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. The law 1. I have had regard to the relevant sections of the Care Act and the Children's Court Act extracted above. I have also been referred to three relevant cases to which I have had regard. 2. In George v Children's Court of NSW & 4 others [2003] NSWCA 389, the Court of Appeal considered the power of the Children's Court to make orders under s 15 of the Children's Court Act 1987, or an implied power under this or the Care Act, to make orders requiring the Department to pay the costs of rail/bus fares and reasonable accommodation costs to enable the parents of George to visit him following the move by the foster carers to a regional town in NSW. The Secretary appealed and the order of the Children's Court was quashed by Grove J. A subsequent appeal to the Supreme Court was dismissed. The mother then appealed to the Court of Appeal. 3. Following a comprehensive outline and consideration of the relevant provisions in the Care Act, the appeal was dismissed by the Court of Appeal. Ipp JA, with whom McColl JA agreed, concluded that (at paragraph 138): 1. "the CYP Act provides exclusively and exhaustively for the relief the Children's Court may order arising out of obligations imposed on the Director-General (and the Minister) by that Act, and that Act imposes limitation on the power of the Children's Court to grant such relief". 2. At paragraph 39 he went on to say "Accordingly, neither s.15 of the CC Act nor any power implied from any of the legislation to which we were referred extends the powers of the Children's Court to grant relief arising out of obligations imposed on the Director-General (and the Minister) by the CYP Act beyond the powers of the Children's Court that are contained in the CYP Act. 1. In KF v Parramatta Children's Court & 3 others [2008] NSWSC 1131 the NSW Supreme Court was asked to hear an appeal from the mother of a young baby who sought restoration of that baby to her and her partner's care. Mitchell CM (as he then was) had refused leave to the mother to provide copies of the Departmental material to an expert to be engaged by the mother for the purposes of preparing a report on her parenting. At that time Practice Note 30 made provision for the requirement for leave to be sought for such a purpose. 2. In finding that the practice note was not within power, the Court considered s 105(1)(b) and the authorities on the meaning of 'publish' in other jurisdictions. At paragraph 17 Hidden J stated: 1. "I am satisfied that s 105 is concerned with the publication of material to the public at large or a section of it – usually, but not necessarily by the news media. To adopt the words of Cox J in the last of the passages from Riget v Flavel cited above, it is not directed to "a communication between individuals, for one reason or another, with no public aspect about it". 2. At paragraph 18 he stated: "It is certainly not directed to the provision of material to an expert for the purpose of proceedings in the Children's Court. Clearly, expert evidence has its place in care proceedings and it is most important that the expert have access to all relevant material. As Ms Lawon put it, the plaintiff seeks merely to provide material to an identified expert, who is qualified and bound by professional obligation to keep it confidential. It is a limited communication for a legitimate purpose, that is, the proper conduct of the plaintiff' case and it is intended that any report would be made available only to the parties to the Children's court proceedings". 3. At paragraph 19 his Honour stated that "accordingly, the plaintiff did not need to seek the leave of the court to make material available to the expert. To the extent that the practice note purported to require her to do so, it had no foundation in the Act and was ultra vires". 1. I was also referred to the decision of his Honour Judge Johnstone, President of the Children's Court, in DFaCS (NSW) and the Colt Children [2013] NSWChC 5. His Honour noted that an objection had been made to police officers remaining in court during the proceedings. He stated at paragraph 181 and following that: "Objection was taken to the police officers concerned remaining in court during the hearing, reliance being placed upon s 104B of the Care Act 1998, which 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". I dealt with the application in a separate ruling. In summary, I determined that s 104B does not apply because the police, who are the officers that were involved in the JIRT investigation, clearly had a direct interest in the proceedings. I went on to say that in the event that I were held to be wrong in that interpretation of the section, I would nevertheless exercise my discretion under s 104B to permit the police officers to remain in court. I said in my reasons: "In my view, the Court should adopt a purposive approach to the construction of s 104B. Having regard to the general principles of open proceedings, in my view the proper way to apply s 104B is to ask whether the police have an interest in the proceedings and, as I have already said, they clearly do, particularly the officers who conducted the JIRT investigation. Next, the Court would ask itself whether the presence of the police is contrary to the purpose of the general requirement that the public be excluded. The answer to that proposition must be no. Finally, the Court would ask itself whether the presence of the police in court is detrimental to the safety, welfare, and well-being of the children, that being the paramount principle for the application of the Act and its various sections, and the answer to that proposition is, again, no. Finally having regard to s 93(2) the Court is permitted, indeed it is required, to conduct the proceedings with as little informality and legal technicality as the circumstances permit. In my view the two officers designated should be permitted to remain in court and I will allow them to do so." Decision 1. I am required to determine two issues: 1. Can the officers of the Benevolent Society directly engaged in the case management of the children attend and be present in court proceedings in respect of those children? 2. Can the Secretary provide copies of all documents filed in the proceedings to the Benevolent Society? 1. I will turn to each of these issues. Can the officers of the Benevolent Society directly engaged in the case management of the children attend and be present in court proceedings in respect of those children? 