CAC v Secretary, Department of Family and Community Services

By these proceedings the plaintiff (the father of four children, respectively aged 2, 4, 5 and 13 years) seeks, by an invocation of the Court’s superior jurisdiction, to challenge the validity of proceedings in the Children’s Court of NSW and, more particularly, an interim care order made under ss 69 and 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Care Act”) by the Children’s Court (constituted by a Children’s Magistrate) allocating parental responsibility of the children to the Minister for Family and Community Services (“the Minister”) “until further orders”.

An interim care order made by the Children’s Court under ss 69 and 79(1)(b) of the Care Act is not appellable under s 91 of the Act. However, it is amenable to an order, under s 69 of the Supreme Court Act 1970 NSW, in the nature of a prerogative writ (in that part of the jurisdiction of the Supreme Court variously described as the supervisory, administrative law or judicial review jurisdiction), and to be superseded by an order made in the Supreme Court’s protective jurisdiction (also known as the parens patriae, the inherent or, vis á vis children, the wardship jurisdiction of the Court): Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608; Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40]; Re Baby S [2014] NSWSC 871 at [16] and [19]-[23].

Section 247 of the Care Act provides that “[nothing] in this Act limits the jurisdiction of the Supreme Court.”

When the jurisdiction of the Supreme Court of NSW is engaged, by reference to the welfare of a minor, in a challenge to a determination of, or the pendency of proceedings in, the Children’s Court of NSW:

The Supreme Court’s protective jurisdiction (including, but not limited to, its jurisdiction over children) is directed to administration of the affairs of a person in need of protection, without strife in the simplest and least expensive way: RAP v AEP [1982] 2 NSWLR 508 at 512 C-D; M v M [2013] NSWSC 1495 at [50](f). It is not bogged down with any technicalities: Re Francis and Benny [2005] NSWSC 1207 at [17].

It generally provides no occasion for the conduct of adversarial litigation. Its function is not defined by a need to determine rights between hostile parties, but by a need to protect the welfare (including the person and property) of a person in need of protection.

In exercising its protective jurisdiction the Court is not necessarily bound by strict rules of evidence, but has a discretion to act on material which is rationally probative, even though excluded by such rules; the Court is able to proceed upon a consideration of what is rationally probative of material facts, with due regard to considerations of fairness vis á vis affected parties: Roberts v Balancio (1987) 8 NSWLR 436; HS Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924), pp 59-60.

This follows from the nature, and purpose, of the jurisdiction exercised by the Court in the protective arena. Nothing in the Evidence Act 1995 NSW compels a contrary approach.

Historically, the protective jurisdiction of the Court is derived from jurisdiction exercised by the English Lord Chancellor. Despite their different historical origins, the law relating to children and the law relating to the mentally ill have become assimilated in the protective jurisdiction: E (Mrs) v Eve (also known as Re Eve) [1986] 2 SCR 388 at 407 et seq; 31 DLR 4th) 1 at 13 et seq.

It is known as the inherent jurisdiction in contrast to analogous jurisdiction conferred by legislation such as the Guardianship Act 1987 NSW, the Care Act and the NSW Trustee and Guardian Act 2009 NSW.

Both branches of the protective jurisdiction, generally administered by the Supreme Court’s equity judges, are governed by their defining purpose: the protection of a person in need of protection. The guiding principle of the jurisdiction is that the welfare of the person under the protection of the Court is the paramount consideration.

The inherent, protective jurisdiction of the Court is not displaced by legislation absent a clear legislative intention that it be so displaced: Johnson v Director-General of Social Welfare (Victoria) (1976) 135 CLR 92 at 97 and 100; Re Eve [1986] 2 SCR 388 at 426; 31 DRL (4th) 1 at 28; In re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552; X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 301 [26]-[27].

The Evidence Act manifests no such legislative intention. On the contrary, for example, s 9 (1) provides that “[this] Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.” No such intendment can be found restrictive of the Court’s protective jurisdiction. The paramountcy principle, fundamental to the operation of the protective jurisdiction, prevails, where it must, over technical rules of evidence.

Even if particular provisions of the Evidence Act do not, in terms, apply, the operation of the protective jurisdiction might usefully be informed by them as a counsel of good practice or procedural fairness: eg, Ability One Financial Management Pty Limited and Anor v JB by his tutor AB [2014] NSWSC 245 at [319].

Care needs to be taken in all decision making affecting a minor, or other person in need of protection, to focus on the facts of the particular case, respecting the autonomy of the person under the Court’s protection, and endeavouring to pay due regard to any views expressed by the particular person, his or her family and carers who may be well placed to inform the Court of his or her particular circumstances.

The jurisdiction the Court is called upon to exercise is not a “consent jurisdiction” in the sense of its being bound to make a particular order, or to adopt a particular course, because a person in need of protection, or a significant other person, seeks it or agrees to it. The Court is bound to exercise an independent judgement because of the public interest element in the decisions it is called upon to make, and the possibility, if not the fact, that the person in need of protection lacks the capacity requisite to informed decision-making.

