Re Frieda and Geoffrey [2009] NSWSC 133 (6 March 2009)

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Re Frieda and Geoffrey [2009] NSWSC 133 (6 March 2009)

Last Updated: 18 March 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Re Frieda and Geoffrey [2009] NSWSC 133


JURISDICTION:
Equity

FILE NUMBER(S):
1675/09

HEARING DATE(S):
03/03/09

JUDGMENT DATE:
6 March 2009

PARTIES:
Re: Frieda and Geoffrey

JUDGMENT OF:
White J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
DoCS: S Burchett
Children: P Braine
Parents: C Williams (solicitor)

SOLICITORS:
DoCS: Crown Solicitors Office
Children: Eden Legal & Conveyancing
Parents: Charles Williams, Solicitor


CATCHWORDS:
ADMINISTRATIVE LAW - prerogative writs and orders - certiorari – application of s 69(3) and (4) of the Supreme Court Act 1970 – construction of ‘ultimate determination’ and ‘the record’ – claim for certiorari dismissed
FAMILY LAW AND CHILD WELFARE - child welfare under State legislation – Magistrate found to have erred in his assessment of risk of harm to children – in exercise of parens patriae jurisdiction, orders made for children to remain in care, custody and control of Minister for Community Services

LEGISLATION CITED:
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Supreme Court Act 1970 (NSW)


CASES CITED:
Re Victoria; Director General, Department of Community Services v Children’s Court (NSW) [2002] NSWSC 647; 29 Fam LR 157
Re Jayden [2007] NSWCA 35
Re Fernando; re Gabriel (2001) 53 NSWLR 494
L v the Director of Family Services (1997) 22 Fam LR 275
CD v Chief Executive, Department of Education and Community Services [2000] ACTSC 81; (2000) 27 Fam LR 19
Ex Parte Minister for Child Welfare: Re Hancock & Anor (1967) 86 WN (Pt 2) (NSW) 371
Minister for the Interior v Neyens [1964] HCA 71; (1964) 113 CLR 411
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Uniting Church and Australia Property Trust (NSW) v Industrial Relations Commission of NSW in Court Session [2004] NSWCA 183; (2004) 60 NSWLR 602
Re Alistair [2006] NSWSC 411
Hanna v Department of Immigration, Multicultural and Indigenous Affairs [2004] NSWCA 275
Kriticos v State of NSW (1996) 40 NSWLR 297
R v Electricity Commission; Ex Parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
In re Harris (1936) 37 SR (NSW) 17
SB v Parramatta Children’s Court [2007] NSWSC 1297
KF v Parramatta Children’s Court & 3 Ors [2008] NSWSC 1131
Re Victoria [2002] NSWSC 647
Re Elizabeth [2007] NSWSC 729
Re Alan [2008] NSWSC 379
Re Frances and Benny [2005] NSWSC 1207
Re Anna [2001] NSWSC 79
Northern Star Agriculture Pty Ltd v Morgan & Banks Developments Pty Ltd & Anor [2007] NSWSC 98; (2007) 13 BPR 24,163
Roberts v Balancio (1987) 8 NSWLR 436
M v M [1988] HCA 68; (1988) 166 CLR 69
Director-General of the Department of Community Services v Priestley [2004] NSWSC 639
K v Minister for Youth and Community Services [1982] 1 NSWLR 311
Director-General, NSW Department of Community Services v Y [1999] NSWSC 644

TEXTS CITED:


DECISION:
Refer to para 82 of judgment.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST


