New South Wales Supreme Court CITATION : Re Jayden [2006] NSWSC 1428 HEARING DATE(S) : 18 December 2006 JUDGMENT DATE : 21 December 2006 JUDGMENT OF : Simpson J DECISION : Summons and notice of motion dismissed. CATCHWORDS : proceedings in Children's Court of New South Wales - review of orders made in Children's Court - whether Children's Court lacked jurisdiction - legal practitioners involved in Children's Court proceedings named as parties to proceedings in this Court - distinction between role of legal representative and role of party to proceedings - care order - care application - care proceedings - interim order allocating parental responsibility - abuse of process - ulterior purpose of removing children from this jurisdiction to return them to New Zealand not found LEGISLATION CITED : Children and Young Persons (Care and Protection ) Act 1998 (NSW) Chapter 5, s44(1), s60, s61(2), s62, s69, s70A, s71, s72(1), s76(1), s79, s86, s99 George v Children's Court of New South Wales [2003] NSWCA 389; 59 NSWLR 232 CASES CITED : Grace and Rita [2002] NSWSC 1 Re James [2001] NSWSC 1178 mother of children the subject of proceedings - Plaintiff Children's Court of New South Wales - 1st Defendant PARTIES : Minister of Community Services - 2nd Defendant Director-General, Department of Community Services - 3rd Defendant Kim Rowley - 4th Defendant Ross Clarke - 5th Defendant FILE NUMBER(S) : SC 16157/06 MW Anderson - Plaintiff COUNSEL : GW Moore - 2nd & 3rd Defendants M Falloon - 4th Defendant R Harper - 5th Defendant SE O'Connor - Plaintiff SOLICITORS : IV Knight - 2nd & 3rd Defendants Kim Rowley - 4th Defendant Ross Clarke & Associates - 5th Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY JUDGE LIST SIMPSON J Thursday 21 December 2006 16157/06 Re JAYDEN JUDGMENT 1 HER HONOUR: These proceedings, commenced by summons filed on 14 December 2006, concern the guardianship (to use, I hope, a neutral term) of two children, who are to be referred to as "Jayden" and "Lee", although those are not their real given names. Orders with respect to each child have been made in the Children's Court of NSW. 2 Five defendants were named in the summons. They are: 1. the Children's Court of New South Wales; 2. the Minister of Community Services; 3. the Director-General, Department of Community Services; 4. Kim Rowley; 5. Ross Clarke. I will shortly return to the naming, as parties, of the fourth and fifth defendants. 3 The substantive orders sought in the summons are: "1. A declaration that the proceedings in the Children's Court of New South Wales … and heard at Parramatta Children's Court, concerning the children [Jayden] (born 7/12/1995) and [Lee] (born 7/9/1998) are an abuse of process and ought be dismissed. 2. A declaration that the first defendant constituted by Mr S Mitchell, Senior Children's Magistrate, lacked jurisdiction to make an order in relation to the plaintiff's children, and ought to have made an order dismissing the proceedings. 3. An order quashing the order of the first defendant of 8 December 2006, under the Children and Young Persons (Care and Protection) Act 1998 (NSW). 4. The matter be remitted to the first defendant for costs to be made in accordance with law." 4 By notice of motion filed on the same day the plaintiff sought the following additional orders: "1. That these proceedings be expedited. 2. That no information be published except for the purposes of the proper conduct of these proceedings and the execution of the orders made therein, that would allow the children the subject of these proceedings to be identified. 3. That these proceedings be styled 'RE JAYDEN'. 4. That the children who are the subject of these proceedings be known as 'Jayden' and 'Lee'. 5. That these proceedings be heard in a closed court. 6. That this Notice of Motion be heard instanter. 7. That until further order the Minister of Community Services and the Director-General Department of Community Services be and are hereby restrained from permitting and/or causing the children the subject of these proceedings to be removed from the State of New South Wales. 8. That the second and third defendants forthwith cause the children the subject of these proceedings to be returned to the care and custody of the plaintiff. 9. Such further or other order as the Court deems appropriate." Without opposition, at the outset of the hearing, orders 1 – 6 as sought in the notice of motion were made. 5 As will be seen, the application to this Court involves review (again to use the term neutrally) of orders made in the Children's Court. These orders were made on various dates in October and December of this year; the most significant of them are orders made on 13 October (by consent) and the discharge, on 8 December, of certain of those orders. There is, as will be appreciated from the nature of the orders sought, a degree of urgency. The application has come on in court vacation, in the last week before Christmas, at a time when the resources of the court are extremely limited. The extent of competing demands on the court