Court of Appeal Supreme Court New South Wales Medium Neutral Citation: D v C; Re B (No 2) [2018] NSWCA 310 Hearing dates: 26 October 2018 Decision date: 13 December 2018 Before: McColl JA at [1]; Basten JA at [2]; Emmett AJA at [99] Decision: (1) Refuse the application to further amend the summons. (2) Set aside orders 1-5 made in the District Court on 29 June 2018. (3) Set aside orders 2-4 made in the District Court on 19 July 2018. (4) Remit the mother's appeal to the District Court to be determined according to law. (5) Order that the mother pay the father's costs of the proceedings in this Court. (6) Grant the mother a certificate under the Suitors' Fund Act 1951 (NSW). (7) No order as to the costs of the other respondents. Catchwords: APPEAL – appeal to District Court – care and protection proceedings – extent to which court should depart from course agreed upon by parties – power of court to examine and cross-examine witnesses CHILD WELFARE – care and protection – final care orders – whether Court required to consider care plan and make findings regarding permanency planning before making orders granting parental responsibility for child to parent – whether such orders are "final care orders" – whether "final care orders" limited to orders removing child from parents on Secretary's application – Children and Young Persons (Care and Protection) Act 1998, ss 80, 83 CHILD WELFARE – care and protection – nature of proceedings – obligation not to conduct proceedings in adversarial manner – power of court to examine and cross-examine witnesses – content of procedural fairness – extent to which court should depart from course agreed upon by parties – Children and Young Persons (Care and Protection) Act 1998, ss 93, 107 CHILD WELFARE – care and protection – procedural fairness – obligations to child, parents of child and Secretary, Department of Family and Community Services – whether procedural fairness required adjournment where trial judge departed from case put by appellant and respondent sought to adduce further evidence JUDICIAL REVIEW – procedural fairness –content – scope of obligation to accord in non-adversarial jurisdiction STATUTORY INTERPRETATION – immediate context – structure of statute – importance of reading provisions in context and with regard to internal structure WORDS AND PHRASES – "final care orders" – "proceedings… are not to be conducted in an adversarial manner" – Children and Young Persons (Care and Protection) Act 1998, ss 78, 80, 83, 93 Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 9, 46, 60, 61, 62, 78, 78A, 80, 83, 90, 91, 93, 106A, 107; Ch 5, Pt 2, Pt 2; Ch 6 Crimes (Administration of Sentences) Act 1999 (NSW), Sch 1,cl 11 Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 37 Mental Health (Forensic Provisions) Act 1990 (NSW), s 12 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Daley v SAS Trustee Corporation (2016) 91 NSWLR 525; [2016] NSWCA 111 Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 Re June (No 2) [2013] NSWSC 1111 Category: Principal judgment Parties: D (Applicant) C (First Respondent) Secretary, Department of Family and Community Services (Second Respondent) District Court of NSW (Third Respondent) Independent Legal Representative for the Child (Fourth Respondent) Representation: Counsel: Mr P Singleton (Applicant) Ms G Mahony (Second Respondent) Ms D Ward (Fourth Respondent) Solicitors: Amada Fawaz (Applicant) Mr Boys, MPB Lawyers (First Respondent) Crown Solicitor's Office (Second and Third Respondents) Legal Aid NSW (Fourth Respondent) File Number(s): CA 2018/246516 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: [2018] NSWDC 174 Date of Decision: 29 June 2018 Before: Levy SC DCJ File Number(s): 2017/386548 [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.] headnote [This headnote is not to be read as part of the judgment] On 4 June 2014 the Children's Court made a care order placing B under the parental responsibility of the Minister. In late 2015, B's mother applied for rescission of the order and an order granting her parental responsibility; the father made a similar application in early 2016. The father was successful in the Children's Court; the mother appealed to the District Court. Following a hearing which proceeded over eight days in May and June 2018, the primary judge rescinded the orders of the Children's Court and allocated sole parental responsibility for the child to the mother. The father brought proceedings in this Court seeking review of that decision. The mother's case in the District Court challenged the report of a psychologist appointed by the Children's Court to undertake an assessment. She argued that the psychologist was not provided with evidence relevant to an allegation that the child's paternal grandfather had sexually abused his step-daughter, the father's sister. The parties prepared the District Court proceedings on the basis that no party would be called to give evidence; however, on the second day of the hearing, the judge requested that the parties arrange for the psychologist to attend and give evidence. On the third day, the judge appeared to resile from that position, excusing the psychologist from giving evidence and seemingly adopting the position put by the Secretary, Department of Family and Community Services that the proceedings should be adjourned and a further clinician's report arranged. However, on the fourth day, the judge determined not to adjourn the matter. The judge called the psychologist to give evidence, after the mother had given evidence but before the father. He cross-examined the psychologist, putting contested matters to the witness arising out of the mother's evidence, including allegations of sexual abuse against the paternal grandfather and the father's alleged criminal record. He did not allow the father's counsel to question the psychologist regarding a psychological assessment of the father, though the line of questioning was not objected to. He refused two applications by the father that the matter be adjourned so a further clinical report could be arranged in light of the psychologist's evidence. The key issues before this Court were: (i) whether the trial judge failed to comply with the preconditions in s 80 and s 83(7) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) before making final care orders; and (ii) whether the father had been denied procedural fairness. The Court (Basten JA, McColl JA and Emmett AJA agreeing) set aside the judgment and remitted the matter to the District Court, holding: In relation to (i): (Per Basten JA, McColl JA agreeing) 1. On the correct construction of the Act, "final care orders", as that term is used in ss 80 and 83, refers to orders made on application of the Secretary and involving removal of a child from his or her parents. Accordingly, the pre-conditions to the making of final care orders imposed by ss 80 and 83(7) did not apply: [28]-[29], [32]-[33]. In relation to (ii): (Per Basten JA, McColl JA and Emmett AJA agreeing) 2. Notwithstanding that the principal focus of care proceedings is the safety, welfare and wellbeing of the child, and that the content of procedural fairness may adapt to the function of the non-adversarial jurisdiction being exercised, the Court was obliged to accord the child and the parents procedural fairness: [42]. 3. The judge's refusal to adjourn the proceedings was procedurally unfair to both the father and child. In circumstances where the proceedings departed from the narrow basis on which the mother had brought her appeal, and no opportunity was given to seek updated evidence in response, the making of orders differing from those made in the Children's Court was inherently unfair. There was no justification for refusing an adjournment to prevent further evidence to be called: [90]-[92]. 4. As the proceedings below miscarried in a fundamental way, there is no basis for the Court to decline to set the judgment aside in the exercise of its discretion: [93]. (Per Basten JA, McColl JA agreeing) 5. The manner in which the psychologist was examined by the judge, and the judge's refusal to allow the father to adduce evidence in response, was also procedurally unfair: [86]-[89]. Having undermined the credibility of the psychologist on a basis that had not been foreshadowed, it was procedurally unfair to deny the father the opportunity to put forward evidence rehabilitating the psychologist's conclusions: [88]. Judgment 1. McCOLL JA: I agree with Basten JA's reasons and the orders his Honour proposes. 2. BASTEN JA: In 2013 a child was removed by the Secretary, Department of Family and Community Services from the care of his parents, exercising powers under the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Act"). On 4 June 2014 the Children's Court made a care order placing the child under the parental responsibility of the Minister. In late 2015 the mother sought rescission of that order and an order granting her parental responsibility. In early 2016 the father made a similar application; he was successful in the Children's Court. 3. The mother appealed to the District Court from the order of the Children's Court restoring parental responsibility to the father. After a hearing which proceeded over eight days in May and June 2018, the primary judge delivered judgment on 29 June 2018 [1] rescinding the orders made in the Children's Court on 15 December 2017 and allocating sole responsibility for the child to his mother. There followed further hearings on 9, 13 and 19 July 2018. The judge purported to make "final orders" on 19 July 2018. Application for review 1. There is no appeal in such proceedings from the District Court. Accordingly, the applicant (the father) invoked the supervisory jurisdiction of this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). To succeed the father must establish either that the District Court exceeded its jurisdiction, or that the District Court made an error of law which appeared from the face of the record. The record, relevantly, includes the reasons for judgment given by the District Court. 2. A summons seeking judicial review was filed by the father on 10 August 2018. That document was replaced by an amended summons filed a month before the hearing, on 25 September 2018. The only change to the orders sought was to recognise the uncertainty as to whether the relevant orders were made on 29 June or 19 July and, in the alternative, to seek that both sets of orders be quashed. The amended summons also contained reworked grounds. 3. The grounds relied upon in the original summons alleged, without particularisation, denials of procedural fairness in the course of the hearing. These were expanded upon in pars 2 and 4 in the amended summons. The complaints with respect to procedural unfairness, which may be characterised as jurisdictional error, arose from steps taken by the primary judge on his own initiative to have further material brought before the Court on the appeal in circumstances where the parties were agreed that the appeal be dealt with "on the papers", that is by reference to the material before the Children's Court. The mother had not sought to rely upon any further evidence on the appeal. 