That is not to say that the Court cannot, in an appropriate case, take comfort from, or act upon, an agreed or requested course of action, especially as regards the conduct of interlocutory business.

When the Supreme Court’s protective jurisdiction is engaged on a challenge to proceedings in the Children’s Court, the Supreme Court must be vigilant not to allow its protective function, or that of the Children’s Court, to be diverted by subordinate disputation between interested parties about the availability of administrative law remedies or claims of “right” which, at least to the extent that they are discretionary, must themselves be governed by the protective jurisdiction’s paramountcy principle, informed by a consideration of what is in the best interests, and for the benefit, of the person in need of protection.

The availability of the Supreme Court’s protective jurisdiction is not an invitation for parties interested in the welfare of a minor to engage in an exercise of forum shopping, pursuing applications in the Supreme Court during the pendency of regular proceedings in the Children’s Court, because dissatisfied with rulings made, or anticipated, in the Children’s Court.

By virtue of its governing legislation, the Children’s Court has sufficient power over its own processes to ensure that its proceedings are conducted, as they must be, in a manner that is procedurally fair. Absent exceptional circumstances, it should be left to discharge its legislative functions, subject to the appeal processes for which the legislation provides.

As the Children’s Court proceedings under challenge in these proceedings were commenced on 14 October 2014, 15 days before amendments to the Care Act by the Child Protection Legislation Amendment Act 2014, those proceedings are (by virtue of schedule 3 of the amending Act) governed by the Care Act as in force before the amending Act commenced operation.

The first defendant, the plaintiff’s principal contradictor, is referred to in the Care Act as the “Director-General”, but is now known as the “Secretary” of the Department of Family and Community Services. The change in name imports no material change in function.

During the course of final submissions the plaintiff applied for, and obtained without objection, an order that the Minister be joined in the proceedings as the sixth defendant. The Minister’s role in the proceedings was formal. She was represented by counsel for the first defendant . She made no submissions independently of the first defendant. They were in the same interest.

In the broader context of the Care Act, ss 69 - 73 and 79 of the Act provide points of reference for understanding the nature and parameters of the current proceedings. They are in the following terms:

Procedurally, the Children’s Court proceedings under challenge in these proceedings had their formal genesis in the first defendant’s removal of the children from the care of the plaintiff and the third defendant (respectively, their father and mother) on 9 October 2014.

Although the family were earlier known to the Queensland Department of Child Protection and Disabilities (“the Queensland Department”) when they resided in Queensland, the historical origins of the current proceedings may, for the sake of convenience, be identified as having occurred on 20 May 2014. On that date the NSW Department of Family and Community Services (“the NSW Department”) received a Risk of Significant Harm (“ROSH”) Report pursuant to ss 23-24 of the Care Act.

The NSW Department requested information from the Queensland Department on 25 May 2014 and, in due course, was advised by the Queensland Department that the family had been subject to 15 child at risk reports in Queensland between January 2009 and September 2011.

Between 3 June 2014 and 9 October 2014 the NSW Department received six further ROSH Reports (on 3 June, 12 June, 25 August, 26 August, 10 September and 9 October 2014) plus other information.

Concerns expressed about the family included an apprehension that the family was transient (moving between Queensland and New South Wales) in order to avoid involvement with statutory authorities, and that the children were being exposed to domestic violence as well as homelessness.

On 9 October 2014: the NSW Department received a ROSH Report to the effect that the family had been located; a caseworker sought, and obtained information from the Queensland Department; and a Casework Manager formed the view that the children were in need of care and protection, and at immediate risk of harm in the care of their parents.

That assessment having been made, on the same day (9 October 2014) the Manager Casework authorised (on behalf of the first defendant):

Those steps having been taken, the first defendant came under an obligation (pursuant to s 45 of the Care Act) to make a “care application” (defined, by s 60 of the Care Act, as an application under chapter 5 of the Care Act for or with respect to care and protection of the children) to the Children’s Court.

Since 9 October 2014 the children have been kept at a place approved by the Minister (pursuant to the Care Act, s 49) pending the determination of the Children’s Court proceedings.

On 14 October 2014 the first defendant filed in the Children’s Court, as contemplated by s 61 of the Care Act, an Application and Report initiating Care Proceedings. Conformably with s 61(1), the Application (“Care Application”) provided a foundation for the Court to make a care order. Conformably with s 61(2), the Application was accompanied by a written report traversing topics of interest.

The Report (here paraphrased) noted that issues of concern raised in ROSH Reports included: parental incapacity due to drug and/or alcohol misuse; neglect; failure to ensure child attends school; and inadequate shelter and homelessness.

It also recorded that, subject to orders of the Court, the two older children had been placed together with one set of authorised carers, and the two younger children had been placed together with another set of authorised carers.

The Care Application sought both interim orders and final orders.

