Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105 Hearing dates: 10 April 2015 Decision date: 24 April 2015 Before: McColl JA at [1]; Basten JA at [11]; JC Campbell AJA at [17] Decision: Application for leave to appeal dismissed Catchwords: APPEAL – application for leave to appeal – parens patriae jurisdiction of Supreme Court unsuccessfully invoked – earlier interim care order made by Children's Court – no available statutory appeal from that order –change in circumstances since application for leave filed – final findings made by Children's Court as to need for protection – no utility in allowing leave to appeal CHILD WELFARE – interim care order by Children's Court – parens patriae jurisdiction of Supreme Court invoked – whether Children's Court proper forum to determine best interests of children Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9(1), 43(1), 45, 71, 72, 247 Civil Procedure Act 2005 (NSW), ss 56, 71 Court Suppression & Non-publication Orders Act 2010 (NSW), s 7 Supreme Court Act 1970 (NSW), ss 69, 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186 Director-General, Family and Community Services re Felicity [2012] NSWCA 272 GKD v Director-General, Attorney General's Department; GKD v Director-General, Department of Family and Community Services [2012] NSWCA 219 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 R v Baby S [2014] NSWSC 871 Re DG and the Adoption Act 2000 [2007] NSWCA 241; 244 ALR 195 Re Frances and Benny [2005] NSWSC 1207 Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 Re Sarah [2013] NSWCA 379 Re Victoria [2002] NSWSC 647; 29 Fam LR 157 Category: Principal judgment Parties: CAC (Applicant) Secretary, Department of Family and Community Services (First Respondent) Children's Court of NSW (Second Respondent) NCP (Third Respondent) J (Fourth Respondent) C, T and S (Fifth Respondent) Minister for Family and Community Services (Sixth Respondent) Representation: Counsel: CR de Robillard (Applicant) Ms M Neville (First and Sixth Respondents) Submitting appearance (Second Respondent) B Kelly (Third Respondent) D Murray (Fourth Respondent) Ms M McMahon (Fifth Respondent) Solicitors: C Treweeke Lawyer (Applicant) Crown Solicitor's Office (First and Sixth Respondents) Crown Solicitor's Office (Second Respondent) Grand & Co Solicitors (Third Respondent) Coast Law (Fourth Respondent) Legal Aid Gosford (Fifth Respondent) File Number(s): 2015/294792015/20021 Publication restriction: Yes – see [18] of the judgment. Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 Date of Decision: 24 December 2014 Before: Lindsay J File Number(s): 2014/00328723 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Court of Appeal Supreme Court New South Wales Judgment 1. McCOLL JA: The facts of this matter are set out in the reasons of Campbell AJA which I have had the benefit of reading in draft. As his Honour has explained, this application for leave to appeal concerned the removal of his four children from the applicant, CAC's care, in October 2014. 2. The applicant sought leave to appeal from the findings of his Honour Justice Lindsay on 24 December 2014 refusing the relief the applicant sought in his Further Amended Summons, one of the orders then sought being that the children be returned to reside with him. [1] 3. Thereafter the applicant initiated the proceedings in this Court. They were granted expedition. In his written submissions dated 11 February 2015, Mr de Robillard, who appeared for the applicant before Lindsay J and in this Court, contended that after the making in October 2014 of the first interim order allocating interim parental responsibility for the children to the Minister until further order, the matter had fallen into a "jurisdictional doldrum". He contended the proceedings should be a "litmus test" for the practical application of the paramountcy principle in s 9(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act"). 4. In March 2015 a Children's Court Magistrate concluded that she should make the care order the Secretary of the Department of Family and Community Services sought in relation to the applicant's four children on the bases appearing in s 71(1)(d) and s 71(1)(e) of the Care Act. That was, clearly, a serious finding. It having been made, the Children's Court moves to the "welfare phase" during which it considers the final orders required to care for and protect the children: Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 (at [37]). 5. As Campbell AJA has said, the Magistrate's findings represented a radical change in circumstances since Lindsay J's judgment. 6. It was for this reason that Mr de Robillard was asked to address the issue of leave to appeal at the outset. His attention was expressly drawn to the Court's concern about the effect of the Magistrate's findings. His response was that those findings did not substantially affect the application. Rather, his substantive submission was to the effect that leave to appeal should be granted so that this Court could discharge a duty he appeared to contend it had pursuant to its parens patriae jurisdiction, to conduct a factual investigation into the circumstances under which the four children had been kept since October 2014. He submitted that this investigation was necessary because the Children's Court process "had failed". There was no evidence that that was the case, let alone of any "jurisdictional doldrum" – however that expression might be understood. 