will dictate the extent to which this judgment will canvas as thoroughly as may have been hoped, the factual circumstances and arguments that have been advanced. Further, no transcript of the proceedings in the Children's Court is available, and no reasons for the making of the orders (if any were given) have been put before me. 6 I consider it necessary to comment upon the joinder of the fourth and fifth defendants. They are, I was told, legal practitioners who had, pursuant to s99 of the Children and Young Persons (Care and Protection ) Act 1998, been appointed by the Children's Court to represent, respectively, Jayden and Lee. Just why two legal practitioners who are involved in the Children's Court proceedings purely in their professional capacities, whose competence or diligence was not in question, and against whom no orders were sought in the summons, should be named as parties to proceedings in this Court, with all that that potentially entails (including the possibility of, for example, costs orders against them personally), remains a mystery to me. I was told that it is common practice that, when proceedings are commenced in this Court involving review of Children's Court proceedings where a child has, or children have, been separately represented under s99, to name those individuals as parties: see, for example, Grace and Rita [2002] NSWSC 1; George v Children's Court of New South Wales [2003] NSWCA 389; 59 NSWLR 232 at [5]. The fourth and fifth defendants were represented by counsel. However, of the practitioners at the bar table, none was able to provide me with any satisfactory explanation or rationale for the procedure said to be a matter of common practice. 7 After the conclusion of the evidence and argument, and after I had reserved judgment, counsel for the plaintiff provided me with a copy of the decision of Hamilton J in Re James [2001] NSWSC 1178. This was, presumably, intended to support the practice of joining legal representatives as parties. It does no such thing. Reliance upon James misses the point. In James the child the subject of the proceedings had been, under s99, represented in the Children's Court by a solicitor. On a review application in the Equity Division of this Court, the child was not initially joined as a party to the proceedings. The same solicitor was appointed again to represent the child. Hamilton J considered it appropriate to join the child as a party, and to appoint the solicitor as a "special representative", and ordered accordingly, purportedly under s99. 8 While I doubt that s99 (which specifically confers power on the Children's Court to appoint a legal representative of a child or young person in proceedings before it) extends to conferring power on this Court to adopt a similar course, that is not the present question. Here, the legal representatives have, in the initiating process, been named as defendants to the proceedings. That was not the case in James. There the legal practitioner was, again, appointed as legal representative of the child. Reliance upon James fails to distinguish between the role of a legal representative and that of a party to proceedings. 9 Given that no considered argument has been addressed to the question, and neither of the solicitors made any complaint about being named as a defendant, it would be unwise to express a final opinion. However, I venture to query the appropriateness of the course taken. At present, I can see no reason why legal representatives, having performed their function of representing children in Children's Court proceedings, ought find themselves parties to review, or other subsequent proceedings, in this Court. In my opinion, the practice, to the extent, if any, that it is a practice, ought to be reconsidered. 10 What has occurred means that the children themselves are not parties to these proceedings. It may well be that they ought to be. Consideration can be given to that course on the publication of these reasons. 11 With the handicaps I have outlined above, I will proceed to outline the position as I understand it. 12 The proceedings require consideration of certain provisions of the Children and Young Persons (Care and Protection) Act 1998 ("the Act"). It is convenient here to set out, so far as they are relevant to the present application, the effect of those provisions. I shall, so far as is possible, limit the references to those that are material to this application (thus omitting, for example, references to "young person(s)"). 13 All relevant provisions appear in Chapter 5 of the Act, which is under the general heading "Children's Court Proceedings". S44(1) permits the Director-General of the Department of Community Services ("DOCS"), where he suspects on reasonable grounds that a child is at risk of serious harm and is satisfied that it is not in the best interests of the child that he or she be removed from the premises in which he or she is currently located, instead of removing the child from those premises, to assume the care and responsibility of the child by means of an order in writing signed by the Director-General and served upon the person who appears to be in charge of the premises in which the child is located. (This is called "an assumption of care and protection order".) 