentially concerned with the allocation of parental responsibility in respect of a child. Delaney DCJ was exercising jurisdiction under the Children and Young Persons (Care and Protection) Act 1998, in an appeal under s 91 of that Act from an allocation of parental responsibility by the Children's Court. Under s 91 an appeal is by way of a new hearing and may involve fresh evidence. The appeal to Delaney DCJ did involve fresh evidence. 5 The Children's Court had given parental responsibility to the father of the child until the child attained the age of eighteen years. The appeal was brought by the mother of the child. Participating in the appeal, apart from DOCS, the mother and the father, was a representative appointed in the interests of the child. 6 The application by DOCS to this Court joined as respondents the District Court, the mother, the father and the representative of the child. The District Court filed a submitting appearance. The father and the representative of the child appeared at the hearing of the application in this Court. The mother did not. Steps were taken to contact the mother, but that could not be done. 7 It is not entirely clear whether the mother's failure to be present today was from choice, or because misled by the proceedings being listed under a sobriquet given to the child rather than under the formally correct names of the claimant and at least the first respondent. There was evidence before us that, for a directions hearing before the Registrar of the Court of Appeal, the mother was served with a notice of motion filed on behalf of DOCS in which DOCS sought an order that the proceedings be styled by the sobriquet given to the child. There was no evidence that the mother was aware that that order had been made, as in fact it had, but when the proceedings were listed under the style there foreshadowed it can reasonably be assumed that the mother would not have been misled, given the service on her of the notice of motion. 8 The Court indicated that, while it would hear the application by DOCS and announce a provisional view, it would reserve to the mother an opportunity, within a limited time, to come forward and present the submissions which she would have presented if she had wanted to be present today, but had been misled in some manner and thus had not been present. 9 As I have indicated, the appeal to the District Court was from the decision of the Children's Court to give parental responsibility to the father. The outcome in the District Court was in a vital respect not clear. The judge left parental responsibility with the father until 22 December 2002. He said further things which either indicated that he made an order that parental responsibility be allocated to the mother from that date until the child attained the age of eighteen years, or indicated that he was then of the view that such a subsequent allocation of parental responsibility would be appropriate but would return to the matter and in the light of the position as it appeared in December 2002, consider whether or not such an order should be made or some other order should be made. 10 I do not think that there is much point in going through the pointers one way or the other in his Honour's reasons and the discussion which followed the delivery of the reasons. In the view that I take, the correct construction of his Honour's reasons and the discussion is that his Honour did not make an order in relation to the period after 22 December 2002, but left that for a further hearing in anticipation of which he appointed a directions date earlier in December 2002. 11 On that view of what his Honour did, much of the basis for DOCS' application to this Court goes away. That is not to say that it was inappropriate that the application be brought, at least to clarify what had occurred in the District Court. This much more, however, should be said. 12 The essence of DOCS' submission was that Delaney DCJ had erred in law in starting with a presumption in favour of the mother in relation to the allocation of parental responsibility, from which starting point he was led to fail adequately to address matters tending towards the father having parental responsibility, and to fail properly to address where the interests of the child lay. 13 It is, with respect, not clear from a number of passages in his Honour's reasons that he did have firmly in mind, to the exclusion of a presumption of the nature indicated, that the paramount consideration is the welfare and wellbeing of the child, and it may be that his Honour's discharge of his decision making task was flawed in that respect. It is also necessary to bear in mind that the making of a care order, of which an order allocating parental responsibility is an instance, can only occur where the court is satisfied that the child is in need of care and protection for one or more of the reasons set out in s 71 of the Act, that being an important matter because there should not be unwarranted interference by the State in the exercise of parental rights over children. It is not clear what his Honour found as the reason or reasons for satisfaction that the child was in need of care and protection. 14 I do not think it necessary to take these matters further, because neither DOCS nor the father nor the child's representative sought to disturb the allocation of parental responsibility to the father for the period until 22 December 2002. I mention them, however, because when there is the consideration of what should occur after 22 December 2002 it would be unfortunate if there were the same problems as caused DOCS to make the present application. 15 It follows, I think, from what I have said that as a formal matter the summons should be dismissed. It does not lead to a contrary order, although it has led to some clarification. It is true that the father and the representative of the child supported DOCS in the application. Nonetheless I do not think it unreasonable that they attended. It does not seem to me that the Suitors Fund Act is available, because it cannot be said that there has been any successful appeal, and in the whole of the circumstances I think it appropriate that DOCS should pay the costs of the father and the representative of the child. 16 These are the provisional views to which I have come. I propose that directions be given that when the transcript of what the Court says is available, it should be served upon the mother, and that a date should be appointed some two to three weeks hence, of which notice should also be given to her, so that she may if she wishes put submissions to the Court with a view to some other course being taken in the determination of DOCS' application. The directions and the date can be formulated shortly. 17 MEAGHER JA: I entirely agree with Mr Justice Giles. 18 HODGSON JA: I also agree. As I understand it, the effect of Justice Giles' judgment is that the question facing Judge Delaney, when the matter comes back before him, will not be whether his foreshadowed order should be implemented or varied. It will be for him to decide de novo whether or not any care order should be made and, if so, what order. If he decides that a care order should be made, it will be necessary for him to make a finding of a ground for a care order under section 71 of the Children and Young Persons (Care and Protection) Act 1998, and it will be necessary for him to decide what order to make, treating the interests of the child as the predominant determining factor and without any presumption in favour of either parent. 19 In my view, a fair reading of his Honour's judgment suggests that he did not make a decision as to a ground on which a care order should be made, and indicated an approach to the question of what order should be made in which there was a presumption in favour of the mother. Had I taken the view that Judge Delaney had in fact made an order as to what was to happen from 22 December 2002 until the child attained the age of eighteen, I believe I would have found that a ground for certiorari had been made out.