So far as material, the Care Application sought an interim order (under s 69 of the Care Act, by reference to s 79(1)(b)) allocating interim parental responsibility of the children to the Minister until further order of the Court.

The final order sought by the Care Application was an order (pursuant to the Care Act s 79(1)(b)) allocating parental responsibility of the children to the Minister until they each attain 18 years of age.

The grounds upon which that final order was sought were identified in the Care Application by reference to grounds specified in the following paragraphs of s 71(1) of the Care Act:

The Care Application has been the subject of three directions hearings since it was filed. The first was on 15 October 2014. The second was on 10 November 2014. The third was on 24 November 2014.

At the first directions hearing, the Magistrate constituting the Children’s Court (Hawdon CM) made an interim order (pursuant to ss 69 and 79(1)(b) of the Care Act) that parental responsibility of the children be allocated to the Minister until 4.00pm on 10 November 2014. At the second directions hearing, that interim order was, in effect, extended until 4.00pm on 24 November 2014. At the third directions hearing, the order was, in effect, extended “until further orders”. I say “in effect” because, upon proper analysis, it is probably more correct simply to say that on the second and third occasions a fresh interim order was made.

The interim order having present currency (namely, that made on 24 November 2014) was simply to the following effect:

Following the first directions hearing, on 15 October 2014 the first defendant filed in the Children’s Court (in conformity with the Court’s Practice Note 5, “Case Management in Care Proceedings”, paragraph 15.6.1(iii)/(viii)) a preliminary care plan entitled “Summary of the Proposed Plan for the Child or Young Person”.

It summarised, as follows, the alleged risks and/or safety concerns for the children:

Conformably with a requirement in s 83 of the Care Act that the first defendant assess the prospects of a restoration of the children to the care of their parents, the preliminary care plan recorded the NSW Department’s then apprehension that there was no realistic possibility of restoration of the children to the care of their mother, but that there was a realistic possibility of them being restored to their father’s care.

It recorded that the Department will be seeking a Children’s Court Clinic Assessment of the (plaintiff) father’s parenting capacity pursuant to the Care Act ss 53-54.

It also recorded, as follows, the tasks and demonstrated changes that the plaintiff needs to undertake in order for the children to be returned to him safely:

The second of these requirements requires particular explanation. The plaintiff and the third defendant claim to have separated, though not uncommonly living under the same roof. The third defendant has an addiction to drugs, and apparently an inability to withdraw from a drug culture, that is more manifest than any addiction that the plaintiff (despite his admitted use, at least, of marijuana) may have.

The dynamic of the two of them living together, and interacting with the children, is perceived by the first defendant to have been detrimental to the welfare of the children. The third defendant says she has now moved back to Queensland, and that the plaintiff intends to continue living in New South Wales. Whatever the future may bring, however, past experience provides reasonable grounds for doubting the resolve of the plaintiff and the third defendant, jointly and severally, to remain apart. They tend to be drawn to one another, with their children a natural, common bond.

The preliminary care plan also noticed that the parents were, at that time, attending contact visits with their children two times a week, for a period of two hours each visit, under supervision.

The current proceedings, in this Court, were commenced by a summons filed in the Common Law Division of the Court on 7 November 2014.

On the return date of the summons (18 November 2014) the summons was referred to Adams J for hearing.

Although his Honour appears to have allowed a wider range of issues to be canvassed in argument, I proceed on the basis that the only question determined by him (as it happens, adversely to the plaintiff) was whether, as the plaintiff alleged, the magistrate hearing the Children’s Court proceedings (Hawdon CM) should be restrained, on the ground of apprehended bias, from further hearing any aspect of those proceedings. His Honour dismissed the plaintiff’s application for an injunction and, at the invitation of the plaintiff, adjourned the balance of the summons for further directions by the Registrar.

Insofar as his Honour considered the question of apprehended bias, the evidence before him enabled him to review only the events of the first Children’s Court directions hearing (15 October 2014), not those of the second directions hearing (10 November 2014). Nevertheless, he did dismiss the plaintiff’s application for an injunction without any express reservation of a right to renew or re-agitate the question of “apprehended bias”.

In dismissing the application for an injunction, his Honour formally reserved his reasons for judgment. Absent any such reasons, I have taken the benefit of a transcript of the proceedings before his Honour.

If exchanges between bench and bar recorded in the transcript are indicative of his Honour’s reasoning, it appears that his Honour formed the view that:

Although the materials before me do not allow me, independently, to form a view about everything that occurred following Adams J’s dismissal of that part of the summons seeking to restrain the Magistrate from hearing the Children’s Court proceedings, I do have a transcript of the proceedings in the Children’s Court on 15 October, 10 November and 24 November 2014, and all counsel before me have agreed (and I accept) that:

It seems that there was an intermediate form of summons, styled “Amended Summons”, exchanged between the parties but not filed.