WHITE J

Friday, 6 March 2009

1675/09 Re: Frieda and Geoffrey

JUDGMENT

1 HIS HONOUR: This is an application by the Director-General of the Department of Community Services to quash an order of the Children’s Court to restore parental responsibility for the two children who are the subject of the application to their parents pending the determination of the Director-General’s application for a final care order under Pt 2 of Ch 5 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”). The principal issues are:

a) whether an order in the nature of certiorari lies to quash the order of the Children’s Court;

b) whether there is jurisdictional error;

c) whether the order should be quashed for error of law on the face of the record, and in that connection, what constitutes the record;

d) if an order in the nature of certiorari is not made, whether an order should be made in the exercise by the Court of the parens patriae jurisdiction of the Crown for the children to remain in the care, custody and control of the Minister for Community Services, and thus, in effect, to stay the operation of the order of the Children’s Court;

e) in that respect, whether exceptional circumstances are shown warranting the intervention of this Court where there are concurrent proceedings in the Children’s Court (Re Victoria; Director General, Department of Community Services v Children’s Court (NSW) [2002] NSWSC 647; 29 Fam LR 157 at [39]-[40]);

f) what consequential orders if any should be made if the order of the Children’s Court is quashed or an order is made in the exercise of the parens patriae jurisdiction for the Minister to have care, custody and control of the children.

2 The two children in question, have been given the pseudonyms Frieda and Geoffrey for the purposes of these proceedings. They are aged 5 and 2 respectively. On 6 February 2009 the Director-General assumed care of the children presumably pursuant to an order under s 44 of the Act. On 9 February 2009 the Director-General filed applications in the Children’s Court at Bega in respect of each child. The Director-General sought interim and final orders pursuant to s 79 of the Act allocating parental responsibility to the Minister for each child. The grounds on which final orders were sought were identified as being:

a) that the child has been, or is likely to be, physically or sexually abused or ill-treated;

b) the child’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents; and

c) the child is suffering, or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living.

These grounds reflect the grounds specified in s 71(1)(c), (d), and (e), upon which the Children’s Court may make a care order in relation to a child if it is satisfied that the child is in need of care and protection.

3 I shall deal first with the Director-General’s claim for prerogative relief. For the time being, I will confine my description of the case to what is, or is contended to be, the record of the proceedings before the Children’s Court, including the reasons of the learned Magistrate. It was not suggested, and could not be suggested, that the affidavits before the Magistrate form part of that record in the sense in which “record” is used in this context.

4 A “care order” is defined relevantly to mean “an order under this Chapter for or with respect to the care and protection of a child” (s 60). Section 69, 70, 70A, 72 and 79 provide as follows:

“69 Interim care orders

(1) The Children’s Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined.

(1A) The Children’s Court may make an interim care order prior to determining whether the child or young person is in need of care and protection, if the Court is satisfied that it is appropriate to do so.

(2) 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.

70 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.

70A 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.

72 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 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 section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).

(2) If the Children’s Court is not so satisfied, it may make an order dismissing the application.

...

79 Order allocating parental responsibility

(1) If the Children’s Court finds that a child or young person is in need of care and protection, it may:

(a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility:

(i) to one parent to the exclusion of the other parent, or

(ii) to one or both parents and to the Minister or another person or persons jointly, or

(iii) to another suitable person or persons, or

(b) make an order placing the child or young person under the parental responsibility of the Minister.

(2) The specific aspects of parental responsibility that may be allocated by an order of the Children’s Court include, but are not limited to, the following:

(a) the residence of the child or young person,

(b) contact,

(c) the education and training of the child or young person,

(d) the religious upbringing of the child or young person,

(e) the medical treatment of the child or young person.

(3) The Children’s Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9 (d) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.

(4) The Children’s Court must not make an order allocating parental responsibility for a child or young person if the order would be inconsistent with any order in relation to the child or young person made by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children.”

5 In Re Jayden [2007] NSWCA 35, Ipp JA, with whom Beazley and Hodgson JJA agreed, said (at [70]-[79], and particularly at [74]) that s 72 does not apply to interim care orders. His Honour said (at [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 (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). 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) 166 CLR 59).”

6 No issue was raised about the Children’s Court’s making an interim order under s 79 for allocation of parental responsibility (Re Fernando; re Gabriel (2001) 53 NSWLR 494).