4. In addition, the amended summons contained two new grounds alleging "excess of jurisdiction". Ground 1, directed to the orders of 19 July 2018, alleged that "the Court below had not made the express findings required by subs [83(7)] before the power to make final care orders is enlivened." Ground 3, directed to the orders made on 29 June 2018, alleged that the Court did not have power in two respects, namely (1) to make care orders allocating parental responsibility under s 80(b) of the Act because the Court had not considered a "care plan" as required by s 80, and (2) to make final care orders under s 83(7) because it had not made "the express findings required by subs [83(7)] before the power to make final care orders is enlivened." [2] 5. At the hearing of the appeal, the father sought leave to file a further amended summons, which added a new ground 1A. The ground should be set out in full; it reads as follows: "1A The orders of the court below, made on 19 July 2018, were affected by jurisdictional error in that the Court below misapprehended or disregarded the nature of the Court's functions pursuant to s 91 of the Act. Particulars The Court below: (a) wrongly identified the 'threshold issue' as being whether the decision of the Children's Court of NSW was affected by an error; (b) gave primacy to the wrongly identified 'threshold issue' and not the paramount principles prescribed by s 9 of the Act; and (c) conceived its jurisdiction as requiring or permitting: (i) a determination of whether or not the Children's Court had erred; (ii) it to give primacy to whether or not the Children's Court had erred; (iii) it to reverse or vary the orders of the Children's Court on the ground that the Children's Court had erred." 1. On the application to amend counsel for the father said the new ground reflected submissions which had already been filed, but which the Secretary suggested raised a separate issue and which should be the subject of a fresh ground. There was a further amendment proposed, adding a new ground 5, which sought to raise the same particulars as those set out in ground 1A with respect the 29 June orders. The proposed amendments will stand or fall together. 2. The Court reserved its decision on the application, giving leave to Mr Boys (solicitor for the mother) to seek an opportunity to put on further submissions if, at the end of the day, he believed he was in some way prejudiced. He did not avail himself of that opportunity. 3. Whether the ground had substance is not easily resolved. It is true that, in the course of discussion with the legal representative of the father, the judge stated, on day four: [3] "HIS HONOUR: I don't know what it is that you need time to consider, because the threshold issue in the appeal is whether there is error on the face of the proceedings and the record and whether that error or those errors would more likely than not have resulted in a different outcome." 1. However, on day two, in the course of addressing the solicitor for the mother, the judge had stated: [4] "This is a hearing de novo, it's not limited to that which was tendered in the Children's Court and the discretions that I have to exercise are pursuant to the statutory provisions necessitate that it be carried out on the best evidence available. And in my view stale evidence is not the best evidence. Would you please consider that?" 1. What appears to have caused the judge to misstate the nature of the proceeding on the fourth day will become clearer from the history discussed below in dealing with the ground of procedural unfairness. Put briefly, the discussion on day three had envisaged an adjournment of the appeal to allow further evidence to be called. At the beginning of the hearing on day four, the judge reversed that position stating that "adjourning the proceedings for the purpose of further reports is in effect a [de] facto adjournment to shore up a flawed position". [5] In short, the view that the appeal might be determined by identifying error in the proceedings below appears to have occurred at the same time that the judge determined to go ahead with the hearing of the appeal. 2. The change in course may explain why the proceedings thereafter miscarried, as explained below. However, it is arguable that later in the proceedings, albeit in refusing applications for adjournments to allow updated evidence to be prepared, the judge correctly identified the need to be satisfied of relevant matters in order to make care orders which differed from those made by the magistrate. Statements made in later stages of the proceedings did not identify the need to establish error in the court below, but rather the need for the judge to be satisfied as to the proper outcome of the proceedings. 3. In these circumstances, the misdirection as to the nature of the proceedings is relevant to understanding how the proceedings resulted in procedural unfairness, as discussed below; there is no need to consider ground 1A as a separate matter and, accordingly, the better course is to refuse the proposed amendment of the summons to include new grounds 1A and 5. 4. It is convenient to deal first with grounds 1 and 3 dealing with the alleged failures to comply with jurisdictional requirements in the Act, which require consideration of the statutory scheme. Statutory scheme 1. There was a tendency in the submissions in this Court to address provisions of Ch 5, dealing with Children's Court proceedings, in isolation. However, the scope and operation of the provisions can only properly be understood when they are read in context and having careful regard to the structure of the chapter. 2. Chapter 5 has two parts; Pt 1 deals with "Emergency protection and assessment", while Pt 2 deals with "Care applications". 3. Part 2 commences with some definitions of key phrases: 60 Definitions In this Act: care application means an application for a care order. care order means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86 but does not include a parent capacity order. care proceedings means proceedings under this Chapter. 1. Section 61 provides that a care order may only be made on the application of the Secretary, "except as provided by this Chapter." The applicant accepts that the relevant exception is s 90 which provides that an application for "the rescission or variation of a care order" may be made by the Secretary, the child, a person having parental responsibility for the child and a person from whom parental responsibility has been removed: s 90(1) and (3). The term "parental responsibility" means "all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children": s 3(1), parental responsibility. 2. The procedure in the Children's Court is set out in Ch 6 of the Act, which reflects the principle articulated in s 9(1) that "in any action or decision concerning a particular child …, the safety, welfare and wellbeing of the child … are paramount." The particular powers and procedures of the Children's Court are found in ss 93, 106A and 107, which are set out below in addressing the complaints of procedural unfairness. 3. Provision is made for appeals to the District Court under s 91, which appears in Ch 5 and provides as follows: 91 Appeals (1) 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. (2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal. (3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings. (4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has under this Chapter or Chapter 6. (5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children's Court. (6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children's Court and has effect accordingly. (7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order. (8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter. 1. With this structural background, it is convenient to turn to the relevant provisions governing an application for rescission or variation under s 90: 90 Rescission and variation of care orders (1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court. (1A) Subject to any order the Children's Court may make, a person who makes an application under this section must give notice of the application to the persons who were parties to the proceedings in which the care order was made. Note. Section 256A sets out the circumstances in which the Children's Court may dispense with the requirement to give notice. (2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. (2A) Before granting leave to vary or rescind the care order, the Children's Court must take the following matters into consideration: (a) the nature of the application, and (b) the age of the child or young person, and (c) the length of time for which the child or young person has been in the care of the present carer, and (d) the plans for the child, and (e) whether the applicant has an arguable case, and (f) matters concerning the care and protection of the child or young person that are identified in: (i) a report under section 82, or (ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150. … (3A) If: (a) an application is made to the Children's Court by a person or persons (other than the Secretary) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and (b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and (c) the Secretary is not a party to the proceedings, the applicant must notify the Secretary of the application, and the Secretary is entitled to be a party to the application. … (5) If: (a) an application for variation of a care order is made or opposed by the Secretary, and (b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children's Court, the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order. (6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration: (a) the age of the child or young person, (b) the wishes of the child or young person and the weight to be given to those wishes, (c) the length of time the child or young person has been in the care of the present caregivers, (d) the strength of the child's or young person's attachments to the birth parents and the present caregivers, (e) the capacity of the birth parents to provide an adequate standard of care for the child or young person, (f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded. (7) If the Children's Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so: (a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and (b) if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person. 1. It will be recalled that the grounds of appeal relating to excess of jurisdiction relied upon failures to comply with jurisdictional requirements in ss 80 and 83(7). 