RE JAYDEN [2007] NSWCA 35 (2 March 2007)

Last Updated: 5 March 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: RE JAYDEN [2007] NSWCA 35


FILE NUMBER(S):
40045/07

HEARING DATE(S): 21/02/07

JUDGMENT DATE: 2 March 2007

PARTIES:
Mother of children (Appellant)
The Children's Court of New South Wales (First Respondent)
Minister for Community Services (Second Respondent)
Director-General of the Department of Community services (Third Respondent)
Kim Rowley (as legal representative) (Fourth Respondent)
Ross Clarke (as legal representative) (Fifth Respondent)

JUDGMENT OF: Beazley JA Hodgson JA Ipp JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC16157/06

LOWER COURT JUDICIAL OFFICER: Simpson J

LOWER COURT DATE OF DECISION: 21/12/06

LOWER COURT MEDIUM NEUTRAL CITATION:
Re Jayden [2006] NSWSC 1428

COUNSEL:
M. Anderson (Appellant)
Submitting appearance (1 Respondent)
G.W. Moore (2,3 Respondents)
L. Goodchild (4 Respondent)
D.L. WARD (5 Respodnent)

SOLICITORS:
S.E. O'Connor (Appellant)
I.V. Knight - Crown Solicitor (1 Respondent)
I.V. Knight - Crown Solicitor (2,3 Respondents)
Rowley & Associates (4 Respondent)
Ross A Clarke & Associates (5 Respondent)

CATCHWORDS:
CHILDREN – care and responsibility – review of interim care responsibility orders – interim order conferring parental responsibility of children on Minister for Community Services – serious issue to be tried as to whether final order should be made – Director-General of the Department of Community Services obtaining discharge of contact order to enable Minister to send children to New Zealand prior to final order – whether this amounts to an abuse of process – ss 69, 70, 70A and 72 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) considered
LEGAL PRACTITIONERS – parties to proceedings – whether legal practitioners appointed by the Children’s Court of New South Wales pursuant to s 99 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to represent children the subject of proceedings should be named as parties to proceedings in the Supreme Court

LEGISLATION CITED:
Children and Young Persons (Care and Protection) Act 1998 (NSW)

CASES CITED:
Foukkare v Angreb Pty Ltd [2006] NSWCA 335
Grovit v Doctor [1997] UKHL 13; [1997] 1 WLR 640
Jayden, Re [2006] NSWSC 1428
M v M [1988] HCA 70; (1988) 166 CLR 59
Reynolds v Reynolds [1977] 2 NSWLR 295
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
State Bank of New South Wales Limited v Stenhouse Limited (1997) Aus Torts Reports 81-423
Walton v Gardiner (1993) 177 CLR 378

DECISION:
(a) The appeal is upheld.
(b) The orders made by Simpson J dismissing the appellant’s summons and notice of motion are set aside and in lieu thereof an order is made setting aside the order of the Children’s Court made on 8 December 2006 whereby the orders made on 13 October 2006 for interim contact were discharged.
(c) The Court notes, for the purposes of clarity, that orders 3 and 4 of the orders made by the Children’s Court on 13 October 2006 remain in force.
(d) The Minister and the Director-General are to pay the appellant’s costs of appeal.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40045/07

BEAZLEY JA

HODGSON JA

IPP JA

2 March 2007

RE JAYDEN

Headnote

Facts

This appeal concerns the validity of various orders made by the Children’s Court of New South Wales (“the Children’s Court”) in October and December 2006. These orders, upheld on appeal by Simpson J of the Supreme Court of New South Wales, concerned two children of the appellant, referred to as Jayden and Lee. The effect of the orders of October 2006 was to place the children under the parental responsibility of the Minister for Community Services, permit the mother of the children to make contact with the children, and to notify the mother should the Minister repatriate the children to New Zealand. The order made in December 2006 discharged the contact order.

The appellant argued that the orders made by the Children’s Court were merely interim orders and that both the Minister and the Director-General of the Department of Community Services never intended to pursue final orders. The appellant further submitted that, by obtaining a discharge of the contact order, the Minister and Director-General abused the processes of the Children’s Court, as, it was contended, the December 2006 order amounted, in effect, to final relief when there still remained to be tried a serious issue as to whether the interim orders of October 2006 were properly made.

Issues for Determination by the New South Wales Court of Appeal

The issues for determination by the Court of Appeal were as follows:

(i) whether, prior to 8 December 2006, the Minister and Director-General intended to repatriate the children to New Zealand pursuant to powers conferred on them by the interim orders of 5, 6 and 13 October 2006 without first obtaining a final order;

(ii) whether, on 8 December 2006 (the date at which the application for the discharge of the contact order was made by the Director-General), the Minister and Director-General intended to repatriate the children to New Zealand;

(iii) whether there exist any real differences between interim orders and final orders made pursuant to various provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW);

(iv) whether, if (ii) above is answered in the affirmative, the application for the discharge of the contact order made on 8 December 2006 amounted to an abuse of the processes of the Children’s Court, and the consequences that would flow from such a finding; and

(v) whether legal practitioners appointed by the Children’s Court pursuant to s 99 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to represent the children referred to as Jayden and Lee ought to have been named as parties to the proceedings in the Supreme Court.



Held per Ipp JA (Beazley and Hodgson JJA agreeing):

In relation to (i):

1. The Minister and Director-General did not have a firm intention of repatriating the children to New Zealand prior to about 7 December 2006. The conduct of the Department of Community Services from September to 7 December 2006 was such that there existed a manifest intention on their part that the children be kept in Australia and that a final order be sought: at [54].

