GR v The Department of Communities & Justice and Ors

By way of an amended summons dated 1 September 2020 GR sought an order in the nature of certiorari pursuant to s 69(3) of the Supreme Court Act 1970 (NSW) quashing the orders of Judge Johnstone, President of the Children’s Court dated 3 April 2020, and an order for the first defendant to show cause as to why AB should not be returned to her care.

The 3 April 2020 orders were made pursuant to s 79 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) and provided for the allocation of parental responsibility for AB to the Minister until he is 18 years of age.

The grounds upon which GR relied in her amended summons were first, jurisdictional error, specifically that the Children’s Court did not establish jurisdiction for the making of a care order as mandated by s 72 of Care Act, and secondly, she asserted “equitable fraud” on several bases as follows.

She alleged that at a Dispute Resolution Conference facilitated by the Children’s Court Registrar on 28 August 2018 she and AB’s father were induced to give consent on a “without admissions basis” that AB was in need of care and protection, and the Registrar, counsel for the first and second defendants and the Independent Legal Representative failed to inform them of the legal meaning and consequences of their purported consent. She said the Children’s Court made the final care order on 28 August 2018 after accepting their purported consent (amended summons, grounds at [3]-[6]).

She alleged that she and AB’s father were also induced to accept a supervision order pursuant to s 76 of the Care Act and undertakings pursuant to s 73 of the Care Act, and that following their alleged breach the first defendant engaged in “misleading and deceptive conduct” by removing AB from their care by way of a s 44 certificate and filing a s 90 application rather than notifying the Children’s Court of the breach pursuant to s 77 (at [7]).

She asserted that the findings of the Children’s Court of 27 February and 3 April 2020 that resulted in the 3 April 2020 orders consisted of “bare repetition of false assertions by the first and second defendants, wholly unsupported by the evidence and without any reasons” (at [9]).

She asserted that the 3 April 2020 orders were made out of time pursuant to s 83(5)(b) of the Care Act, without any order to extend time within 12 months of the interim care order (at [10]).

She also asserted that Judge Johnstone ordered the first and second defendants to incorporate Kunc J’s treatment plan into the care plan subject of his Honour’s 3 April 2020 orders and therefore Kunc J’s subsequent dismissal of that treatment plan on 24 April 2020 rendered the 3 April 2020 orders “null and void, pursuant to s 79(5)(a) of the Care Act” (at [11]).

Further in submissions GR asserted that Judge Johnstone’s failure to consider the provisions of the United Nations Convention on the Rights of the Child (CROC) in his Honour’s 27 February and 3 April judgments was an error of law and also amounted to a jurisdictional error, citing Re Tracey [2011] NSWCA 43 at [45]-[49]. She submitted that the Children’s Court does not have jurisdiction to incarcerate a child, citing Director-General, Department of Community Services, Re Thomas [2009] NSWSC 217 at [28].

She also submitted that Judge Johnstone adopted the wrong test in relation to the restoration question, asserting his Honour was “quick to adopt the decision of the High Court in M v M… by which purportedly the Secretary does not have to prove the actual harm suffered but the court can still find that the child would be at an ‘unacceptable risk’ of harm if restored to the parents” (submissions in relation to the “Relevance of CROC” dated 3 December 2020).

GR provided written submissions signed and dated 1 September 2020, “opening submissions” served on 23 November 2020 and provided to the court on 4 December 2020, submissions in relation to the “Relevance of CROC” dated 3 December 2020 and which attached her written submissions filed in Supreme Court proceedings 2019/62836 on 17 January 2020, and “reply” submissions dated 9 December 2020.

She also relied upon her affidavit dated 24 February 2020 which was filed in Supreme Court proceedings 2019/62836, a “Supplementary White Folder” filed in Court of Appeal proceedings 2020/108351, a copy of the summons filed in representative proceedings 2020/264738, an Australian Institute of Family Studies, Child Family Community Australia Resource Sheet – August 2014, and an Australian Institute of Family Studies, Child Family Community Australia Resource Sheet – October 2017.

AB’s father supported GR’s application (but it seems only in relation to the matters set out at [1]-[7] of the “Grounds” in GR’s amended summons: see the father’s submissions dated 3 September 2020).