7. It is of concern that counsel persisted with the application for leave to appeal notwithstanding the March findings. To do so appeared to pay no regard, as Basten JA has pointed out, to the rare cases in which it could be in the best interests of children to disrupt the processes being undertaken in the Children's Court by taking proceedings in this Court. Nothing rare or exceptional was identified about the case. The argument was not advanced by the making of grandiose statements about the necessity, in effect, to conduct a roving inquiry into matters already the subject of consideration in the Children's Court. 8. Further, persisting with the application notwithstanding the Magistrate's findings indicated that counsel had not had regard to the requirements of s 56 of the Civil Procedure Act 2005 (NSW). Once the March 2015 findings were made, there was, in my view, no utility in the application for leave to appeal, assuming, without deciding, that there had ever been any utility in it being pursued. 9. Counsel have an obligation to keep the overriding purpose stated in s 56(1) in mind at all times. It is a continuing obligation. There was no indication that any process of evaluation had been undertaken as to the utility of persisting with the leave application following the Magistrate's findings. The result was the considerable incurring of costs with five counsel at the bar table representing the applicant, the Secretary, the four children and their mother. Nor, would it appear, had any consideration been given to the inappropriate use of judicial resources in seeking to attract the jurisdiction of the Court of Appeal in respect of matters already before the Children's Court. [2] This should not, in my opinion, have occurred. 10. It was for these reasons that I joined in the order of the Court on 10 April 2015. I also agree with the reasons of Campbell AJA and Basten JA for their joining in those orders. 11. BASTEN JA: I agree with the reasons given by Campbell AJA in support of the refusal of leave to appeal. I would add the following further considerations. 12. The father commenced proceedings in the Supreme Court immediately following the making of interim care orders with respect to his children in the Children's Court. His summons sought relief in two forms: first, it sought orders with respect to the custody and other arrangements involving the children, inconsistent with the care orders, which were sought to be stayed. To this extent, the father sought to invoke the parens patriae jurisdiction of this Court with respect to the welfare of children, which is preserved by the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act"), s 247. Secondly, he sought to restrain the magistrate who had made the original interim care orders from continuing with the proceedings on the basis of a reasonable apprehension of bias. He thus invoked the jurisdiction of this Court to make orders in the nature of prohibition pursuant to s 69 of the Supreme Court Act 1970 (NSW) in the exercise of its supervisory jurisdiction. 13. With respect to the invoking of the supervisory jurisdiction, little need be said because Adams J rejected so much of the summons as relied on the allegation of apprehended bias on the part of the magistrate, apparently on the basis that the necessary apprehension had not been established. (So much appears from the history recounted by Lindsay J in CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [57].) There was no appeal from Adams J's order. 14. Because there was no statutory appeal from the interim care orders, the only way to challenge such orders is to invoke the supervisory jurisdiction of this Court. In some circumstances it may be appropriate for relief to be sought at an interlocutory stage: see Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [75]-[80]. Nevertheless, depending on the nature of the proceedings and the stage reached in them when a recusal application is refused, the fact that such an application may be disruptive of the trial process, as well as demanding of limited resources for expedition in the Supreme Court, the Court may be reluctant to intervene. The Court will also be alert to the possibility that such proceedings are brought without a substantive basis in order to forestall an anticipated adverse decision. 15. Before Lindsay J, it was the invocation of the parens patriae jurisdiction which was in issue. The judge stated: "[19] The availability of the Supreme Court's protective jurisdiction is not an invitation for parties interested in the welfare of a minor to engage in an exercise of forum shopping, pursuing applications in the Supreme Court during the pendency of regular proceedings in the Children's Court, because dissatisfied with rulings made, or anticipated, in the Children's Court. [20] By virtue of its governing legislation, the Children's Court has sufficient power over its own processes to ensure that its proceedings are conducted, as they must be, in a manner that is procedurally fair. Absent exceptional circumstances, it should be left to discharge its legislative functions, subject to the appeal processes for which the legislation provides." 