Supreme Court New South Wales Medium Neutral Citation: Re Ellen [2013] NSWSC 1573 Hearing dates: 28 October 2013 Decision date: 29 October 2013 Jurisdiction: Equity Division - Protective List Before: Lindsay J Decision: 1. Order that the plaintiff's application for a stay of the proceedings numbered 131697 of 2013 in the District Court of NSW be refused. 2. Order, subject to any order that might be made by the Court of Appeal or a Divisional judge, that these proceedings be removed into the Court of Appeal. 3. Order that the plaintiff be granted leave to file an amended summons for the purpose of complying with Part 59 of the Uniform Civil Procedure Rules 2005 NSW. 4. Order that any amended summons filed by the plaintiff pursuant to that grant of leave be filed no later than 5 November 2013. 5. Order that the plaintiff pay the costs of these proceedings to date. Catchwords: Children and Young Persons (Care and Protection) Act - Decisions of Children's Court and, on appeal, District Court - Appeal to District Court pending - Application for Judicial Review - Application for stay of District Court proceedings refused - Assignment of business within Supreme Court Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 NSW Supreme Court Act 1970 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: Adam P Brown Male Fashions Pty Limited v Phillip Morris Incorporated (1981) 148 CLR 170 at 177. Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501 Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 9F and 20D-E. Re Allegra [2009] NSWSC 1091 at [37]-[44] Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 at 699B Texts Cited: - Category: Interlocutory applications Parties: Closed Court proceedings Representation: Counsel: M Anderson (First Defendant) Solicitors: G Potkonyak (Plaintiff) Crown Solicitors Office (First Defendant) Father in person (Second Defendant) A Hall Independent Legal Representative (Third Defendant) File Number(s): 2013/00267705 Judgment INTRODUCTION 1The proceedings before the Court are the latest round in recurrent litigation concerning a child I will identify by the pseudonym "Ellen" to mark out a new phase of the litigation. She has been known by various other pseudonyms from time to time: Louise v Director General of Community Services [2011] NSWSC 1646; Re Felicity [2012] NSWSC 949; Director General, Family and Community Services Re Felicity [2012] NSWCA 272; Re Felicity [2013] NSWCA 21; Director General of the Department of Family and Community Services v Amy Robinson Peters [2012] NSWChC 3. 2The litigation has occupied the attention of the Children's Court of NSW, the District Court of NSW, the Equity Division and the Court of Appeal. 3By a summons filed in the Equity Division on 4 September 2013, the plaintiff (the mother of Ellen) seeks both interim and final relief relating to other proceedings (in the District Court, on appeal from the Children's Court pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 NSW, and in the Children's Court) affecting the child. CONTEXT 4Ellen (who was born in 2003) has been living with her father since 2006. It is common ground that she is settled there. 5The contest that has absorbed attention is confined to the question whether the plaintiff should have unsupervised contact with the child. 6Ellen's father, her Independent Legal Representative and the Director General all agree that, as Ellen's mother, the plaintiff should have contact with the child, in Ellen's best interests. However, they are not prepared to agree to anything other than contact on a supervised basis and the plaintiff is not prepared to accept supervised contact. 7In 2009 the Children's Court made final Care Orders under Part 2 of Chapter 5 of the Children and Young Persons (Care and Protection) Act, including: (a)An Order under s 79(1)(b) of the Act that parental responsibility for Ellen be allocated to the Minister for Community Services until she attained the age of eight years. (b)An Order under s 81(1)(b) of the Act that parental responsibility for contact be allocated solely to the Minister until Ellen attained the age of eight years. (c)An Order under s 81(1)(a) of the Act that parental responsibility for all aspects except contact be allocated to the father until Ellen attained the age of eight years. (d)An Order pursuant to s 79(1)(a)(i), that, upon the expiry of the first three orders, Ellen be placed under the parental responsibility of her father until she attains the age of 18 years. 8Incorporated in the Children's Court's formal "Minute of Care Order" was a notation that has subsequently caused controversy. It is the fourth of four notations and bears the designation "Notation D". 9It is to the following effect: "[Note] that upon the child attaining the age of eight (8) years ... the contact [between mother and child] move to an unsupervised arrangement and occur at a frequency and for a duration based on the child's expressed wishes". 