7 The hearing of the Director-General’s application for an interim order allocating parental responsibility for the children to the Minister commenced in the Children’s Court on 10 February 2009, that is, the day after the application was filed. It appears from an order made on the following day that on 10 February 2009 an interim order was made granting parental responsibility to the Minister. The hearing continued the following day. On that day the Director-General was not able to secure legal representation, but was represented by a departmental officer. On 11 February 2009 the learned Magistrate ordered:

“Interim order of 10/02/2009 granting parental responsibility to the Minister continued until 3pm on 13/02/2009 and then from 3pm on 13/02/2009 interim parental responsibility to the parent [sic] upon the giving of undertakings as attached. Application adjourned to 18/03/2009 at 11.30am.”

8 Each of the children’s parents gave undertakings to the Children’s Court. These undertakings were given pursuant to s 73 of the Act. The father’s undertakings were:

“1. Advise officer in charge of Department of Community Services (DOCS) Bega should either child be spending a night away from [home address] and provide the details of that alternative residence.

2. Permit an officer of DOCS to enter the residence at [home address] should an officer attend the address and seek to enter.

3. Not consume alcohol at the family home nor be under the influence of alcohol at that house.

4. Not use any drug illegally.”

9 The undertaking of the mother was:

“1. Advise officer in charge of Department of Community Services (DOCS) Bega should either child be spending a night away from [home address] and provide the details of that alternative residence.

2. Permit an officer of DOCS to enter the residence at [home address] should an officer attend the address and seek to enter.

3. Remove the children from the residence should an act of domestic violence occur there and advise officer in charge of DOCS Bega of such act.

4. Not use any drug illegally.

5. Advise officer in charge DOCS Bega should the father breach his undertakings 3 and 4.”

10 The learned Magistrate later recorded that:

“As the judgment was given on a Wednesday afternoon and as the children had been removed from their parents, I ordered that parental responsibility remain with the Minister until the Friday afternoon and that parental responsibility revert to the parents at the end of the school week (Frieda is a school student who began school only this year).”

11 On 12 February 2009 the Director-General made a further application to the Children’s Court. Again, a final and interim order was sought allocating parental responsibility to the Minister. In the alternative, the Director-General applied for a stay of the interim orders made on 11 February 2009 until further order. The grounds under s 71 on the basis of which those orders were sought were the same grounds as contained in the application filed on 9 February 2009. Further evidence was adduced on that application. The matter was heard at different places on 13, 18 and 20 February. On 24 February 2009 the learned Magistrate made the following orders:

“Interim order of 10/02/2009 granting parental responsibility to the Minister continued until 4pm on 25/02/2009 and then from 4pm on 25/02/2009 interim parental responsibility to the parents upon the giving of undertakings as attached. Matter adjourned to 18/03/2009 at 11.30pm [sic].”

12 Again, the undertakings were given pursuant to s 73(2) of the Act. The father’s undertaking was in the same terms as the undertaken given on 11 February 2009 except that an additional undertaking was given to submit to urine analysis tests as requested by DoCS. The mother’s undertakings were in the same terms as the undertakings given on 11 February 2009.

13 The learned Magistrate summarised the Director-General’s application as being based primarily upon three considerations: a) violence to the children, b) threats of violence to the children, and c) the long-term and significant domestic violence within the household (para 7). His Honour described the relationship of the parents as being somewhat turbulent before 2005. He said that in 2005, the father was involved in a motor vehicle accident and that since 2005 there had been a lot of serious domestic violence with the father mostly being the instigator (para 5). He said that the father had turned to alcohol and cannabis in an attempt to deal with his physical and mental problems (para 5). It can be inferred from the reasons that these arise from the motor vehicle accident. His Honour recorded that the parents have each had only the one relationship, but there have been times when the mother has lived apart from the father, that it appears that she has done so because of his violence towards her, and that she has spent time in alternative housing and in refuges (para 6).

14 His Honour said that there was only one allegation of significance relating to violence against the children. That related to events which occurred on 4 February 2009. After summarising the effect of a report contained in an affidavit of the DoCS caseworker (Ms Hopkins) and evidence from the mother and a driver of the school bus, His Honour said that “it is extremely unlikely that the conclusion could be reached on the evidence currently before the Court that anyone has ever assaulted or physically mistreated the children.” (paras 8 and 9).

