Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services

1. [1]

   McCOLL JA: I agree with Basten JA.

2. [2]

   BASTEN JA: The female applicant is the mother of four children, two of whom were placed in the care of the Minister pursuant to orders made on 20 June 2013 under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”). The male applicant was the step-father of one of the children removed from the family and was the natural father of the other three children. (Sadly, he died in the short period while judgment has been reserved.) To avoid possible contraventions of the non-publication orders made by the Court at the commencement of the proceedings, the children have been given pseudonyms for the purposes of this judgment. Parental responsibility for the oldest child (Jeremy) and his sister (Nikki) was allocated to the Minister pursuant to orders made by the Children’s Court on 20 June 2013. The younger brothers, Andy and Daniel, remain in the care of the applicants. The present circumstances of the father will be discussed below.

3. [3]

   On 4 March 2015 the mother sought rescission of the orders made on 20 June 2013 and the allocation to her of sole parental responsibility for Jeremy and Nikki. The application was varied on two occasions; pursuant to an amended application filed on 14 July 2015, a more modest claim was made, namely that, pursuant to s 86 of the Care and Protection Act, the children should have unsupervised contact with the mother in accordance with a prescribed regime.

4. [4]

   Pursuant to s 90 of the Care and Protection Act, the mother required leave of the Court to make the application. On 20 August 2015 Children’s Magistrate Sheedy rejected the application for leave. The magistrate was not satisfied that there had been “a significant change in any relevant circumstances since the care order was made”, for the purposes of s 90(2) of the Care and Protection Act. Further, she was not satisfied that the mother had made an arguable case for increased contact with the children, for the purposes of s 90(2A)(e) of the Care and Protection Act.

5. [5]

   On 8 September 2015, the mother lodged an appeal with the District Court, pursuant to s 91 of the Care and Protection Act. That appeal was by way of a new hearing and the District Court had the functions of the Children’s Court, with power to confirm, vary or set aside the decision of the Children’s Court. On 11 July 2016, Judge Hatzistergos refused the application for leave, confirmed the orders of the Children’s Court and dismissed the summons.

6. [6]

   There being no appeal from an order of the District Court made on an appeal from the Children’s Court, the father commenced proceedings in this Court by way of a summons seeking judicial review of the District Court judgment, relying on the supervisory jurisdiction of the Court conferred by s 69 of the Supreme Court Act 1970 (NSW). (The mother was joined as co-applicant by direction of the Registrar.) That jurisdiction depends on the applicants establishing jurisdictional error on the part of the District Court, or error on the face of the District Court record. (The record includes the reasons of the Court.)

7. [7]

   Both the mother and the father were applicants in this Court. Legal Aid having been refused, they were unrepresented. The father, who at age 35 is sadly in the advanced stages of a cancer which has metastasised, was unable to attend. The mother, who has the care of her two younger children, attended by telephone and made oral submissions.

Nature of proceeding in District Court

1. [8]

   Before turning to the reasoning of the District Court, it is convenient to set out relevant parts of s 90, being the provision under which the application was made.

2. [9]

   The terminology of s 90(2) is ambiguous. There is no doubt that it confers a power to grant leave if the Court is satisfied that there has been a significant change in any relevant circumstances; it does not say “only if” that condition is satisfied, nor does it prohibit a grant of leave in the absence of a significant change. Nevertheless, this Court has accepted that “the power to grant leave is only triggered where the Children’s Court is satisfied that a significant change in circumstances has occurred.” [1]

3. [10]

   Section 90(2A) identifies matters which must be taken into consideration “[b]efore granting leave”. One mandatory consideration, but not identified as a precondition to the grant of leave, is that the applicant have an “arguable case” for a variation of the care order; indeed, it is listed as the fifth out of six mandatory considerations. The other mandatory considerations, it may be inferred, must be taken into account in determining whether the applicant has an arguable case; if they were treated as free-standing considerations, there would be little purpose in imposing a separate leave requirement.

4. [11]

   In JL, in a passage cited by the primary judge, McColl JA reiterated two long standing propositions articulated by this Court in S v Department of Community Services, [2] namely: [3]

5. [12]

   That exercise having been undertaken, the power to grant leave is engaged; it is then necessary to undertake a consideration of the factors identified in s 90(2A), having regard to the changed circumstances.