2. Each of these sections imposes requirements on the Children's Court (and hence the District Court) in mandatory terms in respect of making "a final care order". It is convenient to deal first with s 83. It is necessary to set out the section in full: 83 Preparation of permanency plan (1) If the Secretary applies to the Children's Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Secretary must assess whether there is a realistic possibility of the child or young person being restored to his or her parents, having regard to: (a) the circumstances of the child or young person, and (b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care. (2) If the Secretary assesses that there is a realistic possibility of restoration, the Secretary is to prepare a permanency plan involving restoration and submit it to the Children's Court for its consideration. (3) If the Secretary assesses that there is not a realistic possibility of restoration, the Secretary is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children's Court for its consideration. (4) In preparing a plan under subsection (3), the Secretary must consider whether adoption is the preferred option for the child or young person. Note. See section 10A(3)(e) in relation to adoption of Aboriginal and Torres Strait Islander children and young persons. (5) The Children's Court is to decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration: (a) in the case of a child who is less than 2 years of age on the date the Children's Court makes an interim order allocating parental responsibility for the child to a person other than a parent—within 6 months after the Children's Court makes the interim order, and (b) in the case of a child or young person who is 2 or more years of age on the date the Children's Court makes an interim order allocating parental responsibility for the child or young person to a person other than a parent—within 12 months after the Children's Court makes the interim order. (5A) However, the Children's Court may, having regard to the circumstances of the case and if it considers it appropriate and in the best interests of the child or young person, decide, after the end of the applicable period referred to in subsection (5), whether or not there is a realistic possibility of restoration. (6) If the Children's Court does not accept the Secretary's assessment, it may direct the Secretary to prepare a different permanency plan. (7) The Children's Court must not make a final care order unless it expressly finds: (a) that permanency planning for the child or young person has been appropriately and adequately addressed, and (b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to: (i) the circumstances of the child or young person, and (ii) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care. (7A) For the purposes of subsection (7)(a), the permanency plan need not provide details as to the exact placement in the long term of the child or young person to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so the Court, prior to final orders being made, can have a reasonably clear plan as to the child's or young person's needs and how those needs are going to be met. (8) A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children's Court. (9) In this section, parent, in relation to the child or young person concerned, means: (a) the child's or young person's birth parent, or (b) if the child or young person has been adopted—the child's or young person's adoptive parent. 1. It may be seen that the various subsections in s 83 proceed in an orderly fashion, each separate step proceeding from a preceding step. Further, the section commences with a condition which appears to govern all that follows, namely that it applies "[i]f the Secretary applies … for a care order … for the removal of a child". The Secretary is then required to assess whether there is "a realistic possibility of the child … being restored to his or her parents": s 83(1). That assessment is described in subss (2) and (3) as whether or not there is a "realistic possibility of restoration", a shorthand term which clearly refers to restoration to the parents, as described in subs (1). The Children's Court must then decide whether or not to accept the Secretary's assessment: s 83(5). If it does not accept the Secretary's assessment, it has power to direct the Secretary to prepare "a different permanency plan": s 83(6). 2. The term "permanency planning" is defined in s 78A as "the making of a plan that aims to provide a child … with a stable placement that offers long-term security …": s 78A(1). The preparation of such a plan is provided for in s 83 and depends upon the realistic possibility of restoration. 3. Section 83(7) then requires express findings by the Court that "permanency planning … has been appropriately and adequately addressed" and if the plan involves restoration, that there is "a realistic possibility of restoration". These findings are mandatory before the Court makes a "final care order". 4. The internal structure of s 83 suggests that the concept of a "final care order" in s 83(7) is restricted to an order made where the Secretary has applied for the removal of a child from parental care. 5. More generally, care orders are either "interim" or "final": s 62. Apart from emergency protection orders made under Ch 5, Pt 1 (s 46) care orders are treated as "final" unless they are specified as "interim". Many provisions in Ch 5, Pt 2 apply to both kinds of orders. Some provisions, however, are more limited in their effects. Apart from s 90(3) (permitting persons other than the Secretary to apply for rescission or variation of a care order), the application for a care order is to be made by the Secretary. Accordingly, there is no reason to suppose that s 83(7) applies except to a final care order made on application of the Secretary and involving removal of a child from his or her parents. 6. The same reasoning applies with respect to s 80, which is in the following terms: 80 Requirement to consider care plan The Children's Court must not make a final order: (a) for the removal of a child from the care and protection of his or her parents, or (b) for the allocation of parental responsibility in respect of the child, unless it has considered a care plan presented to it by the Secretary or, in the case of an application for a guardianship order, by the applicant for the order. 1. Care plans generally are provided for under s 78 which commences: 78 Care plans (1) If the Secretary applies to the Children's Court for an order, not being an emergency protection order, for the removal of a child or young person from the care of his or her parents, the Secretary must present a care plan to the Children's Court before final orders are made. … 1. These provisions are consistent in referring to "a care plan presented to [the court] by the Secretary". This is consistent with the reading of s 83 set out above. 2. The amendment to the father's summons seeking to rely upon failure to comply with ss 80-83 appears to have resulted from submissions by the Secretary raising these issues. Upon examination, grounds 1 and 3 in the amended summons cannot be upheld; this not being an application by the Secretary seeking removal of the child, the provisions did not apply. It therefore remains to consider the issues arising from grounds 2 and 4 alleging procedural unfairness. Procedural unfairness (a) the claim 1. With respect to grounds 2 and 4, which related to orders made on both 29 June 2018 and 19 July 2018, the procedural unfairness was particularised as follows: "Particulars In the circumstances that (a) the proceedings below had been prepared and were commenced on the basis that the evidence given in the Children's Court by Michael Anthony Horton [Hawton] would be received as evidence before the District Court and he would not be cross examined, (b) the Court itself decided to call Mr Horton [Hawton] on relatively short notice and to cross-examine him, (c) the father was thereby deprived of being able to rely on Mr Horton's [Hawton's] evidence in the Children's Court as not being challenged by additional cross-examination in the District Court and, in particular, became unable to rely on his conclusion that parental responsibility for the child the subject of the proceedings should be allocated to him (the applicant), (d) the Secretary of the Department of Family and Community Services and the mother were permitted to file further evidence after the hearing below had commenced, and (e) the Court below began taking oral evidence when it had earlier indicated that it would adjourn the proceedings to enable the preparation of a new Clinician's report, the Court below should have adjourned the proceedings so as to allow the applicant to prepare to examine Mr Horton [Hawton] and cross-examine the other new witnesses and so as to allow the father an opportunity to obtain evidence (including expert evidence in lieu of the evidence of Mr Horton [Hawton]) responsive to the changed circumstances. (b) relevant statutory provisions 1. Before turning to the procedural steps taken in the course of the trial, it is convenient to identify the procedural provisions in the Act which govern the manner in which a trial in the Children's Court, and hence in the District Court, is to be conducted. 93 General nature of proceedings (1) Proceedings before the Children's Court are not to be conducted in an adversarial manner. (2) Proceedings before the Children's Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit. (3 The Children's Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children's Court determines that the rules of evidence, or such of those rules as are specified by the Children's Court, are to apply to those proceedings or parts. (4) In any proceedings before the Children's Court, the standard of proof is proof on the balance of probabilities. (5) Without limiting subsection (4), any requirement under this Act that the Children's Court be satisfied as to a particular matter is a requirement that the Children's Court be satisfied on the balance of probabilities. … 106A Admissibility of certain other evidence (1) The Children's Court must admit in proceedings before it any evidence adduced that a parent or primary care-giver of a child or young person the subject of a care application: (a) is a person: (i) from whose care and protection a child or young person was previously removed by a court under this Act …, and (ii) to whose care and protection the child or young person has not been restored, … (2) Evidence adduced under subsection (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection. (3) A parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2) by satisfying the Children's Court that, on the balance of probabilities: (a) the circumstances that gave rise to the previous removal of the child or young person concerned no longer exist, …. (4) This section has effect despite section 93 and despite anything to the contrary in the Evidence Act 1995. … 107 Examination and cross-examination of witnesses (1) Extent of examination and cross-examination A Children's Magistrate may examine and cross-examine a witness in any proceedings to such extent as the Children's Magistrate thinks proper for the purpose of eliciting information relevant to the exercise of the Children's Court's powers. 1. No party submitted that they need not be accorded procedural fairness. However, the manner of conducting the proceedings may properly involve degrees of informality, and the consideration of material, which would not occur in ordinary civil proceedings. It is also necessary to address what is meant by s 93(1) stating, in mandatory form, that proceedings "are not to be conducted in an adversarial manner." These are matters which may affect the content of procedural fairness. 2. On one view, the language of s 93(1) is simply descriptive of the following matters set out in s 93. Thus, in Re Henry; JL v Secretary, Department of Family and Community Services [6] McColl JA stated, "[p]roceedings before the Children's Court are not to be conducted in an adversarial manner, but, rather, with as little formality and legal technicality and form as the circumstances of the case permit". 3. There is, however, reason to give s 93(1) a broader effect. Although provisions purporting to remove "formality and legal technicality" and to relieve a court or tribunal from compliance with the rules of evidence are commonplace, [7] the requirement that proceedings not be conducted "in an adversarial manner" is uncommon. Examples may be found in the Mental Health (Forensic Provisions) Act 1990 (NSW), s 12(2) (dealing with an inquiry into the question of a person's fitness to be tried) and in the Crimes (Administration of Sentences) Act 1999 (NSW), Sch 1,cl 11(4)(b) (dealing with hearings before the parole authority). An earlier example may be found in the Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 37(1) (dealing with employment decisions in the Public Service). 