10Since Ellen turned eight years of age in 2011 her mother (the present plaintiff) has been engaged in forensic battles designed to secure contact with Ellen on an unsupervised basis, relying largely on Notation D. 11The father, the Director General and Ellen's Independent Legal Representative have lined up against her, thus far successfully. 12In 2012 the Director General made an application to the Children's Court, pursuant to s 90 of the Children and Young Persons (Care and Protection) Act, for leave to apply, under that section, for a variation of the 2009 Care Orders, limited to the question of contact. 13The Director General's foreshadowed application for a variation was designed to secure an order that Ellen be placed under the parental responsibility of the Minister, as to contact only, until she attains the age of 18 years, with all other aspects of parental responsibility to be retained by the father. 14On 17 September 2012 the Children's Court granted the Director General leave to apply for a variation of the 2009 orders, and made interim orders for parental responsibility for Ellen to be shared between the Minister and the father until further order. 15Although the plaintiff subsequently (in the District Court) withdrew her consent to a grant of leave to the Director General, on 17 September 2012 she consented to such a grant. 16The Director General's s 90 application for variation of the 2009 orders was heard, by a children's magistrate, on 2-4 April 2013 and determined by final orders made on 26 April 2013. 17By those orders, the Children's Court ordered that all previous Care Orders be discharged and made fresh Care Orders, including orders to the following effect: (a)An order, pursuant to s 79(1)(a)(ii) of the Children and Young Persons (Care and Protection) Act, that Ellen be placed under the shared parental responsibility of the Minister of Family and Community Services and the father until she attains the age of 14 years, such parental responsibility to be exercised as follows: (i) pursuant to s 81(1)(b) of the Act, that parental responsibility for contact be allocated solely to the Minister until Ellen attains the age of 14 years. (ii) pursuant to s 81(1)(a) of the Act, all other aspects of parental responsibility be allocated to the father until Ellen attains the age of 14 years. (b)An order, pursuant to s 79(1)(a)(i) of the Act that, upon the expiration of that order, Ellen be placed under the sole parental responsibility of the father to the exclusion of the mother [the present plaintiff] until Ellen attains the age of 18 years. 18On 29 April 2013 the mother (the plaintiff in this Court) commenced proceedings in the District Court by way of an appeal to that court, pursuant to s 91 of the Children and Young Persons (Care and Protection) Act, against: (a)the order made by the Children's Court on 17 September 2012 that the Director General be granted leave, pursuant to s 90 of the Act, to apply for a variation of the 2009 Care Orders; and (b)the orders made by the Children's Court on 26 April 2013, on the Director General's application under s 90, for variation of the 2009 Care Orders. 19By virtue of s 91(7) of the Act, an appeal under s 91 does not affect the operation of the order appealed against or prevent the taking of action to implement that order. 20Consequentially, unless and until set aside, the orders made by the Children's Court on 26 April 2013 continue to be operative. 21An appeal under s 91 is determined by the District Court by way of a new hearing, not constrained by a need for the appellant to demonstrate error in an order under appeal. 22The District Court has evidently determined to hear the plaintiff's appeal to it in two stages: the first dealing with whether the Director General should be granted leave to apply for a variation of the 2009 Care Orders; the second, dependent on a grant of leave, dealing with the Director General's substantive application for variation of the 2009 orders. 23On 7 August 2013 a judge of the District Court determined that the Director General's application for leave be granted. 24The Director General's substantive application for variation of the 2009 Care Orders, required to be the subject of a new hearing by reason of s 91, is listed for hearing by the District Court on 18 November 2013 and ensuing days. THE PLAINTIFF'S APPLICATION FOR FINAL RELIEF 25By the summons filed in this Court, the plaintiff seeks final relief to the following effect: (a)A declaration that the legal effect of the 2009 Care Orders, incorporating Notation D, is that, Ellen having attained eight years of age, there is no need for the plaintiff's contact with her to be supervised. (b)A declaration that the Director General's applications to the Children's Court under s 90 of the Children and Young Persons (Care and Protection) Act, for a grant of leave and for a variation of the 2009 Care Orders, is an impermissible attempt to re-litigate the Children's Court's determination