2. Thus, the interim orders made by the Children’s Court on 5, 6 and 13 October 2006 were not sought without any intention of obtaining a final order, and thus did not amount to an abuse of process: at [55].

In relation to (ii):

1. The Minister and Director-General conceded that, as at 8 December 2006, they intended to repatriate the children to New Zealand without first obtaining a final order. The Director-General’s application seeking to discharge the contact order had this as its “express purpose”: at [56].

In relation to (iii):

1. There exists a clear distinction between an interim order and a final order as noticeable via close analysis of sections 69, 70, 70A, 72, 78 and 80 of the Children and Young Persons (Care and Protection) Act 1998 (NSW): at [66]-[72].

2. In essence, an interim order is an “order of a temporary or provisional nature pending the final resolution of the proceedings”. Generally speaking, an applicant for an interim order would not be required to satisfy the Children’s Court of the merits of the applicant’s claim on the balance of probabilities. This can be inferred from sections 69, 70 and 70A: at [74]-[75].

3. One should not attach labels such as “prima facie case” or “arguable case” to the standard applicable to the granting of interim orders: at [76]. Rather, an interim care order can be made by satisfying the relevant tests set out in sections 69, 70 and 70A: namely, if the Children’s Court satisfies itself that it is not in the best interests of the safety, welfare and well-being of the child that he or she should remain with his or her parents or other persons having parental responsibility (see s 69(2)); that the making of an interim order is appropriate for the safety, welfare and well-being of a child or young person (see s 70); or that an interim order is necessary, in the interests of the safety, welfare and well-being of the child, and is preferable to a final order or an order dismissing the proceedings (s 70A). This may be done by the Children’s Court weighing the risks involved on the evidence available to it at the time: at [77].

4. In order for a final order to be made as to care and protection, the Children’s Court must be satisfied, on the balance of probabilities, that the child or young person is in need of care and protection as required by s 72: at [74].



In relation to (iv):

1. The interim order for parental responsibility pursuant to s 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) was granted when there was a serious issue to be tried, namely, whether, on a balance of probabilities, the children were in need of care and protection within the meaning of s 72: at [84].

2. As regards the granting of the interim orders, there was nothing improper or unlawful under the abovementioned circumstances. The fulfilment of the requirements set out in ss 69, 70 and 70A do not, however, lead to the conclusion that a final order pursuant to s 72 will be granted: at [85].

3. Sending the children to New Zealand before a s 72 hearing and the making of a final order by the Children’s Court subverted the protection given to children by the Children and Young Persons (Care and Protection) Act 1998 (NSW) and used the processes of the Children’s Court for collateral purposes. The Director-General’s application on 8 December 2006 thus amounted to an abuse of process and was oppressive to the appellant: at [92].

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 286 per McHugh J, applied

Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; State Bank of New South Wales Limited v Stenhouse Limited (1997) Aus Torts Reports 81-423 (64,077) at 64,089 per Giles CJ Comm D; Foukkare v Angreb Pty Ltd [2006] NSWCA 335 at [60]- [61] per Beazley JA, referred to.

4. The consequences of a finding that the relief granted on 8 December 2006 amounted to an abuse of the processes of the Children’s Court are not such that this abuse “tainted all the applications (and orders) in question”: at [93]; rather, it is fundamentally severable from, and independent of, the various applications and orders that were made in October 2006: at [95]-[97].

Grovit v Doctor [1997] UKHL 13; [1997] 1 WLR 640; Reynolds v Reynolds [1977] 2 NSWLR 295 at 306 per Waddell J, distinguished.


In relation to (v):

1. If possible, a child’s representative should not be a person who may have a conflict between representing the child as a party and representing the child as a legal practitioner.

ORDERS

(a) The appeal is upheld.

(b) The orders made by Simpson J dismissing the appellant’s summons and notice of motion are set aside and in lieu thereof an order is made setting aside the order of the Children’s Court made on 8 December 2006 whereby the orders made on 13 October 2006 for interim contact were discharged.

(c) The Court notes, for the purposes of clarity, that orders 3 and 4 of the orders made by the Children’s Court on 13 October 2006 remain in force.

(d) The Minister and the Director-General are to pay the appellant’s costs of appeal.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40045/07

BEAZLEY JA

HODGSON JA

IPP JA

2 March 2007

RE JAYDEN

Judgment

1 BEAZLEY JA: I agree with Ipp JA.

2 HODGSON JA: I agree with Ipp JA.

3 IPP JA:

The nature and grounds of the proceedings before this Court

4 This matter commenced as a concurrent hearing of an expedited application to appeal and an appeal. Mr Anderson, counsel for the appellant, submitted that leave was not required and some argument was advanced as to whether leave was necessary. In the light of the fact that the hearing was an expedited one and time was of the essence there was a need to get to the principal issues in the case as soon as possible. Questions raised by the appeal were obviously of importance and the Court granted leave to appeal insofar as leave was necessary. The Court made no decision as to whether leave, indeed, was required.

5 By earlier orders of this Court, no information that would allow the children to be identified may be published except for the purposes of the proper conduct of these proceedings and the execution of the orders made in them. These orders remain in force.

6 The appeal concerns a decision of Simpson J dismissing the appellant’s challenge to the validity of orders made by the Children’s Court in October and December 2006. The orders in question concerned two children of the appellant. Throughout the proceedings, the children have been referred to as “Jayden” and “Lee”. Jayden was born in 1995 and Lee in 1998. The names Jayden and Lee are pseudonyms.