4. Two further factors should be taken into account. First, a non-adversarial proceeding would, in ordinary parlance, connote something different from the removal of forms and technicalities. Secondly, the mandatory language suggests that s 93(1) is not merely a descriptive provision, but one which imposes obligations. It may be directed to the presiding judicial officer, or to the parties, or to both. In Re June (No 2) [8] McDougall J, referring to the submissions made on behalf of the Director-General before the Children's Court, stated: "[36] Reading Mr Dalla's submissions in their entirety, I have the very strong impression that his attitude was adversarial and partisan. It does not seem to have occurred to anyone that, under s 9(1) of the Care and Protection Act, the paramount concern was June's safety, welfare and wellbeing. Nor, it seems, was anyone's attention focused on s 93(1) of the Care and Protection Act: '[p]roceedings before the [Children's] Court are not to be conducted in an adversarial manner'. [37] The transcript conveys the very strong impression that Mr Dalla regarded the application as adversarial litigation, and (inappropriately) conducted it accordingly. I do accept however that transcript is, at best, an imperfect medium for assessing the way in which proceedings were conducted." 1. On this approach, the purpose of providing that the proceedings are not to be conducted in an adversarial manner is to give effect to the principle that it is the child's safety, welfare and wellbeing which are of paramount importance, as provided in s 9(1). Not only would adversarial proceedings, pitting the parents against each other or against another carer, not promote the paramount interests of the child; they may actually harm the child by poisoning future relationships between parties who will continue to maintain contact with the child, in a mutual endeavour for the child's wellbeing. The risks to ongoing relationships if proceedings are conducted in an adversarial manner are self-evident and well understood by all parties concerned. 2. Further, adversarial proceedings are commonly contrasted with inquisitorial proceedings. As commonly understood, the point of contrast is that an adversarial proceeding is controlled by the parties, with limited input from the court, whilst an inquisitorial proceeding reverses the element of primary control. Whether or not that meaning is to be found in s 93(1), it is reflected in s 107(1). The purpose of permitting a judicial officer to "examine and cross-examine a witness" is to allow the officer to be more involved in the adducing of evidence than is the case in an adversary trial. In the absence of argument to the contrary as to the scope of s 107(1), it may be assumed that this power extends to the judicial officer calling the witness in order to allow questioning. That, in effect, occurred in the present case, but was not for that reason beyond power. 3. While it may be said that the principal focus of care proceedings is the safety, welfare and wellbeing of the child, that is not to deny that the parents, the Secretary and, so far as practicable, the child are entitled to be heard and to participate in the proceedings. Accommodating those interests requires compliance with the requirements of procedural fairness to each. Although the content of procedural fairness may, in particular circumstances, need to adapt to the function of the jurisdiction being exercised, the claim by the father, supported by the Secretary and the independent legal representative for the child, was that the proceedings in the District Court failed to comply with the basic elements of procedural fairness. 4. With these principles in mind, it is convenient to turn to the procedural steps taken in the appeal in the District Court. (c) procedural steps in District Court 1. Two matters may be noted before reviewing the procedures adopted in the District Court. First, although the account set out below depends entirely upon a review of the transcripts, not all of the transcript was provided to this Court. However, no party suggested that any material aspect of the hearings had been omitted. 2. The second point to note is that the mother was represented in the District Court by a solicitor, Mr Boys, who also appeared for her in this Court. At one stage, on the fourth day, Mr Boys stated: [9] "Your Honour, [apropos] the Sydney adjournment I have to inform the Court I'm acting on a pro bono basis, there's no grant of legal aid, my client's on a disability support pension …." 1. Whether acting pro bono or not, as will be apparent shortly, Mr Boys sought to run the mother's case on a flawed basis which caused the judge to take steps which, no doubt, he would not otherwise have taken. Mr Boys continued to represent the mother in this Court. Although Mr Boys filed appropriate written submissions, he was unable or unwilling to engage orally with the difficulties raised by the case he sought to resist. He advised the Court that he was in receipt of legal aid, but said that legal aid had not been sought for counsel. Given that the other parties, all of whom sought to challenge the proceedings in the District Court, had legal representation, the independent legal representative for the child and the father being in receipt of legal aid, it is difficult to believe that legal aid would not have been available to brief counsel for the mother, had it been sought. The proceedings in the District Court commenced on 28 May 2018. Proceedings were opened by counsel for the Secretary (Ms Mahony) who noted that a psychologist, Mr Michael Hawton, had been appointed to undertake an assessment for the Children's Court. Counsel concluded her opening with the following statement: [10] "There's been an amended summons filed on 25 January 2018 and a further amended summons filed 8 March 2018 and I'm sure that my friend Mr Boys will address your Honour on this but the appeal to your Honour really seems to reflect upon the manner in which the children's clinician conducted himself in the assessment process with the effect that the outcome was unjust and unfair to the mother and wrongly disadvantaged the mother with respect to the case brought by my friend for the mother. There's simply no evidence in the material before your Honour that have been filed in these proceedings that provides any updated material as to the mother's current situation." 1. Upon hearing that there was to be a challenge to Mr Hawton's report, the judge was taken to the report and the following exchange occurred with Ms Mahony: [11] "HIS HONOUR: So he's a psychologist. Yes I understand he's required for cross-examination is that – MAHONY: No he's not. HIS HONOUR: That's changed, good. MAHONY: Yes it's been indicated that no one is required for cross-examination by the mother. HIS HONOUR: So can you just give me a short précis of who will be giving evidence? … MAHONY: No-one will be giving evidence. The way that it's been foreshadowed what will occur is that the tender bundle that's just been handed up and given an exhibit number contains the evidence in the proceedings including the evidence, the transcript of evidence below which really allows for all the cross-examination on the initial affidavits. There's simply – at least in the mother's case – no further evidence that updates the Court as to what she is doing, where she's living, who she's seeing, what her supports are. The father's affidavit provides the Court an update as to his situation as well as how the children has been proceeding in his care for over twelve months. … … We have been provided today [with] a copy of his recent school report which suggests that while he has some areas that he's not as advanced in academically, he is travelling well at school. And his behaviour has settled at school." 1. The child's independent legal representative and the father's representative adopted the same position as the Secretary. However, when Ms Fawaz, appearing for the father, sought to tender the school report Mr Boys objected. The following exchange then took place: [12] "BOYS: Your Honour, the basis of the application is the whole appeal revolves around the clinician's report. Everything beyond there assists the father. And if he hadn't of been put in that position by his sister filing a false affidavit the child could very well have been with the mother. We've got no idea what the clinician would have said if she had of believed [the mother] and had of not believed anything. HIS HONOUR: I understand that argument, but this report deals with factual matters, don't I have to consider those? BOYS: No, your Honour. We're saying factual matters – HIS HONOUR: You can't turn a blind eye to the facts. BOYS: Well your Honour the Department did. They didn't provide a letter from Dr Wright to the clinician. They suppressed evidence and they basically supported [the aunt's] lies in her affidavit that she never said it. She was never molested by [the child's paternal grandfather]. When we provided evidence and facts they suppressed them. … Our entire appeal revolves around that the mother was absolutely sabotaged by the father with the assistance of the Department and the children's lawyer and a wrongdoer was going to benefit by an advantage by deception. That's how our entire appeal – not whether he would have been better in the mother's care or the father's care. It's a case of would this whole case have revolved around one thing and that is the clinician's report which we say was corrupted. That is our appeal. HIS HONOUR: Well just pausing you Mr Boys. I understand the flavour of what you're saying. But it seems to me that that position ignores completely the Court's preoccupation with the issue that the paramount best interests of the child which requires a full and not selective appreciation of the facts by whatever means they were generated. Can I also say that some of the matters you have touched upon colourfully, raise credit issues for which there must be evidence. If you are making credit challenges to any person who has taken part in the process that has led to decisions then surely these are matters that you put to those who are required to receive procedural fairness. BOYS: Your Honour, the document speaks for itself. [The mother] put in an affidavit that said [the aunt] said that she was molested and the whole family knew. She put in a rebuttal statement and then we subpoenaed Dr Wright's evidence and it wasn't allowed into evidence. …. HIS HONOUR: Well I appreciate that the context of this appeal is that it should be conducted with as little legal technicality and formality as possible, including the need to avoid obsessive adherence to the rules of evidence which do serve a purpose. However, much of what you're saying raises issues that make it surprising in my view that no oral evidence has been called in this appeal. BOYS: Well, your Honour, again we're asking the clinician to go back upon his own report. He's taken a position that she was lying and the father was totally honest and immediate removal. … HIS HONOUR: Just pausing there. If you expect me to unravel this, you want me to do it on the papers without considering the evidence of important witnesses." 