Re Arie, Nadine and Adele [2015] NSWChC 5

Children's Court New South Wales

Medium Neutral Citation: Re Arie, Nadine and Adele [2015] NSWChC 5 Hearing dates: 4 May 2015 Decision date: 05 June 2015 Jurisdiction: Care and protection Before: Children's Magistrate Duncombe Decision: Application refused Catchwords: General powers to exclude people from proceedings – provision of copies of documents to non-parties Legislation Cited: Children and Young Persons (Care and Protection) Act 1987 Children's Court Act 1987 Cases Cited: DFaCS (NSW) and the Colt Children [2013] NSWChC5 KF v Parramatta Children's Court (KF) 2008 NSWSC 1131 George v Children's Court of NSW & 4 others [2003] NSWCA 389 Category: Procedural and other rulings Parties: The Secretary, Department of Family and Community Services (DFaCS) The Mother The Children Representation: Mr R McLachlan, solicitor, for the Secretary Mr P Braine, of counsel, for the Mother Mr T Mara, solicitor, for Arie Ms K Rutkowser, solicitor, for Adele and Nadine File Number(s): 328, 329, 332/2008 Publication restriction: Pseudonyms have been used in order to protect the children and parties

Judgment 1. On 13 October 2014 the Secretary of the Department of Family and Community Services (the Secretary) filed an application for leave to apply for, and an application for, rescission/variation of care orders made in this court on 12 January 2009 in respect of three of the five children the subject of the original order, those children being Arie (born in 2001), Nadine (born in 2003) and Adele (born in 2006). 2. On 31 October 2014 the mother of each of the children, also filed an application pursuant to s 90 of the Care Act seeking, inter alia, that the children be restored to her care on a gradual basis. 3. Leave was granted in respect of both s 90 applications on 7 November 2014 and the two applications were then joined and have been heard together. 4. On 11 March 2015 the Secretary filed an Application pursuant to s 15 of the Children's Court Act in which it sought leave to 1. publish to the Benevolent Society, the case manager for the children, copies of all documents filed in the proceedings; and 2. allow officers of the Benevolent Society directly engaged in the case management of the children to attend and be present at court proceedings in respect of those children. 1. In support of that Application, Ms Denise McKay, Acting Manager Casework, deposed that the Benevolent Society has had full case management responsibility for all the children since June 2012 when they were placed in a kinship placement and that organisation is responsible for the day to day decision making in relation to the children. In addition, she deposed that the Benevolent Society had been referred to in documents filed in the proceedings and would be the most appropriate body to directly respond to the issues raised in the documents. 2. Shannon Kendrick from the Benevolent Society has been the case manager for the children since May 2014. 3. The Application was further supported by an affidavit of Ashwini Thakur filed 11 March 2015 in which she added that the affidavit of the mother filed 28 January 2015 made reference to Ms Kendrick and raised issues in relation to her casework. Ms Kendrick at this point cannot have access to the document to enable her to respond to the Court and the other parties. 4. Ms Thakur further deposed that the lack of information being provided to the Benevolent Society made it challenging for Community Services and the Benevolent Society to work collaboratively. She does not provide any reasons for this statement. Ms Thakur stated that Community Services would prefer the Benevolent Society to provide affidavits and reports 'considering their comprehensive and direct work with the children and the mother'. 5. The Secretary relies on s 15 of the Children's Court Act 1987 which provides: "The Court may, in relation to all matters in respect of which it has jurisdiction, make such orders, including interlocutory orders, as it thinks appropriate". 1. Further, s 104B of the Children and Young Persons (Care and Protection) Act 1987 provides: "At any time while the Children's Court is hearing proceedings with respect to a child or young person, any person who is not directly interested in the proceedings must, unless the Children's Court otherwise directs, be excluded from the place where the proceedings are being heard". 1. Section 105 of the Children and Young Persons (Care and Protection) Act 1987 provides: "(1) The name of a child or young person: (a) who appears, or is reasonably likely to appear, as a witness before the Children's Court in any proceedings, or (a1) who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or (b) with respect to whom proceedings before the Children's Court are brought or who is reasonably likely to be the subject of proceedings before the Children's Court, or (c) who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children's Court or in any non-court proceedings, or (d) who is the subject of a report under section 24, 25, 27, 120, 121 or 122, must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of. 1. Subsection (3) provides that Subsection (1) does not prohibit: (a) the publication or broadcasting of an official report of the proceedings of the Children's Court that includes the name of a child or young person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or (b) the publication or broadcasting of the name of a child or young person: (i) in the case of a child—with the consent of the Children's Court, or (ii) in the case of a young person—with the consent of the young person, or (iii) in the case of a child or young person who is under the parental responsibility of the Minister—with the consent of the Secretary if the Sectretary is of the opinion that the publication or broadcasting may be seen to be to the benefit of the child or young person… 1. Section 104A provides: (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. 