7 The appellant is the mother of Jayden and Lee. The first respondent is the Children’s Court of New South Wales; it has filed a submitting appearance. The second respondent is the Minister for the Department of Community Services (“DOCS”). The third respondent is the Director-General of DOCS. The fourth respondent is a representative for the male child, Jayden. The fifth respondent is a representative for the female child. The fourth respondent supported the appellant in the appeal and the fifth respondent supported the Minister and the Director-General.

8 Until September 2006, the appellant, the children, and her partner, MA, resided in New Zealand. The Minister and the Director-General became interested in the children very soon after their arrival in Australia.

9 The orders made in October 2006 placed the children under the parental responsibility of the Minister, allowed the appellant to have contact with the children (the “contact order”), and provided for notice to the appellant should the Minister decide to repatriate the children to New Zealand. The order made in December 2006 discharged the contact order.

10 By reason of the structure of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the orders were made at the instance of the Director-General (not the Minister) but the Minister was named in two of the orders. The contact order provided for “contact” between the appellant and the children to be supervised by a delegate of the Director-General. Another order conferred parental responsibility on the Minister. The Children’s Court noted, in a further order, that the Minister would not attempt to repatriate the children to New Zealand without re-listing the matter before the Children’s Court on 24 hours’ notice.

11 After the 8 December 2006 orders were made, the appellant, by summons and notice of motion, commenced proceedings before Simpson J, claiming that all the orders made in October and December 2006 should be quashed either on the ground that the Children’s Court lacked jurisdiction to make them or that the proceedings pursuant to which they were made constituted an abuse of process. Her Honour dismissed the summons. The appellant appeals against this decision.

12 The linchpin of the appellant’s argument before this Court was that the orders of the Children’s Court were made in proceedings categorised as interim applications but in circumstances where the Minister and the Director-General “did not intend to pursue final orders”. The appellant contended that the Minister and the Director-General always intended to send the children back to New Zealand by utilising powers conferred only by interim orders even though there was a serious issue to be tried as to whether those powers were rightly granted. She argued that, by obtaining a discharge of the contact order, the Director-General was – in effect – obtaining final relief, and subverting the procedures of the Children’s Court.

History of difficulties with the children

13 The children appear to have been born in New Zealand. They grew up there and lived with the appellant. They have different fathers, both of whom reside in New Zealand. Lee suffers from what is called “global development delay”. She is unable to communicate verbally and is incontinent. She has reached the development stage that would be expected of a 2 to 3 year old child. Jayden has exhibited extreme behavioural disorder. In 2002, he was reported as being faecally incontinent and exhibiting sexualised behaviour. In 2005, he was again reported to be faecally incontinent. He has shown tendencies to violence.

14 As Simpson J put it, both children became “well known to the New Zealand Department of Child, Youth and Family Services (‘the NZ Department’)”. The NZ Department has been involved with the appellant, Jayden and Lee since January 2000. Its concerns about this family have been in relation to allegations of poor parental supervision, alcohol abuse, sexualised behaviour, physical abuse, detrimental environment and severe behavioural difficulties. From January 2000 to December 2005, there were thirteen notifications to it regarding the appellant and her children. In February 2006, the NZ Department formed serious concerns about Jayden’s well-being. Without going into detail, it is sufficient to say the concerns described were of a far-reaching and disturbing kind.

15 As a result of these concerns, the New Zealand Family Court granted the NZ Department an interim custody order in respect of Jayden and on 3 March 2006 Jayden was placed in a New Zealand care and protection unit. On 31 March 2006, a family conference was held in regard to the children and there is evidence that the appellant agreed that an order removing custody of Lee from her would be made. There was a delay in putting this decision into effect. On 24 April 2006, the New Zealand Family Court made an order that Jayden was in need of care and protection and granted custody of him to the chief executive of the NZ Department.

16 In June 2006, the NZ Department ascertained that the appellant had formed a relationship with MA. MA’s daughter from a previous relationship alleged that MA had sexually abused her. MA disputed this. On 26 July 2006, it was agreed between the appellant, MA and the NZ Department that the latter would “support [Jayden] and [Lee] remaining in the home with their mother on the condition that [MA] leave the home”. Both the appellant and MA agreed to this condition. On 27 July 2006, Jayden was returned to the care of the appellant but with “intensive support” being provided by the NZ Department. At that stage, a custody order was not sought for Lee as the NZ Department believed that the appellant was caring adequately for her.

17 On 6 September 2006, the NZ Department discovered that MA, the appellant, Jayden and Lee had left for Sydney. At that time, as mentioned, the chief executive of the NZ Department had custody of Jayden. No orders had been made in relation to Lee.

18 According to the evidence, it is an offence in New Zealand to take any child out of that country without the leave of the Court, knowing that an application for a custody declaration is about to be made or that a determination of any such application is pending. Such an application in regard to Lee was filed in a New Zealand court in June 2006 and the appellant was served with the papers on 13 July 2006. The NZ Department obtained an ex parte custody order in respect of Lee after she was taken to Australia.

The applications to the Children’s Court and the orders made

19 The appellant and MA left New Zealand with Jayden and Lee intending to reside permanently in Australia. On their arrival in this country they experienced considerable difficulty in obtaining accommodation. On 4 October 2006, the delegate of the Director-General of DOCS acting under s 44 of the Act assumed “care responsibility” for the children. Section 44 entitles the Director-General to take this step if he or she suspects on reasonable grounds that a child is at risk of serious harm and is satisfied that it is not in the best interests of the child that the child be removed from the premises in which he or she is currently located.