1. The matter was then adjourned so that the judge had an opportunity to read the documents in the bundle. On the morning of day two, the judge advised the parties that he had read much of the material and there was "a matter that's causing me some disquiet if not alarm". [13] Revisiting the problem he had identified the previous day, the judge stated: [14] "In that framework I consider it essential that Mr Horton [Hawton] attend to give evidence and if no party wishes to put the question to him, I will. … So the first thing I will need to be told what were the circumstances that led to his non-attendance, to being excused from attending and the second question I want addressed is when can he get here." 1. Counsel for the Secretary informed the judge that Mr Hawton could attend the following day. The judge then required that he be given a copy of Dr Wright's letter of 20 March 2012 concerning the aunt. [15] 2. Despite aspects of Mr Boys' submissions in the District Court, the allegation of child abuse by the paternal grandfather with respect to his step-daughter (the child's aunt) was neither novel nor unknown at the time of the hearing before the Children's Court. The information had been brought to the attention of the Department in January 2016. The information was sourced to a report prepared by a psychiatrist, Dr Wright, dated 20 March 2012. Dr Wright had interviewed the aunt on 15 March 2012. The report contained a brief reference recording the history provided by the aunt: "She said that she had been sexually abused by her stepfather from an early age (precise age unknown) until she left home at 14. … Her stepfather was described as insane. He was not violent to her but did threaten her." 1. At the time of the consultation with Dr Wright, the aunt was more than 45 years of age. It follows that the unspecified sexual abuse had occurred more than 30 years earlier when she was a young girl. The age of the paternal grandfather is not revealed, but he must now be in his 70s. In January 2016 a caseworker from the Department had spoken to the child's aunt and recorded the following conversation in a file note: [16] "[The aunt] advised me that she held no concerns for [the child] visiting her stepfather for respite whether supervised or unsupervised. She stated that she had 'heard the allegations' … that her stepfather … had sexually abused her as a child. She denied the allegations and stated that she was confused as to why someone would say this." The aunt swore an affidavit denying the truth of the allegations. 1. Mr Hawton had been aware of the allegation, as well as the aunt's denial when he prepared his report. He had been questioned about it at the hearing in the Children's Court. 2. Returning to the history of the proceedings in the District Court, the third day may be summarised briefly. Counsel for the Secretary, having inferred that the judge was concerned about the steps taken by the Department to investigate the historical (and denied) allegation of child abuse by the paternal grandfather, provided an affidavit to the Court setting out the steps taken prior to the preparation of Mr Hawton's report. She then suggested as a possible course that the matter be adjourned and there be a referral for a further clinical report, a process she said would take approximately three months. The judge noted that there should be "sufficient time for the mother to not only consider the implications, but also gather evidence if required in response." [17] 3. With respect to the affidavit proffered by the Secretary, the mother's solicitor stated that "[w]e totally and utterly object to that affidavit." He was reprimanded by the judge for colourful and unhelpful submissions. The judge stated: [18] "These are serious proceedings involving the welfare of a child. Adversarial positions, whilst understandable in the dynamics of the relationship with [the mother and the father], they do not assist the Court on the real issues." 1. There was then discussion as to whether Mr Hawton would give evidence on that day, Ms Mahony stating that that was not proposed. The judge appeared to adopt that position: [19] "If it's established that the matter that I've summarised as ground 1, which is that the hearing miscarried because of a decision of the magistrate to exclude a relevant line of questioning and related evidence directed the proceedings down a particular path, then it becomes unnecessary it seems to deal with any other ground of appeal because the other matters follow in large part. On that view if the parties were in a position to consent, a practical course could be to allow the appeal, order fresh assessments and care plans and of course the interim arrangements for the care of the child would have to be either the subject of agreement or orders." In the end, Mr Hawton was excused and the parties adjourned on the basis that interim arrangements would need to be made for the child. [20] 1. At the commencement of the hearing on the fourth day the judge expressed a different position in the following terms: [21] "HIS HONOUR: This matter has caused me some anxious moments overnight. I just want to raise a matter with the parties. Where we left it was consideration was being given to standing the matter over part heard for assessments and reports to be obtained along with interim arrangements which have not been the subject of agreement. However, it occurs to me that the way the proceedings have gone thus far, arguable patent errors have been identified, which if followed to conclusion would result in the appeal being determined. Now, obviously that's a provisional view, but it seems to me that an approach that follows the path of adjourning the proceedings for the purpose of further reports is in effect a [de] facto adjournment to shore up a flawed position, so I now want to hear the parties on the question of why I should not simply proceed to determine the appeal on the evidence relied on by the parties, this being, in my view, in the apparent paramount best interests of the child rather than incurring further delays and uncertainties which could have a damaging effect." 1. The judge then adjourned for the parties to take instructions. The father's solicitor sought an opportunity to respond. Counsel for the Secretary then noted that if there were no further report to be obtained, it would be necessary to hear from the caseworker, who had prepared the affidavit, the mother, the father and the clinician. The judge then stated: [22] "HIS HONOUR: I don't know that's the correct way to proceed, because initially the appeal was going to be decided on the papers that were before the Children's Court and the question I raised was whether the material which I take from Mr Boys' position should have been put before the Children's Court, it wasn't, if read by the clinician it would change his opinion. That's a fairly simple matter. MAHONY: But that's not the end of the question, because the Court still needs to turn its own mind, the Court may well be guided by the Children's Court clinician's view amended or not amended for whatever reason. HIS HONOUR: Well, if you want to go down that path, I'm in the hands of the parties, but on my reading of the clinician's report it contains a number of speculative propositions which if he's here will be tested. … MAHONY: … What this Court needs to do is look at the mother's situation presently, look at the father's situation presently and within those considerations take into account what is in the best interests of the child. Now in the absence of any updating information from the mother there was not even evidence as to where she was residing. There was zip information put before this Court. On that basis this Court could never have with respect to how Mr Boys' determined to run this application, could never have succeeded on his appeal to the extent that the Court could be satisfied that it is in [the child's] best interests to be removed from his current arrangements and placed with his mother where there is simply nothing known about her at the present time. That was a decision Mr Boys opted to take. He did not want to cross-examine one person. He did not want anyone available for cross-examination, including the children's clinician and even on Monday he did not want to –. HIS HONOUR: I'm aware of all that. These proceedings, however, are inquisitorial, not adversarial, so whatever forensic decisions he made are still matters that are the subject to the view I take of the evidence." 1. The mother was then called and her evidence continued for the rest of that day and throughout day five. 2. Mr Hawton was called by the trial judge on day six. The judge advised Mr Hawton that he was "not a witness for any party but a witness for the Court". [23] The judge then sought access to the "assessment order" which he treated as the equivalent to a letter of instructions. Mr Hawton could not remember whether he had received "any other commissioning communications". [24] Questioning by the Court then continued: "Q. Can I take you to the content of your report generally and in particular to the matter of your consideration of the affidavit of [the aunt] dated 12 February 2016 and I think to summarise you can assume that that affidavit abjectly denies any assertion of [the aunt] having been sexually abused by her stepfather who is the stepfather of [the father] who's involved in these proceedings …? A. That's what I read, your Honour, and that's why I relied on that in my report to indicate that that had been denied." … [The judge read the substance of Dr Wright's letter to the witness and continued:] "Q. You've had an opportunity of considering what clearly amounts to a history provided by [the aunt]? A. Yes, your Honour. Q. In the process of evaluating the material you had for the purpose of presenting your report the way I read your report you discounted the assertion that [the aunt] had been the subject of sexual abuse because of her denial in her affidavit and the absence of other material on that subject. Is that a fair summary? A. My assessment was to give an opinion about – Q. If you could address my question. Am I correct in assuming that you discounted the allegation of sexual abuse of [the aunt] because you had before you an affidavit from her that denied any such abuse? A. Do I have to give a yes or no answer? Q. If you can. A. My assessment was to determine which of the parents would be a suitable – Q. I understand all that. I'm just coming to this focal point in the evidence so I'm going to take you back to my question. I need to know whether my impression on reading your report is correct, that you discounted the allegation of sexual abuse of [the aunt] by her stepfather because she had prepared an affidavit which denied that matter? A. Your Honour, I wasn't making an assessment of the – Q. I understand that, but this was a relevant circumstance that was to be considered by you as you understand, correct? A. Yes. Your Honour it wasn't a weighty issue in weighing up whether one parent would be more suitable than the other. Q. I understand that aspect of it, but in a case where the placement of the child is the matter at issue and where the father has a stepfather who would have access to the child an allegation of sexual abuse by the stepfather to one of his own stepchildren would be a relevant issue on if nothing else then the risk of harm, would it not? A. It would be, your Honour. Q. So coming back to my question, am I correct in assuming that by reason of the denial of allegations of sexual abuse by [the aunt] in her affidavit you discounted the allegation that she had been sexually abused? A. Discounted – I didn't give it considerable weight, your Honour. Q. In my view that's the same as discounted if we're having an argument about semantics, that's the resolution of it. A. Yes." 1. After further questions the judge seemed satisfied that the allegation was a matter which the psychologist "would have regarded as significant and worthy of consideration". The questioning then continued: [25] "Q. I want to go to a different subject which is the overall assessment you made. I get the impression from hearing the parties and from one reading of your report that you approached the assessment of the suitability of the father and the suitability of the mother in slightly different ways, in that the father had contact with the child the mother didn't have, more time was spent by you with the father than with the mother and some of the interview with the mother was conducted by telephone. I'm not making a suggestion to you that you treated them unequally, I'm wanting to address the question of whether you consider you treated them equally. Counsel for the Secretary objected to the question. The objection was rejected and the questioning continued. 