A v Department of Family and Community Services. [2015] NSWDC 147

District Court New South Wales

Medium Neutral Citation: A v Department of Family and Community Services. [2015] NSWDC 147 Date of orders: 14 July 2015 Decision date: 14 July 2015 Jurisdiction: Civil Before: Colefax SC DCJ Decision: Appeal dismissed as an abuse of process. Catchwords: Appeal to the District Court an abuse of process where appellant fails to fully co-operate in Children's Court proceedings and is seeking to review consent orders in the absence of "fresh evidence"; approach to evidence to be adduced in care appeals. Legislation Cited: Cited: Children and Young Persons (Care and Protection) Act 1998 NSW ss 8, 9, 91 (1), (2) and (3) and Uniform Civil Procedure Rule 2005 r 13.4 (1). Cases Cited: Metropolitan Bank v Pooley (1885) 10 App Cas 210; Rogers v The Queen (1994) 181 CLR 251; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256. Category: Procedural and other rulings Parties: Appellant: MA (mother) Respondent 1: Secretary of DFCS Respondent 2: FA (father of AA and EA) Respondent 3:FP (father of DP) 3 Respondent 4: Independent legal representative for the 3 Children Representation: Appellant (Mother) in person Ms Wong (1st Respondent Secretary of DFCS) No appearance (2nd Respondent) Ms Belovic (3rd Respondent) Ms Harrod (4th Respondent) File Number(s): 2015/147658

Judgment 1. On 7 April 2015 the Children's Court (by consent) made orders to the effect that there was no realistic possibility of the children, the subject of applications before that Court, being restored to either the mother or their respective father, and care plans previously lodged with the Children's Court were the subject of orders. 2. By summons filed 18 May 2015, the mother of the three children seeks to appeal all of the orders made on 7 April 2015. 3. Presently before the Court is a show cause hearing (see below) and a notice of motion filed on behalf of the third respondent who is the father of the child, DP. There is no appearance today by the second respondent, the father of the other two children - nor, the independent legal representative of all three children; nor, significantly, is there an appearance by the appellant. I am satisfied, however, that each of the non appearing parties is aware at least of the show cause hearing. 4. The matter has now been in this Court on three occasions. 5. It first came before the Court on 16 June 2015 when there was an appearance by the appellant. The matter was before the Court again on 30 June when there was no appearance by the appellant at either 10 o'clock or 11.00 am. On that occasion, I was informed by Ms Belovic (who appears for the third respondent) and uncontradicted by the legal representative of the Secretary, that there had been sporadic appearances by the mother in the Children's Court. Given her non appearance that day, a show cause hearing for today was fixed. 6. In the interval, Ms Belovic has filed a notice of motion seeking to have the appeal struck out because it was not filed within time. The summons was, in fact, filed on 18 May 2015 and was, consequently, approximately two weeks out of time. Standing on its own, and absent any other consideration, that notice of motion may have had difficult prospects of success. But because of the matters to which I shall now refer, its prospects have altered. 7. Care proceedings are governed by the provisions of the Children and Young Persons (Care and Protection) Act. Section 8 of the Act sets out the objects of that legislation. Section 9 sets out the principles for the administration of the Act. Subsection 9 (1) provides that: "This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well being of the child or young person are paramount." 1. Consistent with that objective and principle, parties to proceedings in care proceedings (both in the Children's Court and in this Court) have an implicit obligation to participate fully and cooperatively to give effect to that object and principle. 2. The Act provides a right of appeal (or perhaps it might more correctly be described as a mechanism for appeal) to this Court from the Children's Court. Section 91(1) of the Act provides that: "A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order." [Emphasis added.]