20 The next day, 5 October 2006, the Director-General applied for interim orders allocating parental responsibility of the two children to the Minister. The application set out the grounds on which application would be made for “final orders”. These were that each child had or was likely to be physically or sexually abused or ill treated, that each child’s basic physical, psychological or educational needs were not being met, or were likely not to be met, by his or her parents, and that each child was suffering, or was likely to suffer, serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she was living.

21 On 5 October 2006, the Children’s Court made an interim order placing the children under the parental responsibility of the Minister, “pending further order”. The order noted that the Minister would not move the children out of the Sydney metropolitan area.

22 On 6 October 2006, an order was made in the same terms but provided, additionally, that the appellant would have contact with the children “four times per week for two hour[s a day]” and for daily telephone contact between the appellant and Jayden, “pending further order”.

23 On 13 October 2006, the matter came before the Children’s Court again. By consent, it made an interim order in terms of a minute of orders. The minute contained the following orders:

“1. The parental responsibility for the children ... be allocated to the Minister ... pending further order.

2. That the children have contact with their mother ... three times a week during weekdays ... and on Saturdays ... and that all such contact be supervised by the relevant delegate of the Director-General ... .

3. The parties have liberty to re-list the matter on 24 hours notice in the event that repatriation of the children to New Zealand be contemplated and/or agreed to.

4. The Court notes that the Minister will not take any steps to repatriate the children to New Zealand without first re-listing the matter pursuant to Order 3 above.”

24 On 28 November 2006, the appellant applied to the Children’s Court seeking orders that both children be placed under her parental responsibility and that the children be placed under the supervision of the Director-General. She offered to give undertakings, including that she and the children would not reside with MA, she would not allow any contact between the children and MA, and she would co-operate with the officers of DOCS.

25 On 8 December 2006, Senior Children’s Court Magistrate S Mitchell heard the appellant’s application. At this hearing, the Director-General applied for the discharge of the contact order. The appellant and Jayden were legally represented but Lee was not.

26 At the hearing on 8 December 2006, counsel for the Director-General described the Director-General’s application as being “for orders effectively to allow the Minister to return the children to New Zealand”.

27 The Magistrate asked Ms Dart, the solicitor representing the appellant, whether the children were removed from New Zealand unlawfully and her response was:

“Your Honour both children were in the care of my client at the time that they came to Australia. There is an order in relation to [Jayden]. My client’s position is that she never attended court, she didn’t understand the effect of that order”.

28 It became clear from the submissions of Ms Dart that the appellant disputed that it was in the children’s interests to be removed from her parental responsibility and custody. This was a serious issue to be tried. Ms Dart pointed out:

“There has been no finding made in relation to either children [sic], there has been no inquiry in relation to this matter and we say that at present it’s not appropriate that orders be made ... “ .

29 The Magistrate asked counsel for the Director-General whether the purpose of the order was “to put the Minister in a position where, pursuant to her parental responsibility, she can effect the repatriation of the children”. Counsel replied, “That’s exactly right”.

30 In the course of his Honour’s judgment he made the following points:

· There was a question mark over the suitability of the appellant to have the care of the children “because of her behaviour in bringing them improperly if not unlawfully to this country”.

· Another question mark over the appellant’s suitability was “that there are allegations of sexual impropriety against the mother’s partner”.

· “[T]he children are in this country in what seems to me to be less than ideal circumstances ... It is simply a consequence of the plight in which these children have been placed by their mother”.

· “In New Zealand the real needs of these children can be investigated and determined and orders can be made far more easily and far more responsively ... than can happen here”.

31 His Honour referred to allegations concerning “the mother’s dysfunction and incapacity or unwillingness properly to bring up these children”. He pointed out that these were “matters which occurred in New Zealand, not Australian matters which were witnessed by New Zealand residents, not Australians, matters of which a New Zealand court, not an Australian court is already seized”. He said, “I don’t see that there is untoward disadvantage to the mother in her going back to New Zealand at public expense to have contact with her children and allowing the New Zealand courts to complete the task that they commenced of dealing with two of New Zealand’s young citizens”.

32 For the above reasons he discharged the contact order.

33 It seems that all involved regarded the hearing in the Children’s Court on 8 December 2006 as satisfying orders 3 and 4 of the orders made by consent on 13 October 2006.

34 Once the contact order was discharged, the only order remaining was the interim order conferring parental responsibility for the children on the Minister. It is common ground that the Minister was of the opinion that, by virtue of that interim order, she was entitled to repatriate the children immediately to New Zealand.

35 I should say that the appellant disputed (albeit faintly) that the Minster had the power, pursuant to the interim order in question, to send the children out of the jurisdiction. Save for saying that there is arguably authority at single instance supporting the Minister’s contention, it is not necessary (and is undesirable) for this Court to decide this issue in these proceedings.

The proceedings in the Supreme Court

36 On 9 December 2006 the appellant commenced proceedings in the Supreme Court for orders quashing all the orders made in respect of the children in the Children’s Court. The case came before Simpson J on 18 December 2006, in vacation, and her Honour delivered judgment on 21 December 2006.

37 The orders sought by the appellant were based on two alternative propositions. The first was that the Children’s Court orders were made without jurisdiction because the applications for orders failed to specify the final orders sought. The second was that the applications made by the Director-General to the Children’s Court were “an abuse of process, made for an improper purpose, in that the Director-General sought the exercise of powers for an extraneous reason”. The “extraneous reason”, it was asserted, was to enable the children to be expatriated to New Zealand.

38 The grounds of appeal to this Court, although they raise a question of jurisdiction, do not refer to the jurisdictional issue on which the appellant relied before Simpson J. It is therefore not necessary to deal with it.