1. The judge then took the witness to the father's criminal record, which involved the growing of cannabis and manufacture of drugs. The following exchange occurred: [26] "Q. Were you aware that he was a drug dealer who was in fact [the mother's] drug dealer before they met? MAHONY: Your Honour, I take an objection because that's being put to the witness as if it's [a] fact, at this point it is simply an assertion by the mother which is denied by the father, it has to be put within that context. HIS HONOUR: Yes, well we haven't got to that yet, but I am putting this matter that arose from the mother's evidence to this witness for his consideration to see whether he was aware of it. MAHONY: But it's done within the context of a proven criminal record, which is an unfair – the way it comes out does not represent – with all due respect, it doesn't represent that that's how it's being put. It's not being put, can you assume that the mother has made this allegation. It's being put within the context of a criminal record. HIS HONOUR: Well, I'll clarify it, I see your point." The fact that the judge thought it appropriate to put the mother's evidence to the psychologist, before the father had given evidence, was to lead to further difficulties in the course of Mr Hawton's evidence. 1. After what can only be described as continued cross-examination, the following exchange took place, interrupted by the father's lawyer: "Q. – you there record [the father's] description of him having had a normal upbringing? … A. Your Honour, that is his verbatim – his verbatim account. Q. So if, for example, there was an assumption that needed to be added to that description, which he as a young man found his stepfather naked with his stepsister which then caused a family trauma, would that be a relevant matter? FAWAZ: Your Honour, I object. HIS HONOUR: Why do you object? FAWAZ: Because the matters that you've just raised, your Honour, in terms of putting an assumption to the clinician, are disputed by the father. HIS HONOUR: I understand, but they've been raised and this witness is here. The disadvantage of the circumstance is that your client has not yet given evidence because of the timing, but I do want to know what this witness' view of that is because it will feature at some stage in the consideration and he's here now and I'd rather not be inconvenienced by coming later to address it when your client's finished giving evidence. FAWAZ: I hear what your Honour is saying, however, my client has not given evidence and you Honour, if he had given evidence, your Honour could also put the proposition to the clinician in terms of what his evidence – HIS HONOUR: Yes, but I'm asking it in a general term as to whether it's a matter of interest to him, I'm not asking him to express an opinion on it." 1. The judge then returned to the question of Mr Hawton's assessment of the mother and asked: "Q. My reading of those paragraphs gives me the impression that it was your opinion that [the mother] had not yet resolved her childhood traumas, is that correct or not? A. Three people have said, that your Honour. Q. No, please don't divert from the question. A. Yes, your Honour, that's correct. Q. Does that of itself mean that she would be unsuitable to undertake parental responsibility for her child? A. Your Honour, the Department, in its terms of reference – Q. Can you firstly tell me whether you can answer my question, yes or no? A. Possibly." 1. The judge cross-examined the psychologist as to why he had expressed an opinion in his report which referred to other expert texts, copies of which had not been annexed. It was put to him that the rules relating to expert witnesses required that "any literature or other materials utilised in support of the opinions" should be attached. He was asked why he had not attached it. The judge continued: [27] "Q. I'm asking if there's any reason why you didn't attach it other than the time constraints? A. I am subject to cross-examination and I can provide opinion at that point. Q. Yes, but of course that might put the cross-examiner at somewhat of a disadvantage if he doesn't have – A. I'd be happy to explain it, your Honour. Q. Well that may be. On the subject of whether or not the child is subjected to the circumstances of high drama and whether this might have an adverse effect on his development it would seem to be a past issue in the sense that the parents who together apparently produced this high drama are no longer together, would you agree with that formulation? A. I think this is a moot point. If the mother had unresolved trauma, and again we only have the evidence from the father that she presented as quite volatile around the child, but if the mother, as a result of the trauma, had a personality that was explosive or if she behaved in a way around the child that was not coping well with frustration, then the child would be affected by that. Q. You do understand, of course, the need to avoid speculating on those matters. You need to indicate whether or not you're able to express a concrete opinion? A. In my report I am aware that there was conflict between the parents, that is correct. Whether an individual would present like that under stress to a child of course is an important issue to know about but given the traumatic background of the mother it's possible." 1. The judge took Mr Hawton to the father's criminal record and asked if these were "matters relevant to know when you were making your assessment". [28] He agreed that he would have noted it in his report had it been available to him. The judge had continued: "Q. In your report, I'm not suggesting you did this deliberately, but the impression I get is that [the father's] criminal history was downplayed somewhat in the description, for example, you refer to him as being no angel, do you recall that expression? A. I do, your Honour yes. Q. In light of this history it seems to be a bit of a understatement, your summary would you agree with that? A. Your Honour, I wasn't aware of that information. Q. Would you agree with the proposition in my question? A. In – but your Honour, you're asking me to comment on something I didn't know beforehand. Q. Yes, in light on [of] this material would you agree – A. Yes. Q. – that is, … would you agree that your description – A. I would have treated it more – with more weight, your Honour, yes. Q. No, my question is would you agree that the description no angel seems to be an understatement? A, Yes, your Honour." 1. Following his questioning, the judge invited anyone else at the bar table to question Mr Hawton. The solicitor for the mother responded: [29] "BOYS: Before we start, this is the mother's appeal and she didn't want the clinician in here for the very reason which you've heard in the last hour. Is there really any benefit for four practitioners to ask – he hasn't resolved [resiled?] from his report, your Honour. I'm just curious – HIS HONOUR: You want to stop those at the bar table asking Mr Horton [Hawton] questions? BOYS: I most certainly do and including myself. I knew what would happen and …" The objection was overruled. 1. Ms Fawaz took Mr Hawton back to the criminal record and noted that two charges in 1981 had resulted in discharges and two other matters had been committed for trial but, Ms Fawaz explained, the father would "give this evidence, but it's his instructions that they never went anywhere." [30] The judge agreed to "clear it up" and told the witness that he had referred to "a number of sexual offences, sexual intercourse without consent, carnal knowledge, attempted sexual intercourse and indecent assault" which had not resulted in convictions. The judge then asked Ms Fawaz if that was "satisfactory to you", to which she replied, "Yes, but it is noting [noteworthy?] that they were 30 odd years ago." [31] 2. Ms Fawaz then sought to show the witness a psychological assessment report from Griffith University Hospital with respect to a brain injury suffered by the father. Mr Hawton said that the report had not been provided to him. He was asked to look at the document, without objection, but the judge intervened and the following exchange took place: [32] "HIS HONOUR: Ms Fawaz, are you going to ask him to express a different opinion based on the assumptions in this document? FAWAZ: No, your Honour, I'm seeking to tender that document through [the father] when [the father] gives evidence, but [the father] hasn't been able to give evidence, so I haven't been able to do that at this point. HIS HONOUR: Yes, well is there any utility in asking this witness to consider it, other than on the question of whether it was a material consideration to the matters he was inquiring into at the time he prepared his report? … HIS HONOUR: This is something that should be the subject of a supplementary report, if not by this witness, then someone on whom you rely. It's a bit unfair to give a document to the witness in the witness box, no one else in the courtroom has a copy, and then ask for the expression of opinion when no one has had a chance to absorb it." 1. The judge allowed the witness to read the document, which had formed part of the leave application in the Children's Court which preceded the commencement of the care application. Although no objection had been taken, the judge declared that the process was "very unfair, the parties should have an opportunity to examine it and to determine what forensic manoeuvres, if any, would follow." [33] The judge noted that this was "the very things to which the rules are directed", apparently referring to rules relating to exchange of expert reports which apply in civil trials. 2. In the end, the judge refused to permit Ms Fawaz to ask questions of Mr Hawton in relation to the document, although no objection had been taken, other than Mr Boys' objection to anyone asking any questions at all. [34] 3. Ms Fawaz then sought to show the witness the school report which had become Exhibit A. [35] The judge intervened: [36] "HIS HONOUR: It should have been the subject of a supplementary report. We can't have these alfresco opinions coming from the witness box. We contest existing opinions but to form opinions on the run like this is unacceptable because it creates inherent unfairness to affected parties. It's forensically unjustified. FAWAZ: Well, perhaps if I could ask the question and then if I could – HIS HONOUR: The matters you want to raise through the school report being tendered are matters for submissions, but it's completely unfair to get this opinion evidence in this way that affects a party that's unable to respond in the same way. I don't think I need to explain that any further. I disallow the question. FAWAZ: Q. Assuming that [the child] is doing very, very settled – BOYS: Same objection, your Honour. HIS HONOUR: Ms Fawaz, isn't this the dynamic here, that these opinions were thrashed about in the Children's Court, finite opinions were expressed, they are a matter of record, the appellant is pursuing her right of appeal to have those materials re-examined for the persuasive merit. Yes, additional assumptions were put to the witness on the particular matter of the content of Dr Wright's report because it's relevant to a fact in issue. The purpose of that was to determine whether or not that material would have made any difference to the analysis. The answer has been given. What you're seeking to do here is an entirely different exercise." 