Children's Court New South Wales Medium Neutral Citation: The Secretary, Department of Family and Community Services (NSW) and the Marks Children [2016] NSWChC 2 Hearing dates: 19 January 2016 Decision date: 27 January 2016 Jurisdiction: Care and protection Before: Children's Magistrate Graham Blewitt AM Decision: Father to be excluded from proceedings Catchwords: CHILDREN - Care and Protection - term "parent" - exclusion of father from proceedings (s 104A Care Act) - father and legal representative not to be served with materials (s 64(7)(a)(ii), - father prohibited from having contact with the children (s 90A) Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Re Andrew (2004) NSWSC 842 J v Lieskhke (1987) 162 CLR 44 Twist v Randwick Municipal Council (1976) 136 CLR 106) EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248 (3 August 2010) Category: Procedural and other rulings Parties: The Secretary, Department of Family and Community Services The Children The Parents Representation: Ms Voncina for the Secretary Ms Ng for the mother Mr Tricca for the father Ms Stanton, ILR, for the children File Number(s): 283-6/2015 Publication restriction: Pseudonyms have been used in order to anonymise the children and parents. Judgment Brief background 1. The Court is called on to rule upon an unusual application brought by the Secretary, which is also supported by the mother and the ILR, to effectively exclude the father from the proceedings. The main application is for the Court to find that the father is not a "parent" of the children having regard to the definition provisions and s 98 of the Children and Young Persons (Care and Protection) Act, the "Care Act". Alternatively, the parties are seeking orders that would exclude the father from participating in the proceedings. The basis of the applications mainly involves the protection of the children and acting in their best interests. 2. The circumstances of this case are, in my experience, unique and very unusual, if not exceptional. They are such, in my view, that call for special considerations. 3. The father has not been served with any of the filings in these proceedings, including the Initiating Application under s 61(2) of the Care Act, lodged on 27 November 2015, nor any of the subsequent affidavits. Similarly, his lawyer, Mr Tricca, has not been served with copies of the filings. The basis of the father not being served is because it would amount to an unacceptable risk to the children to serve the father. 4. In this regard, the proceedings were first before this Court on 1 December 2015, when an order was made, pursuant to s 64(7)(a)(ii), that the father not be served with any material until further order. The father, who was then, and still is, in Immigration detention, elected not to appear at Court on that date, when this order was made. 5. The matter was next before this Court on 16 December 2015, when the father was present (by way of AVL, or perhaps phone link, the Court's Daily Bench Sheets are not clear) and was represented by Mr Tricca. On that date the proceedings were adjourned for hearing on 19 January 2016, to determine whether the father should remain a party and/or whether any material may be served on the father and/or Mr Tricca. 6. When the matter came on for hearing on 19 January, the father attended via telephone link, and was represented by Mr Tricca. Ms Voncina, for the Secretary, and Ms Ng for the mother, provided the Court with written submissions and made oral submissions on the invitation of the Court. Ms Stanford, the ILR, also made oral submissions. Mr Tricca, handicapped as he was without having access to any of the materials filed in the proceedings, also made oral submissions. The Court adjourned the proceedings for judgment on 27 January, ordering that the father appear by way of AVL. 7. Having regard to the orders made by this Court pursuant to s 64(7)(a)(ii) on 1 December, there are limitations on the amount of background information the Court can provide in this judgment, without frustrating the basis of the applications currently being considered, and without jeopardising the safety, welfare and wellbeing of the children. 8. This dilemma highlights one of the issues that this Court will face if the father remains a party to the proceedings. 9. It is possible, however, to provide some background in relation to matters already within the father's knowledge, by reason of proceedings in the Federal Circuit Court, and the proceedings relating to his Australian Visa Application. 10. In August 2014 the Federal Circuit Court, in Parramatta, made orders allocating sole parental responsibility for the children to the mother. These orders were made against a background of allegations that the father was physically violent towards the mother and the children; allegations of sexual interference with the eldest child; abducting the children from the mother's care overseas; threatening to kill the children; and moving the children across international borders (Sweden/ Finland/ Iraq/ Australia). On 26 August 2013 the father returned to Australia with the children, leaving the mother in Iraq. The mother returned to Australia on 28 October 2013, and subsequently obtained a recovery order in relation to the children from Campbelltown Local Court on 27 November 2013. On 4 December 2013, NSW Police executed the recovery order and the children were recovered and placed in the mother's care. As noted above, in August 2014 the Federal Circuit Court made orders allocating sole parental responsibility for the children to the mother. The father has been convicted and has served prison sentences for sexually assaulting young children. I do not propose to go into detail in relation to most of these background issues, but they are contained in the material that has been filed in these proceedings. In respect of the mother's allegations, corroboration does exist. 