39 In dealing with the abuse of process argument presented to her, Simpson J pointed out that no transcript of the proceedings before the Children’s Court magistrate had been put before her. The magistrate had made no findings of fact upon which to base a finding of improper purpose. There had been no cross-examination of any departmental officer in order to establish improper purpose. Her Honour said that there was nothing in the documentary materials suggesting that the purpose of any departmental officer was in any way improper. The judge concluded that there was no basis upon which she could make findings of fact necessary in order to accept the appellant’s argument. Therefore, the argument based on improper purpose failed.

The argument before the Court of Appeal

40 The evidentiary material before this Court was more detailed than that which had been put before Simpson J. In particular, the transcript of the proceedings before the Magistrate was tendered without objection. The transcript makes it plain that, at least on 8 December 2006, the Minister sought the discharge of the contact order to enable her to send the children to New Zealand.

41 I should also add that the way in which the abuse of process argument (after intervention from the bench) eventually was articulated before this Court was different to the way in which that argument was put before Simpson J.

42 The appellant repeated the extraneous purpose argument and, in addition, argued that the interim orders made in October and on 8 December 2006 were applied for at a time when the Director-General had no intention of seeking final orders. Hence, the appellant submitted, the applications constituted an abuse of process. Put in another way, the appellant argued that the Director-General obtained interim orders so that the Minister, in the course of exercising her parental responsibility, could send the children out of Australia to New Zealand without obtaining a final order (and without discharging the burden of proof necessary to obtain a final order).

43 The abuse of the process argument was directed, firstly, at all the orders (made on 5, 6 and 13 October 2006 and 8 December 2006) and, in the alternative, at the order made on 13 December 2006 alone. This meant that the facts relating to the intention of the Minister and the Director-General in regard to the children had to be investigated at each particular point when the orders in question were made.

44 In dealing with the issue of intention, all counsel referred interchangeably to the Minister and the Director-General. The parties implicitly accepted that the intention in issue was that of the Minister and that any intention that might be ascribed to the Director-General should be ascribed to the Minister and vice versa.

The intention of the Minister and the Director Director-General prior to 8 December 2006

45 Mr Anderson drew attention to an affidavit tendered on behalf of the Director-General that referred to a conference on 29 September 2006 between various officers of DOCS. One of the options discussed at this conference was that the children would “be assumed into the care of the Director-General” until New Zealand social workers arrived in New South Wales to take the children to New Zealand. The DOCS officers believed that the children would be returned to New Zealand with New Zealand case workers (who were coming to Sydney to discuss the matter with their New South Wales counterparts).

46 On 4 October 2006, DOCS advised the New Zealand case workers (who by then had arrived in Sydney) that the children could not return to New Zealand without DOCS obtaining an order for parental responsibility. On that date a discussion occurred between Ms Lisa Frumar (a delegate of the Director-General and who had been managing the children’s case in New South Wales), the appellant and MA. Ms Frumar said to the appellant and MA: “It is our understanding that New Zealand have custody for both [Jayden] and [Lee]. They will be taking them back to New Zealand, that is our stance”. MA replied, “We want to live here”. Ms Frumar then told the appellant and MA: “Either legally we assume care of the children under authorisation for the kids to return to New Zealand is granted, or you allow them to return without our involvement”.

47 This material is capable of establishing that, as at 29 September 2006, DOCS intended to send the children to New Zealand.

48 Mr Anderson drew attention to remarks of counsel for the Minister and the Director-General at the hearing before the Children’s Court on 8 December 2006. There, counsel accepted that the purpose of discharging the contact order was to “effect the repatriation of the children”.

49 Mr Anderson submitted that nothing had changed between 29 September 2006 (in the conversations between the DOCS officers and the appellant and MA) and the intention to repatriate the children as unequivocally evinced by counsel for the Director-General on 8 December 2006.

50 On the other hand, Mr Moore, counsel for the Minister and the Director-General, drew attention to an affidavit by Ms Myriam Valle, a case work manager employed by DOCS. Ms Valle explained that, pursuant to the orders made in October 2006, on 1 November 2006 the children were placed in an “interim high cost residential care facility” referred to as “the Placement”. According to Ms Valle, the Placement was intended as a temporary placement for the children until a permanent foster care arrangement could be found. She said: “The Placement has been approved on a weekly basis with on-going referrals being made to secure a foster care placement for the children”. This evidence is consistent with the Director-General intending to arrange for the children to be kept permanently in Australia.

51 Ms Valle testified that, notwithstanding attempts since September 2006, “as at 7 December 2006, the Department has been unable to secure a foster placement that will meet the needs of the ... children as a sibling group. This is due in part to the high level of care ... that the children need on a daily basis”.

52 Ms Valle explained that DOCS had been involved in discussions and correspondence with the NZ Department and the NZ Department had confirmed that it would be able to take the children into its care and to “fully assess what is in [their] best interests”.

53 The inference to be drawn from Ms Valle’s evidence as a whole is that, since September 2006, DOCS had attempted to secure a foster placement in Australia for the permanent care of the children. By 7 December 2006, the attempts by DOCS to find permanent placement had proved unsuccessful. The lack of success was partly caused by the serious degree of disability attendant on each child and the high level of care that each needed. The cost of keeping the children temporarily in the Placement was high and there was a reasonable prospect of the children being properly cared for in New Zealand.

54 On the basis of Ms Valle’s evidence, factual findings are capable of being made as follows:

· From the time DOCS and the Director Director-General were first involved with the children, they intended to place the children permanently with foster care in Australia and this intention continued until December 2006.