14 S60 defines a "care order" as an order made under Chapter 5 for or with respect to the care and protection of a child, including a contact order under s86 (as to which, see below); a "care application" as an application for a care order; and "care proceedings" as proceedings under Chapter 5 of the Act. 15 S61(1) provides that a care order may be made only on the application of the Director-General (except as provided by Chapter 5); subs(2) is of some importance for the present application, and I set it out verbatim: "(2) A care application must specify the particular care order sought and the grounds on which it is sought." 16 S62 provides that a care order may be made as an interim order or final order, except as otherwise provided. 17 S69 also provides for the making of interim care orders (prior to final determination of a care application). 18 S70A provides that 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, and is preferable to the making of a final order or an order dismissing the proceedings. 19 S71 sets out the grounds on which a care order may be made. The grounds include: "(c) the child … has been, or is likely to be, physically or sexually abused or ill-treated, (d) [subject to a qualification contained in subs(2)] the child['s] basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents, (e) the child is suffering or likely to suffer a serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living." 20 S72(1) provides that a care order may be made only if the Children's Court is satisfied, on the balance of probabilities, that the child is in need of care and protection, or that even though the child is not then in need of care and protection, he or she was so in need when the circumstances that gave rise to the care application occurred or existed, and that the child would be in need of care and protection but for the existence of arrangements made under other identified provisions of the Act. 21 S76(1) permits the Children's Court, after inquiry, to make an order placing the child the subject of a care application under the supervision of the Director-General if the Court is satisfied that the child is in need of care and protection. 22 S79 provides that, where the Children's Court finds that a child is in need of care and protection, it may make an order allocating the parental responsibility for that child or specific aspects of parental responsibility to one or other parent exclusively, to one or both parents and to the Minister or another person jointly, or to another suitable person, or (importantly for present purposes) make an order placing the child under the parental responsibility of the Minister. 23 S86 provides for the making of contact orders between the child and his or her parents, relatives or other persons of significance. background 24 The entirety of the evidence before this Court (with the exception of one exhibit) was contained in an affidavit sworn by the plaintiff's solicitor, Ms Rachel Dart, on 12 December 2006. Ms Dart had also represented the plaintiff in the proceedings in the Children's Court the subject of the present application. She set out some history of the Children's Court proceedings and annexed to her affidavit a considerable volume of documentation. Just what was before the Children's Court Magistrate is not, however, clear. From the substance of the affidavit, together with the annexed material, the following factual background emerges. 25 Jayden was born on 7 December 1995. He is now 11 years of age. Lee was born on 7 September 1998. She is now eight years of age. They are the natural children of the plaintiff (their mother), who is now 31 years of age. There is no direct evidence as to the children's country of birth, but I assume (from the other evidence) that both were born in New Zealand. Certainly, both have spent the majority of their short lives in that country. Both children suffer from very real difficulties, as a result of which they are well known to the NZ Department of Child, Youth and Family Services ("Department of CYFS") of that country. Lee suffers from what is called "Global Developmental Delay". At the age of eight, she is unable to communicate verbally, and is incontinent. She is said to have reached approximately the developmental stage that would be expected of a two to three year old. Despite apparently frequent intervention of the Department of CYFS, she has at all times (until recent events) remained in the care and custody of the plaintiff. Jayden has exhibited extreme behavioural disorder. At the age of six and a half, in 2002, he was reported as being faecally incontinent and exhibiting sexualised behaviour. In 2005 he was again reported to be faecally incontinent. Repeated concerns have been expressed about his behaviour. Over the years concerns have also been expressed about intoxication on the part of the plaintiff, and her mother, while they had the care of the children. 