15 His Honour then said that there was “a welter of evidence to indicate that the children have been raised in an atmosphere of domestic violence. That was conceded by the parents.” His Honour continued:

“10 ... The father has convictions for assaulting the mother in 2006 (common assault, s.9 bond) and on 15th September, 2008 (assault occasioning actual bodily harm and common assault, s.9 bonds, still in force). The father was also convicted in 2008 for assault and intimidation of a police officer. On at least two occasions the mother has almost certainly assaulted the father. Police records show that a report of mutual domestic violence was received in 2005 with both parents suffering scratch marks and, in 2008, both were seen to have bruises, bite marks and scratch marks.

11 There is evidence of at least six incidents of significant domestic violence and the evidence strongly suggests that one or both of the children have witnessed that domestic violence.

12 There is evidence that, when involved in an incident with the mother, the father has verbally threatened violence to the children.

13 It should be noted that the most recently alleged incident of significant domestic violence either probably did not occur or, if it did, was of less seriousness than reported. ...

14 At least one of the recent allegations of non-domestic violence against the father, an act allegedly committed in the presence of the children, would also be given little credence. ... ”

16 His Honour gave reasons by reference to the evidence which was almost entirely by affidavit why he concluded that the two recent allegations of violence against the father should be given little credence or were less serious than reported.

17 His Honour summarised the effect of this material as follows:

“Summary

15 There is nothing to indicate that the children are other than well fed, well housed, well clothed and in good physical health. [Frieda] is in her first year at school. There is nothing to suggest that their educational needs will be neglected. There is little of substance to indicate that the children have been, or are likely to be, physically mistreated.

16 It is unlikely that a court would conclude that the children are in need of care pursuant to grounds (a) and (b) of the applications except for the aspect relating to their psychological well-being. It is a different story in relation to ground (c).

17 There is a clear history of long-standing domestic violence in the household, that domestic violence increasing since the father’s accident in 2005. The parents have recognised for some time that the pattern of domestic violence will have a deleterious impact not only upon themselves but upon the children. They have made some provisions for a course of action in times of tension and a copy of an agreement which they reached in November, 2008 (a time when they were temporarily living apart) is attached to this judgement.”

18 His Honour then set out the relevant parts of s 9 of the Act and made reference to Re Jayden, including to para 79 which I have quoted above.

19 His Honour then referred to two important principles. The first was that removal is a matter of last resort. His Honour said:

“There is nothing in the Act which specifically indicates that a child should remain with a parent or other family member unless the court is positively satisfied that such a place would be contrary to the child’s best interest. The statutory provisions outlined above, however, suggest that an order giving responsibility of a child to the Minister should only be made as an order of last resort.”

20 His Honour referred to a number of cases in support of the proposition that removal of children from their parents should be a matter of last resort (L v the Director of Family Services (1997) 22 Fam LR 275 at 277; CD v Chief Executive, Department of Education and Community Services [2000] ACTSC 81; (2000) 27 Fam LR 19; Ex Parte Minister for Child Welfare: Re Hancock & Anor (1967) 86 WN (Pt 2) (NSW) 371 at 375; Minister for the Interior v Neyens [1964] HCA 71; (1964) 113 CLR 411). The Director-General contends that this was an error.

21 The second important principle the learned Magistrate identified was that it is highly detrimental to the well-being of children for them to be raised in an atmosphere of domestic violence, whether they are witnesses to it or not. His Honour cited with approval a statement that “there is an abundance of research from social scientists about the highly detrimental effect upon young children of exposure to violence and the serious consequences such experiences have for their personality formation.” His Honour attached to his reasons a summary of literature compiled by Carol Boland, a clinical psychologist with a child protection service, which summarised studies showing the harmful effects on children of their being raised in such an atmosphere, notwithstanding that they are not themselves the objects of such violence.

22 His Honour then concluded as follows:

“Conclusion

23 It is virtually certain that a court would, on the evidence before me as to domestic violence committed mostly in the presence of the children, conclude that [Frieda] and [Geoffrey] are children in need of care. It is reasonable to conclude that, in the absence of compelling evidence of substantial action on the part of the parents to eliminate domestic violence from the atmosphere in which the children are raised, a final order would be made removing the children from them.