When the proceedings came before me, for hearing in the Protective List, I expressed concern about the possibility that the form of the Further Amended Summons suggested that, notwithstanding Adams J’s dismissal of the plaintiff’s claim for an injunction based upon an allegation of apprehended bias, the plaintiff was seeking (under the rubric of an allegation of denial of procedural fairness) to re-run substantially the same case.

With the consent of all defendants, I granted the plaintiff leave to amend the summons in terms of the Further Amended Summons, but I reserved for further consideration whether that form of process is, in part, an abuse of the processes of the Court in light of Adams J’s dismissal of the summons in part.

In light of my conclusion, in this judgment, that the proceedings should in any event be dismissed, it is unnecessary to canvass that point separately.

Without objection from any party, and in the absence of any question relating to the operation of a limitation period, I have proceeded on the basis that, although the Further Amended Summons claims relief by reference, at least in part, to events that occurred after the commencement of these proceedings, that fact operates as no impediment to a consideration of the claims for relief made in the Further Amended Summons.

Although the plaintiff presented his case by reference to the Further Amended Summons, the relief he sought was reformulated, first, in draft orders (marked for identification MFI “P3”) and, ultimately, orally in terms that sought: (1) an order that the current interim order made by the Children’s Court for parental responsibility of the children to be allocated to the Minister be stayed on terms that permit the children to live with the plaintiff, under the supervision of the Minister, pending the determination of the Children’s Court proceedings, and (2) an order that the Magistrate who made interim care orders be restrained from hearing any further aspect of the Children’s Court proceedings, on undertakings to this Court by the plaintiff that:

When, in the course of argument before Adams J, a similar proposition (an earlier iteration of the plaintiff’s present case) was put to his Honour (at transcript page 20 lines 15-27) it was rejected. Counsel for the plaintiff asked rhetorically: “Why would it not be in the children’s best interest for the children to be residing with the father but for the Minister to have care responsibility?” His Honour responded: “That’s a nonsense. Put a community officer in the second bedroom?”

Although determinative of nothing at this stage of the proceedings, that exchange, and the plaintiff’s persistence in running a procedural unfairness case with elements overlapping the apprehended bias case rejected by Adams J, contain seeds of doubt about the strategy being pursued by the plaintiff. He appears to lack insight into the nature of the problem to be solved and potential solutions.

Deny it ‘though he may, from time to time the plaintiff appears to have pursued a strategy of deflecting attention away from his parental deficiencies (and those of the third defendant), and away from co-operation with an objective, independent professional assessment of the family: (a) by attacking the Department as the bearer of an unwanted message, the Minister as the provider of independent interim care and the Children’s Court as the statutory decision-maker; (b) by tenuous administrative law challenges to the powers and procedures of the first defendant, the Minister and the Children’s Court, coupled with marshalling of forensic support from the third and fourth defendants; and (c) by seeking, under cover of appeals to the Supreme Court’s protective jurisdiction, an urgent hearing of the merits of questions bearing on parental responsibility and care without allowing the children to benefit from living independently from their parents, and without allowing any judicial decision-maker the benefit of an orderly, independent, professional assessment of the family.

Such a strategy is consistent with expressed concerns of the Queensland Department that the parents have routinely sought to evade scrutiny. It is also consistent with evidence that, during contact visits, the plaintiff has sought, covertly, to encourage the fourth defendant to object to her surroundings and to collude with him in challenging any outside intervention in the family’s affairs.

The statutory jurisdiction of the Children’s Court invoked by the first defendant, and the parens patriae jurisdiction invoked by the plaintiff in this Court, are both governed by the purposive character of the protective jurisdiction exercised by each court in aid of the welfare of minors, and by the principles which inform the protective jurisdiction, the chief of which is the paramountcy of the welfare of the particular children the subject of the proceedings.

The Children’s Court is constituted by the Children’s Court Act 1987 NSW (“the Court Act”). By s 12(1)of that Act, the Court has such jurisdiction as may be conferred or imposed on it by or under that or any other Act. By s 15 of the Act, the Court may, in relation to all matters in respect of which it has jurisdiction, make such orders, including interlocutory orders, as it thinks appropriate.

The Care Act confers on the Children’s Court jurisdiction to make a “care order” (that is, as defined by s 60, an order under chapter 5 of the Care Act, entitled “Children Court proceedings”, for or with respect to the care and protection of a child or young person).

For the purposes of the Care Act, a “child” is generally a person who is under the age of 16 years and a “young person” is a person aged between 16-18 years: Care Act, s 3.

By force of the Minors (Property and Contracts) Act 1970 NSW, Part 2, (ss 8-15), the age of majority in New South Wales is 18 years. A person becomes an adult, and ceases to be under the disability of infancy, on attaining the age of 18 years.

The purposive, protective character of the jurisdiction exercised by the Children’s Court in care proceedings and, incidentally, the complimentary roles of the first defendant and the minister, can be found explicitly provided for in chapter 2 of the Care Act, entitled “Objects, Principles and Responsibilities”. Part 1 (ss 7-10) of that chapter identifies “objects and principles” that inform the operation of the Act generally. Part 2 (ss 11-14), not applicable in the current proceedings, contains specific provisions relating to the care and protection of Aboriginal and Torres Strait Islander children. Part 3 (ss 15-19) identifies, at a high level of abstraction, the general roles of the first defendant and the Minister in administration of the Care Act and ancillary business.