He provided an “Outline of Submissions” dated 3 September 2020 and filed 22 November 2020, “Opening Submissions” dated 2 November and filed on 3 November 2020, “Submission by the Third Defendant in relation to the ILR” dated 2 November and filed on 3 November 2020, a “Supplementary Submission” dated 2 December 2020, an amended “Supplementary Submission” dated 30 November 2020, and an “Oral Submission by Third Defendant” dated 10 December 2020. He also relied upon his affidavit of 19 August 2020.

GR’s application was opposed by the first and second defendants and AB’s guardian ad litem who instructed Ms Wooi, the Independent Legal Representative for AB, who instructed Mrs Stolier of counsel.

The first and second defendants relied upon their opening submissions filed on 28 October 2020 as well as supplementary submissions filed 8 December 2020. They also read the affidavits of Amy Eldridge of 8 December 2020 (with accompanying exhibit AE-1) and Anne-Marie Connolly of 8 December 2020, and referred me to particular documents in the tender bundle that has been prepared for the statutory appeal in these proceedings (see below).

The Independent Legal Representative provided written submissions dated 9 December 2020.

The Children’s Court of New South Wales filed a submitting appearance.

No objections were taken to any affidavit materials that were filed and there was no cross-examination of any witnesses. However as will appear from my judgment much of the material filed could not go to the question of judicial review.

In a recent judgment Ward CJ in Eq set out the history of the proceedings in relation to AB (see GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [16]-[116]) and I reproduce the parts of that history that are relevant to the present application here:

GR lodged a statutory appeal from the final orders made in the Children’s Court pursuant to s 91 of the Care Act. Such an appeal is brought in this Court (rather than the District Court) where the appeal is from a final order made by the President of the Children’s Court (see s 22A of the Children’s Court Act 1987 (NSW); cl 5(1) of the Children’s Court Regulation 2019 (NSW)).

As I have stated, GR filed the “amended summons” in the statutory appeal proceedings on 1 September 2020 seeking judicial review of the 3 April 2020 orders. Initially I determined that the judicial review application should be heard at the same time as the statutory appeal.

Those proceedings were listed for hearing before me on 18 November 2020 for 10 days, specifically 18-19, 23-25 November and 7-11 December 2020. The appeal was to be by way of de novo hearing.

However in the course of determining an application by the mother for the removal of the Independent Legal Representative (which was dismissed) I formed the opinion that because AB had been joined as a party to the appeal proceedings (by Slattery J on 22 May 2020: see GR v Secretary, Department of Communities and Justice & Ors [2020] NSWSC 607) and was incapable of giving proper legal instructions a guardian ad litem was required to be appointed pursuant to s 98(2A) of the Care Act (see my judgment: GR v The Department of Communities & Justice and Ors [2020] NSWSC 1622).

A guardian ad litem was appointed on 20 November 2020 and the matter was listed for directions only on 23 November to discuss what parts, if any, of the matter could be heard during the remaining allocated hearing dates, allowing time for the guardian ad litem to meet AB and become sufficiently acquainted with the relevant materials. Further directions hearings were conducted on 27 November, 3 December and 8 December 2020 and I determined that the application for judicial review would be heard on 10 December 2020 but the balance of the appeal proceedings stood over to be heard in early 2021. I now turn to the application for judicial review.

While GR’s judicial review application is directed to the orders made by Judge Johnstone on 3 April 2020 her written and oral submissions focused upon the alleged failure of the Children’s Court to establish jurisdiction “pursuant to s 72 of the Care Act” on 28 August 2018, when Magistrate Skinner made final care orders placing AB under the supervision of the Secretary for a period of 12 months pursuant to s 76(1) of the Care Act. GR submitted that the invalidity of those orders invalidated all subsequent findings and actions.

The parents submitted the requirements of s 72 can only be met, and therefore that a final care order can only be made, if the conditions in s 72(1)(a) and s 72(1)(b) are both satisfied.

However, section 72(1) of the Care Act relevantly provides:

Section 71(1) of the Care Act states that “the Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation” the reasons set out in s 71(1)(a)-(i).