24 There is evidence that the parents have recognised the problem and have taken some steps to do something about it (see the attached parenting plan). The evidence filed on behalf of the parents as to the matters raised as the “Critical Incident” in Ms. Hopkins’ affidavit suggest that those matters are not as serious one would be entitled to think they were based on what was reported to Ms. Hopkins (see paras. 8, 9 and 13 above).

25 Under those circumstances, leaving the children with the parents (subject to undertakings) until the case can be heard does not represent such an unacceptable risk of real harm to the children as to warrant an interim order of last resort.”

23 The “attached parenting plan” was a document dated 24 November 2008. It was signed by the mother and father and relevantly stated as follows:

“We agree that in the best interest [sic] of our children ... that we should maintain contact with each other, and [the father] may come to any house in which [the mother] is living with the children. Expecting [sic] that at any time [the mother] asks [the father] to leave for any reason, that he will leave immediately.

We will also travel together to Doctors or Psychiatric appointments for [the father], if it has been organised that we can work through problems together for the benefit of our family.

Christmas will also fall into this period. We want to spend this time with our children, and at this point in time, the venue will be held at [the father’s] parents home with the children’s cousins, great grandparents and other relatives.

[The father] and I are sharing the time with our children, this is to try and keep it as normal as possible for both children. [There followed details about arrangements for the delivery and collection of the children for pre-school and day-care and for their being attended to if both parents were required to attend to a matter such as court or doctors.]”

24 Although this does not appear from the Magistrate’s reasons, the background to the adoption of the parenting plan was that on 25 June 2008 the father was given bail in relation to charges of assault which included conditions that he not enter the mother’s premises. The charges were dealt with on 9 December 2008. Thereafter the father was free to resume co-habitation with the mother. From about 8 January 2009, the father and mother were living together.

25 Mr Burchett who appeared for the Director-General submitted that the learned Magistrate’s reasoning contained errors of law. He submitted that:

“The Magistrate erred in law, in that:

a) he impermissibly sought to determine the truth of the factual allegations, when they had necessarily not been tested on an interlocutory hearing.

b) he misconstrued the effect of the Act in holding removal was a last resort. In this he failed to apply the principles of paramountcy of the interests of the children over the rights of the parents set out in s.9 and the decisions of the High Court in M v M and the Court of Appeal in Re Jayden (cited above).

c) he applied an impermissible test of whether the parents posed ‘such an unacceptable risk of real harm as to warrant an order of last resort’. The only threshold of proof to be met was whether the children were likely to be in need of care and suffer relevant harm, if not removed. If the risk shown was likely or ‘almost certain’ to warrant removal on a final basis, clearly it was sufficient to warrant removal on an interim basis.

d) he had regard to an irrelevant consideration, that the parents were attempting to do something about the violence at home, when any such attempts had failed in the past and no finding was made as to the existence or likelihood of any change in the level of violence at home.”

He submitted that the learned Magistrate failed to apply s 9(a) and 9(d) because the present risk of harm, which, according to the submission, the Magistrate found to exist, could not be “pushed to one side to allow the parents to change their circumstances of life”.

26 Mr Braine who appeared for the children’s representative (ss 99 and 99A) supported these submissions.

27 I will deal with the merits of these submissions later in these reasons. Assuming without deciding that the submissions are well-founded, it does not follow that the Magistrate’s decision is liable to be quashed by an order in the nature of certiorari. As the High Court said in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 175:

“Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and ‘error of law on the face of the record’. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the ‘record’ of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.”

28 The Magistrate’s decision was not challenged on the ground of a denial of procedural fairness. The grounds of challenge were jurisdictional error and error of law on the face of the record.

29 There is a difference between jurisdictional error and an error made in the exercise of jurisdiction. A court ordinarily, and in this case, has authority to decide questions of law as well as questions of fact. As the High Court said in Craig v South Australia (at 179-180) a mistaken identification of issues, or a failure to take into account a matter which as a matter of law the court is required to take into account, or reliance upon an irrelevant matter, would not ordinarily involve jurisdictional error.