Part 1 of chapter 2 is in the following terms:

The respective roles of the first defendant and the Minister may be discerned from ss 15 and 16(1), in Part 3 of the Care Act (entitled “Roles of the Minister and the Director General”):

In the Minister’s administration of the Care Act, and in the first defendant’s performance of functions identified by the Act, each office holder is constrained by the objects and principles enunciated by the Act. Neither can stand apart from the Act. Any discretionary power they may have under it is governed by the protective purpose it serves.

The protective purpose of the Children’s Court’s jurisdiction is found embedded in several of the machinery provisions of the Care Act. Sometimes that is done by express reference, as found in the reference to s 9(2)(c) in s 79(3). At other times it is done, implicitly, by use of language sympathetic to, or informed by, the Supreme Court’s protective jurisdiction, as in s 71(1). Section 71(1) provides that the Court may make a care order in relation to a child or young person who is “in need of care and protection for any reason” including particular reasons enumerated.

The inherent, protective jurisdiction of the Supreme Court relating to children (expressly preserved by s 247 of the Care Act) exists for the protection of those (including, but not limited to, minors) who are unable to protect themselves. It accords paramountcy to the welfare of the person in need of protection. Its ambit cannot be exhaustively defined: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259 citing inter alia Re Eve [1986] 2 SCR 388 407-417; (1986) 31 DLR 4th) 1 at 14-21; Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243 and Wellesley v Wellesley (1828) 2 Bli. N.S. 124 at 124, 136 and 142; 4ER 1078 at 1081, 1083 and 1085; Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 at [22] et seq.

The judicial review or supervisory, administrative law jurisdiction of the Court (largely focused, now, on s 69 of the Supreme Court Act 1970 NSW in lieu of prerogative writs), invoked by the plaintiff in these proceedings as a secondary case, is directed to ensuring that the Children’s Court acts within its jurisdiction (Re Frances and Benny [2005] NSWSC 1207 at [17]), as it must, as a statutory tribunal.

An applicant for s 69 relief must establish that the decision of the Children’s Court (or, after an appeal under s 91 of the Care Act, the decision of the District Court) under challenge is materially affected by jurisdictional error or error on the face of the record. It is not sufficient to point to some error of fact or miscarriage of discretion: “VV” v District Court of NSW [2013] NSWCA 469 at [10]; Re Felicity; FN v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [8]; JS v Secretary, Department of Family and Community Services [2014] NSWCA 441 at [23]. Section 69 relief is generally discretionary: JS [2014] NSWCA 441 at [53]-[54].

Consideration of whether the Children’s Court has acted within jurisdiction must make due allowance for the broad, beneficial, protective nature of the legislation conferring jurisdiction on the Court.

Upon consideration of the plaintiff’s claim to an administrative law remedy, deference must be paid, for example, to the obligation of the Children’s Court to comply with principles of procedural fairness, notwithstanding that proceedings in the Children’s court culminate the availability of a de novo appeal to the District Court from final, but not interim, orders made by the Children’s Court.

Nevertheless, where, as here, legislation provides for decision-making by a specialist court, coupled with a statutory right of appeal to another court entrusted with a task of conducting a new hearing, the Court is slow to grant discretionary, administrative law relief that might interfere with proceedings in other courts following a course prescribed by the legislation. Save in an exceptional case, a dissatisfied Children’s Court litigant might ordinarily be left to his or her right of appeal under s 91 of the Care Act.

The Court is equally slow to exercise parens patriae jurisdiction that may have the effect of interfering with proceedings in the Children’s Court following the course prescribed by the Care Act; again, generally, exceptional circumstances are required before the Court will intervene: Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40]; Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 at [43]-[45].

The Court’s protective jurisdiction is generally reserved for dealing with exceptional circumstances, including cases not contemplated by legislation, where it appears to the Court necessary to do so for the protection of those who fall within its ambit: Re Eve [1986] 2 SCR 388 at 411; (1986) 31 DLR (4th) 1 at 17.

This is an established pattern across the several branches of the protective jurisdiction, not merely that relating to children: Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [41].

The Court’s deference to the Children’s Court, as a specialist body, is not ultimately founded simply upon the concept of “exceptional circumstances” and its converse, or upon any independent principle dependent on the distinction, but upon: (a) the paramountcy principle, focussed on the welfare of the child or young person under the Court’s protection; (b) confidence reposed by the Court, in the ability of the Children’s Court to act in the best interests, and for the benefit, of the particular child or young person in need of protection; and (c) a recognition that, with the best will in the world, the Court is not equipped, routinely, to provide services available through the Children’s Court.

