DB v The Secretary, Department of Family and Community Services

1. [1]

   McCOLL JA: The applicant, DB, seeks leave to appeal against an order made by Lindsay J dismissing his application for the relief contained in paragraphs 3 and 4 of a notice of motion filed on 13 April 2015 (April motion).

2. [2]

   The proceedings from which DB seeks leave to appeal concern Madison, his 17 year old daughter. [1] She will turn 18 on 21 September 2016. In substance, DB sought orders in paragraphs 3 and 4 of the April motion requiring the Department of Family and Community Services (Department) to provide funding for Madison’s treatment by her psychologist and also provide DB with financial assistance to enable Madison to participate in extracurricular activities.

3. [3]

   At the commencement of the hearing of the proceedings, the Court gave the following directions:

4. [4]

   DB appeared without legal representation on the leave application. As will be apparent from what follows, there is a degree of complexity to the factual background to the leave application. It is not possible to deal with the leave application in a manner that would enable those reading it to understand why, in my view, leave to appeal should be refused, without clearly understanding the factual matrix.

Background

1. [5]

   Madison has a history of drug abuse and suffers from outbursts of violence which she is unable to control. Her addictions developed while she was living with her mother who is herself a drug addict. [2]

2. [6]

   In July 2014 the Secretary of the Department (Secretary) initiated care proceedings in the Children’s Court in respect of Madison pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act). On 18 July 2014, Madison was placed under the responsibility of the Minister for Family and Community Services until further order. [3]

3. [7]

   On 23 October 2014 DB commenced proceedings by summons in the Supreme Court (Supreme Court proceedings), seeking to invoke the Court’s parens patriae jurisdiction to “recover” Madison who, it appears, had left her father’s home and was living with her mother. On 24 October 2014, White J made several orders in those proceedings including one directing the police to recover Madison and deliver her to DB. [4] His Honour also ordered that Madison be separately represented. On 7 November 2014, his Honour ordered that in the proceedings in the Children’s Court, Madison’s legal representative may act in what he or she considered to be Madison’s best interests and otherwise as if he or she were an independent legal representative. [5]

4. [8]

   In the course of the Supreme Court proceedings, and while Madison was still under the Minister’s parental responsibility, DB filed a number of notices of motion seeking financial assistance of the sort the subject of the April motion. [6]

5. [9]

   One such motion came before White J in December 2014. On 24 December 2014, his Honour made a number of orders in paragraph [103] of his reasons including, relevantly:

6. [10]

   White J did not accede to DB’s application for financial assistance in relation to extracurricular activities. His Honour did not consider it would be a proper exercise of the parens patriae jurisdiction to give any directions to the Minister in that respect. [8]

7. [11]

   Finally, White J gave DB leave to file a notice of discontinuance of all or any of the claims for relief in the summons with no order as to costs, failing which his Honour ordered that the summons stand over to the Registrar's list for directions. [9]

8. [12]

   DB filed a motion on 20 January 2015 seeking to vary White J’s orders. The motion was heard by Ball J. In substance, DB sought orders that the care and parental responsibility of Madison for education and medical care be returned to him. He also sought other orders, including ones White J had rejected on 24 December 2014, that the Director General and Secretary of the Department make a number of specific payments to him. [10]

9. [13]

   Like White J, Ball J considered it was not a question for the Court in the exercise of its parens patriae jurisdiction to make orders concerning the assistance the government may provide to meet a child’s needs, save possibly in the circumstances where there was evidence the Minister had failed to provide for the basic needs of the child such as adequate food, clothing, accommodation and health care. [11] There was no such suggestion before his Honour. His Honour dismissed DB’s motion.

10. [14]

    On 27 February 2015 the Children’s Court Magistrate Hogg ordered that DB have sole parental responsibility for Madison, in respect to all issues until she attained the age of 18 years. [12] Pursuant to s 73 of the Care Act, DB undertook to “use his best endeavours to support [Madison] in engaging with her treating psychologist…at a frequency and for a duration recommended [by the] psychologist.”