· On about 7 December 2006, because of the difficulties experienced in finding permanent foster care for the children, the cost of maintaining them in temporary placement, and the willingness and ability of the New Zealand authorities to care for them, DOCS and the Director-General decided to take steps to repatriate the children to New Zealand.

55 Mr Moore, in addition, pointed to directions made by the Registrar of the Children’s Court on 26 October 2006. These directions record the steps to be taken by the Director-General in regard to an affidavit concerning a finding of “CINOC” (child in need of care) by 24 November 2006. The affidavit itself was sworn on 10 November 2006. It is not clear when that was filed in the Court. An affidavit relating to finding that a child is in need of care would be filed in support of an application for a final order under s 72 (and not an application for an interim order). Accordingly, the making of the directions and the swearing of the affidavit indicate that, at least until 10 November 2006, the Director-General’s intention was to obtain a final order.

56 In the light of Ms Valle’s evidence and the matters set out in the preceding paragraph, I am not persuaded that the Minister (and the Director-General) had a firm intention of repatriating the children to New Zealand prior to about 7 December 2006. While the DOCS officials may have taken a “stance” on 29 September 2006 that the children should go to New Zealand, DOCS’ conduct from September to 7 December 2006 manifests an intention during that period that the children be kept in Australia and that a final order be sought.

57 It follows, in my opinion, that the appellant’s argument challenging the orders of 5, 6 and 13 October 2006 on the ground of abuse of process must fail. The appellant has failed to establish that at these dates the Minister intended to repatriate the children to New Zealand and that the interim orders granted on these dates were sought without any intention of obtaining a final order.

The challenge to the order of 8 December 2006

58 The challenge to the order of 8 December 2006 stands on a different basis as the Minister and the Director-General conceded that, at that date, it was their intention to send the children to New Zealand without applying for a final order. This was the express purpose of the application made on that date for the discharge of the contact order. The question then arises whether, in these circumstances, that application amounted to an abuse of process.

59 This issue can only be determined after an examination of the relevant provisions of the Act and, in particular, the provisions relating to interim and final orders. It was common ground that the Act as in force at 2 September 2003 applied to the issues that arose in this case.

60 The relevant provisions of the Act are complex and, in some respects not entirely clear. It seems to me, however, that the general scheme of the Act in regard to interim and final care orders (and related provisions) is as follows.

The relevant provisions of the Act

61 The Director-General may, in an emergency, assume care and responsibility for the child (s 44). If the Director-General does so, he or she must make prompt application to the Children’s Court for a care order (s 45). A care order is defined as an order under Chapter 5 “for or with respect to the care and protection of a child or young person” (s 60).

62 Section 62 provides:

“A care order may be made as an interim order or a final order, except as provided by this Part”.

63 The Children’s Court may make an interim care order after a care application is made and, significantly, before the application is “finally determined” (ss 69(1) and 70).

64 Section 69(2) provides:

“The Director-General, in seeking an interim care order, has the onus of satisfying the Children’s Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility”.

65 Section 70 provides:

“Other interim orders

The Children’s Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings”.

66 Section 70A provides:

“Consideration of necessity for interim care order

An interim care order should not be made unless the Children’s Court has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a final order or an order dismissing the proceedings”.

67 Relevantly to the present inquiry, it is to be noted from ss 69(2), 70 and 70A that the requirements for the making of an interim care order are variously expressed. The Children’s Court is required to be satisfied, according to the requisite standard (which I discuss below), that:

· It is not in the best interests of the safety, welfare and well-being of the child that he or she should remain with his or her parents or other persons having parental responsibility (s 69(2)); or

· The making of an interim order is appropriate for the safety, welfare and well-being of a child or young person (s70); or

· An interim order is necessary, in the interests of the safety, welfare and well-being of the child, and is preferable to a final order or an order dismissing the proceedings (s 70A).

68 It was common ground between the parties that s 72 applies to the making of final orders (and I think that is correct). Section 72 provides:

“Determination as to care and protection

(1) A care order in relation to a child or young person may be made only if the Children’s Court is satisfied, on the balance of probabilities, that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection:

(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under s 49 (Care of child or young person pending care proceedings), s 69 (Interim care orders) or s 70 (Other interim orders).”

69 Significantly, by s 78, a final order (not being an emergency protection order) for the removal of a child or young person from the care of his or her parents cannot be made unless the Director-General presents a care plan to the Children’s Court. Section 80 contains like provisions and also provides that the Children’s Court must not make a final order for the allocation of parental responsibility in respect of the child unless it has considered a care plan presented to it by the Director-General.

The differences between interim orders and final orders

70 The reference in s 72(1)(b) to “the existence of arrangements for the care and protection of the child” made under s 69 or s 70 indicates that s 72 only applies after an interim order has been made under s 69 or s 70.

71 A clear distinction between an interim order and a final order is seen in s 78(1) which provides that, if the Director-General applies to the Children’s Court for an order removing a child from the care of his or her parents, the Director-General must present a care plan to the Children’s Court before final orders are made. There is no such requirement for the making of an interim order to like effect.

72 Section 80 expressly provides that a final order for the allocation of parental responsibility can only be made after the Children’s Court has considered a care plan. The inference is that the Children’s Court may make an interim order for the allocation of parental responsibility without considering a care plan. Thus, s 80, too, distinguishes between an interim order and a final order.

73 Section 72 focuses on the child being “in need of care and protection”, whereas interim care orders under ss 69, 70 and 70A focus on the necessity of the order in the interests of the child.