The Children’s Court is constituted, and governed, by legislation that takes the Supreme Court’s protective jurisdiction as its template (including, as reflected in s 93 of the Care Act, the Supreme Court’s informality of procedure), and provides an administrative structure for a heavy caseload to be carried by judicial officers equipped for the task. The State’s discharge of its protective responsibilities requires that due recognition be given to this reality.

As a convenient, shorthand expression, a Supreme Court judge exercising the Court’s parens patriae jurisdiction may say that the Court will not intervene in Children’s Court proceedings absent exceptional circumstances. A judge exercising the Court’s administrative law jurisdiction by reference to the Supreme Court Act, s 69, may express the same substantive idea by saying that discretionary relief is not available if the plaintiff has an alternative remedy (eg, in the Children’s Court) available: eg, JS v Secretary, Department of Family and Community Services [2014] NSWCA 441 at [53]-[66].

As noted in JS [2014] NSWCA 441 at [46], in Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 at [20]-[22] Hodgson CJ in Eq, approached the same question by an implicit analogy with a general principle governing the Court’s practice and procedure:

That approach has been followed by other judges of the Equity Division: eg, Re Baby S [2014] NSWSC 871 at [23].

Although the formal reasoning of judges may differ, the substantive operation of the law is likely to be the same. This, I take to be a practical illustration of cohesion in elaboration of the law, viewed from different perspectives, and consistency in its administration.

For my own part, the preferable approach is, expressly, to place to the fore the Court’s protective jurisdiction governed by the paramountcy principle, informed by a consideration of what is in the best interests, and for the benefit, of the child or young person under the Court’s protection. This approach places the person in need of protection at the centre of all consideration, whereas the common lawyer’s administrative law focus is tied to a remedy, and Hodgson CJ in Eq’s focus concentrates on the practical value to be attributed to orderly judicial decision-making.

There is, nevertheless, analytical value in approaching these questions (about whether the Supreme Court can, and should, intervene in Children’s Court proceedings) by reference to each of: the nature of available remedies; the quality of an earlier judicial decision; and the nature, quality and availability of decision-making processes, including administrative decision-making processes, bearing upon treatment of the person in need of protection.

Evidence before the Court in the current proceedings demonstrates that the first defendant had reasonable grounds for removal of the children from the care of their parents, and the Children’s Court had reasonable grounds for making interim orders allocating parental responsibility of the children to the Minister. That can be seen, for example, in the “contact record” of the NSW Department of Family and Community Services for 9 October 2014 and a confirmatory email of the same date received by the NSW Department from the Queensland Department on the same date.

I do not accept (as the plaintiff, with support from the third and fourth defendants, would have me find) that the validity of the action taken by the first defendant on 9 October 2014 by reference to ss 43(1) and 44(1) of the Care Act is open to challenge for a want of reasonable grounds, or other irregularity.

This finding substantially disposes of the case sought to be made against the regularity of the proceedings in the Children’s Court. The plaintiff contends that the proceedings have been flawed from the outset because the first defendant could, and should, have engaged in a process of consultation with him and the third defendant rather than acting peremptorily. That contention is itself flawed in its failure to come to grips with the family’s pattern of transient behaviour over a long period and the NSW Department’s reasonably-based fear that the family was a flight risk.

That is not to say that, on a final hearing, of the Care Application, with the benefit, inter alia, of an assessment report on the parenting capacity of the plaintiff, jointly with or separately from the third defendant, the Children’s Court would be bound to make the care order sought by the first defendant. The Secretary’s case for final relief remains to be heard on its merits. He will bear the onus of proof on the hearing of that case, a factor I take into account in these proceedings.

Well after the close of evidence, and in the course of final submissions, the third defendant produced a detailed affidavit, affirmed by herself, putting in issue the case sought to be made by the first defendant in the Children’s Court. It could not fairly be dealt with in the current proceedings, constrained as they have been by limits of time and the need for an expeditious ruling. I received the affidavit on the express, limited basis, that it represents the nature of the case sought to be made by the third defendant rather than as evidence of facts stated. It ought, properly, to be considered by and tested in, the Children’s Court.

I am not satisfied that the Magistrate who has had carriage of Children’s Court proceedings to date has made an error, jurisdictional or otherwise, in her handling of the proceedings thus far. It was open to her, in management of the proceedings, to make the interim care orders she did. It was (to paraphrase s 15 of the Children’s Court Act 1987 NSW) “appropriate” that she do so. She was entitled to act upon information contained in the first defendant’s s 61(2) report; the consent to an interim care order forthcoming from the third defendant and the independent child representative for the fifth defendants; the need for records to be obtained on subpoena; the absence of evidence from the plaintiff responsive to the first defendant’s report; and the need for an orderly preparation, presentation and testing of any evidence to be adduced in the proceedings. Her task, as she correctly perceived it, was to manage risk in seeking both to protect the children and to act fairly in the conduct of the proceedings.