11. [15]

    Prior to making that order, Hogg LCM approved the Case Plan relating to Madison set out in an Amended Care Plan (Care Plan) dated 25 February 2015. The Case Plan relevantly provided for Madison to attend one session per week with a named psychologist and that the Department fund those attendances “inline [sic] with the Supreme Court order of 24 December 2014”. Under the heading “Promote social development opportunities”, the Case Plan noted that Madison was “encouraged to participate in reasonable extra curricular activities as per her wishes and needs” and that, should she and DB wish this to occur and Madison was willing to commit to such activities, DB was to contact the Department “and request financial support for this”.

12. [16]

    On 13 April 2015, DB filed in court before White J an amended summons (JR summons) seeking to review decisions of two Children’s Court Magistrates of 18 July 2014 and 24 July 2014, respectively.

13. [17]

    Also on 13 April, DB filed the April motion, paragraphs 3 and 4 of which sought the following orders:

14. [18]

    On the same day it appears DB sought to rely upon another document entitled “summons” (unfiled summons).

15. [19]

    Paragraphs 1 and 2 of the unfiled summons sought orders that the Registrar appoint a pro bono barrister to assist DB and an order concerning subpoenaed documents held in the Children’s Court.

16. [20]

    According to DB, White J amended the April motion to incorporate paragraphs 1 and 2 of the JR summons. This does not appear to be accurate. Rather, it appears his Honour amended the unfiled summons. His Honour noted upon that document that it was “not filed” and that “paras 1 & 2 [were] incorporated in paras 5 & 6” of the April motion. His Honour wrote on the April motion:

17. [21]

    In his reasons of 13 April 2015, White J recorded that the Secretary accepted that “in the care plan [filed on 25 February 2015], the Department … gave a commitment to continue to fund the cost of Madison’s attendance on a named psychologist ‘in line’ with an order that I made on 24 December 2014”. His Honour also recorded that the Department accepted “that that commitment continues, notwithstanding that the orders themselves made on 24 December 2014 would have ceased to operate because they were made only up to the final determination of the proceedings in the Children’s Court.” [13]

18. [22]

    Paragraph 3 of the April motion related to a controversy between DB and the Department (in respect to which there was no documentation before White J) as to whether the Department would fund “double sessions” with the psychologist, in circumstances in which the Department said the psychologist had not made a recommendation for such treatment. [14] DB also referred to undertakings regarding financial assistance he said the Department gave in the Children’s Court on 27 February 2015 which appeared, in part, to relate to Madison’s education. There was also no evidence of those matters before his Honour. [15]

19. [23]

    White J regarded the application in the April motion as premature, absent evidence of either a psychologist’s recommendation of the sort for which DB contended or any undertaking in respect of which DB sought relief. He declined to make orders 3 and 4 without prejudice to DB’s right to revive them, which his Honour said could be done by exercise of the liberty to apply he granted. [16]

20. [24]

    His Honour made an order referring DB to a barrister on the Pro Bono Panel for advice in relation to the JR summons. [17] Accordingly, his Honour stood the motion over to the Registrar’s list on 25 May 2015, a period selected as sufficient for advice to be given by the pro bono barrister and, too, for the Children’s Court transcript to be obtained. [18] According to an email the Department tendered in the leave application as a record of the proceedings before Lindsay J, DB obtained legal advice, but that had not extended to document preparation. [19]

Proceedings before Lindsay J

1. [25]

   It appears that the April motion came before Lindsay J on 20 July 2015 pursuant to DB exercising the liberty to apply White J had granted. Ms Hartstein appeared for the Secretary. She mentioned the appearance of Madison’s Legal Representative.

2. [26]

   DB relied on an affidavit he had sworn the same day. That affidavit raised two complaints. First, that Madison’s psychologist had been having “double sessions” with Madison, but that approval for those was not continuing, and that the psychologist had sought approval for double sessions but been unable to elicit a response. He sought court orders that the double sessions continue. He annexed an email from the psychologist dated 16 June 2015 to the effect that Madison would benefit from two sessions of therapy a week. He also complained the Department had “denied …specific undertakings … to fund specific extracurricular activities”. He listed a variety of activities mentioned in the Case Plan.