74 In my opinion, by inference, s 72 does not apply to interim care orders.

75 In practice, the Court was informed, when a matter is first brought before the Children’s Court for an interim care order it is usually heard on an urgent basis with short notice. It would ordinarily be inappropriate for an interim order sought in this way to be determined on a balance of probabilities.

76 I have set out above the requirements for the making of an interim care order under ss 69, 70 or 70A. These differ from the requirement of the Children’s Court having to be satisfied “on the balance of probabilities” as required by s 72. Sections 69, 70 and 70A indicate that a less stringent standard is required for the making of an interim care order.

77 The expression “interim order” is familiar to the law. Ordinarily, it is an order of a temporary or provisional nature pending the final resolution of the proceedings. An applicant for an order of this kind, generally speaking, does not have to satisfy the Court of the merits of its claim on a balance of probabilities. An interim order under the Act is an order of this nature, and the Children’s Court does not have to be satisfied of the merits of an applicant’s claim on a balance of probabilities before making an interim order. Were s 72 to apply to an interim order, there would be no point in having anything in the Act about interim orders.

78 It is not desirable to attempt to express the standard of satisfaction required for the making of an interim order in words different to those used in the Act. Any label such as “prima facie case” or “arguable case” may not be appropriate. The standard is to be discerned from the statute itself.

79 It is sufficient to say that, according to the Act, an interim care order can be made if the Children’s Court satisfies itself that it is not in the best interests of the safety, welfare and well-being of the child that he or she should remain with his or her parents or other persons having parental responsibility (s 69(2)), or that the making of an interim order is appropriate for the safety, welfare and well-being of a child or young person (s70), or that an interim order is necessary, in the interests of the safety, welfare and well-being of the child, and is preferable to a final order or an order dismissing the proceedings (s 70A). The Children’s Court may be satisfied, for example, simply by weighing the risks involved on the evidence available at the time (cf M v M [1988] HCA 70; (1988) 166 CLR 59).

Was the making of the application of the 8 December 2006 an abuse of process?

80 In Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 McHugh J said (at 286):

“Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:

(1) the Court’s procedures are invoked for an illegitimate purpose;

(2) the use of the Court’s procedures is justifiably oppressive to one of the parties; or

(3) the use of the Court’s procedures would bring the administration of justice into disrepute”.

81 McHugh J was in dissent in this case but nothing said by the majority is inconsistent with his Honour’s remarks that I have quoted.

82 It is well settled that an abuse of process may arise where “processes and procedures of the Court, which exist to administer justice with fairness and impartiality, [are] converted into instruments of injustice or unfairness”: see Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. See also State Bank of New South Wales Limited v Stenhouse Limited (1997) Aus Torts Reports 81-423 (64,077) at 64,089 per Giles CJ at Comm D (as he then was), where his Honour said:

“The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice ...”.

See also Foukkare v Angreb Pty. Ltd. [2006] NSWCA 335 at [60] to [61] per Beazley JA.

83 The issue thus arises as to whether the Director-General, in making his application on 8 December 2006 for the discharge of the contact order, invoked the Court’s procedures for an illegitimate purpose or, alternatively, whether that application amounted to using the Court’s procedures in a manner unjustifiably oppressive to the appellant. “Illegitimate purpose” in this sense is not used to connote any impropriety.

84 These questions, in the present context, are bound up with each other. The illegitimate purpose alleged is in applying for the discharge of the contact order to enable the children to be repatriated to New Zealand. The application for the discharge of the order is said to be oppressive because its purpose was to enable the children to be sent to New Zealand by the Minister, exercising her parental responsibility.

85 The parental responsibility was conferred upon the Minister by an interim order. By sending the children to New Zealand (by the powers conferred by the interim order for parental responsibility), before obtaining a final order, the Minister would be removing the children from Australia and the custody of the appellant without obtaining a final order. That is, without establishing a case according to the higher standard of proof under s 72 and without submitting a care plan dealing with the ongoing care of the children. It is these matters that, the appellant contends, justify the relief she seeks.

86 At the forefront of the abuse question raised by these circumstances is the fact that the interim order for parental responsibility was granted when there was a serious issue to be tried. The serious issue was whether, on a balance of probabilities, the children were in need of care and protection within the meaning of s 2. As was pointed out by Ms Dart in the hearing on 8 December 2006, in the prior proceedings no finding had been made in relation to either child.

87 There was nothing improper or unlawful in granting an interim order under these circumstances. It is the very nature of an interim order that the Children’s Court may be satisfied that enough has been shown to satisfy the requirements of ss 69, 70 or 70A. But, that does not necessarily mean that a final order under s 72 will eventually be granted relating to the same relief.

88 Generally, by its very nature, an interim order is of a temporary or provisional nature and the law recognises that nothing should be done to alter the status quo established by such an order pending the final resolution of the proceedings.

89 Removing children from the care and parental responsibility of their natural mother is a grave matter. The Act recognises this; hence the requirements laid down by s 72 for the grant of a final order. Sending the children to New Zealand would mean that the status quo would be altered irreparably. The children would be beyond the jurisdiction. They would be under the control of the NZ Department. There would be no point in proceeding to apply for a final order.

90 Mr Moore candidly conceded that, should the children be repatriated to New Zealand prior to the making of a final order, the Minister would seek leave under s 66 of the Act to withdraw her care application. This section provides:

“66. Leave to withdraw care application

(1) A care application may be withdrawn by the person who made the application with the leave of the Children’s Court.

(2) An application for leave to withdraw the care application must be accompanied by:

(a) a statement that indicates how the issues that caused the application to be brought have been resolved, or

(b) a care plan that specifies how those issues are proposed to be addressed”.