She was not bound, as the plaintiff seemingly would have it, to cede control of the proceedings to his agenda. Criticism of the haste with which she moved towards an interim care order in the early stages of the proceedings before her must be judged against the exigencies of dealing with the business of the Court, the need for proceedings to be prepared for hearing in an orderly way, and the absence of any decisive factor (what Adams J described as a “killer point”) militating against the making of an interim order.

Observations of Ipp JA in Re Jayden [2007] NSWCA 35 at [75] and [77]-[79] remain apt:

I am no more able, on the whole of the evidence placed before me and with the benefit of submissions on behalf of family members, to conclude that the interim orders made by the Children’s Court to date have been affected by a want of jurisdiction, or error, than Adams J was able to discern a basis for restraining the conduct of Children’s Court proceedings or the presiding Magistrate.

Notwithstanding the submissions made in support of the plaintiff (father) by counsel retained in these proceedings on behalf of the third defendant (mother), and counsel retained on behalf of the fourth defendant (the eldest child), I am comfortably satisfied that it is in the best interests of the children, jointly and severally, to make no orders affecting the subject matter, or future course, of the Children’s Court proceedings.

The evidence adduced in these proceedings makes good a “prima facie case” that the children, jointly and severally, are exposed to risks and safety concerns of the nature of those summarised in the first defendant’s preliminary care plan.

Particularly significant is a mass of primary material produced in evidence, in this Court, by a senior officer (Manager Caseworker) employed by the first defendant who has had overall case management responsibility for the children since the commencement of the Children’s Court proceedings: Exhibit 1D1.

It provides reasonable grounds for an interlocutory determination that:

By reference to the Care Act and by analogy with the criteria for the grant of injunctive relief upon an exercise of the Court’s general equity jurisdiction (Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 81-82 [65]), I am affirmatively satisfied that: (a) on the evidence as it presently stands, there is a prima facie case for allocation of parental responsibility of the children to the Minister until they respectively attain their majority; and (b) the balance of convenience presently favours an interim order that parental responsibility for the children, jointly and severally, to be allocated to the Minister pending the determination of the Children’s Court proceedings or further order.

Unlike the Children’s Court, this Court is not necessarily constrained upon an exercise of its protective jurisdiction by the statutory criteria for the making of a care order.

Even so, the analogy with an exercise of the Court’s general equity jurisdiction is not exact because an exercise of protective jurisdiction focuses on the welfare of a minor, or another person in need of protection, in a non-adversarial setting rather than upon the vindication of rights, at law or in equity, between parties, in conventional, adversarial proceedings.

Nevertheless (to express a similar idea through use of different language), it is convenient in the current proceedings to dwell upon distinct, but complementary questions of: (a) risks and safety concerns affecting the children; and (b) prudential management of those risks and concerns in the interests, and for the benefit, of the children pending an orderly determination of the Children’s Court proceedings.

A flaw in the plaintiff’s case is that, whilst formally conceding that his care of the children may have been deficient in the past, and that he needs to take remedial steps to overcome any such deficiency, much of his energy appears to have been devoted to attacking the care afforded the children under the interim, parental responsibility of the Minister.

The plaintiff cannot defeat the first defendant’s case (as he perceives it, against him) on the Care Application, or secure the intervention of this Court to deflect the care proceedings from their ordinary course, by pointing to alleged deficiencies in the care afforded to the children by ministerial delegates, without addressing his own deficiencies or, more correctly, the reasonable grounds, established on the evidence, for an apprehension that:

The support afforded to the plaintiff’s case by counsel for the third and fourth defendants is worthy of respect.

However, the third defendant, with her habitual resort to a drug culture, has manifested a want of capacity for parental responsibility and a tendency (despite protestations to the contrary) not to resist the gravitational pull of domestic life with the plaintiff and their children. Her sense of family may, at one level, be commendable. However, unable to get her life in order, she appears equally unable to allow the children (and possibly the plaintiff) space to have their basic needs met in a safe and nurturing environment.

The fourth defendant’s support for her father’s case, affecting her own placement and that of her siblings, is worthy of particular notice. However, the material before the Court demonstrates a sustained lack of parental care for her, at least in relation to school attendance and the quality of life afforded to her. She is of an age able to articulate an opinion, but liable not to be the best judge of her own welfare. Her support for her father would be enhanced if given after a period of living independently of him and independent professional assessment, without which an objective parental regard for her welfare requires her subjective expressions of support for her parents to be treated with caution as well as respect.

In light of: (a) the family’s history of transience, participation in drugs, and a poor domestic environment, coupled with episodes of violence; and (b) doubts about the capacity of the plaintiff to manage care of the children, and about his reliability in dealing with welfare authorities, the Court could not, at this stage, readily rely on undertakings proffered to it by him (or the third defendant) as a condition of its allowing him, pending a determination of the Children’s Court proceedings, to resume care of the children or any one or more of them.

In the course of argument, a question arose (at the instigation of counsel for the fifth defendants) about whether the Court should , at least, give directions, upon an exercise of its inherent protective jurisdiction, for an extension of the amount of contact with the children to be allowed to the plaintiff (and the third defendant) over the current holiday period.

