D v C; Re B (No 2)

1. [1]

   McCOLL JA: I agree with Basten JA’s reasons and the orders his Honour proposes.

2. [2]

   BASTEN JA: In 2013 a child was removed by the Secretary, Department of Family and Community Services from the care of his parents, exercising powers under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”). On 4 June 2014 the Children’s Court made a care order placing the child under the parental responsibility of the Minister. In late 2015 the mother sought rescission of that order and an order granting her parental responsibility. In early 2016 the father made a similar application; he was successful in the Children’s Court.

3. [3]

   The mother appealed to the District Court from the order of the Children’s Court restoring parental responsibility to the father. After a hearing which proceeded over eight days in May and June 2018, the primary judge delivered judgment on 29 June 2018 [1] rescinding the orders made in the Children’s Court on 15 December 2017 and allocating sole responsibility for the child to his mother. There followed further hearings on 9, 13 and 19 July 2018. The judge purported to make “final orders” on 19 July 2018.

Application for review

1. [4]

   There is no appeal in such proceedings from the District Court. Accordingly, the applicant (the father) invoked the supervisory jurisdiction of this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). To succeed the father must establish either that the District Court exceeded its jurisdiction, or that the District Court made an error of law which appeared from the face of the record. The record, relevantly, includes the reasons for judgment given by the District Court.

2. [5]

   A summons seeking judicial review was filed by the father on 10 August 2018. That document was replaced by an amended summons filed a month before the hearing, on 25 September 2018. The only change to the orders sought was to recognise the uncertainty as to whether the relevant orders were made on 29 June or 19 July and, in the alternative, to seek that both sets of orders be quashed. The amended summons also contained reworked grounds.

3. [6]

   The grounds relied upon in the original summons alleged, without particularisation, denials of procedural fairness in the course of the hearing. These were expanded upon in pars 2 and 4 in the amended summons. The complaints with respect to procedural unfairness, which may be characterised as jurisdictional error, arose from steps taken by the primary judge on his own initiative to have further material brought before the Court on the appeal in circumstances where the parties were agreed that the appeal be dealt with “on the papers”, that is by reference to the material before the Children’s Court. The mother had not sought to rely upon any further evidence on the appeal.

4. [7]

   In addition, the amended summons contained two new grounds alleging “excess of jurisdiction”. Ground 1, directed to the orders of 19 July 2018, alleged that “the Court below had not made the express findings required by subs [83(7)] before the power to make final care orders is enlivened.” Ground 3, directed to the orders made on 29 June 2018, alleged that the Court did not have power in two respects, namely (1) to make care orders allocating parental responsibility under s 80(b) of the Act because the Court had not considered a “care plan” as required by s 80, and (2) to make final care orders under s 83(7) because it had not made “the express findings required by subs [83(7)] before the power to make final care orders is enlivened.” [2]

5. [8]

   At the hearing of the appeal, the father sought leave to file a further amended summons, which added a new ground 1A. The ground should be set out in full; it reads as follows:

6. [9]

   On the application to amend counsel for the father said the new ground reflected submissions which had already been filed, but which the Secretary suggested raised a separate issue and which should be the subject of a fresh ground. There was a further amendment proposed, adding a new ground 5, which sought to raise the same particulars as those set out in ground 1A with respect the 29 June orders. The proposed amendments will stand or fall together.

7. [10]

   The Court reserved its decision on the application, giving leave to Mr Boys (solicitor for the mother) to seek an opportunity to put on further submissions if, at the end of the day, he believed he was in some way prejudiced. He did not avail himself of that opportunity.

8. [11]

   Whether the ground had substance is not easily resolved. It is true that, in the course of discussion with the legal representative of the father, the judge stated, on day four: [3]

9. [12]

   However, on day two, in the course of addressing the solicitor for the mother, the judge had stated: [4]

10. [13]

    What appears to have caused the judge to misstate the nature of the proceeding on the fourth day will become clearer from the history discussed below in dealing with the ground of procedural unfairness. Put briefly, the discussion on day three had envisaged an adjournment of the appeal to allow further evidence to be called. At the beginning of the hearing on day four, the judge reversed that position stating that “adjourning the proceedings for the purpose of further reports is in effect a [de] facto adjournment to shore up a flawed position”. [5] In short, the view that the appeal might be determined by identifying error in the proceedings below appears to have occurred at the same time that the judge determined to go ahead with the hearing of the appeal.