3. [27]

   Lindsay J made the following orders:

4. [28]

   On 21 July 2015, DB filed a Notice of Discontinuance of the “Judicial Review aspect of these proceedings”. The Notice stated that “[t]he plaintiff does not represent any other person” and that “each active party consents to the discontinuance”. [20]

5. [29]

   There is no transcript of the proceedings before Lindsay J, nor did his Honour give reasons for his orders. The Associate’s Record of Proceedings indicates that the Care Plan of 25 February 2015, the transcript of 27 February 2015 and a bundle of emails from the psychologist, including one dated “12 July” had been tendered.

6. [30]

   The 12 July 2015 email was from Madison’s psychologist to the Department. It relevantly advised that the psychologist had started “2 sessions per week” since the psychologist’s return from an absence, that Madison continued to attend and that the “2x sessions have so far worked very well…”.

7. [31]

   Ms Hartstein informed this Court that Lindsay J had questioned the utility of the JR summons, given that the Children’s Court had granted parental responsibility for Madison to DB on a final basis on 27 February 2015. His Honour had indicated that he was minded to dismiss the proceedings, at which stage DB requested that, in that case, he would like to discontinue them.

8. [32]

   Ms Hartstein’s recollection was that Lindsay J asked DB why the orders sought in paragraphs 3 and 4 of the April motion were necessary. Having examined the orders made by White J on 24 December 2014, the application before Ball J on 27 January 2015, and the further application before White J on 13 April 2015, his Honour had said words to the effect that they lacked utility. To the best of Ms Hartstein’s recollection, DB conceded that there was no utility in the orders he sought once Ms Hartstein had tendered the Care Plan and the email correspondence indicating that the Department was continuing to fund Madison’s treatment by her psychologist. When DB conceded that the Department was providing financial assistance of the nature sought, Lindsay J also dismissed the April motion.

9. [33]

   According to the 20 July email, DB submitted that the Department had, relevantly, undertaken to fund Madison’s extracurricular activities and drew Lindsay J’s attention to the Children’s Court transcript of 27 February 2015 (at p 33, ll 22 – 33). His Honour remarked that he did not understand the Department to have given undertakings, but rather indicated a willingness to contribute funds depending upon certain circumstances transpiring.

10. [34]

    DB contended he had agreed during a discussion with Lindsay J that as the Children’s Court proceedings had concluded, there was no utility in what he referred to as the “judicial review” aspects of the April motion (being paragraphs 1 and 2 added to that motion by White J) going forward. [21] However, he contended that he had sought leave to withdraw only the “judicial review” aspects of the motion, and that he had not withdrawn the application for relief contained in paragraphs 3 and 4 of the April motion. On this basis, DB submitted that although orders 1 and 2 of Lindsay J’s orders of 20 July 2015 were made by consent, he had opposed order 3.

Issues sought to be raised on appeal

1. [35]

   As I have said, DB seeks leave to appeal against Lindsay J’s orders dismissing his application for the relief contained in paragraphs 3 and 4 of the April motion. Leave is required because that order was interlocutory and DB does not seek to challenge the order dismissing the JR summons. [22] He does, however, seek to challenge the order that the file “be closed”.

2. [36]

   It appears that DB filed a Notice of Intention to Appeal on 23 August 2015 which stated that he intended to commence appeal proceedings within three months. DB’s application for leave to appeal was not filed until 11 December 2015. It appears to have been accompanied by an affidavit sworn by DB on 10 December 2015 seeking an extension of time to file the leave application.

3. [37]

   DB’s proposed Notice of Appeal seeks the following orders:

Submissions

1. [38]

   DB’s written submissions in the White Book essentially advance four complaints in respect of the Department’s conduct, as well as alleging deficiencies in Madison’s legal representation. In brief, he makes the following submissions:

   1. (1)

      The proceedings before Lindsay J on 20 July 2015 should have been adjourned until such time that Madison’s legal representative was available to attend;

   2. (2)

      The Court’s refusal to order the Department to provide DB with financial assistance is a denial of procedural fairness and contrary to the Court’s parens patriae role;

   3. (3)

      Madison’s appointed Legal Representative has not adequately represented her best interests and should have been replaced; and

   4. (4)

      The Department has consistently misled the Court by claiming that it is providing financial assistance to Madison, when no such assistance has in fact been offered.