As Barrett JA (Ward and Leeming JJA agreeing) said in VV v District Court of New South Wales [2013] NSWCA 469 at [19]-[20]:

The listing before Magistrate Skinner on 28 August 2018 followed the Dispute Resolution Conference facilitated by the Registrar on the same day. GR was represented by Mr Mackie, solicitor, at the Dispute Resolution Conference and in court. Mr Mackie also appeared as amicus for AB’s father (28/08/2020 T.1/10-15 at CB.389).

Her Honour made reference to s 71(1)(b) of the Care Act, the reason stated therein being that “the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence the child or young person is in need of care and protection”, and found that AB was “in need of care and protection” (28/08/2020 T.2/30-35 at CB.390):

While parties cannot consent to matters which go to the question of jurisdiction (Pantorno v R (1989) 166 CLR 466, 473; Neil v Legal Profession Complaints Committee [2011] WASCA 46 at [7]; see also CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [16]), in my view Magistrate Skinner was able to take into account the parents’ consent in determining whether she was satisfied that AB was in need of care and protection for the reason set out in s 71(b), and that is it seems what she did. I note that her Honour was otherwise familiar with the matter and the circumstances, having made interim orders on 5 July 2018 (CB.386), and that “extensive reasons are not required” in respect of a finding as to “establishment” (Re Alistair [2006] NSWSC 411 at [77] (Kirby J)).

On this basis I am satisfied that Magistrate Skinner “established jurisdiction” under s 71 and 72 of the Care Act and her Honour’s orders of 28 August 2018 did not involve jurisdictional error of the kind alleged.

I should also note that Judge Johnstone included a detailed discussion about ss 71 and 72 in his Honour’s February 2020 Children’s Court decision (at [325]-[329]) and acknowledged that the Children’s Court found AB was in need of care and protection pursuant to s 71(1)(b) of the Care Act on 28 August 2018 (at [122]; see also his Honour’s April 2020 Children’s Court Decision at [4]).

I should note that the notion of “equitable fraud” used in this context is a misnomer. What is actually asserted is that the parents were “induced” to give consent to Magistrate Skinner’s finding of establishment on 28 August 2018, and were denied natural justice (amended summons, grounds at [1], [3]), by the conduct of the Registrar, counsel for the first and second defendants, and the Independent Legal Representative.

However in my view these allegations are not made out. As I have already stated, GR was legally represented by Mr Mackie at the Dispute Resolution Conference and the hearing and Mr Mackie also appeared as amicus for the father who also provided his written consent to the Children’s Court after the hearing via email. It was not the role of the legal representative for the first and second defendants, the ILR, or the Registrar, to advise the parents in relation to the legal meaning and consequences of their purported consent, particularly given that they had access to her own legal advice.

During the hearing GR told Magistrate Skinner that she was “very happy” with the outcome (28/08/2020 T.2/3-10):

Both parents also signed undertakings on that date which included undertakings to permit the Secretary or his delegate to attend their home at reasonable times, to accept service involvement with AB by the AB’s National Disability Insurance Scheme (NDIS) Plan, to comply with all reasonable requirements of the Department of Education regarding the AB’s attendance at school and ensuring the home was free from domestic violence (including physical abuse, verbal abuse, psychological abuse, financial abuse, denigration of family members and controlling and coercive violence). It seems inconceivable to me that they were induced to sign those undertakings against their wishes and their signing of them provides further support for the notion that they were pleased with where things were headed and were happy to cooperate.

Further there is no support for GR’s assertion that “Mr Mackie was not allowed to speak or to advise me during the hearing” (10/12/2020 T.2/25-30) (also see Smits v Roach (2006) 227 CLR 423 at 441).

The parents’ argument that the first defendant engaged in misleading and deceptive conduct also seems premised on a misunderstanding of the relevant provisions of the Care Act.

In my view the first and second defendants’ submission that s 77 does not compel the Secretary to notify the Children’s Court of each alleged breach of a supervision order, but rather provides the Secretary with a discretion to do so, is correct. Section 77(2) states that “the Secretary may notify the Children’s Court of an alleged breach of a supervision order” (my emphasis). Once notified, the Children’s Court must give the parties an opportunity to be heard and determine whether the order has been breached (ss 77(3)(a)-(b)). It may then make such orders as it considers appropriate but an application for such orders is not a variation application under s 90 and the Children’s Court can make any orders it could have when the supervision order was made (ss 77(3)(c), 77(4)).