26 It is unnecessary further to detail the concerns expressed by officers of the Department of CYFS. Various interventions have been tried, but with, apparently, little, if any, success. 27 It is necessary, however, to note that the material contains reference to allegations of sexual misconduct on the part of the plaintiff's current partner (to whom I will refer only as MA) in relation to a child from his previous marriage. (MA denies the allegations.) 28 All of this led, on 24 April 2006, to the Family Court in Christchurch declaring, pursuant to the relevant NZ legislation, that Jayden was a child in need of care and protection, and making a consequential order that the Chief Executive Officer of the Department of CYFS have his custody. On 2 October 2006 that Court made a similar order in relation to Lee. 29 On 5 September 2006 (before the custody order in relation to Lee was made) the plaintiff and MA travelled to Australia with the children. They plan to reside permanently in this country. They experienced considerable difficulty obtaining accommodation. They came into contact with DOCS. On 4 October the delegate of the Director-General of DOCS, acting under s44, signed an "assumption of care and protection" order in respect of both children. On 5 October, in respect of each child, the Director-General applied to the NSW Children's Court. In each case the Director-General sought, on an interim basis, pursuant to s79 of the Act, an order allocating parental responsibility. That the order sought was an interim order is of some significance in the context of these proceedings. No final order has been sought by the Director-General. 30 Because no record (other than the orders made) of the Children's Court proceedings is available, it is not possible to know with any confidence how the proceedings progressed. 31 On 5 October Mr S Mitchell, Senior Children's Court Magistrate, made an interim order placing both children under the parental responsibility of the Minister for Community Services ("the Minister"), pending further order. The Court noted that the Minister would not move the children from the Sydney metropolitan area. 32 The following day, 6 October, the same order was made again, but this time with an addendum granting to the plaintiff, under s86, specified contact with the children. That the Minister would not move the children from the jurisdiction was again noted. 33 The matter appears to have come before the Children's Court again on 12 October, although there is some confusion about the dates. On 16 October the Registrar signed a document signifying that an interim order had been made on 12 October. However, the document shows that orders were made in terms of a document entitled "Minutes" dated 13 October. The discrepancy is not of any present moment. 34 Once again, the order was that parental responsibility for both children be allocated to the Minister, pending further order; and that the children have specified contact with the plaintiff. The order also contemplated that consideration might be given to the repatriation of the children to New Zealand, and noted that the Minister would not take any steps to take that course without first re-listing the matter. 35 What is significant about these latest orders is that they were made by consent. (So much is not apparent from the document containing the order itself, but was stated in the affidavit of the plaintiff's solicitor.) On 28 November 2006 the plaintiff made an application to the Children's Court seeking orders, under s79, that both children be placed under her parental responsibility, and, pursuant to s76, that the children be placed under the supervision of the Director-General of DOCS. She offered to give certain undertakings, including that she and the children would not reside with MA and she would not allow any contact between the children and MA, and that she would cooperate with the officers of DOCS. That application was listed for hearing on 1 December 2006. On that date the matter was stood over to 8 December for further interim hearing. 36 The affidavit evidence before me is that: "After a hearing which proceeded by way of submissions on 8 December 2006 Senior Children's Court Magistrate Mitchell discharged the Orders made pursuant to s86 of [the Act] to enable the children to be returned to New Zealand." 37 The orders sought on behalf of the plaintiff involve two separate propositions. The first is that they were made without jurisdiction. If this is made out, then no discretionary considerations can save the orders. The second is that the application made to the Children's Court by the Director-General was an abuse of process, made for an improper purpose, in that the Director-General sought the exercise of powers for an extraneous reason. In considering these propositions it will be necessary to expand some of the evidentiary material outlined above. the jurisdictional issue 38 The fundamental provision in this respect (at least for present purposes) is s79. 