11. I am satisfied that the father does pose an unacceptable risk to the children, and the current order of this Court that the father not be served with materials filed in these proceedings is justified in the circumstances. 12. In relation to the father's status in Immigration detention, he is seeking a review of a refusal, on character grounds, of his application to stay in Australia. This review is listed to be heard next in February 2016. This Court has been provided with a copy of the father's Visa Application which was lodged with the Department of Immigration and Border Protection in May 2015. Further, in relation to this application, the Court also has a copy of the Protection Visa Assessment dated November 2015. That assessment involved findings of fact, and concluded that the father was fabricating his claims and "is not a witness of truth and greatly exaggerated his claims of facing a real chance of harm in Iraq (page 11 of the assessment). On page 12 of the assessment the following appears: "….the applicant (the father) appears to be well-connected and resourceful within the Iraqi society. NSW Police supplied the following information about the applicant: contrary to what he now claims about having an agreement with his former wife…. ,regarding his custody of their children in Sweden, he took them to Iraq without her approval. His wife travelled to Iraq attempting to retrieve them but was sexually and physically assaulted by the applicant. He was given 14 years imprisonment by an Iraqi court (for attempted rape) but was released from jail only 3 days later after bribing the officials." The application relating to the father not being a "parent" and his joinder as party 1. Ms Voncina, for the Department, raises three issues for this Court to determine, namely: * Should the natural father be a party to the proceedings? * If the Court determines that the father is a "parent" and thus a "party" to the proceedings, should documents be served on the father? * Should the Court determine documents cannot be served on the father, can documents be served on his legal representative? 1. Ms Voncina's written submissions set out in more detail the basis of the Department's application to exclude the father from these proceedings, but, for the reasons stated above, there are limitations on the amount of detail I can provide in this judgment, a copy of which will be available to the father. In short, Ms Voncina's application, and submissions, in relation to the first issue set out above, namely that the Court find that the father is not a party to the proceedings, are based on the definition of the term "parent" in s 3 of the Care Act, which defines a "parent" as "a person who has parental responsibility for a child or a young person". Based on this definition it is submitted that the father does not have "parental responsibility" for the children because in August 2014, following an interim hearing, the Federal Circuit Court made orders allocating sole parental responsibility for all the children to the mother. 2. The Care Act defines "parental responsibility" as "all the duties, powers, responsibilities and authority which, by law, parents have in relation to a child" (s 3). Ms Voncina submits that the law clearly took away those responsibilities from the father when the Federal Circuit Court made the orders in August 2014. 3. Ms Voncina submits that the orders made by the Federal Circuit Court give the mother sole parental responsibility; and that accordingly the father does not have parental responsibility for the children under the Family Law Act 1975. The father is not currently exercising parental responsibility and, at the relevant time, was not exercising any parental responsibility not just because of the Federal Circuit Court order but also as a consequence of his incarceration. Thus for the purposes of the Care Act it is submitted by Ms Voncina, the father is not a "parent". The notice and service provisions of the Care Act, s 64, would as a consequence, excuse the Secretary from notifying or serving material on the father. And further the father does not have a right of appearance under s 98, as he does not fall under any of the categories of persons listed in s 98(1) (see hereunder). 4. In relation to the provisions of s 64 of the Care Act, which require the Department to notify and serve the parents, Ms Voncina referred to the decision in Re Andrew (2004) NSWSC 842 where Wood CJ found the Children's Court has an implied power to dispense with service of a Care application upon a parent. Wood CJ said that when deciding whether to dispense with service the Court must weigh s 9 considerations of the safety, welfare and well-being of the child against the parent's right to be heard. According to the authority found in this case, the Children's Court has an implied power to dispense with service of a Care Application upon a parent in exceptional circumstances (J v Lieskhke (1987) 162 CLR 44; Twist v Randwick Municipal Council (1976) 136 CLR 106). 5. Ms Voncina submitted that the Court has already found exceptional circumstances in this case when it made an order pursuant to s 64(7) (ii) on 1 December 2015 not to serve the father. 