Reasoning of primary judge

1. [13]

   After setting out some matters of background, the primary judge appropriately identified the relevant circumstances at the time when the orders were made. He concluded: [4]

2. [14]

   The judge then identified, correctly, the changes in circumstances relied on by the applicants. Four matters identified by the mother were summarised in the following terms: [5]

3. [15]

   With respect to the father, the primary judge noted that three additional matters were raised: [6]

4. [16]

   It is clear that these elements are not entirely independent of each other. For example, the value of the education and parenting courses referred to as the first item identified by the mother and the third item identified by the father are relevant to whether their relationship involved an element of domestic violence in the past, which is no longer so, as asserted in relation to the third item in each list.

5. [17]

   In any event, the judge dealt with this aspect of the history in some detail. In substance he rejected the applicants’ claims on the following bases. First, much of the education and counselling took place before the children were taken from the applicants and therefore did not involve a change in circumstances. Secondly, there was a continuation during supervised access of aggressive and confrontational behaviour by the father. (That appears not only to have been treated as a continuation of existing circumstances, but also as a reason why the parents would not be allowed unsupervised access.) Thirdly, the judge took careful note of the apparent deterioration in the behaviour of Jeremy, which had resulted in eight different placements, none of which had worked, together with the expressed wish of Jeremy not to see his step-father again. All of this evidence provided a reasonable basis for not granting the applications, but it is less clear that it demonstrated an absence of change in circumstances.

6. [18]

   With respect to the father, the judge concluded that: [7]

7. [19]

   With respect to the mother, the judge concluded: [8]

8. [20]

   The reference to the contact visit “on 8 July” appears to have been a reference to a visit on 10 July 2014, to which the judge had referred earlier in the judgment, that being two years before the date of the hearing.

9. [21]

   The judge’s conclusion with respect to the present parenting skills of the applicants was identified in the following passage: [9]

10. [22]

    There was no express finding as to whether or not this evidence satisfied the precondition to the engagement of the power to grant leave. The apparent contrast between the parents’ conduct with respect to the younger children and the ultimate finding that there had been no significant change with respect to the older children was not addressed.

11. [23]

    The judge also set out in some detail the history of Jeremy’s placements. However, there was no reference to the extent to which Jeremy’s behaviour had changed since he was placed in care. There was no finding as to whether his difficulties constituted a significant change in a relevant circumstance. The submissions addressed that issue, partly in the context of the s 82 reports, to which further reference will be made below.

12. [24]

    The final two pages of the judgment were important. After referring to the reasoning of this Court in S v Department of Community Services, the judge continued: [10]

13. [25]

    There is no doubt that the concept of “a significant change in any relevant circumstances” is a test which must be understood in its statutory context; namely, a conditional power to grant leave for an application to rescind or vary a care order. Nevertheless, to link the context and the precondition so as to fuse them into a single test of changes, being sufficient to “justify” the particular application made, is apt to confuse the precondition to a grant of leave with the merit of the application. The anticipatory expression of a conclusion on the merits, if the finding as to the absence of the precondition were erroneous, supports the inference that the two questions have been run together in circumstances where the merits could only properly be addressed once relevant changes in circumstances had been identified and considered.

Grounds of review

1. [26]

   Both the respondents submitted, correctly, that the summons did not clearly identify an appropriate ground of review. Although the Secretary filed a “Response” alleging a non-specific failure to comply with Uniform Civil Procedure Rules 2005 (NSW), r 59.4, neither respondent sought to have the summons struck out, perhaps because they were conscious of the difficulties faced by a litigant seeking to invoke the supervisory jurisdiction of the Court without legal representation.

2. [27]

   That meant that it was necessary, for the Secretary at least, to consider whether there were grounds on which the application for relief in this Court could be supported. The possible grounds which were raised with counsel for the respondents in the course of the hearing were:

3. [28]

   Despite some unpromising features of the evidence, it was necessary to focus clearly on the question of changed circumstances. As to the father’s allegations, it appears that the judge accepted that the father was an Aboriginal person. He stated, referring to a letter from a support worker, Narelle Hennessy: [11]

4. [29]

   The second factor noted in the father’s claim was that he had ceased smoking and drinking, a matter which might well have reduced the likelihood of domestic violence, which, although it clearly had not ceased “since 2010”, may have ceased after June 2013. That view would have been consistent with the second factor noted by the mother, namely that the Department no longer had concerns as to the safety of the two younger children. It was not addressed in these terms.