2. [39]

   DB handed additional written submissions to the Court at the outset of the leave application. He sought to invoke various provisions of the United Nations Convention on the Rights of the Child (1989) (CROC) as relevant to what he contended was a denial of natural justice “on behalf of Madison having not had a voice for at least the last 12 months.” This related to his complaint about Madison’s legal representation.

3. [40]

   The Secretary opposes a grant of leave to appeal on three bases. First, that the application is out of time. Secondly, that none of the orders DB seeks has any utility. Thirdly, that the application has no merit.

4. [41]

   As to the second point, the Secretary submits that orders 3 to 5 of Lindsay J’s judgment could not be challenged in circumstances where the JR summons has been dismissed, and there is no application to appeal against that dismissal.

5. [42]

   The Secretary also submits that the relevant prayers in the April motion seeking orders requiring the respondent to fund services for Madison, who is not the parental responsibility of the Minister, had no basis in law. [23]

6. [43]

   As to the merit point, the Secretary submits that, to the extent DB seeks orders that the Department be ordered to fund Madison’s psychologist sessions and that undertakings given by the Department in the Children’s Court be made the subject of orders, there is no reason why such orders should be made (leaving aside questions of jurisdiction and policy) when the evidence before Lindsay J was that the Department has funded, and continues to fund, Madison’s attendances at a psychologist and the Department has abided by the undertakings it gave.

7. [44]

   The fourth respondent also submitted that the application for leave to appeal was out of time so that the question arose as to whether an extension of time should be granted, especially in circumstances where the orders were made “by the consent of all parties”.

8. [45]

   The fourth respondent also said that, as Madison’s Independent Legal Representative, [24] he was not bound by Madison’s wishes or instructions. He contended, however, that he had always put her views and wishes before both the Children’s Court and the Supreme Court either orally or in writing when it was appropriate to do so. [25] He said he had not appeared on 20 July 2015 because the matter was listed for directions only and he was not on notice that there would be any contested hearing. In those circumstances, Ms Hartstein had mentioned his appearance, a course to which he did not understand DB had taken any objection until the receipt of the Summons seeking leave to appeal.

Consideration

1. [46]

   Appeals lie from court orders. In order to identify error in challenged orders, it is necessary to identify error in the reasoning which led to the orders being made, or alternatively to challenge the adequacy of the reasons. DB does not seek to advance the latter argument. Absent reasons it is impossible to identify error on Lindsay J’s part and that, of itself, is a strong reason for refusing leave to appeal.

2. [47]

   In my view, despite DB’s contention that he opposed Lindsay J’s third order, the compelling inference, absent transcript, is that he accepted during the 20 July hearing that the April motion lacked utility. This is because, on the evidence, in particular the 12 July email the Department tendered before his Honour, it was complying with its agreement in the Case Plan to fund Madison’s sessions with the psychologist and, in July 2015, was (and had been for some time) funding her to attend the psychologist twice weekly. Insofar as the matters DB referred to as “undertakings” in relation to extracurricular activities are concerned, payment for them depended on a number of circumstances being satisfied. There was no evidence before Lindsay J that that was not occurring.

3. [48]

   The discontinuance of the proceedings did not prevent DB from claiming the same relief in fresh proceedings. [26] However, it would have been sufficient to bring the Supreme Court proceedings to an end. [27] In addition, the JR summons was dismissed.

4. [49]

   Contrary to the Secretary’s submission, however, that dismissal does not deprive DB of any remedy in relation to earlier orders the Court had made in the proceedings. The April motion sought, in my view, to invoke the liberty to apply implied in relation to ancillary or incidental matters, even in the case of final orders “in connection with the working out of” the orders. [28] On such an application, “a party … [may] ask the court or tribunal to deal with a matter arising out of the orders already made; generally, to resolve an argument about the detail of action already ordered to be undertaken”. [29] Although it is idle to speculate, it is possible that is why Lindsay J made a separate order dismissing the April motion. It is also apparent from the evidence before his Honour to which the Court was taken in the course of the leave application, that, in effect, as at 20 July 2015 there was nothing to be “worked out” in relation to orders 3 and 4. Once again it is a compelling inference that DB accepted that fact on that day. That would explain why Lindsay J gave no reasons for his orders, in particular order 3.