11. [14]

    The change in course may explain why the proceedings thereafter miscarried, as explained below. However, it is arguable that later in the proceedings, albeit in refusing applications for adjournments to allow updated evidence to be prepared, the judge correctly identified the need to be satisfied of relevant matters in order to make care orders which differed from those made by the magistrate. Statements made in later stages of the proceedings did not identify the need to establish error in the court below, but rather the need for the judge to be satisfied as to the proper outcome of the proceedings.

12. [15]

    In these circumstances, the misdirection as to the nature of the proceedings is relevant to understanding how the proceedings resulted in procedural unfairness, as discussed below; there is no need to consider ground 1A as a separate matter and, accordingly, the better course is to refuse the proposed amendment of the summons to include new grounds 1A and 5.

13. [16]

    It is convenient to deal first with grounds 1 and 3 dealing with the alleged failures to comply with jurisdictional requirements in the Act, which require consideration of the statutory scheme.

Statutory scheme

1. [17]

   There was a tendency in the submissions in this Court to address provisions of Ch 5, dealing with Children’s Court proceedings, in isolation. However, the scope and operation of the provisions can only properly be understood when they are read in context and having careful regard to the structure of the chapter.

2. [18]

   Chapter 5 has two parts; Pt 1 deals with “Emergency protection and assessment”, while Pt 2 deals with “Care applications”.

3. [19]

   Part 2 commences with some definitions of key phrases:

4. [20]

   Section 61 provides that a care order may only be made on the application of the Secretary, “except as provided by this Chapter.” The applicant accepts that the relevant exception is s 90 which provides that an application for “the rescission or variation of a care order” may be made by the Secretary, the child, a person having parental responsibility for the child and a person from whom parental responsibility has been removed: s 90(1) and (3). The term “parental responsibility” means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children”: s 3(1), parental responsibility.

5. [21]

   The procedure in the Children’s Court is set out in Ch 6 of the Act, which reflects the principle articulated in s 9(1) that “in any action or decision concerning a particular child …, the safety, welfare and wellbeing of the child … are paramount.” The particular powers and procedures of the Children’s Court are found in ss 93, 106A and 107, which are set out below in addressing the complaints of procedural unfairness.

6. [22]

   Provision is made for appeals to the District Court under s 91, which appears in Ch 5 and provides as follows:

7. [23]

   With this structural background, it is convenient to turn to the relevant provisions governing an application for rescission or variation under s 90:

8. [24]

   It will be recalled that the grounds of appeal relating to excess of jurisdiction relied upon failures to comply with jurisdictional requirements in ss 80 and 83(7).

9. [25]

   Each of these sections imposes requirements on the Children’s Court (and hence the District Court) in mandatory terms in respect of making “a final care order”. It is convenient to deal first with s 83. It is necessary to set out the section in full:

10. [26]

    It may be seen that the various subsections in s 83 proceed in an orderly fashion, each separate step proceeding from a preceding step. Further, the section commences with a condition which appears to govern all that follows, namely that it applies “[i]f the Secretary applies … for a care order … for the removal of a child”. The Secretary is then required to assess whether there is “a realistic possibility of the child … being restored to his or her parents”: s 83(1). That assessment is described in subss (2) and (3) as whether or not there is a “realistic possibility of restoration”, a shorthand term which clearly refers to restoration to the parents, as described in subs (1). The Children’s Court must then decide whether or not to accept the Secretary’s assessment: s 83(5). If it does not accept the Secretary’s assessment, it has power to direct the Secretary to prepare “a different permanency plan”: s 83(6).

11. [27]

    The term “permanency planning” is defined in s 78A as “the making of a plan that aims to provide a child … with a stable placement that offers long-term security …”: s 78A(1). The preparation of such a plan is provided for in s 83 and depends upon the realistic possibility of restoration.

12. [28]

    Section 83(7) then requires express findings by the Court that “permanency planning … has been appropriately and adequately addressed” and if the plan involves restoration, that there is “a realistic possibility of restoration”. These findings are mandatory before the Court makes a “final care order”.

13. [29]

    The internal structure of s 83 suggests that the concept of a “final care order” in s 83(7) is restricted to an order made where the Secretary has applied for the removal of a child from parental care.