However the regime in s 77 does not it seems preclude the Secretary from making a s 90 application upon an alleged breach of supervision orders. The Secretary would of course have to demonstrate to the Court that the matters set out in s 90 are satisfied to obtain an order under that section, including that there has been a significant change in the relevant circumstances since the existing care order was made or last varied (s 90(2)). This is what occurred in the present case.

I do not accept GR’s characterisation of Judge Johnstone’s reasons as a “bare repetition of false assertions by the first and second defendants, wholly unsupported by evidence and without any reasons”. GR did not point to any particular aspect of his Honour’s judgments which she says are unsatisfactory, and I agree with the first and second defendants’ submission (10/12/2020 T.10/1-5) that it is apparent from a reading of his Honour’s two judgments that they involve a relatively lengthy and reasoned analysis given two weeks of evidence in the matter.

Sections 83(5)-(5A) of the Care Act relevantly provide:

It appears that Judge Johnstone dealt with GR’s argument with respect to the time limit imposed by s 83 of the Care Act on 13 March 2020 (TB 15/133, p 113 (13/03/2020 T.7/15-50). His Honour stated that:

I agree with his Honour’s view that s 83(5A) allows the Children’s Court to extend the time limit imposed by s 83(5) if it considers such an extension appropriate and in the best interests of the child, as Judge Johnstone did here. I note that s 83(7)(a) also provides that the “Children’s Court must not make a final care order unless it expressly finds that permanency planning has been appropriately and adequately addressed”, and Judge Johnstone was not so satisfied until 3 April 2020 (see his Honour’s April 2020 Children’s Court Decision at [94]). Accordingly, I would also dismiss this ground.

Section 79(5) states:

In his February 2020 Children’s Court Decision Judge Johnstone directed the Secretary to “prepare a different permanency plan, in particular a Care Plan that incorporates the substance of the Orders made by Justice Kunc, including the provisions of the Proposed Treatment Plan” (at [467]). In his April 2020 Children’s Court decision his Honour concluded that “the Amended Care Plan, which incorporates the Proposed Treatment Plan ordered by Justice Kunc, is not inconsistent with any orders of the Supreme Court” (at [94]).

GR has not pointed to any aspect of the amended care plan or 3 April 2020 orders that is inconsistent with any order made by the Supreme Court, except to say that Judge Johnstone’s orders are now inconsistent with Kunc J’s subsequent discharge (on 24 April 2020) of his Honour’s previous orders (of 29 November 2019) which incorporated the Proposed Treatment Plan.

On 6 March 2020 Kunc J granted the first and second defendants liberty to apply if it appeared that any amendment was required to any earlier order of the Supreme Court as a result of the final orders to be made by the Children’s Court. Then on 24 April 2020 Kunc J vacated all previous orders in the Supreme Court proceedings except those in relation to costs and some other specified orders that are not relevant to the present argument. His Honour stated ([2020] NSWSC 457 at [25]-[29]):

I can see no basis for GR’s assertion that Kunc J’s subsequent discharge of his Honour’s orders rendered Judge Johnstone’s 3 April 2020 orders void; to the contrary, it seems Kunc J intended to ensure, by granting liberty to the first and second defendants and then vacating all previous Supreme Court orders on 24 April 2020, that there would be no inconsistent orders of the Supreme Court that would impact the final orders of the Children’s Court. I would therefore also reject this ground.

In Re Tracey [2011] NSWCA 43 Spigelman CJ (Beazley JA agreeing) held that the trial judge had committed jurisdictional error by rejecting the relevance of CROC to the exercise of her Honour’s discretion to make the order that had been sought by the appellant (to rescind an existing care order). Contrary to GR’s submissions in the present case, I am satisfied that Judge Johnstone had regard to the provisions of CROC to the extent they were relevant to the decision before him (see in particular [298], [419], [427] and [462] of his Honour’s February 2020 Decision), the parents having not referred his Honour to any particular provision that they thought might have been relevant (see Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [264]-[268]).