39 The application made by the Director-General on 5 October was a "care application" as defined in s60. 40 The applications of 5 October were, essentially, in identical terms, on a pro-forma application. After making provision for the insertion of information concerning the child the subject of the application, the pro-forma contains a heading: "TYPES OF ORDERS SOUGHT". 41 Under that appears, also in block letters, the word "INTERIM". There then follow 11 possible orders, each identifying the provision of the Act under which it may be made, and providing a box for the insertion of a tick or a cross to indicate what order is, or orders are, sought. Included in the possible orders are: "order allocating parental responsibility" (under s79), and "order allocating parental responsibility to Director-General" (also under s79). 42 On each application the former of these is ticked. 43 However, what is important is that the heading makes it clear that the orders sought are interim orders. 44 This, it was argued on behalf of the plaintiff, did not comply with the requirements of s61(2). The proposition advanced was that s61(2) requires that the Director-General specify a final order sought by the application. Authority for this proposition was said to be found in the decision of Hulme J in Grace and Rita. Although counsel who appeared for the Director-General adopted this interpretation of Hulme J's judgment, it is, I am satisfied, based upon a misconception of the effect of that judgment. The misunderstanding arises from the terms of para [22] of the judgment. His Honour there said: "The fact that the applications in this case are care orders (other than those the subject of s45(1)(a) and (b)) yet failed to specify any final orders thus amounted to a breach of the terms of s61(2). Although there may be argument that the terms of s61 should be regarded as directory, the inclusion of the word 'must' in s61 leads to the view that compliance with the section is mandatory." 45 It was the reference to the failure, in that case, to specify final orders that prompted the argument in this case. S61(2) does not contain the word "final". The definition of "care order", as an order made under Chapter 5 for or with respect to the care and protection of a child, does not support the proposition that a care application must specify a final order. Orders under Chapter 5 for or with respect to the care and protection of a child include (see s62 and s69) interim orders. There is no reason to insert the word "final" into s61(2). 46 The confusion has arisen because, in Grace and Rita, the application did seek final orders (see [6]). But no final orders sought were then specified: the pro-forma there was completed in the following way: "I hereby made (sic – make) application to the Children's Court at … for the following orders: unknown at this point" 47 This was followed by identification of the grounds upon which the application in that case was made. 48 It was the failure of the Director-General (or his delegate) to specify the orders sought that led Hulme J to conclude that the requirements of s61(2) had not been met. 49 That is not the present case. Here, the Director-General, through his delegate, sought, not final orders, but interim orders, which he specified. There was no non-compliance with s61(2). 50 Accordingly, it is unnecessary to consider the balance of the argument which, in part, challenged the correctness of Hulme J's interpretation of s61(2) as mandatory rather than directory. 51 The first basis of the application is without foundation. abuse of process 52 On behalf of the plaintiff it was argued that the Director-General sought the orders, not for the purposes for which he is authorised to do so under the Act, but specifically for the ulterior purpose of removing the children from this jurisdiction, and returning them to New Zealand. 53 An accusation against a departmental delegate of acting with improper purpose is a serious one to make. One difficulty confronting the plaintiff is that it does not appear ever to have been raised before the Children's Court Magistrate. As I have said, there is no transcript of the proceedings before the Magistrate. However, I was told from the bar table, and it was not contradicted, that this issue had never been raised. Accordingly, the Magistrate made no findings of fact upon which to base a finding of improper purpose. It does not appear that there has been any cross examination of any departmental officer in order to establish the serious accusation. 54 I find nothing in the documentary materials that would suggest that the purpose of departmental officers was in any way improper. There is no basis upon which I could make the findings of fact necessary in order to accept the argument. The second basis of the application must also fail. 55 Accordingly, the summons and the notice of motion must be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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