14. [30]

    More generally, care orders are either “interim” or “final”: s 62. Apart from emergency protection orders made under Ch 5, Pt 1 (s 46) care orders are treated as “final” unless they are specified as “interim”. Many provisions in Ch 5, Pt 2 apply to both kinds of orders. Some provisions, however, are more limited in their effects. Apart from s 90(3) (permitting persons other than the Secretary to apply for rescission or variation of a care order), the application for a care order is to be made by the Secretary. Accordingly, there is no reason to suppose that s 83(7) applies except to a final care order made on application of the Secretary and involving removal of a child from his or her parents.

15. [31]

    The same reasoning applies with respect to s 80, which is in the following terms:

16. [32]

    Care plans generally are provided for under s 78 which commences:

17. [33]

    These provisions are consistent in referring to “a care plan presented to [the court] by the Secretary”. This is consistent with the reading of s 83 set out above.

18. [34]

    The amendment to the father’s summons seeking to rely upon failure to comply with ss 80-83 appears to have resulted from submissions by the Secretary raising these issues. Upon examination, grounds 1 and 3 in the amended summons cannot be upheld; this not being an application by the Secretary seeking removal of the child, the provisions did not apply. It therefore remains to consider the issues arising from grounds 2 and 4 alleging procedural unfairness.

(a) the claim

1. [35]

   With respect to grounds 2 and 4, which related to orders made on both 29 June 2018 and 19 July 2018, the procedural unfairness was particularised as follows:

(b) relevant statutory provisions

1. [36]

   Before turning to the procedural steps taken in the course of the trial, it is convenient to identify the procedural provisions in the Act which govern the manner in which a trial in the Children’s Court, and hence in the District Court, is to be conducted.

2. [37]

   No party submitted that they need not be accorded procedural fairness. However, the manner of conducting the proceedings may properly involve degrees of informality, and the consideration of material, which would not occur in ordinary civil proceedings. It is also necessary to address what is meant by s 93(1) stating, in mandatory form, that proceedings “are not to be conducted in an adversarial manner.” These are matters which may affect the content of procedural fairness.

3. [38]

   On one view, the language of s 93(1) is simply descriptive of the following matters set out in s 93. Thus, in Re Henry; JL v Secretary, Department of Family and Community Services [6] McColl JA stated, “[p]roceedings before the Children’s Court are not to be conducted in an adversarial manner, but, rather, with as little formality and legal technicality and form as the circumstances of the case permit”.

4. [39]

   There is, however, reason to give s 93(1) a broader effect. Although provisions purporting to remove “formality and legal technicality” and to relieve a court or tribunal from compliance with the rules of evidence are commonplace, [7] the requirement that proceedings not be conducted “in an adversarial manner” is uncommon. Examples may be found in the Mental Health (Forensic Provisions) Act 1990 (NSW), s 12(2) (dealing with an inquiry into the question of a person’s fitness to be tried) and in the Crimes (Administration of Sentences) Act 1999 (NSW), Sch 1,cl 11(4)(b) (dealing with hearings before the parole authority). An earlier example may be found in the Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 37(1) (dealing with employment decisions in the Public Service).

5. [40]

   Two further factors should be taken into account. First, a non-adversarial proceeding would, in ordinary parlance, connote something different from the removal of forms and technicalities. Secondly, the mandatory language suggests that s 93(1) is not merely a descriptive provision, but one which imposes obligations. It may be directed to the presiding judicial officer, or to the parties, or to both. In Re June (No 2) [8] McDougall J, referring to the submissions made on behalf of the Director-General before the Children’s Court, stated:

6. [41]

   On this approach, the purpose of providing that the proceedings are not to be conducted in an adversarial manner is to give effect to the principle that it is the child’s safety, welfare and wellbeing which are of paramount importance, as provided in s 9(1). Not only would adversarial proceedings, pitting the parents against each other or against another carer, not promote the paramount interests of the child; they may actually harm the child by poisoning future relationships between parties who will continue to maintain contact with the child, in a mutual endeavour for the child’s wellbeing. The risks to ongoing relationships if proceedings are conducted in an adversarial manner are self-evident and well understood by all parties concerned.