GR also referred to the decision of Brereton J in Director-General, Department of Community Services, Re Thomas [2009] NSWSC 217 where his Honour stated (at [28]):

She submitted that the Children’s Court does not have jurisdiction to incarcerate or deprive a child of their liberty and cannot rule on such an application.

Judge Johnstone’s final orders on 3 April 2020 allocated all aspects of parental responsibility for AB to the Minister until he turns 18, required the Secretary to file reports with the Court at 6 and 11 months from the date of the orders, and rescinded any previous orders. His Honour clearly had jurisdiction to make those orders (see s 79 and 82 of the Care Act). One aspect of parental responsibility is the choice of residence for the child or young person (s 79(2)).

Prior to final orders being made the Secretary is required to present a care plan to the Children’s Court (s 78(1)) and undertake permanency planning (s 78(A)). A permanency plan need not provide details as to the exact placement in the long-term of the child or young person concerned but must be sufficiently clear and particularised so as to provide the Children’s Court with a reasonably clear picture as to the way in which the child’s or young person’s needs, welfare and well-being will be met in the foreseeable future (s 78A(2A)). The Children’s Court cannot make a final care order unless it expressly finds that permanency planning has been appropriately and adequately addressed (s 83(7)).

The amended care plan that was before Judge Johnstone on 3 April 2020 (filed 20 March 2020) noted that at the time the care plan was completed AB was an inpatient at the Children’s Hospital at Westmead and that the proposed long term placement was an out of home care placement in a house.

As I have said Judge Johnstone found that the permanency planning was appropriately and adequately addressed in the amended care plan (April 2020 Children’s Court Decision at [94]). His Honour did so having earlier found that “[t]he evidence does not support the contention that the child has been imprisoned or inappropriately treated” and that “the hospitalisation of and medical attention given to the child has been in his best interest and reasonably required, following appropriate consultation and discussion, or pursuant to approval by the Supreme Court exercising parens patriae jurisdiction” (February 2020 Children’s Court Decision at [428]). It seems that treatment orders were obtained under the Supreme Court’s parens patriae jurisdiction when they were required (see Re AB [2019] NSWSC 316; Re AB (No 2) [2019] NSWSC 566).

For these reasons I would not find that Judge Johnstone acted beyond jurisdiction in making the orders of 3 April 2020.

I also note that the guardian ad litem and Independent Legal Representative who act in AB’s interests have not submitted that AB has been relevantly incarcerated. Further the question of how long he ought to remain in his current placement would more appropriately be addressed in the statutory appeal proceedings which I will hear early next year, as I have said, by way of a de novo hearing.

Contrary to GR’s submissions in relation to Judge Johnstone’s application of the “unacceptable risk” test in M v M [1988] HCA 68; (1988) 166 CLR 69, I am not satisfied that his Honour committed any error of law in adopting that test.

In Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221 (which concerned an application for judicial review of an appeal heard by the District Court against orders of the Children’s Court made under the Care Act) Beazley P (McColl JA and Schmidt J agreeing) said (at [45], [55]):

In my view Judge Johnstone set out the applicable principles at [306]-[310] of his Honour’s February 2020 Children’s Court Decision.

Having found none of the grounds relied upon by GR and AB’s father made out I would dismiss GR’s application for judicial review and would not grant the relief sought in paragraph 1 of GR’s amended summons. Accordingly, the 3 April 2020 orders of the Children’s Court remain in place, and I would not make an order that the first defendant otherwise show cause as to why AB should not be restored to GR’s care immediately (as sought in paragraph 2 of her amended summons).

I should also note that the granting of relief by judicial review is discretionary and, given that I am to hear GR’s statutory appeal by way of a de novo hearing early next year, it is unlikely that I would have granted the relief sought even if I had found any of the argued grounds made out. Many of the grievances GR and AB’s father raised with respect to AB’s care would be more appropriately addressed in the statutory appeal proceedings.

Further I would not grant the relief sought given the time it has taken for GR to formulate and bring her application for judicial review. She has repeatedly sought to challenge the 3 April 2020 orders on various bases before numerous Judges of this court purportedly invoking its parens patriae jurisdiction (see GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [82]-[116]) . While many obstacles to relief arise, delay is also a relevant factor (see, e.g., Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 421–422; Italiano v Carbone [2005] NSWCA 177 at [117]).