I was more sympathetic to such a course in the earlier stages of the hearing than I became as the plaintiff’s case wore on. In principle, I agree, every reasonable opportunity should be taken for there to be constructive engagement between the children and their parents. However, having entertained the parties’ submissions at length, I have formed the view that the plaintiff, at least, lacks insight into what is required to permit all proceedings relating to his children to be dealt with both expeditiously and in the best interests of the children.

The insistence of his counsel, alone of all counsel, that steps be taken to have the eldest child personally attend the hearing of the current proceedings, and the plaintiff’s criticism of Departmental supervision of his contact with the children, are consistent with an apprehension that I have that, were he to be allowed, in the short term, to take responsibility for the day to day care of the children, he would (perhaps unconsciously) be relentless in endeavours to inculcate in them (quite possibly to their detriment) views favourable to his own.

His protestations, and those of the third defendant, that they can be relied upon, now, to care for the children on a regular basis, notwithstanding a documented history of resisting welfare authorities, counsel caution.

It is open to the Minister, by administrative decision, to vary the family’s contact arrangements from time to time. If the plaintiff and the third defendant are dissatisfied with those arrangements, it is open to them to make an application to the Children’s Court, under s 86 of the Care Act, for formal orders. The recent decision of the Court of Appeal in JS v Secretary, Department of Family and Community Services [2014] NSWCA 441 suggests that s 86 may have a more flexible scope for operation than formerly thought.

I am affirmatively satisfied that it is in the best interests, and for the benefit, of the children that the plaintiff’s summons be dismissed so that the Children’s Court can be left to do the work it is charged by legislation to perform, and the parties can be directed, and allowed, to channel their efforts through the procedures for which the Care Act provides: with a statutory and administrative framework for assessment reports to be obtained from appropriately qualified professionals, with provision in s 91 for an appeal from any final order.

I am also affirmatively satisfied that the interests of the children are best served, and it is of benefit to them, that, pending further consideration of their welfare, parental responsibility of them be allocated to the Minister, unencumbered by a directive from this Court about the nature and level of contact between the children and their parents in the short term. This is a topic which should be left to the Children’s Court, if satisfactory arrangements cannot be agreed between all interested parties.

I do not intend by the findings I have made to bind any of the Children’s Court, the Minister or the first defendant to a future course of action beyond constructive engagement. The third defendant has, latterly, turned her attention to an affidavit that addresses primary facts about the family’s life. The plaintiff has yet to do so in any substantive way, so intent has he been on fighting those he perceives as adversaries. He is, in this, his own worst enemy. He needs to concentrate upon a demonstration that he is responsible and trustworthy.

If and when things settle down in the wake of dismissal of these proceedings, the factual matrix may take on a different colour. I do not intend, by my findings in this judgment, to stand in the way of that happening.

I will allow the parties an opportunity to make submissions about what, if any, costs orders should be made.

The Court’s approach to orders for costs in proceedings which invoke its protective jurisdiction is different from that which applies in ordinary civil litigation.

The ordinary rule in protective proceedings is that the Court may exercise its discretion as to costs, not by reference to a rule that costs follow the event, but having regard to what, in all the circumstances, seems proper: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640; M v M [2013] NSWSC 1495 at [50](n). Not uncommonly, each party is left to bear its, his or her own costs.

However, where a party unsuccessfully pursues an application for relief in an adversarial manner, it may be that the proper order is for that party to pay or bear the costs of proceedings in whole or part: Ho v NSW Public Guardian [2013] NSWSC 1788 at [15]-[16]; JPT v DST [2014] NSWSC 1735; Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [60]-[61]; JS v Secretary, Department of Family and Community Services [2014] NSWCA 441 at [41].

This approach, more often articulated in cases involving financial management and guardianship orders than in cases involving the care of children, is not inconsistent with Re Kerry (No 2) – Costs [2012] NSWCA 194, where (starting from a premise that the Court’s general practice upon an application of the Civil Procedure Act 2005 NSW, s 98 and the Uniform Civil Procedure Rules 2005 NSW, r 42.1, is that, subject to particular considerations in a specific case, costs ought to follow the event) the Court of Appeal considered particular arguments bearing upon where the costs burden should fall in an administrative law (Supreme Court Act 1970 NSW, s 69) challenge to care proceedings that had been determined in the Children’s Court and, on appeal, the District Court.

As the contrasting case of X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 311 [75]-[78] demonstrates, each case must ultimately depend on its own facts.

A common (but not necessary) factor in a decision to award costs against an applicant for relief in this Court vis á vis a challenge to proceedings in the Children’s Court (or, on appeal, the District Court) appears to have been the articulation of an ill-disciplined administrative law case, with a concomitant focus on personal rights asserted by the applicant independently (albeit, perhaps, under cover) of an appeal to the protective jurisdiction’s paramountcy principle.

I order that the proceedings be dismissed.