7. [42]

   Further, adversarial proceedings are commonly contrasted with inquisitorial proceedings. As commonly understood, the point of contrast is that an adversarial proceeding is controlled by the parties, with limited input from the court, whilst an inquisitorial proceeding reverses the element of primary control. Whether or not that meaning is to be found in s 93(1), it is reflected in s 107(1). The purpose of permitting a judicial officer to “examine and cross-examine a witness” is to allow the officer to be more involved in the adducing of evidence than is the case in an adversary trial. In the absence of argument to the contrary as to the scope of s 107(1), it may be assumed that this power extends to the judicial officer calling the witness in order to allow questioning. That, in effect, occurred in the present case, but was not for that reason beyond power.

8. [43]

   While it may be said that the principal focus of care proceedings is the safety, welfare and wellbeing of the child, that is not to deny that the parents, the Secretary and, so far as practicable, the child are entitled to be heard and to participate in the proceedings. Accommodating those interests requires compliance with the requirements of procedural fairness to each. Although the content of procedural fairness may, in particular circumstances, need to adapt to the function of the jurisdiction being exercised, the claim by the father, supported by the Secretary and the independent legal representative for the child, was that the proceedings in the District Court failed to comply with the basic elements of procedural fairness.

9. [44]

   With these principles in mind, it is convenient to turn to the procedural steps taken in the appeal in the District Court.

(c) procedural steps in District Court

1. [45]

   Two matters may be noted before reviewing the procedures adopted in the District Court. First, although the account set out below depends entirely upon a review of the transcripts, not all of the transcript was provided to this Court. However, no party suggested that any material aspect of the hearings had been omitted.

2. [46]

   The second point to note is that the mother was represented in the District Court by a solicitor, Mr Boys, who also appeared for her in this Court. At one stage, on the fourth day, Mr Boys stated: [9]

3. [47]

   Whether acting pro bono or not, as will be apparent shortly, Mr Boys sought to run the mother’s case on a flawed basis which caused the judge to take steps which, no doubt, he would not otherwise have taken. Mr Boys continued to represent the mother in this Court. Although Mr Boys filed appropriate written submissions, he was unable or unwilling to engage orally with the difficulties raised by the case he sought to resist. He advised the Court that he was in receipt of legal aid, but said that legal aid had not been sought for counsel. Given that the other parties, all of whom sought to challenge the proceedings in the District Court, had legal representation, the independent legal representative for the child and the father being in receipt of legal aid, it is difficult to believe that legal aid would not have been available to brief counsel for the mother, had it been sought. The proceedings in the District Court commenced on 28 May 2018. Proceedings were opened by counsel for the Secretary (Ms Mahony) who noted that a psychologist, Mr Michael Hawton, had been appointed to undertake an assessment for the Children’s Court. Counsel concluded her opening with the following statement: [10]

4. [48]

   Upon hearing that there was to be a challenge to Mr Hawton’s report, the judge was taken to the report and the following exchange occurred with Ms Mahony: [11]

5. [49]

   The child’s independent legal representative and the father’s representative adopted the same position as the Secretary. However, when Ms Fawaz, appearing for the father, sought to tender the school report Mr Boys objected. The following exchange then took place: [12]

6. [50]

   The matter was then adjourned so that the judge had an opportunity to read the documents in the bundle. On the morning of day two, the judge advised the parties that he had read much of the material and there was “a matter that’s causing me some disquiet if not alarm”. [13] Revisiting the problem he had identified the previous day, the judge stated: [14]

7. [51]

   Counsel for the Secretary informed the judge that Mr Hawton could attend the following day. The judge then required that he be given a copy of Dr Wright’s letter of 20 March 2012 concerning the aunt. [15]

8. [52]

   Despite aspects of Mr Boys’ submissions in the District Court, the allegation of child abuse by the paternal grandfather with respect to his step-daughter (the child’s aunt) was neither novel nor unknown at the time of the hearing before the Children’s Court. The information had been brought to the attention of the Department in January 2016. The information was sourced to a report prepared by a psychiatrist, Dr Wright, dated 20 March 2012. Dr Wright had interviewed the aunt on 15 March 2012. The report contained a brief reference recording the history provided by the aunt:

9. [53]

   At the time of the consultation with Dr Wright, the aunt was more than 45 years of age. It follows that the unspecified sexual abuse had occurred more than 30 years earlier when she was a young girl. The age of the paternal grandfather is not revealed, but he must now be in his 70s. In January 2016 a caseworker from the Department had spoken to the child’s aunt and recorded the following conversation in a file note: [16]

10. [54]

    Mr Hawton had been aware of the allegation, as well as the aunt’s denial when he prepared his report. He had been questioned about it at the hearing in the Children’s Court.