91 It follows that, should the children be sent to New Zealand before a s 72 hearing occurred, the Minister would apply for leave to withdraw under s 66(2) on the basis that the application had been resolved by the children being sent to New Zealand to be put under the care of the New Zealand authorities. This would mean that the appellant’s parental responsibility for and custody of the children would have been terminated without a decision having been made on the balance of probabilities that the children are in need of care and protection or that, otherwise, an order should be made under s 72.

92 Furthermore, the appellant’s parental responsibility and rights to custody of her children would have been terminated without the Children’s Court considering a care plan presented to it by the Director-General, notwithstanding that it is required by ss 78 and 80 to do so before making a final order of this kind.

93 Possibly, there could be situations where interim care orders have been made on the authority of which children might be able to be sent out of the jurisdiction. It is difficult, however, to conceive of this occurring where there is a serious issue to be tried as to whether the children, in fact, are in need of care and protection (as is the position in this case).

94 In my opinion, sending the children to New Zealand before a s 72 hearing and before the making of a final order by the Children’s Court would subvert the protection given to children by the Act, negate the procedures laid down by the Act whereby the interests of children are safeguarded and amount to using the processes of the Children’s Court for purposes for which they were never intended. In short, in my view, the Director-General’s application on 8 December 2006 to discharge the contact order was an abuse of the Court’s procedure in the sense of the first two categories referred to by McHugh J in Rogers v The Queen at 286.

The consequences of a finding that the application of 8 December 2006 was an abuse of process

95 Mr Anderson submitted that, should the Court conclude that the application of 8 December 2006 was an abuse of the Children’s Court’s procedures, that abuse tainted all the applications (and orders) in question. In other words, he submitted that the consent orders of 13 October 2006 should be set aside (and so too the orders of 5 and 6 October 2006).

96 I accept that in particular circumstances, conduct that occurs after proceedings have legitimately been commenced can result in the entire proceedings being regarded as an abuse of process: see Grovit v Doctor [1997] UKHL 13; [1997] 1 WLR 640; cf Reynolds v Reynolds [1977] 2 NSWLR 295 at 306. per Waddell J. But this case does not fall into that category.

97 The abuse that occurred on 8 December 2006 is entirely separate from and independent of, the applications and orders that were previously made. It is quite apparent from the material before this Court that those applications and orders were made on an interim basis, pending the granting of final relief. The applications all indicate, expressly, that they are applications for interim orders. The orders themselves are described as interim orders. The order of 6 October 2006 expressly states that the order is made “pending further order”.

98 In the light of the finding I have made as to the intention of the Minister and the Director-General, prior to 8 December 2006, to seek permanent placement of the children with a foster guardian, it must be accepted that, until that date, the Minister and the Director-General intended that the relief sought and obtained prior thereto would be interim relief that would operate pending the grant of a final order.

99 The relief granted on 8 December 2006 is fundamentally severable from what occurred prior to that date. I would not uphold Mr Anderson’s submissions in this respect.

The representation of the children

100 Two legal practitioners, who had been involved in the case in their professional capacities, represented Jayden and Lee before Simpson J and in this Court. These legal practitioners had been appointed by the Children’s Court to represent Jayden and Lee in the proceedings before it. Simpson J queried why these practitioners were named as parties in the proceedings before her. The judge had been told that it was common practice that, when proceedings are commenced in the Supreme Court involving review of Children’s Court proceedings, individuals appointed under s 99 would be named as parties.

101 Her Honour said of this practice (see Re Jayden [2006] NSWSC 1428 at [19]):

“Given that no considered argument has been addressed to the question, and neither of the solicitors made any complaint about being named as a defendant, it would be unwise to express a final opinion. However, I venture to query the appropriateness of the course taken. At present, I can see no reason why legal representatives, having performed their function of representing children in Children’s Court proceedings, ought find themselves parties to review, or other subsequent proceedings in this Court. In my opinion, the practice, to the extent, if any, that it is a practice, ought to be reconsidered”.

102 Her Honour expressed the opinion that the children, who were not parties to the proceedings, probably ought to have been.

103 The issue was not argued before this Court as the parties were content with what had occurred before Simpson J as to the representation of the children and, as the matter was an expedited hearing, there was no time for this issue to be canvassed. For my part, I would express the prima facie view that her Honour’s misgivings are correct. If possible, a child’s representative should not be a person who, conceivably, might have a conflict between representing the child as a party and representing the child as a legal practitioner.

Costs

104 I have mentioned that the transcript of the proceedings before the Children’s Court was not before Simpson J. The transcript may not then have been available to the parties. Nevertheless, there was no reason why evidence as to what occurred in the Children’s Court should not have been put before her Honour. What was said in the transcript has been crucial to the decision of this Court.

105 Further, as I have mentioned, the appellant’s successful argument was not presented to Simpson J in the form in which it was advanced in this Court.

106 In all these circumstances, I would make no order as to the costs of the hearing before Simpson J. I would, however, order the Minister and the Director-General to pay the appellant’s costs of the appeal. I would make no other order as to costs.

107 In summary, I propose the following orders:

(a) The appeal is upheld.

(b) The orders made by Simpson J dismissing the appellant’s summons and notice of motion are set aside and in lieu thereof an order is made setting aside the order of the Children’s Court made on 8 December 2006 whereby the orders made on 13 October 2006 for interim contact were discharged.

(c) The Court notes, for the purposes of clarity, that orders 3 and 4 of the orders made by the Children’s Court on 13 October 2006 remain in force.

(d) The Minister and the Director-General are to pay the appellant’s costs of appeal.

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LAST UPDATED: 2 March 2007