1. The caution expressed in these paragraphs is amply supported by authority, including Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40] (Palmer J); Re Frances and Benny [2005] NSWSC 1207 at [17] and [18] (Young CJ in Eq), and, recently, R v Baby S [2014] NSWSC 871 at [20]-[23] (White J). It will rarely be in the best interests of the children concerned to disrupt the orderly process of investigation and fact finding in the Children's Court by diverting the time, energy and resources of the parties from that exercise into separate proceedings in the Supreme Court. Still less is an appeal justifiable from a careful and detailed consideration by a judge in the Protective List, to say nothing of the change of circumstances noted by Campbell AJA. 2. JC CAMPBELL AJA: On 10 April 2015 this Court heard an application for leave to appeal against the judgment of Lindsay J given on 24 December 2014: CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855. The application for leave was listed for hearing concurrently with the appeal itself, if leave was granted. 3. At the commencement of the hearing of the proceedings, the Court gave the following directions: "1. Pursuant to s 71 of the Civil Procedure Act 2005, the business of the Court in relation to today's proceedings be conducted in the absence of the public having regard to the fact that the proceedings concern the guardianship and custody of minors. 2. Pursuant to s 7 of the Court Suppression & Non-publication Orders Act 2010, that there be no publication or disclosure of information tending to reveal the identity of the children who are respondents to the proceedings." 1. Also at the start of the hearing the presiding judge requested the parties to address first on the question of leave to appeal. At the conclusion of the argument on that topic the Court made an order that the application for leave to appeal was dismissed and announced that reasons for the order would be provided later. The presiding judge then enquired whether any of the respondents to the application sought costs, and was informed that none of the respondents sought costs. Hence no order for the cost of the proceedings has been, or will be, made. What follows are my reasons for joining in the order of the Court on 10 April 2015. 2. The plaintiff before Lindsay J, and the applicant in this Court, is the father of four children. At the relevant times in the last few months of 2014 those children were aged 13, 5, 4 and 2. 3. On 9 October 2014, at a time when the children were living with their father and mother at premises that the father had recently rented, the children were removed from the custody of the parents, by an order made under s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act"). When such an order for removal is made, s 45 of the Care Act requires that an application seeking one of the care orders in s 45(1) be made promptly to the Children's Court. Consistently with that obligation, the Secretary of the Department of Family and Community Services filed an application in the Children's Court on 14 October 2014, seeking an interim order allocating interim parental responsibility for the four children to the Minister until further order, and a final order allocating parental responsibility of the children to the Minister until they each attain 18 years of age. That application was returnable at the Children's Court at Woy Woy the next day, 15 October 2014. 4. On 15 October 2014 the Children's Court Magistrate made an interim order giving parental responsibility to the Minister until 4.00 pm on Monday 10 November 2014. The interim order was extended on two occasions. On 10 November 2014 it was continued until Monday 24 November 2014. On 24 November the interim order was extended "until further order". 5. In the meantime, the father had begun proceedings in the Supreme Court. They were started with a summons filed in the Common Law Division on 7 November 2014. On 18 November 2014 Adams J dismissed part of the summons, namely an application for an order that the Children's Court Magistrate who had heard the proceedings be restrained from hearing them any further. The application for that order was made on the basis, which Adams J rejected, that the magistrate had displayed ostensible bias in her conduct of the proceedings so far. 6. The remainder of the proceedings were transferred to the Equity Division. After the initiating process had been amended by a Further Amended Summons that was filed on 3 December 2014 they came to be heard by Lindsay J at a hearing beginning on 15 December 2014. On 24 December 2014, in the judgment mentioned at the start of these reasons, his Honour dismissed the proceedings, to