11. [55]

    Returning to the history of the proceedings in the District Court, the third day may be summarised briefly. Counsel for the Secretary, having inferred that the judge was concerned about the steps taken by the Department to investigate the historical (and denied) allegation of child abuse by the paternal grandfather, provided an affidavit to the Court setting out the steps taken prior to the preparation of Mr Hawton’s report. She then suggested as a possible course that the matter be adjourned and there be a referral for a further clinical report, a process she said would take approximately three months. The judge noted that there should be “sufficient time for the mother to not only consider the implications, but also gather evidence if required in response.” [17]

12. [56]

    With respect to the affidavit proffered by the Secretary, the mother’s solicitor stated that “[w]e totally and utterly object to that affidavit.” He was reprimanded by the judge for colourful and unhelpful submissions. The judge stated: [18]

13. [57]

    There was then discussion as to whether Mr Hawton would give evidence on that day, Ms Mahony stating that that was not proposed. The judge appeared to adopt that position: [19]

14. [58]

    At the commencement of the hearing on the fourth day the judge expressed a different position in the following terms: [21]

15. [59]

    The judge then adjourned for the parties to take instructions. The father’s solicitor sought an opportunity to respond. Counsel for the Secretary then noted that if there were no further report to be obtained, it would be necessary to hear from the caseworker, who had prepared the affidavit, the mother, the father and the clinician. The judge then stated: [22]

16. [60]

    The mother was then called and her evidence continued for the rest of that day and throughout day five.

17. [61]

    Mr Hawton was called by the trial judge on day six. The judge advised Mr Hawton that he was “not a witness for any party but a witness for the Court”. [23] The judge then sought access to the “assessment order” which he treated as the equivalent to a letter of instructions. Mr Hawton could not remember whether he had received “any other commissioning communications”. [24] Questioning by the Court then continued:

18. [62]

    After further questions the judge seemed satisfied that the allegation was a matter which the psychologist “would have regarded as significant and worthy of consideration”. The questioning then continued: [25]

19. [63]

    The judge then took the witness to the father’s criminal record, which involved the growing of cannabis and manufacture of drugs. The following exchange occurred: [26]

20. [64]

    After what can only be described as continued cross-examination, the following exchange took place, interrupted by the father’s lawyer:

21. [65]

    The judge then returned to the question of Mr Hawton’s assessment of the mother and asked:

22. [66]

    The judge cross-examined the psychologist as to why he had expressed an opinion in his report which referred to other expert texts, copies of which had not been annexed. It was put to him that the rules relating to expert witnesses required that “any literature or other materials utilised in support of the opinions” should be attached. He was asked why he had not attached it. The judge continued: [27]

23. [67]

    The judge took Mr Hawton to the father’s criminal record and asked if these were “matters relevant to know when you were making your assessment”. [28] He agreed that he would have noted it in his report had it been available to him. The judge had continued:

24. [68]

    Following his questioning, the judge invited anyone else at the bar table to question Mr Hawton. The solicitor for the mother responded: [29]

25. [69]

    Ms Fawaz took Mr Hawton back to the criminal record and noted that two charges in 1981 had resulted in discharges and two other matters had been committed for trial but, Ms Fawaz explained, the father would “give this evidence, but it’s his instructions that they never went anywhere.” [30] The judge agreed to “clear it up” and told the witness that he had referred to “a number of sexual offences, sexual intercourse without consent, carnal knowledge, attempted sexual intercourse and indecent assault” which had not resulted in convictions. The judge then asked Ms Fawaz if that was “satisfactory to you”, to which she replied, “Yes, but it is noting [noteworthy?] that they were 30 odd years ago.” [31]

26. [70]

    Ms Fawaz then sought to show the witness a psychological assessment report from Griffith University Hospital with respect to a brain injury suffered by the father. Mr Hawton said that the report had not been provided to him. He was asked to look at the document, without objection, but the judge intervened and the following exchange took place: [32]

27. [71]

    The judge allowed the witness to read the document, which had formed part of the leave application in the Children’s Court which preceded the commencement of the care application. Although no objection had been taken, the judge declared that the process was “very unfair, the parties should have an opportunity to examine it and to determine what forensic manoeuvres, if any, would follow.” [33] The judge noted that this was “the very things to which the rules are directed”, apparently referring to rules relating to exchange of expert reports which apply in civil trials.

