New South Wales Court of Appeal CITATION: Director General of the Department of Community Services v Taylor & Ors [2009] NSWCA 132 HEARING DATE(S): 27 May 2009 JUDGMENT DATE: 28 May 2009 JUDGMENT OF: Macfarlan JA DECISION: The notice of motion filed on 26 May 2009 is dismissed with costs. CATCHWORDS: PROCEDURE - judgments and orders - application for stay of orders of the District Court made on appeal from the Childrens Court - conclusion by District Court that two children should be returned to their mother - stay refused LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 Supreme Court Act 1970 CATEGORY: Procedural and other rulings CASES CITED: Re Frieda and Geoffrey [2009] NSWSC 133 Director General of the Department of Community Services (Appellant) Tina Louise Taylor (First Respondent) Daryl Gillin (Second Respondent - no appearance) PARTIES: Ian Cotton (Third Respondent - no appearance) The child Christopher (Fourth Respondent) The child Nicholas (Fifth Respondent) District Court of New South Wales (Sixth Respondent - no appearance) FILE NUMBER(S): CA 40433/08 M W Anderson (Appellant) COUNSEL: S Rew (Fourth Respondent and mentioning on behalf of First Respondent) S Mac Donald (Fifth Respondent) I V Knight, Crown Solicitor (Appellant) SOLICITORS: Sandra Rew (Fourth Respondent) Mac Donald & Mac Donald Solicitors (Fifth Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 4/08 LOWER COURT JUDICIAL OFFICER: Sidis DCJ LOWER COURT DATE OF DECISION: 21 May 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40443/08 MACFARLAN JA THURSDAY 28 MAY 2009 Director General of the Department of Community Services v Tina Louise Taylor & Ors Judgment 1 HIS HONOUR: This is an application for a stay pending the hearing of proceedings in the Court of Appeal. In his Further Amended Summons, the Director General of the Department of Community Services seeks orders by way of judicial review under section 69 of the Supreme Court Act in relation to decisions of Judge Sidis sitting in the District Court. Those decisions culminated in final orders made by her Honour on 21 May 2009. The decisions of her Honour were made in the course of an appeal to the District Court under section 91 of the Children and Young Persons (Care and Protection) Act 1998 from a decision of the Children's Court. 2 The proceedings in the Children's Court were concerned with the care and protection of two children who were given the names, for the purposes of these proceedings, of Nicholas and Christopher. Nicholas was born in November 2002 and Christopher in May 1996. Nicholas, who is now six, lives with his paternal aunt in a country centre where his father also lives. Christopher, who is now thirteen, lives with his father in another country centre. 3 The Children's Court made orders to the following effect. In relation to Nicholas, it was ordered that he be placed under the parental responsibility of the Minister until he attains the age of 18 years and that all aspects of the parental responsibility be the responsibility of the Minister. An order was also made about preparation of review reports. 4 In relation to Christopher, an order was made that all aspects of parental responsibility, except contact, be allocated to Christopher's father until Christopher attains the age of 18 years. The contact aspect of parental responsibility was ordered to be exercised jointly by the Minister and Christopher's father. Again, an order for review reports to be prepared was made. 5 Sidis DCJ delivered an interim judgment on 17 December 2008. That led to the commencement of the present proceedings in this Court. It also led to an application being made by the Director General to this Court for a stay of the orders that had been made in the District Court. That stay was refused by Bell JA by her judgment of 23 December 2008. There then followed a number of further hearings in the District Court culminating in a judgment of Sidis DCJ of 21 May 2009. 6 Following the delivery of that most recent judgment, the summons in this court was further amended to incorporate challenges to that judgment. There was also filed in this Court, on 26 May 2009, a motion for a stay of the District Court proceedings. It is that motion which is before me for hearing. 7 The final orders made by Judge Sidis on 21 May were to the following effect. First, the appeal from the Children's Court was allowed and the orders of the Children's Court were set aside. In relation to Christopher, an order was made that all aspects of parental responsibility, except contact, were to be allocated jointly to the Minister and his mother for a period of two years and that parental responsibility for contact between Christopher and his father was to be allocated to the Minister. An order was also made about the preparation of review reports. 8 In relation to Nicholas, an order was made that all aspects of parental responsibility, except contact, were allocated to the Minister and his mother jointly for a period of two years and that the parental responsibility in respect of contact was allocated to the Minister. Again, an order in respect of review reports was made. 9 These orders were founded upon a thorough and well reasoned judgment of Sidis DCJ in which she concluded, after considering the extensive evidence before her, that the two children should be returned to live with their mother. She dealt with a number of concerns which had been raised in relation to the mother. She examined the evidence in relation to these concerns and expressed her satisfaction that they had been adequately addressed. 10 In relation to Christopher, her Honour expressed the view that the evidence was overwhelming that his interests would be best served by restoring him to his mother's care and went on to say: "Issues concerning his aboriginality were raised. I note that section 13 of the Act applies only in circumstances where he is to be placed in out of home care. Further, I am proposing that he have ongoing contact with his father with whom he has now formed a relationship and with whom he may pursue that aspect of his heritage." 11 In relation to Nicholas, her Honour also took the view that he should be restored to his mother's care. She referred in particular to the following matters: first, what she described as the positive nature of the contact between Nicholas and his mother, albeit limited since December 2008; secondly, the evidence which she had already described of Nicholas' mother's capacity to provide care for him, and, thirdly, evidence of Nicholas' increasing weight. In relation to that last matter her Honour said that she had been informed that Nicholas, at the age of six, weighed 56 kilograms. 