of 2009 that contact between the plaintiff and Ellen should move to an unsupervised arrangement. (c)An order (pursuant to s 69 of the Supreme Court Act 1970 NSW), in the nature of a Writ for Certiorari, that the decision made by the District Court on 7 August 2013 (that the Director General be granted leave to make an application for variation of the 2009 Care Orders) be quashed. (d)Orders (pursuant to s69 of the Supreme Court Act), in the nature of a Writ for Certiorari, that the following decisions of the Children's Court be quashed: (i) the decision of 17 September 2012 that the Director General be granted leave to apply for a variation of the 2009 Care Orders; (ii) the decision of 26 April 2013 that the 2009 Care Orders be varied; and (iii) a decision made on 17 July 2013 that the plaintiff mother pay costs of the father associated with those two decisions. 26The plaintiff contends that the District Court decision of 7 August 2013 is based on an error of law, on the face of the record, because: (a)at pp 6-7 of the Court's Reasons for Judgment, the presiding judge found that "the absence of an order for contact since [Ellen turned eight on] November 2011 is a significant change in a relevant [circumstance]". (b)the absence of an order for contact cannot, in the context of the 2009 Care Orders and Notation D, be characterised as a "significant change in any relevant circumstances since the Care Order was made or last varied" within the meaning of s 90(2). (c)it was not open to the Court, consistently with s 90, to find that "the absence of an order for contact since November 2011" is, of itself, a significant change in a relevant circumstance as contemplated by s 90. 27I leave aside, for the moment, the fact that the passage of the District Court judgment the subject of the plaintiff's criticism needs to be read in the context of a judgment that, before and after the extracted passage, considers a broader range of s 90 factors. THE PLAINTIFF'S APPLICATION FOR INTERIM RELIEF 28By her summons, the plaintiff applies for an order that the proceedings pending in the District Court be stayed until determination of her application for final relief. 29In short, more particularly, she seeks to have the proceedings presently listed before the District Court for hearing on 18 November 2013 stayed. 30She seeks, by such means, to persuade this Court that: (a)the Care Orders made by the Children's Court in 2009 subsist; (b)the orders made by the Children's Court (on 26 April 2013) purporting to discharge those orders and to make fresh orders are invalid; and (c)the order made by the District Court, on appeal from the Children's Court, for the Director General to have leave to apply for a variation of the 2009 Care Orders is also invalid. THE RESPONSES OF THE DIRECTOR GENERAL, THE FATHER AND THE CHILD'S INDEPENDENT LEGAL REPRESENTATIVE 31The Director General contends (and both Ellen's Independent Legal Representative and her father support the Director General's contention) that: (a)the plaintiff's application for a stay of the District Court proceedings should be dismissed. (b)Because the plaintiff seeks an order, by way of judicial review, that an order of the District Court be quashed, the proceedings in this Court should be removed into the Court of Appeal, to which such business is assigned by the Supreme Court Act, s 48. (c)Directions should be given requiring the plaintiff to comply with the requirements of rules 59.3 and 59.4 of the Uniform Civil Procedure Rules 2005 NSW, and to apply (pursuant to UCPR r 59.10) for an extension of time within which to apply for orders quashing the decisions made by the Children's Court on 17 September 2012 and 26 April 2013. 32In aid of these contentions the Director General submits that, in accordance with established precedent (Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501 and Re Allegra [2009] NSWSC 1091 at [37]-[44]), the Court should decline to hear the plaintiff's summons until the conclusion of the appeal proceedings presently pending in the District Court. 33The Director General also points out that, although an application for judicial review of a decision of a District Court judge is assigned to the Court of Appeal by s 48 of the Supreme Court Act, an application for judicial review of a decision of the Children's Court is assigned to the Equity Division: Re Felicity [2012] NSWCA 272 at [38] per Barrett JA. 34Although the plaintiff's application for judicial review of a decision of the District Court is assigned, by s 48, to the Court of Appeal, the Director General contends that it would be open to me as a Divisional judge to dismiss the stay application or, indeed, otherwise to deal with the application generally. That is because any step taken, order made, judgment given or other thing done in any proceedings in any Division of the Supreme Court (including the Court of Appeal) is as valid in every way as if taken, made, given or done in the Division to which the proceedings are assigned by the Supreme Court Act or the Supreme Court Rules: Supreme Court Act ss 38, 40, 51, 54, 55; Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 at 699B; Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 9F and 20D-E. CONSIDERATION 35In my opinion, the contentions advanced by the Director General are, in substance, correct. 