28. [72]

    In the end, the judge refused to permit Ms Fawaz to ask questions of Mr Hawton in relation to the document, although no objection had been taken, other than Mr Boys’ objection to anyone asking any questions at all. [34]

29. [73]

    Ms Fawaz then sought to show the witness the school report which had become Exhibit A. [35] The judge intervened: [36]

30. [74]

    Ms Fawaz sought to support her line of questioning on the basis that it went to the long-term impacts for the child if removed from a parent and placed in another placement. The judge rejected questions going to that issue as being “fundamentally unfair.” [37] The exchange changed direction:

31. [75]

    Ms Fawaz then sought to explore Mr Hawton’s opinion that the mother became “disassociated when discussing her past trauma.” [38] The witness gave an opinion and the judge intervened:

32. [76]

    The questioning by the judge continued for a further five questions and answers. Ms Fawaz asked a further question [39] which was not answered, the judge taking over and asking a further series of questions which resulted in Ms Fawaz objecting. The intervention was unsuccessful; the judge continued to ask questions. [40] A further 15 questions were asked by the judge and answered by the witness. Ms Fawaz then asked a further question which led the judge to intervene again saying “Ms Fawaz, I’m not going to disallow your question. I’m just going to add something to the end of it.” Ms Fawaz persisted for several more pages of the transcript, although of the next 13 questions, the judge asked eight.

33. [77]

    Following the conclusion of Mr Hawton’s evidence, Ms Fawaz made an application in the following terms: [41]

34. [78]

    Mr Boys (for the mother) strenuously opposed the application. The independent legal representative supported the application on the basis that Mr Hawton had not been able to answer critical questions as to the current circumstances, rather “he said you need a new clinic report.” [42] He submitted that there was no unacceptable risk of harm in the child being in either parent’s care. He supported the view that there should be further expert evidence. In response the judge remarked that:

35. [79]

    Ms Mahony then revisited the course the trial had taken, very much in accordance with the description set out above. At one point in the discussion the following exchange took place: [43]

36. [80]

    The judge effectively rejected the applications for adjournment but stated that he would “review that decision after [he had] heard the father’s evidence.” [44] The father was then called and gave evidence for the remainder of day six, day seven and day eight, subject to the interposition of the caseworker on day seven.

37. [81]

    Ms Fawaz repeated her application for an adjournment to provide a further clinical report to update Mr Hawton’s report of 8 July 2016. The application was not a formality; it was fully argued. The flavour of the application and the judge’s conclusion may be derived from the following exchanges: [45]

Procedural unfairness: findings

1. [82]

   The primary judge correctly identified the relevant statutory provisions governing the scope of the appeal from the Children’s Court. However, whatever powers were conferred on the District Court, they did not justify steps having the effect of denying the parties the right to question witnesses and call further evidence in support of a case which, through no fault of their own, they had not foreseen. Furthermore, although the judge correctly identified the primary focus of the proceedings as being the paramount interests of the child, the other parties to the proceedings were not to be treated as mere puppets. Their personal interests could not prevail over the interests of the child, but their views and their evidence as to where the interests of the child lay could not be disregarded. Furthermore, although not necessarily determinative, if the child were to be placed in the parental responsibility of one parent, with contact with the non-custodial parent, the conduct, circumstances and opinions of each parent were necessary elements in the assessment to be undertaken by the Court.

2. [83]

   Although the present proceedings should not turn on this specific issue, it may be doubted that the powers of the court extended to the conduct of a hearing in a form which was not sought by any party. The consequence of that course was to impose burdens on independent State authorities, including the Legal Aid Commission and the Department of Family and Community Services. No doubt such consequences can flow from directions given to ensure the proper conduct of judicial proceedings. However, there can be few circumstances in which the Court can in effect undertake an inquiry of its own without regard to the common views of all the parties. Further, the course the proceedings took resulted in the father’s legal representative exhausting the grant of legal aid so that she was, in fulfilment of her professional obligations, appearing pro bono.