the extent that Adams J had not already disposed of them. 7. The principal relief claimed in the Further Amended Summons was a series of injunctions. One was an order that the children be forthwith returned to reside with their father. Another was an order that the Magistrate be restrained from further hearing any aspect of the care proceedings that were then before her. Another was that the children's mother be restrained from residing at the home. As well, (oddly, given that the father was the plaintiff) the Further Amended Summons sought three orders against the father concerning the manner in which he dealt with the children. It sought alternative orders concerning the removal of the two younger children from the particular carer with whom they were placed, that the Secretary make particular arrangements concerning the contact that would occur between the children and their parents, and that the Secretary take all necessary steps to allow the father to be present at any medical consultation involving any of the children. 8. The Further Amended Summons identified the grounds upon which that relief was sought. Part of the grounds related to an alleged denial of procedural fairness on the part of the Magistrate. The basis for that contention was in substance the same factual matrix concerning which Adams J had previously dismissed the prayer for relief in the Summons which sought an injunction restraining the Magistrate from further hearing the proceedings on the ground of her alleged ostensible bias. Another set of bases alleged facts said to show that the Magistrate had engaged in certain alleged jurisdictional errors in the hearings before her. The same facts were relied on to invoke the parens patriae jurisdiction of the Court. 9. A Notice of Appeal from the decision of Lindsay J was filed on 21 January 2015. On 28 January 2015 the matter came before Beazley P. By that time counsel for the father recognised that leave to appeal was necessary. Beazley P ordered expedition of the application for leave to appeal. A summons seeking leave to appeal was filed on 30 January 2015. 10. Though it was not a matter of contention at the hearing, it is appropriate to record why leave to appeal was necessary. Section 101(2)(r) of the Supreme Court Act 1970 (NSW) provides that an appeal lies to the Court of Appeal from: "(r) a final judgment or order in proceedings of the Court, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more." 1. There are some appeals whose subject matter is incapable of valuation – for example, concerning a barrister's claim to remain on the roll of practitioners "[t]here is no 'property' that can be said to be involved, and no civil right capable of being valued.": Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186 at 205. Similarly there is no matter, property or civil right capable of being valued concerning a claim for adoption: Re DG and the Adoption Act 2000 [2007] NSWCA 241; 244 ALR 195 at [21]; GKD v Director-General, Attorney General's Department; GKD v Director-General, Department of Family and Community Services [2012] NSWCA 219; Re Sarah [2013] NSWCA 379 at [48]. The present proceedings concerning the welfare of children similarly concern a subject matter that is incapable of valuation: Director-General, Family and Community Services re Felicity [2012] NSWCA 272 at [13]-[17]. 2. At the time of the hearing before Beazley P it was known that the Children's Court had fixed 19 February 2015 as the date for hearing of what the jargon of the Children's Court refers to as "the establishment question" – ie, whether the Court is satisfied that the child in question is in need of care and protection for any reason. The making of such a finding is, pursuant to ss 71 and 72 of the Care Act, a precondition of the Children's Court having the power to make a care order. All the interim care orders had been made on the basis of limited evidence, but the hearing set for 19 February 2015 was one at which all parties would have the opportunity to file any evidence they wished relevant to the establishment question. 3. On 16 March 2015 the Children's Court Magistrate delivered reasons for judgment which reached the conclusion that "the Court is comfortably satisfied that it should make the orders sought by the Department under s 71(1)(d) and s 71(1)(e)". It appears, from those reasons for judgment, that various affidavits were filed for the purpose of the hearing on the establishment question, and some expert evidence was adduced, additional to the evidentiary material that had been before the Children's Court on the occasion of the making of three interim care orders. 4. The making of that finding by the Children's Court radically changes the forensic situation that is relevant to the application for leave to appeal. No stay or other order has been sought to prevent effect being given to the finding on the establishment question. No final care order has yet been made, because further steps need to be taken before the Children's Court is in a position to decide whether a final care order should be made, or whether some lesser regime would be sufficient to deal with the need for care and protection that the Children's Court has found to exist. No application was made to put any further evidence before this Court for the application for leave to appeal or the appeal itself. The reasons for the decision of the Children's Court on 16 March 2015 and the fact that its decision remained operative, were put before us as matters concerning which there was no dispute. 