36However, it is not necessary for me to dismiss the plaintiff's application for a stay of the District Court proceedings and, in deference to s 48 of the Supreme Court Act, I do not do so. It is sufficient for me, simply, to refuse to grant a stay. 37I make that decision for three reasons. 38First, having regard to the assignment of business within the Supreme Court governed by s 48, it would not be appropriate for me as a Divisional judge, in the absence of necessity, to entertain an application for judicial review of the order made by the District Court on 7 August 2013 or to order that the District Court proceedings be stayed pending consideration of an application for judicial review by the Court of Appeal. 39Secondly, independently of considerations of that character, I am in any event disinclined to order that the District Court proceedings be stayed at this stage. 40That disinclination is based on an opinion that, absent exceptional circumstances, the Court should not interfere with ordinary appeal processes laid down by statute: Re Allegra [2009] NSWSC 1091 at [37]-[44]. 41I am not satisfied that the present circumstances are sufficiently exceptional to justify interference with the District Court's deliberations, especially as that Court has allocated time to hear the plaintiff's s 91 appeal "on the merits" within the next month and, if the plaintiff is ultimately correct in her challenge to decisions of the District Court, the Court of Appeal can intervene at that time. 42Thirdly, as a variation of the same point, recognition needs to be given to the fact that the order of the District Court presently under challenge (that is, the order of 7 August 2013) is, in character, an interlocutory order, on a question of practice and procedure, not a final judgment. 43A general policy applied in appellate courts, and not inapplicable to judicial review proceedings, is to hasten slowly in the conduct of review proceedings referable to primary decisions of that character: Adam P Brown Male Fashions Pty Limited v Phillip Morris Incorporated (1981) 148 CLR 170 at 177. 44I record the second and third of these reasons for such, if any, assistance they may afford the Court of Appeal in the event that the plaintiff agitates her application for a stay in the Court of Appeal. 45In any event, should the plaintiff persist in proceedings for judicial review, she should comply with the requirements of UCPR, Part 59, governing such proceedings. 46Having regard to s 48 of the Supreme Court Act, the proceedings should be removed into the Court of Appeal to permit the Court of Appeal to become seized of the plaintiff's application for judicial review of the District Court's decision of 7 August 2013, and any ancillary decisions leading to the further conduct of those proceedings. 47I propose to order that, at this stage, the whole of the proceedings be removed into the Court of Appeal, rather than only that part of the proceedings relating to the District Court proceedings, because there appears to be no present utility in fragmenting the proceedings. 48I anticipate, however, that, once the plaintiff's claim for judicial review relief relating to the District Court proceedings comes within the control of the Court of Appeal, the Court of Appeal may decide to remit the proceedings, in whole or part, to the Equity Division. That is a decision within the province of the Court of Appeal to make, or not, as it sees fit. ORDERS 49I make the following orders: (1)Order that the plaintiff's application for a stay of the proceedings numbered 131697 of 2013 in the District Court of NSW be refused. (2)Order, subject to any order that might be made by the Court of Appeal or a Divisional judge, that these proceedings be removed into the Court of Appeal. (3)Order that the plaintiff be granted leave to file an amended summons for the purpose of complying with Part 59 of the Uniform Civil Procedure Rules 2005 NSW. (4)Order that any amended summons filed by the plaintiff pursuant to that grant of leave be filed no later than 5 November 2013. (5)Order that the plaintiff pay the costs of these proceedings to date. 50I have expressed the second of these orders as being subject to any order that might be made by the Court of Appeal in deference to the possibility that the Court of Appeal may, in the regulation of its own business, decide that the plaintiff's applications for relief should, in whole or part, be determined in the Equity Division in the first instance. ********** 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. Decision last updated: 29 October 2013