5. [30]

   Thirdly, there was a potential anomaly between the care of the older children and the two younger children. The anomaly may well have been resolvable, but it is a changed circumstance of apparent relevance. It was addressed in submissions in the District Court, but neither identified nor addressed as such in the judgment.

6. [31]

   Fourthly, a further mandatory consideration on a leave application was the content of any report under s 82 of the Care and Protection Act. The judgment recorded, in the penultimate paragraph:

7. [32]

   There is no doubt that the judge was conscious of the fact that he was required to take into consideration any report made under s 82 of the Act. No report was initially tendered by any party; it was the judge who raised the matter with counsel for the Secretary. [12] The judge expressly identified it as something he was required to look at. [13] The reports were eventually produced and admitted as an exhibit. [14] The most recent report was 18 months old, being dated 19 December 2014. The tender of these documents, at the heel of the hunt, resulted in further submissions being made on behalf of the applicants, [15] with a brief response from the independent legal representative. No party suggested that the reports were insignificant.

8. [33]

   No party in this Court placed weight on this specific aspect of the proceedings in the District Court. Nevertheless, the written submissions filed by the mother in this Court did identify a failure to take account of submissions made on her behalf in the District Court. The respondents did not address the submissions which were in fact made and whether they had been taken into account. The respondents merely denied there had been any procedural unfairness.

9. [34]

   The fact that the judge made no findings as to the contents of the s 82 reports, nor as to whether (as had been submitted to him) they revealed changed circumstances, renders it probable that they were not taken into account in the manner required by s 90(2A)(f). The fact that the Secretary came to the hearing unprepared to tender the reports, and made no submissions as to their content, supports the inference that the contents were not properly considered.

10. [35]

    It was not possible for the District Court, in accordance with the approach identified at [10]-[12] above, to determine whether the applicants had an arguable case without taking into account the changed circumstances. That task is not fulfilled merely by saying, in effect, ‘if I am wrong in finding that no relevant circumstances have changed, nevertheless I am not satisfied that the applicants have an arguable case’. [16]

11. [36]

    It is clear that officers of the Department (and of the caring authorities who had had contact with Jeremy and Nikki) appreciated that, at least in the case of Jeremy, he had been severely harmed by his earlier years in a violent household. They were also of the view that his continuing anti-social behaviour would not be ameliorated by his return to his parents’ care. However, on the face of the evidence, the applicants were entitled to have the Court properly investigate the apparent anomaly between their satisfactory care of their younger children and the refusal of the Minister to allow them to care for the older children. It may be that the damage Jeremy had suffered at the hands of his step-father, without protection from his mother, would be accepted as a reason for not returning him to their care and responsibility, or even allowing greater unsupervised access. But it was also necessary to have regard to the history of unsatisfactory placements.

12. [37]

    Further, none of these considerations applied to Nikki, whose circumstances received quite limited attention. For example, Nikki did not have the same problems with unsatisfactory placements as had Jeremy. Secondly, there was the difference between the situation where the male applicant was Jeremy’s step-father, but Nikki’s natural father. Thirdly, Nikki was three years younger than Jeremy and therefore closer to the age of her siblings who had remained at home. These issues were not addressed.

13. [38]

    The statement as to the absence of an arguable case, in the absence of a proper consideration of all the mandatory considerations, will not lead the Court to refuse relief on the basis that to grant it would be futile. In Wade v Burns [17] a mining warden considered that he was required to refuse an application, but stated that if he had had power to grant the application he nevertheless would not have done so. The warden was held to have been wrong with respect to his first finding. As Barwick CJ explained: [18]

Relief

1. [39]

   For these reasons, the leave application miscarried in that the two critical conditions were not separately addressed. That gives rise to a question as to what relief should, if any, be provided.