5. The orders that the father seeks, in his draft notice of appeal, include the discharge of the interim care orders, and a declaration that they were not made according to law. In the alternative, he seeks orders that the relevant governmental authorities file and serve a report setting out the reasons why the children should not be allowed to reside with the father, file and serve another report providing, in effect, discovery of certain facts concerning other children who had been in the care of one of the interim carers, and provide all records relating to the second youngest child. He also seeks that the matter be referred back to the Protective Division. I will treat the application for that last mentioned order as though it were an application for the matter to be returned to the Protective List in the Equity Division. 6. When the Children's Court has now found, following a full contested hearing, that the children are in need of care and protection, there is no utility in examining whether Lindsay J was incorrect in failing to find that the decisions of the Children's Court, on more limited evidence, at the time of the making of the interim care orders, were incorrect. The orders that the draft notice of appeal seeks concerning the provision of reports and records could not properly be made by the Court of Appeal – such reports and records were not sought in the Further Amended Summons, and if it were appropriate for any part of the Supreme Court to require them at all at this stage it could only be by a first instance judge as either an interlocutory step or final order in a reconsideration of the matter. 7. It is not completely clear on what basis the return of the matter to the Equity Division is sought. If it were on the basis that there be a reconsideration of the matter on the same evidentiary basis as Lindsay J considered the matter, there would be no utility in that: more evidence is now available, and has been adduced before the Children's Court, than was before Lindsay J. 8. If, as is more likely, the return of the matter to the Equity Division is sought on the basis that there be a new trial, any bench hearing an appeal would need to comply with the provisions of Uniform Civil Procedure Rules (2005) (NSW), r 51.53 ("UCPR"). That rule forbids the Court to make an order for a new trial unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned. When this Court knows that there is additional evidence beyond that which was before Lindsay J, but there is no proposal to put that additional evidence before this Court, it would not be possible for this Court to reach the satisfaction that UCPR, r 51.53 requires before ordering a new trial. In any event, the new trial would still be of the questions that were before Lindsay J, which have now been overtaken, subject to one exception, by the finding of 16 March 2015. 9. The one exception is the question of whether the Magistrate's behaviour at the interim care hearings was such that she should be restrained from any further hearing. The legal basis on which that order was sought before Lindsay J was denial of procedural fairness. The argument that the father put forward was in substance that the Magistrate had denied procedural fairness on the occasions of making the interim care orders, and her denial of procedural fairness on those occasions provided the basis for a quia timet injunction restraining her. There is an analytical difference between that basis for the order and the argument put to Adams J that the Magistrate should be restrained from further hearing on the basis of ostensible bias. However, the argument put to Lindsay J is perilously close to an abuse of process, in light of the earlier decision of Adams J which had not been appealed against, if it has not crossed the line into abuse of process. 10. It is, however, unnecessary to reach a conclusion on that question. That is because the prospects of success in an appeal against that aspect of Lindsay J's decision are so slight that leave to appeal should be refused concerning that question. In any event, I note that the submission concerning alleged denial of procedural fairness was not at the forefront of the father's submissions: while procedural fairness is part of the grounds of appeal sought to be raised, no separate oral submissions were made directed to that topic. 11. For these reasons, I was of the view that the appropriate order was that leave to appeal should be refused. ********** Endnotes 1. CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855. 2. See generally AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. 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: 24 April 2015