1. Ms Fawaz sought to support her line of questioning on the basis that it went to the long-term impacts for the child if removed from a parent and placed in another placement. The judge rejected questions going to that issue as being "fundamentally unfair." [37] The exchange changed direction: "HIS HONOUR: Are you asking for an adjournment so you can get an expert opinion? FAWAZ: That was put to my client on Monday and that was agreed to by him. HIS HONOUR: What was agreed to? FAWAZ: That there be a further assessment in terms of [the child]. HIS HONOUR: That was a complication that arose in the proceedings when the issues then apparent were given focus, but the overall picture is that this is a case that needs to be decided urgently in the best interests of the child because of the bickering that's being going on between the parents. Not only has that got to stop but the cause for it has to stop and that means that I have to determine this case as quickly as possible in the child's best interests. If there's fallout from that along the way as a result of forensic decisions made then so be it. I'm not going to allow this line of questioning." 1. Ms Fawaz then sought to explore Mr Hawton's opinion that the mother became "disassociated when discussing her past trauma." [38] The witness gave an opinion and the judge intervened: "HIS HONOUR: Q. So when you say, 'may have,' you're there raising a proposition rather than an opinion? A. Your Honour, being repeatedly raped when you're eleven years old, in my opinion, could not go along without having some effect. [The mother] indicated herself that she spent most of her twenties and thirties using drugs and alcohol to numb the pain of the trauma that she had experienced." 1. The questioning by the judge continued for a further five questions and answers. Ms Fawaz asked a further question [39] which was not answered, the judge taking over and asking a further series of questions which resulted in Ms Fawaz objecting. The intervention was unsuccessful; the judge continued to ask questions. [40] A further 15 questions were asked by the judge and answered by the witness. Ms Fawaz then asked a further question which led the judge to intervene again saying "Ms Fawaz, I'm not going to disallow your question. I'm just going to add something to the end of it." Ms Fawaz persisted for several more pages of the transcript, although of the next 13 questions, the judge asked eight. 2. Following the conclusion of Mr Hawton's evidence, Ms Fawaz made an application in the following terms: [41] "FAWAZ: Having heard Mr Hawton's evidence today in respect of the whole of the matter and his recommendations towards the end of his evidence in terms of what he considered might be appropriate in this matter, that is, a new report or a fresh report in respect of – from a clinician, to address some of the matters which were raised …. Given what Mr Hawton said, it's my submission your Honour, it's my application that the matter be adjourned for a fresh clinic report and if the other parties or your Honour considered that a change of residence was something that the Court needed to determine this week, perhaps that matter could be – an interim hearing could be heard tomorrow before this Court and [the father] could give evidence in respect of that only in terms of his current circumstances and to respond to some of the matters [the mother] raised yesterday. … HIS HONOUR: Ms Fawaz, I'll hear from all the other parties in a moment, but I must say that this application arises in very unusual circumstances where the parties have chosen to advocate their interests on the evidence that has been presented and although your application seems to be based on Mr Hawton's latter expressed views from the witness box, I discerned that he was speaking in an ideal world rather than the factual circumstances of this case. I'll give this matter some thought, but one of the options apart from simply acceding to your application is to consider it again in its proper factual context at the conclusion of the evidence that's available and I think that's probably a better circumstance where I could be better informed as to the true polarisation of the positions in the evidence …. The other option is to simply recognise that the parties have chosen to approach the matter as they have and therefore the appeal should be determined as a matter of urgency in the best interests of the child." 1. Mr Boys (for the mother) strenuously opposed the application. The independent legal representative supported the application on the basis that Mr Hawton had not been able to answer critical questions as to the current circumstances, rather "he said you need a new clinic report." [42] He submitted that there was no unacceptable risk of harm in the child being in either parent's care. He supported the view that there should be further expert evidence. In response the judge remarked that: "It would have been good to have it well before now. I'm really surprised the parties chose the course they have. The question that's exercising my mind is why shouldn't the matter proceed according to the course the parties have mapped, just because it has become inconvenient or difficult for them during the course of the hearing doesn't mean that the child's paramount best interests aren't best served by this matter being taken to finality as soon as practicable." 1. Ms Mahony then revisited the course the trial had taken, very much in accordance with the description set out above. At one point in the discussion the following exchange took place: [43] "HIS HONOUR: Well some circuit breaker is required and I don't know that an adjournment would be one of them. MAHONY: An adjournment, your Honour, is going to allow the parties to actually get actual information about what [the mother] is doing, and the support she is getting in the community, as well as increase her contact so that she has more than three hours a fortnight unsupervised contact, so it could progress to overnight contact for example. HIS HONOUR: It begs the question as to why this hasn't happened until now?" 1. The judge effectively rejected the applications for adjournment but stated that he would "review that decision after [he had] heard the father's evidence." [44] The father was then called and gave evidence for the remainder of day six, day seven and day eight, subject to the interposition of the caseworker on day seven. 2. Ms Fawaz repeated her application for an adjournment to provide a further clinical report to update Mr Hawton's report of 8 July 2016. The application was not a formality; it was fully argued. The flavour of the application and the judge's conclusion may be derived from the following exchanges: [45] "HIS HONOUR: Ms Fawaz, these proceedings are not punitive. They are entirely focused on the child and his needs. Now, one of the things I have to take into account in dealing with your application is whether there is going to be a reasonable opportunity for a useful assessment along the lines you suggest, where it's going to be inherently skewed by the fact that the child continues to live with the father, so that the mother's position can't be addressed on a like basis, and once that's recognised it calls into question the utility of what you seek, because at the end of the day, any clinician approaching this task is going to have to say, I don't know what the mother's situation will be, and ultimately it's a matter for the Court and I just have to do the best I can. FAWAZ: Yes, your Honour. But just – I won't keep going over old ground – but in terms of that, your Honour, … that is Mr Boys' case, that, you know, the child has been with my client and he's formed this attachment – HIS HONOUR: It's not a question of unfair advantage, as he puts it, it's just a question of whether the result would be inherently skewed because of the effluxion of time. … HIS HONOUR: It's not something that I have considered only lightly, and I will continue to consider it in the light of all the evidence and submissions, but I must say that so far, from what you've said, I'm not in favour of adjourning these proceedings for the purpose of a further clinical report, notwithstanding that I raised the issue and the complication at an earlier stage in the proceedings." Procedural unfairness: findings 1. The primary judge correctly identified the relevant statutory provisions governing the scope of the appeal from the Children's Court. However, whatever powers were conferred on the District Court, they did not justify steps having the effect of denying the parties the right to question witnesses and call further evidence in support of a case which, through no fault of their own, they had not foreseen. Furthermore, although the judge correctly identified the primary focus of the proceedings as being the paramount interests of the child, the other parties to the proceedings were not to be treated as mere puppets. Their personal interests could not prevail over the interests of the child, but their views and their evidence as to where the interests of the child lay could not be disregarded. Furthermore, although not necessarily determinative, if the child were to be placed in the parental responsibility of one parent, with contact with the non-custodial parent, the conduct, circumstances and opinions of each parent were necessary elements in the assessment to be undertaken by the Court. 2. Although the present proceedings should not turn on this specific issue, it may be doubted that the powers of the court extended to the conduct of a hearing in a form which was not sought by any party. The consequence of that course was to impose burdens on independent State authorities, including the Legal Aid Commission and the Department of Family and Community Services. No doubt such consequences can flow from directions given to ensure the proper conduct of judicial proceedings. However, there can be few circumstances in which the Court can in effect undertake an inquiry of its own without regard to the common views of all the parties. Further, the course the proceedings took resulted in the father's legal representative exhausting the grant of legal aid so that she was, in fulfilment of her professional obligations, appearing pro bono. 3. The matter can be determined, however, on a more practical basis. The direction taken by the judge, departing from the common approach adopted by the parties, created a situation in which procedural fairness required that the applications for adjournment be granted. Indeed, each party suffered procedural unfairness. If the judge had not found in the mother's favour in respect of parental responsibility, she would have had a justifiable complaint that the judge had heard her appeal on a basis which, without support from any other party, disregarded her solicitor's unequivocal statements as to how she wished to run the appeal. 