3. [84]

   The matter can be determined, however, on a more practical basis. The direction taken by the judge, departing from the common approach adopted by the parties, created a situation in which procedural fairness required that the applications for adjournment be granted. Indeed, each party suffered procedural unfairness. If the judge had not found in the mother’s favour in respect of parental responsibility, she would have had a justifiable complaint that the judge had heard her appeal on a basis which, without support from any other party, disregarded her solicitor’s unequivocal statements as to how she wished to run the appeal.

4. [85]

   The judge’s initial response, that the appeal must fail on the basis on which it was sought to be run by the mother, was probably correct. It should have been heard and disposed of on that basis. The judge having determined that he intended to call Mr Hawton, the manner in which he dealt with the evidence thereafter was flawed on a number of grounds.

5. [86]

   First, as appears from the extracts set out above, the judge was responsible for undermining the reliability and credibility of Mr Hawton’s report. However, that appeared to occur as much from the questions as from the answers. One reason why a judge usually keeps above the fray of a trial is that it is not always easy to stand back and assess the evidence of a witness when one has formulated the questions, often in leading form. Numerous propositions put by the judge were denied, but the denials were not accepted.

6. [87]

   Secondly, the thrust of the judge’s questioning was based on evidence given by the mother as to her understanding of the allegation of child abuse. Even after objection was taken to the form of the judge’s questions, which assumed the correctness of the mother’s evidence, evidence which had not at that stage been contradicted by any other witness, the questioning continued on the basis of an assumption that the evidence might be accepted. No alternative history was put to Mr Hawton. On the other hand, when the legal representative for the father sought to put to Mr Hawton material which she expected to lead from her client, the judge rejected the questions (and the documentary support for the questions) as inadmissible. In other words, it would have been procedurally unfair for the judge to have allowed the mother’s solicitor to undermine the credibility of the psychologist on a basis which had not been foreshadowed, and to then deny the father the opportunity to put forward evidence which tended to rehabilitate the conclusions reached by the psychologist. Alternatively, if the rejection was to be justified on the basis that the father’s evidence had not been foreshadowed, it was procedurally unfair then to deny the father an adjournment to allow his evidence to be put before the Court in the manner preferred by the primary judge.

7. [88]

   Thirdly, the principal basis for undermining the reliability of Mr Hawton’s report was that the paternal grandfather may have sexually abused the aunt (his stepdaughter) some 30 years earlier. There was an implied attack on the failure of the Department to undertake a proper investigation of that matter. That became explicit in the judgment, where, under the heading “Closure of report file by FaCS”, the judge applied the adverb “astonishingly” to the internal communications, and also identified them as “truly remarkable”. [46] What steps the judge envisaged it was either possible or appropriate for the Department to take in the face of denials by the complainant and her brother was unclear, but had such an adverse finding been foreshadowed with the parties, evidence could have been provided by the Secretary, beyond the explanations which appear to have failed to satisfy the judge.

8. [89]

   Fourthly, the judge dismissed as “unpersuasive in the absence of testable oral evidence” the denial of the aunt given to the Department’s caseworker. The judge said that evidence “should have been called from” the aunt. [47] However, the case had commenced on the basis of an affidavit of the aunt which had been read in the Children’s Court proceeding, but not been the subject of cross-examination, and in circumstances where the mother had indicated she did not wish the aunt to be called for cross-examination. The adverse finding with respect to the aunt’s denial was not procedurally open to the trial judge.

9. [90]

   Fifthly, where the proper orders with respect to parental responsibility for the child were to be made on the appeal, in circumstances where the appellant’s case had been limited to reliance on the letter of Dr Wright, any departure from that case required that updated evidence be provided in response to evidence called by the appellant and by the judge. Absent that opportunity, there was inherent unfairness to both the father and the child in making a different order to that made in the Children’s Court.

10. [91]

    Sixthly, the refusal of the adjournment applications on the basis that the respondents wished to “shore up a flawed position” was based on an irrelevant consideration. If the “flawed position” resulted from the acceptance by the magistrate of Mr Hawton’s report, the proper course was to allow for the parties to obtain a further report. At least that was so where the appellant had commenced the hearing of her appeal on the basis that she did not seek to cross-examine Mr Hawton, whose report should therefore have been accepted by the appeal court, except to the extent that doubt had been cast on its reliability in the Children’s Court. In non-adversarial proceedings no party has a “flawed position”; if the child’s interests required an adjournment to obtain further evidence, it should have been granted. If not, the appeal should have been dismissed. A fresh application could then have been made on the basis of fresh evidence.