1. Mr McLachlan on behalf of the Secretary submitted that s 104A(4) provides a power to the Court to exclude particular persons at any particular occasion. However, the officers from the Benevolent Society may otherwise be entitled to attend subject to the discretion of the Court to exclude them. He also submitted that two of the parties to proceedings had sought orders from the Court to exclude them in part of the proceedings so far. For this reason the Secretary urged the Court to make a specific ruling applying to these officers under s 15 of the Children's Court Act. 2. Mr McLachlan on behalf of the Secretary also submitted that the Benevolent Society should be entitled to copies of all documents filed in the proceedings, including affidavits filed by the parents and the reports of Ms Gurton, psychologist. He referred the Court to the decision of the Supreme Court in KF v Parramatta Children's Court (KF), 2008 NSWSC 1131. He submitted that the decision in KF is authority for the proposition that "the publication of information to specific people for specific purposes (in that case to an expert for expert opinion) cloaked as it was with an understanding of confidentiality of non-publication to a broader public base, was indeed a publication allowable under the Act" (Para 11 of the submissions). 3. He further argued that to prevent access to the documents in the Children's Court "can directly impact upon…. the decision making both within the Court and for the children (and) is to prevent them from carrying out a task that clearly they have been invested with". He also relied on s 9(1) of the Care Act and argued that the Court should construe provisions in a way that serves the best interests of children. 4. Section 9(1) provides: "1) 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. Mr Peter Braine filed written submissions on behalf of the mother. She objects to the orders sought by the Secretary. 2. In summary, Mr Braine submitted that the Benevolent Society is not a party but by its Application, the Secretary seeks to elevate that organisation to that akin to party status. 3. Further, Mr Braine submitted that the Benevolent Society caseworkers are potential witnesses and the orders sought seek to "bind the trial magistrate in the conduct of the hearing" for instance by allowing them to attend and be present at court proceedings as is sought in order 2. If this order was granted, their attendance in court listening to other witnesses may lead to a submission that their evidence should be given less weight because their oral evidence may be tainted by listening to the evidence of other witnesses. 4. Mr Braine also submitted that the provision of all documents to the Benevolent Society appears to elevate these witnesses to the status of expert witnesses when that standing has not been established. 5. It was also submitted on behalf of the mother that the orders sought do not identify the particular persons within the Benevolent Society who would be subject to the orders. There is as a result no fetter on the Benevolent Society to further disseminate the documents. 6. There is also a question over the capacity of the Court to bind the successors of any current case workers within the Benevolent Society to observe the confidentiality of the process and the documentation. There is a risk that court documents could be provided to others after the Court proceedings have concluded. There is no facility to retrieve the documents from the Benevolent Society. 7. There is also no evidence that the Benevolent Society would remain the designated agency for case management of the children. 8. The report of Ms Gurton involves an assessment of the three children the subject of these proceedings as well as two other children involved in parallel proceedings and the carer of those two other children who are not under the case management of the Benevolent Society. The carer of those children has not been consulted about the release of information pertaining to herself to the Benevolent Society. 9. Mr Braine noted that there had been two placement breakdowns while the children were being case managed by the Benevolent Society. There have been allegations of abuse in their care. 10. Mr Braine submitted that the words of s 104B, referring as it does to "any person who is not directly interested in the proceedings" should be given a specific and narrow meaning, particularly having regard to the heading of that section which is entitled "Exclusion of General Public from proceedings". He submitted that the term "directly interested" should not be interpreted subjectively, ie any person who expresses an interest, but rather be interested as meaning those people who are parties to the proceedings. In making this submission he conceded that the Court has a discretion to allow persons other than parties to enter and remain in court, but such discretion should be exercised having regard to the objects and principles of the legislation set out in sections 8 and 9. 11. Mr Braine submitted that "caution should be exercised in particular where a decision to grant permission for a person to be present and to remain in court has the capacity to affect the forensic process ie the fact finding role of the Court and the assessment of the veracity of the evidence given by witnesses and how that evidence may be affected by having access either to court documents, expert reports and the written and oral evidence given by other witnesses". 12. Mr Mara acts for Arie on direct instructions. He did not wish to be heard on matters of public policy. I note in the statement of wishes filed in May 2015 that Arie stated that he wanted to live with his mother. He also stated (at paragraph 8) that he was happy for the Benevolent Society to have documents relevant to him. 13. Ms Rutkowska acts for the younger children. She supported the submissions of the mother and further submitted that the effect of such orders on the mother would be that she is running a case against the Benevolent Society and the Secretary. If these orders are made it is possible that other NGO's would make similar applications. Further, the NGO's are not required to attend court to make proper case work decisions.