4. The judge's initial response, that the appeal must fail on the basis on which it was sought to be run by the mother, was probably correct. It should have been heard and disposed of on that basis. The judge having determined that he intended to call Mr Hawton, the manner in which he dealt with the evidence thereafter was flawed on a number of grounds. 5. First, as appears from the extracts set out above, the judge was responsible for undermining the reliability and credibility of Mr Hawton's report. However, that appeared to occur as much from the questions as from the answers. One reason why a judge usually keeps above the fray of a trial is that it is not always easy to stand back and assess the evidence of a witness when one has formulated the questions, often in leading form. Numerous propositions put by the judge were denied, but the denials were not accepted. 6. Secondly, the thrust of the judge's questioning was based on evidence given by the mother as to her understanding of the allegation of child abuse. Even after objection was taken to the form of the judge's questions, which assumed the correctness of the mother's evidence, evidence which had not at that stage been contradicted by any other witness, the questioning continued on the basis of an assumption that the evidence might be accepted. No alternative history was put to Mr Hawton. On the other hand, when the legal representative for the father sought to put to Mr Hawton material which she expected to lead from her client, the judge rejected the questions (and the documentary support for the questions) as inadmissible. In other words, it would have been procedurally unfair for the judge to have allowed the mother's solicitor to undermine the credibility of the psychologist on a basis which had not been foreshadowed, and to then deny the father the opportunity to put forward evidence which tended to rehabilitate the conclusions reached by the psychologist. Alternatively, if the rejection was to be justified on the basis that the father's evidence had not been foreshadowed, it was procedurally unfair then to deny the father an adjournment to allow his evidence to be put before the Court in the manner preferred by the primary judge. 7. Thirdly, the principal basis for undermining the reliability of Mr Hawton's report was that the paternal grandfather may have sexually abused the aunt (his stepdaughter) some 30 years earlier. There was an implied attack on the failure of the Department to undertake a proper investigation of that matter. That became explicit in the judgment, where, under the heading "Closure of report file by FaCS", the judge applied the adverb "astonishingly" to the internal communications, and also identified them as "truly remarkable". [46] What steps the judge envisaged it was either possible or appropriate for the Department to take in the face of denials by the complainant and her brother was unclear, but had such an adverse finding been foreshadowed with the parties, evidence could have been provided by the Secretary, beyond the explanations which appear to have failed to satisfy the judge. 8. Fourthly, the judge dismissed as "unpersuasive in the absence of testable oral evidence" the denial of the aunt given to the Department's caseworker. The judge said that evidence "should have been called from" the aunt. [47] However, the case had commenced on the basis of an affidavit of the aunt which had been read in the Children's Court proceeding, but not been the subject of cross-examination, and in circumstances where the mother had indicated she did not wish the aunt to be called for cross-examination. The adverse finding with respect to the aunt's denial was not procedurally open to the trial judge. 9. Fifthly, where the proper orders with respect to parental responsibility for the child were to be made on the appeal, in circumstances where the appellant's case had been limited to reliance on the letter of Dr Wright, any departure from that case required that updated evidence be provided in response to evidence called by the appellant and by the judge. Absent that opportunity, there was inherent unfairness to both the father and the child in making a different order to that made in the Children's Court. 10. Sixthly, the refusal of the adjournment applications on the basis that the respondents wished to "shore up a flawed position" was based on an irrelevant consideration. If the "flawed position" resulted from the acceptance by the magistrate of Mr Hawton's report, the proper course was to allow for the parties to obtain a further report. At least that was so where the appellant had commenced the hearing of her appeal on the basis that she did not seek to cross-examine Mr Hawton, whose report should therefore have been accepted by the appeal court, except to the extent that doubt had been cast on its reliability in the Children's Court. In non-adversarial proceedings no party has a "flawed position"; if the child's interests required an adjournment to obtain further evidence, it should have been granted. If not, the appeal should have been dismissed. A fresh application could then have been made on the basis of fresh evidence. 11. Seventhly, the judge's refusal of the second adjournment application on the basis that a further report would inevitably be "skewed" in favour of the father who had care of the child was also misconceived. No doubt it was true that, if the child were well settled in the care of the father, the mother, with her unstable history, may have found it difficult to obtain a different result. However, the fact that the child was well settled (if that had been established) would have been critical contemporary evidence as to where the best interests of the child lay. There was no justification for refusing an adjournment to prevent such evidence being called. The refusal on that ground involved procedural unfairness to the child. Conclusions 1. It is an unfortunate fact that the child has been the subject of five court proceedings. Nevertheless, the proceedings presently under review have miscarried in a fundamental way. There is no basis for the Court to decline to set the judgment aside in the exercise of its discretion. Indeed, no such submission was put to the Court in the event that a relevant ground was upheld. 2. The appeal must go back to the District Court for reconsideration according to law. The fact that the primary judge has made strong findings of fact in circumstances where those findings should not have been made suggests that it will need to be reheard by another judge. That, however, is a matter which can properly be dealt with by the parties in the District Court. 3. The orders sought in the further amended summons were quashing orders with respect to the orders made by the primary judge on 19 July 2018 and, in the alternative, the orders made on 29 June 2018. Orders 1-5 made on 29 June purported to rescind and set aside the orders made in the Children's Court on 15 December 2017 (order 1); grant sole parental responsibility to the mother (order 2); grant parental responsibility for contact issues to the Minister (order 3); require the preparation of a new "care plan" (order 4) and direct that contact arrangements "are to be supervised, to the satisfaction of the mother" (order 5). 4. In orders made on 13 July 2018, the judge refused an application by the father for a stay of the orders dated 29 June 2018 and ordered that the father pay the costs of the stay application. 5. On 19 July 2018 the judge vacated the costs order made on 13 July (order 1). That 19 July order should stand. He then repeated the terms of orders 2, 3 and 5 made on 29 June 2018. Ultimately no order was made as to the costs of the proceedings. 6. The repetition of orders on 19 July 2018 appears to have resulted from a concern that the earlier orders may not have been valid if made in the absence of a relevant care plan. For reasons given above, that concern was probably unfounded. However, the issue need not be determined; certainty supports setting aside all the substantive orders. Accordingly, the Court should order: 1. Refuse the application to further amend the summons. 2. Set aside orders 1-5 made in the District Court on 29 June 2018. 3. Set aside orders 2-4 made in the District Court on 19 July 2018. 4. Remit the mother's appeal to the District Court to be determined according to law. 5. Order that the mother pay the father's costs of the proceedings in this Court. 6. Grant the mother a certificate under the Suitors' Fund Act 1951 (NSW). 7. No order as to the costs of the other respondents. 1. EMMETT AJA: These proceedings are concerned with parental responsibility for a child (the Child) under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act). In June 2014, the Children's Court of New South Wales made a care order under the Act placing the Child under the parental responsibility of the Minister. Each of the mother of the Child and the father of the Child separately sought rescission of that order and an order granting parental responsibility to herself and himself respectively. The father's application was successful in the Children's Court. 2. Following an appeal by the mother to the District Court and a hearing of eight days in May and June 2018, a judge of the District Court (the primary judge) rescinded the orders made by the Children's Court and allocated sole responsibility for the Child to his mother. The father then commenced proceedings in this Court seeking judicial review, under s 69 of the Supreme Court Act 1970 (NSW), of the orders made by the District Court. The grounds upon which the father seeks relief in this Court include denial of procedural fairness by the District court. 3. I have had the considerable advantage of considering in draft form the proposed reasons of Basten JA. I agree with his Honour that, by departing from the common approach adopted by the parties, the primary judge created a situation in which procedural fairness required that an application for an adjournment made by the father be granted. The refusal to grant the adjournment had the result that the proceedings before the primary judge miscarried in a fundamental way. I agree with Basten JA that this Court should make the orders proposed by his Honour. ********** Endnotes 1. "B" (No 2) v The Secretary, Department of Family and Community Services [2018] NSWDC 174. 2. The grounds referred to subs 87(3), which was a typographical error. 3. Tcpt, 31/05/18, p 37(41). 4. Tcpt, 29/05/18, p 15(35). 5. Tcpt, 31/05/18, p 36(30). 6. [2015] NSWCA 89 at [49]. 7. Daley v SAS Trustee Corporation (2016) 91 NSWLR 525; [2016] NSWCA 111 at [96]-[107]. 8. [2013] NSWSC 1111. 9. Tcpt, 31/05/18, p 39(36). 10. Tcpt, 28/05/18, p 3(36). 11. Tcpt, p 4(25). 12. Tcpt, 28/05/18, p 7(5). 13. Tcpt, p 13(28). 14. Tcpt, p 14(5). 15. Tcpt, p 14(30). 16. District Court judgment at [291]. 17. Tcpt, p 18(45). 18. Tcpt, p 19(31). 19. Tcpt, p 21(15). 20. Tcpt, p 33. 21. Tcpt, p 36. 22. Tcpt, p 41. 23. Tcpt, p 182(40). 24. Tcpt, p 183(40). 25. Tcpt, p 186(30). 26. Tcpt, p 189(35). 27. Tcpt, p 196(45). 28. Tcpt, p 188(35). 29. Tcpt, p 198(5). 30. Tcpt, p 206(1). 31. Tcpt, p 206(25). 32. Tcpt, p 208(25). 33. Tcpt, p 209(40). 34. Tcpt, p 211(12). 35. Tcpt, p 213(30). 36. Tcpt, p 214(1). 37. Tcpt, p 215(10)-(15). 38. Tcpt, p 216(20). 39. Tcpt, p 217(45). 40. Tcpt, p 219(29). 41. Tcpt, p 231. 42. Tcpt, p 235(1). 43. Tcpt, pp 238-239. 44. Tcpt, p 241(10). 45. Tcpt, p 436. 46. Primary judgment at [302] and [303]. 47. Primary judgment at [168]. 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: 13 December 2018