5. [50]

   In my view there is no utility in the application for leave to appeal. This would be a sufficient reason to refuse to extend the time, [30] however I do not dismiss the application for leave on that basis. Rather, as I earlier indicated, it is evident that DB can point to no error on Lindsay J’s part in making the challenged orders.

6. [51]

   Insofar as DB seeks to raise complaints about Madison’s legal representation, there is no suggestion any such matters were raised before Lindsay J. They cannot be raised in this Court. The orders sought in paragraph 4 of the draft notice of appeal are not orders which could be made on any appeal from Lindsay J’s orders.

Order

1. [52]

   I would grant DB an extension of time to seek leave to appeal, but dismiss the application. Neither respondent sought costs in the event leave to appeal was refused. I think it appropriate that each party pay his or its costs of the application.

2. [53]

   MEAGHER JA: I agree with the orders proposed by McColl JA for the following reasons.

3. [54]

   The applicant seeks leave to appeal from three orders (orders 3, 4 and 5) made by the primary judge (Lindsay J) on 20 July 2015. Those orders are set out by her Honour at [27]. Order 3 is the only order of substance about which the applicant complains. That order dismissed his earlier application for relief sought in paragraphs 3 and 4 of his motion filed on 13 April 2015. The relief sought by those paragraphs is set out by her Honour at [17].

4. [55]

   Paragraph 3 seeks to extend the operation of order 3(f) made by White J on 24 December 2014. That order was that the Secretary of the Department of Family and Community Services provide “necessary funding for Madison’s treatment by her current psychologist until she turns 18”. Madison is the applicant’s daughter and she turns 18 on 21 September 2016. White J’s order ceased to have effect on 27 February 2015, when the Children’s Court proceedings concerning Madison were finally determined.

5. [56]

   On one view, paragraph 4 seeks a funding order of the kind which White J declined to make on 7 November 2014 and 24 December 2014. Ball J also declined to make such an order on 27 January 2015. However, as formulated paragraph 4 only seeks an order in respect of financial undertakings made by the Department in the Children’s Court proceedings. Those undertakings are contained in the Amended Care Plan approved by that Court on 27 February 2015. The only funding undertaking given by the Department was in relation to Madison’s attendances on her treating psychologist and was to be “in line” with White J’s order of 24 December 2014.

6. [57]

   The primary judge gave no reasons for the making of the orders of 20 July 2015. That is so, according to the Department’s counsel who was present on that day, because those orders were made by consent or following discussion with the applicant during which he accepted that there was no utility in his continuing to press for the orders sought in his 13 April 2015 motion. The applicant does not agree that he made such a concession. Unfortunately there is no transcript of the proceedings on that day which would enable this Court to be any better informed as to what in fact occurred.

7. [58]

   The applicant’s proposed notice of appeal seeks to set aside order 3 so that his earlier motion for orders in terms of paragraphs 3 and 4 may be pursued. There are five proposed grounds of appeal. They do not include that the primary judge erred in failing to give reasons for the orders made. Nor do they contain any ground which clearly identifies a basis for concluding that the making of order 3 involved error.

8. [59]

   In these circumstances, leave to appeal should be refused. The primary judge did not deliver reasons. Neither the lack of reasons nor the existence of an obligation to provide them is relied on as a proposed ground of appeal. In the absence of reasons, it is not possible for an appeal to proceed and be determined on the grounds proposed. Secondly, and looking at the substance of the matter, paragraphs 3 and 4 of the 13 April 2015 motion seek orders that the Department pay Madison’s treating psychologist’s fees. Those fees are currently being paid by the Department and will continue to be paid until Madison turns 18 in accordance with the undertaking in the Amended Care Plan, which was the subject of the orders made by the Children’s Court. From the applicant’s perspective, the pursuit of his earlier application has no continuing utility and the resources of the Court, the Department and the applicant are better expended elsewhere.