DIRECTOR-GENERAL OF DEPARTMENT COMMUNITY SERVICES v DISTRICT COURT OF NEW SOUTH WALES & ORS

SHELLER JA: The Director-General of the Department of Community Services (the Director-General) seeks, by summons filed in this Court, orders in the nature of certiorari for the quashing of orders made in the District Court at Wollongong on 14 October 2002 by his Honour Judge Phelan. The first opponent is the District Court of New South Wales, which has filed a submitting appearance. The second opponent is the mother of a small child in respect of whom orders had been made in the Port Kembla Children’s Court under s72 of the Children (Care and Protection) Act 1987 (the 1987 Act) and s90 of the Children and Young Persons (Care and Protection) Act 1998 (the 1998 Act). In these reasons for judgment I shall refer to the second opponent as “the mother” and the child as “the child”. There was also before the Court Ms Maureen Phillips, the separate representative for the child, who had been joined as a party to the appeal and was represented by counsel.

On 11 December 2000 the Port Kembla Children’s Court, upon being satisfied that the child was in need of care and protection made an order (the December 2000 order) declaring the child to be a ward under the 1987 Act for the period of one year. Following the making of the December 2000 order the Director-General placed the child with the mother on her giving certain verbal undertakings to officers of the Director-General. On 12 October 2001 officers of the Director-General removed the child from the mother’s custody and placed her into temporary foster care. At the same time the Director-General applied under s90 of the 1998 Act to the Port Kembla Children’s Court for leave to vary the December 2000 order by granting to the Minister for Community Services (the Minister) parental responsibility for the child until the age of 18 years. On 17 May 2002, after hearing evidence on that application the Children’s Court made a determination that the child could not safely be returned to the care of the mother and that parental responsibility for the child be allocated to the Minister until the child reached the age of 18 years (the May 2002 orders).

The mother appealed to the District Court against the May 2002 orders. His Honour Judge Phelan, who heard the proceedings over five days between 28 August and 27 September 2002, delivered judgment on 14 October 2002. Having reviewed the evidence and referred to the 1998 Act Judge Phelan said: “In this case I am not satisfied on the balance of probabilities that the child is in need of care and protection. I am not satisfied that the child ever was in need of care and protection despite the earlier court orders. I am not satisfied that any of the provisos to section 73 exist. [It is not clear what his Honour meant. Section 73 deals with undertakings from a person having parental responsibility for a child or young person or from the child or young person but seems to apply only if the Children’s Court is satisfied that the child or young person is in need of care and protection. That may have been what his Honour meant]. Similarly I am not satisfied that an order for supervision should be made pursuant to section 76. [Section 76, which is headed ‘Order for Supervision’, enables the Children’s Court to make an order placing a child or young person under the supervision of the Director-General if it is satisfied that the child or young person is in need of care and protection. This limitation may be the reason for this finding.] The most that can be said on the evidence is that the child may be at risk in the future.”

His Honour came to the conclusion that the Court had no power to require undertakings though he had considered that possibility. He said: “Finally the Act appears to be silent on the court’s power where an appeal is upheld leading to the return of the child to the parent to stage that return with minimum upheaval to the child. … Any of the powers that the court has seems [sic] to be limited to allocation of a child in need of care and protection. … The order I make is that the child should be returned to the appellant. Mr O’Brien [counsel for the Department] it was not until I looked closely at the Act that I arrived at the conclusion that desirable and all as it might be, once I decide that she is not in [need of] care it seems as though I do not have any further power.”

Mr O’Brien responded “No, that is right your Honour”. A little later Mr O’Brien said: “With your Honour’s decision now there is no basis for the Department continuing to have this child in its care at all as of now”. On 14 October 2002 or shortly thereafter the child was returned to the mother in whose custody she remains.

I should observe that the mother had on 11 December 2001 filed an application in the Children’s Court under s90 of the 1998 Act to have the December 2000 order rescinded. It does not seem that this application was pursued though it was mentioned in the Children’s Court reasons for decision of 17 May 2002.

The gravamen of the Director-General’s complaint is that Judge Phelan stepped outside his jurisdiction in investigating whether the child ever was in need of care and protection and in saying that he was not satisfied that she was. This was said not to be an issue before the Children’s Court on the Director-General’s application for variation of the December 2000 order or on appeal to the District Court. Further, it was said that the learned District Court Judge erred in concluding that he had no power to impose conditions such as staging the return of the child to the mother when ordering that the child should be returned to the mother.

Mr Walker SC, who appeared for the Director-General, took us through the relevant provisions in the 1998 Act to make the point that the issue of whether the child was in need of care as the Children’s Court determined when making the December 2000 order was not relevant to the Director-General’s application to vary that order. It was not a question before the Children’s Court when it made the May 2002 orders or on the appeal before Judge Phelan from those orders. Further, it was advanced by Mr Walker that the District Court when allowing the appeal did have power to impose conditions.

The grant by the Court of orders in the nature of certiorari pursuant to s69 of the Supreme Court Act 1970 is a matter in the Court’s discretion. Delay is a well recognised reason for the Court to refuse to exercise this discretion. It is not disputed that it was within power and open to Judge Phelan not to be satisfied on the balance of probabilities that the child was in need of care and protection at the time he was considering the mother’s appeal. On that basis it was open to the judge to uphold the appeal and set aside the order for certiorari of the December 2000 orders made by the Children’s Court on 17 May 2002. Since the period of twelve months wardship ordered by the Children’s Court on 11 December 2000 had expired the necessary result must have been that the child be returned to the mother, though it may for present purposes be conceded that there were other orders that Judge Phelan might have made but did not make additionally by imposing conditions or requiring undertakings.

What power the judge had, however, is not clear and it is not necessary now to define. The fact of the matter is that counsel for the Director-General agreed with Judge Phelan that he had no power to make further orders given his finding that the child was not, then, in need of care and protection. This notwithstanding, there was (and is) nothing to prevent the Director-General applying again to the Children’s Court seeking orders from it if the circumstances then warrant such action. This was not (and has not been) done. Eight months have passed since Judge Phelan ordered that the child be returned to the mother. Yet if this Court granted certiorari it would effectively, at the same time, without any evidence about whether there are grounds for the child to be returned to the care and protection of the Director-General, make an order which has that effect. The Court formed the view that in its discretion such an order should not be made and accordingly that the application for an order in the nature of certiorari should be refused.

Accordingly, we dismissed the application with costs for the reasons I have just indicated.

BEAZLEY JA: I agree with Sheller JA.

TOBIAS JA: I agree with Sheller JA.