2. [40]

   The second respondent to the appeal was the children’s independent legal representative. She merely adopted the submissions of the Secretary, to the effect that there had been no reviewable error. She did not make any independent submissions. The Secretary relevantly submitted: [20]

3. [41]

   It was not entirely clear what position the respondents took in this Court with respect to the remarks of the primary judge that, had he been wrong in refusing leave, he would nevertheless have dismissed the application.

4. [42]

   There are, of course, circumstances in which relief may be refused in the supervisory jurisdiction on discretionary grounds. [21] Neither respondent sought to have the application dismissed on that basis; when expressly asked to address that question, each submitted that if the Court were satisfied that there was error warranting review, the matter should be returned to the District Court for reconsideration. [22] Subject to one possible qualification, that position should be accepted.

5. [43]

   The possible qualification arises from the circumstances of the father. The day before the hearing the Court received an email from the mother advising that he was in the advanced stages of a cancer which had metastasised and he was then in palliative care; he has since died. Although his cancer had been diagnosed at the time of the hearing before the primary judge, the seriousness of his condition was not then appreciated. Accordingly, for the most unfortunate of reasons, the household circumstances have changed dramatically in terms of the assumptions made by the primary judge and, indeed, by the Children’s Magistrate who first heard the variation application. Ultimately, these proceedings might more fruitfully have been pursued by the mother making a further application to the Children’s Court, rather than pursuing judicial review in this Court. It is possible that the next step in the proceedings will be a fresh application by the mother in the Children’s Court. Indeed, it was suggested in the course of argument that if the matter were returned by this Court to the District Court, there was a possibility that the matter might in any event be further remitted to the Children’s Court.

6. [44]

   These are matters for the future conduct of proceedings in another place. Because the Court was not invited to dismiss these proceedings on a discretionary basis, and because there may be some ongoing utility in setting aside the finding in the District Court that there had been no change in circumstances, the Court should grant the relief sought in the following form:

   1. (1)

      Set aside the orders made by the District Court on 11 July 2016 dismissing the applicants’ appeal and confirming the orders of the Children’s Court.

   2. (2)

      Remit to the District Court the appeal brought by the applicants from the Children’s Court, to be determined according to law.

7. [45]

   ADAMSON J: I have had the benefit of reading the reasons of Basten JA in draft and agree with the reasons proposed by his Honour. During the course of the hearing in this Court Basten JA formulated, with greater precision than the applicants had been able to do, two errors of law on the face of the record which, if made out, would warrant this Court setting aside the decision of the District Court pursuant to s 69 of the Supreme Court Act.

8. [46]

   I am persuaded by the reasons of Basten JA that both grounds (set out in [27] of his Honour’s judgment) have been made out and wish to add only the following remarks of my own.

9. [47]

   The power conferred on the District Court by s 90(2) of the Care and Protection Act to grant leave is subject to the requirement that it must appear “that there has been a significant change in any relevant circumstances since the care order was made or last varied”. The applicants raised various matters in the Court below which they contended met this threshold, including the birth of two further children who remained in their care, since the care orders were made. The Court below was obliged to reveal in its reasons why the circumstances raised were not “relevant”; or, if it was the case, why they were not “significant”; or, if they were both relevant and significant why the Court was nonetheless not disposed to grant leave. For the reasons which are addressed by Basten JA, the Court below did not reveal that these matters were addressed sufficiently to permit a conclusion that s 90(2) was correctly applied.

10. [48]

    Further, the matters listed in s 90(2A) of the Care and Protection Act are, as the terms of the subsection provide, mandatory relevant considerations. The result is that failure to take anyone of them into account (assuming materiality in the circumstances) amounts to an error of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 39-40 (Mason J). One cannot discern from the reasons of the Court below that each matter which was required to be taken into account and was the subject of evidence and argument, was actually taken into account. Indeed, the mandatory relevant consideration, “whether the applicant has an arguable case” (s 90(2A)(e)), appears to have been addressed by the Court below after the decision that leave ought be refused had already been made.

11. [49]

    In these circumstances I am satisfied that the applicants’ application for leave before the Court below was not determined in accordance with law. As referred to above, I agree that the orders proposed by Basten JA ought be made.