11. [92]

    Seventhly, the judge’s refusal of the second adjournment application on the basis that a further report would inevitably be “skewed” in favour of the father who had care of the child was also misconceived. No doubt it was true that, if the child were well settled in the care of the father, the mother, with her unstable history, may have found it difficult to obtain a different result. However, the fact that the child was well settled (if that had been established) would have been critical contemporary evidence as to where the best interests of the child lay. There was no justification for refusing an adjournment to prevent such evidence being called. The refusal on that ground involved procedural unfairness to the child.

Conclusions

1. [93]

   It is an unfortunate fact that the child has been the subject of five court proceedings. Nevertheless, the proceedings presently under review have miscarried in a fundamental way. There is no basis for the Court to decline to set the judgment aside in the exercise of its discretion. Indeed, no such submission was put to the Court in the event that a relevant ground was upheld.

2. [94]

   The appeal must go back to the District Court for reconsideration according to law. The fact that the primary judge has made strong findings of fact in circumstances where those findings should not have been made suggests that it will need to be reheard by another judge. That, however, is a matter which can properly be dealt with by the parties in the District Court.

3. [95]

   The orders sought in the further amended summons were quashing orders with respect to the orders made by the primary judge on 19 July 2018 and, in the alternative, the orders made on 29 June 2018. Orders 1-5 made on 29 June purported to rescind and set aside the orders made in the Children’s Court on 15 December 2017 (order 1); grant sole parental responsibility to the mother (order 2); grant parental responsibility for contact issues to the Minister (order 3); require the preparation of a new “care plan” (order 4) and direct that contact arrangements “are to be supervised, to the satisfaction of the mother” (order 5).

4. [96]

   In orders made on 13 July 2018, the judge refused an application by the father for a stay of the orders dated 29 June 2018 and ordered that the father pay the costs of the stay application.

5. [97]

   On 19 July 2018 the judge vacated the costs order made on 13 July (order 1). That 19 July order should stand. He then repeated the terms of orders 2, 3 and 5 made on 29 June 2018. Ultimately no order was made as to the costs of the proceedings.

6. [98]

   The repetition of orders on 19 July 2018 appears to have resulted from a concern that the earlier orders may not have been valid if made in the absence of a relevant care plan. For reasons given above, that concern was probably unfounded. However, the issue need not be determined; certainty supports setting aside all the substantive orders.

   1. (1)

      Refuse the application to further amend the summons.

   2. (2)

      Set aside orders 1-5 made in the District Court on 29 June 2018.

   3. (3)

      Set aside orders 2-4 made in the District Court on 19 July 2018.

   4. (4)

      Remit the mother’s appeal to the District Court to be determined according to law.

   5. (5)

      Order that the mother pay the father’s costs of the proceedings in this Court.

   6. (6)

      Grant the mother a certificate under the Suitors’ Fund Act 1951 (NSW).

   7. (7)

      No order as to the costs of the other respondents.

7. [99]

   EMMETT AJA: These proceedings are concerned with parental responsibility for a child (the Child) under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act). In June 2014, the Children’s Court of New South Wales made a care order under the Act placing the Child under the parental responsibility of the Minister. Each of the mother of the Child and the father of the Child separately sought rescission of that order and an order granting parental responsibility to herself and himself respectively. The father’s application was successful in the Children’s Court.

8. [100]

   Following an appeal by the mother to the District Court and a hearing of eight days in May and June 2018, a judge of the District Court (the primary judge) rescinded the orders made by the Children’s Court and allocated sole responsibility for the Child to his mother. The father then commenced proceedings in this Court seeking judicial review, under s 69 of the Supreme Court Act 1970 (NSW), of the orders made by the District Court. The grounds upon which the father seeks relief in this Court include denial of procedural fairness by the District court.

9. [101]

   I have had the considerable advantage of considering in draft form the proposed reasons of Basten JA. I agree with his Honour that, by departing from the common approach adopted by the parties, the primary judge created a situation in which procedural fairness required that an application for an adjournment made by the father be granted. The refusal to grant the adjournment had the result that the proceedings before the primary judge miscarried in a fundamental way. I agree with Basten JA that this Court should make the orders proposed by his Honour.