1. Sections 104A and 104B of the Care Act specifically provide powers of the Court to exclude (or not) a particular person or persons from being present in the Children's Court when it is hearing proceedings with respect to a child or young person. 2. Those sections provide discretions in the Children's Court to exclude or permit the attendance of particular persons in the proceedings involving children or young persons. In particular, s 104B provides that a person who is not directly interested in the proceedings must be excluded, unless the Children's Court otherwise directs. Further, s 104A(1) and 104A(4) specifically provide the power for the Children's Court to exclude any person, including a person with a direct interest in the proceedings, from the proceedings or any part of the proceedings. The discretion to exclude any person is subject to s 104A(3) which provides that it must be in the interests of the child or young person to give such a direction. 3. In my view these sections provide "exclusively and exhaustively" the powers of the Children's Court on this issue: Re George. 4. I am therefore of the view that s 15 of the Children's Court Act does not extend the powers of the Children's Court which are clearly enunciated in sections 104A and 104B. To make a general order in any particular proceedings pursuant to s 15 of the Children's Court Act would fetter the discretion of the presiding Judicial Officer in any proceedings involving a child or young person. The discretion should be exercised by the presiding Judicial Officer on a case by case basis, and taking into account the type of proceedings then before the Court. 5. I agree that any order granting permission for representatives of the Benevolent Society to be permitted to attend any court proceedings in respect of the children the subject of these proceedings may affect the forensic process, particularly in circumstances where one or more of the officers of the Benevolent Society may be required as witnesses in respect of the care that has been offered in the past to the children or any one of them. The discretion of the presiding Judicial Officer to exclude such persons from part or all of the proceedings should be exercised after consideration of any submissions on the issue and consideration of the objects and principles of the Act, particularly sections 8 and 9 of the Care Act. 6. I disagree with the submission that the term "directly interested" in s 104B should be interpreted to mean people who are parties to the proceedings. There are many people, including partners of parents of children for example, who may not be parties to the proceedings but may be clearly 'directly interested' in the proceedings. 7. I respectively agree with his Honour's judgment on this issue in the Colt Children. A purposive approach to the construction of s 104B involves a consideration of the particular person or persons seeking to be in court, whether that person or persons has or have a direct interest in the proceedings, whether the attendance of that person or persons is contrary to the general requirement to exclude the public from the proceedings and whether or not such presence is "detrimental to the safety, welfare and wellbeing of the child or young person, that being the paramount principle" in all decisions of this Court (s 9(1)). I would add to that list a general requirement to consider the impact on the hearing of permitting potential witnesses to remain in court while evidence is being given by others and the general effect on the forensic process of the Court. Those decisions should be made by the presiding Judicial Officer at the time any such application is made. 8. For the reasons given I decline to make the order sought pursuant to s 15 of the Children's Court Act to allow officers of the Benevolent Society to attend these proceedings. My decision does not seek, nor does it, fetter the discretion of the presiding Judicial Officer to consider any such application which may be made from time to time in these proceedings. Can the Secretary provide copies of all documents filed in the proceedings to the Benevolent Society? 1. The decision in KF dealt with the provision of documents to an expert, to enable that expert to provide a report where it was intended that 'any report would be made available to the parties to the Children's Court proceedings' (KF, paragraph 18). Hidden J also took into account that the expert was "qualified and bound by professional obligation to keep it confidential" (para 18, KF). 2. The officers of the Benevolent Society are not 'experts' in this sense. The officers to whom it is sought to provide copies of all documents are not identified and their qualifications are not known. It is unclear how the lack of access to the documents makes it challenging for Community Services and the Benevolent Society to work collaboratively. Apart from an assertion that this is the case, I have no evidence of how this opinion has been formed. 3. Further, if there is evidence that the Benevolent Society has what is relevant to the conduct of the case, it is open to Community Services to file such evidence in the normal manner. 4. It is unclear how the failure to provide access to all documents inhibits the ability of the Benevolent Society to carry out their task of managing the care of the children. I agree that some documents may be of assistance in understanding the challenges for the children. Applications to provide copies of such documents can be made on a case by case (or document by document) basis. A report of a clinician or an expert could be of assistance to the Benevolent Society in its case management of the children, or any one. I will consider separately any application to provide copies of the report of Ms B Gurton to the Benevolent Society and provided the confidentiality of people who are not parties to these proceedings is preserved, and the confidentiality of the document itself is assured, there may be very good reasons why that report or reports should be provided to a particular officer of the Benevolent Society. 5. I share the concerns raised about the future management of any documents by the Benevolent Society. An order authorising copies of a particular document or set of documents can make provision for the preservation of the confidentiality of such documents. 6. For the reasons given I decline to make the orders sought pursuant to s 15 of the Children's Court Act. 7. For the reasons given, the Application is refused. ********** 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: 10 August 2016