6. Ms Ng for the mother supports the position of the Department in relation to the father's status as a non-parent in these proceedings, and submits that the father does not have a right of appearance under s 98, as he does not fall under any of the categories of persons listed in s 98(1), which provides:.. 98 Right of appearance (1) In any proceedings with respect to a child or young person: (a) the child or young person and each person having parental responsibility for the child or young person, and (b) the Secretary, and (c) the Minister, may appear in person or be legally represented or, by leave of the Children's Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings. (2) However, if the Children's Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented. (2A) If the Children's Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children's Court is to appoint a guardian ad litem for the person under section 100 or 101 (as the case may require). (3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children's Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children's Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings. 1. Ms Ng further submits that persons falling under s 98(1) "may appear in person or be legally represented", hence implying a discretion given to the Court on whether the father should be joined as a party to these proceedings, and further that if the father argues for joinder under s 98(3), again the Court's discretion is enlivened as leave of the Court is required for such joinder. Ms Ng submitted that there are various factors for the Court's consideration in exercising its discretion but all of these matters need to be considered in the context of the principles and objectives of the Care Act under s 8 and 9, and the paramount consideration is the children's welfare under s 9. (EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248 (3 August 2010)). Ms Ng then set out her reasons as to why the Court should refuse to allow the father to be joined as a party. 2. On behalf of the father, Mr Tricca informed the Court that the father is seeking counselling whilst in detention in relation to issues of domestic violence and sexual assault, and has provided the Court with a copy of the counselling notes provided by International Health and Medical Services (IHMS). 3. Notwithstanding the definition of the term "parent" in s 3 of the Care Act, and noting that there is no definition of the term "party" in the Act, Mr Tricca submits that there are no exceptional circumstances in this case and that the father should not be excluded from the proceedings and should be served with materials filed. He submits, that if the Department's position is correct, then in cases where the Children's Court make an interim order allocating parental responsibility to the Minister until further order, then the parents cease to be "parents" by reason of the definition in s 3 and should thereafter be excluded as a party. Mr Tricca submits that this is not the intention of the Care Act. Mr Tricca relies on the High Court decision in J v Lieschke [1987] HCA 4, a case dealing with a parent's entitlement to participate in care proceedings by reasons of principles of natural justice to a general right to be heard. 4. Ms Stanton, the ILR, concedes that the father is the biological father, but submits he ceased being a "parent" as defined by s 3 of the Care Act following the decision of the Federal Circuit Court when it allocated sole parental responsibility to the mother. Consequently, Ms Stanton submits the father is required to apply to be joined as a party if he wishes to participate in the proceedings, pursuant to s 98(3). Ms Stanton submitted and gave reasons why the father should not be joined as a party, and why he should not have contact with the children. In the material filed in these proceedings, there is evidence that the children were traumatised by their most recent contact with their father, and professional advice received by the Department is that the children should not have contact with their father. Decision in relation to the father being a "parent" 1. Having regard to the High Court decision in J v Lieschki, and for reasons of procedural fairness and natural justice, and notwithstanding the submissions of the parties in relation to the father not being a "parent" based on the definition provisions of the Care Act, I have come to the conclusion that it would be an extraordinary step for this Court to rule that the father is not a "parent" and on that basis should be excluded from participating in the proceedings. 2. I have come to the further conclusion that notwithstanding the position outlined in the previous paragraph, it is possible for the Court to render a decision in relation to the Secretary's applications without giving a ruling or making a finding in relation to whether the father is a "parent" for the purposes of these proceedings. The application to exclude the father from the proceedings 1. In the event that the Court did find that the father was a "parent" for the purposes of these proceedings, Ms Voncina made a submission in the alternative, namely that the Court exclude him from the proceedings on the grounds it is in the best interests of the children to do so. Ms Voncina based this submission on the father's Immigration risk assessment, and the risk he poses to the children and the mother. 