12 Her Honour also made some important findings in connection with Nicholas' father. She said this, amongst other things, "A further reason for my decision that [Nicholas] should be restored to his mother is the close proximity of his current placement to the home of his father". A little later she said words to this effect: "The father's criminal history commenced in 1989 and revealed offences involving violence, drugs, driving under the influence of alcohol, breaches of apprehended violence orders, negligent driving, driving whilst his licence was cancelled, damage to property and stalking. There were multiple offences in each case. He has served terms of imprisonment, the last I understand relating to an offence of arson. One incident report suggested that he had seriously assaulted his elderly parents." Her Honour then referred to the evidence of Dr Selig. Dr Selig said that she was not satisfied that Nicholas' paternal aunt or his paternal grandmother would be able to control Nicholas' father if he became violent. Her Honour said that she shared that concern and said that it is clear from police material that the father has not been controlled by them in the past. 13 Submissions were made on the motion for a stay in relation to the prospects of success of the section 69 application. The points raised comprised alleged errors of law on the face of the record and denials of procedural fairness. I cannot say that I was impressed by any of the points, but will proceed upon the basis, favourable to the Director General, that some at least of the points were arguable. 14 I note that the summons seeks alternative relief pursuant to the inherent parens patriae jurisdiction of the Court. No separate submissions were addressed to this claim, it being indicated that substantially the same matters were relied upon as relied upon in connection with the claim for section 69 orders. 15 As the evidence stands, I do not see that there are present here any special circumstances such as might warrant the exercise of the Court's inherent jurisdiction. Of particular relevance is that there exists a statutory right of appeal from the Children's Court to the District Court and that this has been exercised. The District Court has thoroughly canvassed relevant issues and it is not suggested that there are any new circumstances, or is any evidence which is fresh, which could be relied upon to lead to a result different to that reached by the District Court. In relation to this inherent jurisdiction, I refer to the recent discussion of it by White J in Re Frieda and Geoffrey [2009] NSWSC 133. 16 My view as to the motion before me is that there should not be any stay of proceedings below pending the hearing in this Court. The following factors are in my view of particular significance. 17 First, the District Court has concluded, after a full hearing, that it is in the children's interests that they be restored to their mother. 18 Secondly, points raised by way of challenge to that decision do not appear to me at this stage to be strong ones. 19 Thirdly, even if some of the points ultimately prove to be good ones, I consider that they are unlikely to be found to undermine the substance of the District Court's decision as to where the interests of the children lie. 20 Fourthly, the District Court Judge expressed reasons which appear on their face to be persuasive as to why Nicholas may come into harm's way if the orders made by the District Court are not put into effect. This caused her Honour to say this in the second last paragraph of her judgment: "The application for a stay of the orders made on behalf of the Minister is rejected having regard to the view that I have taken of the need to protect in particular [Nicholas] from further adverse influence by reason of his current placement." 21 Fifthly, there are no compelling reasons as to why the care arrangements cannot be reversed in due course if the proceedings brought by the Director General in the Court of Appeal succeed and lead ultimately to different orders being made either here or in the District Court. 22 Sixthly, the grant of stay is opposed by the representatives of the two children concerned. This carries particular weight in the case of Christopher. Being over the age of twelve, there is a rebuttable presumption under the legislation that he is capable of giving proper instructions to his legal representative and I was informed by his representative that she acted under direct instructions from him. 23 There are two final matters for consideration by the Director General to which I wish to refer. First, I have assumed for the purposes of this application that some at least of the Director General's grounds of challenge are arguable. It is by no means clear to me that when full argument occurs at the hearing of the proceedings in this Court that any of the points will be found to have reached that threshold. If that is the case, the Director General is at a distinct risk of an order for indemnity costs being made against him. The Director General accordingly needs to review carefully his prospects of success in the proceedings. I include in this reference to prospects of success, not only the question of whether any of the points raised are strictly correct, but whether they are such that the Court might exercise its discretion to grant relief pursuant to section 69 of the Supreme Court Act or in its inherent jurisdiction. 24 The second matter is that it is of considerable concern to this Court and in relation to the administration of justice generally that, according to the view expressed by Sidis DCJ in her judgment of 21 May 2009, the conduct of the Department in the District Court involved, "arrogance, discourtesy and derision" directed, not only at her Honour, but also at those who represented the children and, in particular, their mother. 25 As a result of her Honour's comments, the conduct of those involved in the proceedings on behalf of the Department requires investigation and, depending on the outcome of the investigation, appropriate action needs to be taken. Conduct of the type described by her Honour is grossly disrespectful to the court at which it is directed and antithetical to the proper administration of justice. Such conduct cannot be allowed to occur. The notice of motion filed on 26 May 2009 is dismissed with costs. ********** 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.