2. In this regard s 104A of the Care Act is relevant: 104A Exclusion of particular persons from proceedings (1) At any time while the Children's Court is hearing proceedings with respect to a child or young person, the Children's Court may direct any person (other than the child or young person) to leave the place where the proceedings are being heard. (2) If any non-court proceedings are to be held with respect to a child or young person, the Children's Court may direct any person (other than the child or young person) not to be present at the place where the proceedings are to be held at any time during the proceedings concerned. (3) The Children's Court may give a direction under this section only if it is of the opinion that it is in the interests of the child or young person that such a direction should be given. (4) The powers exercisable by the Children's Court under this section may be exercised even if the person to whom a direction is given is directly interested in the proceedings concerned. Decision in relation to exclusion of the father from the proceedings 1. I have come to the conclusion that the submissions of Ms Voncina, Ms Ng and Ms Stanford clearly establish that there are compelling reasons, in the exceptional circumstances of this case, that the father be excluded from these proceedings and that it is in the best interests of the children that he be excluded. Some of the reasons for making this decision are set out in the next section of this judgment. Accordingly I propose to make orders pursuant to s 104A of the Care Act that will exclude the father as a party to these proceedings, and to continue orders that prevent the father being served with copies of any materials filed in the proceedings. Should Mr Tricca receive a copy of the filings in these proceedings 1. The final aspect of the current application is whether the Court should permit copies of the materials to be provided to Mr Tricca. The Department fears that if material is provided to Mr Tricca, there may be some inadvertent disclosure of information to the father that might prove detrimental to the children's safety and welfare. There is no suggestion that Mr Tricca would not honour any undertakings not to disclose information to the father. 2. Although Mr Tricca has not obtained instructions in this regard, he has conceded that on the known facts, the unknown period of father's detention, his current circumstances, and his likely deportation if his appeal is unsuccessful, it is obvious that there is no realistic possibility of restoration of the children to the father. Notwithstanding this the father does want contact with his children and in this regard, Mr Tricca submits, he has a right to be heard. 3. Mr Tricca submitted to the Court that the eldest children wish to see their father. The evidence provided to the Court contradicts this position, and suggests contact would be detrimental to the children. In this regard I am unable to provide further details in this judgment without jeopardising the welfare and safety of the children. 4. Even if any involvement of the father in the proceedings is limited to the question of contact with the children, I have come to the conclusion that on the available evidence relating to the very negative impact any contact would have on the children, it is not in their interests that the father participate in the proceedings. In relation to the question of contact, any prejudice to the father by being excluded from the proceedings would in my view be minimal, and in any event depending on the result of his Immigration appeal, could be pursued outside the context of these proceedings. 5. Further, the father lacks credibility. Noting that the Immigration material presented to the Court clearly establishes that the father is not a reliable or credible witness, which on a prima facie basis I accept, it would be unlikely that the Court could accept, or attach any weight to, anything put forward by the father in relation to the question of contact. 6. As a result of the orders to be made by this Court today, the father is to be excluded from the proceedings. In these circumstances, it is not difficult to imagine the impossible position Mr Tricca will find himself, if he is provided with a copy of the material filed in the proceedings, and leaving to one side the issue of inadvertent disclosure to the father, having to take instructions from the father, and attempting to represent the father's interests in the Court, even if it is confined to the question of contact. 7. For this reason, I have come to the conclusion that it is not in the interests of the children for Mr Tricca to be provided with a copy of the material filed in these proceedings. Orders 1. Accordingly I order, pursuant to s 104A of the Care Act that (1) at any time while the Children's Court is hearing proceedings with respect to the subject children, the father is to leave the place where the proceedings are being heard; and (2) if any non-court proceedings are to be held with respect to the subject children, I direct the father not to be present at the place where the proceedings are to be held at any time during the proceedings concerned. 2. I further order that the orders made by this Court, pursuant to s 64(7)(a)(ii), that the father not be served with any material, continue until further order. Similarly I order that Mr Tricca not be served with any material. 3. Finally, I order pursuant to s 90A, that until further order the father be prohibited from having any form of contact, including face-to-face contact, with his children. ********** 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: 01 April 2016