30 For the reasons below, I do not consider that the learned Magistrate did seek to “determine the truth of the factual allegations”, as distinct from assessing the prima facie strength or weakness of the evidence. For the reasons below I do not consider that he was in error in that approach. But even if he were in error, such an error was not as to “the nature or limits of [the court’s] functions or powers” (Craig v South Australia at 177). In proceeding as he did, the learned Magistrate did not exceed his authority. If he misconstrued the Act or applied the wrong test or had regard to irrelevant considerations, he did so in the exercise of the jurisdiction conferred on him. He did not go beyond his jurisdiction (Craig v South Australia at 177; Uniting Church and Australia Property Trust (NSW) v Industrial Relations Commission of NSW in Court Session [2004] NSWCA 183; (2004) 60 NSWLR 602 at 614, [53]).

31 In Re Alistair [2006] NSWSC 411, Kirby J said that there was some controversy as to whether errors of law which are unrelated to the Court’s jurisdiction which appear on the face of the record can be challenged in an application for an order in the nature of certiorari (at [124]-[129]). As his Honour observed in Hanna v Department of Immigration, Multicultural and Indigenous Affairs [2004] NSWCA 275, the Court of Appeal accepted that an order in the nature of certiorari would lie to quash an order of an inferior court if there was either jurisdictional error or error of law on the face of the record (at [28], [29]). In Craig v South Australia, the High Court said in the passage quoted above at para [27] that jurisdictional error, and error of law on the face of the record, are distinct established grounds for the grant of the remedy.

32 The question remains what is the record. In Craig v South Australia, the High Court held that neither the complete transcript of proceedings, nor the reasons for decision were part of the record for the purposes of the remedy of certiorari unless they were incorporated by reference or were prescribed as such by statute (at 180-183). Subject to any relevant statutory provision, in the present case the record consists of the applications to the Children’s Court, the orders and the undertakings attached to the orders. The orders do not incorporate the Magistrate’s reason by reference.

33 Mr Burchett submitted that the reasons form part of the record by virtue of s 69(3) and (4) of the Supreme Court Act 1970. Those provisions were inserted in 1996 in response to the decision in Craig v South Australia and the criticism of that decision by Kirby P in Kriticos v State of NSW (1996) 40 NSWLR 297 at 299-302. Section 69(3) and (4) provides:

“69 Proceedings in lieu of writs

...

(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.”

34 These provisions only provide for the record to include the reasons of the court or tribunal where the application is to quash “the ultimate determination” of the court or tribunal. The remedy of certiorari is not confined to the quashing of an ultimate determination of a court or tribunal. It lies where the decision sought to be quashed determines questions affecting the rights of subjects (R v Electricity Commission; Ex Parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 205). In Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, Brennan CJ, Gaudron and Gummow JJ, said (at 159):

“... for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue:

(1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently ‘affects rights’ in a legal sense;

(2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently ‘determines’ or is connected with that decision.

The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision.”

35 The orders made by the learned Magistrate were interim care orders. They did not comprise the ultimate determination by the Children’s Court of the applications filed by the Director-General. I accept Mr Burchett’s submission that certiorari lies in respect of the Magistrate’s decision if the grounds for the remedy are established. Whilst the interim care orders remain on foot they determine the rights of the children to live with their parents and the rights of the parents to have custody of their children. I do not think the notion of “rights” in this context is so narrow as to exclude the very real interests of both children and parents to cohabit as a family (In re Harris (1936) 37 SR (NSW) 17 at 20-21).

36 If, in order to be amenable to the remedy, the decision must be a final or ultimate decision, or a preliminary decision or a recommendation which has the necessary effect on the final or ultimate decision, then it is arguable that the remedy of certiorari is simply not available in the case of an interim care order. Nothing was decided on the application which would bind the ultimate decision-maker. However, in my view, there would be a sufficient connection with the making of final orders, because if a finding were made under s 72 of the Act that the children were in need of care and protection (sometimes called the establishment phase) then in determining what final care orders should be made, the Court would necessarily have to consider the situation of the children between the time proceedings were instituted and the making of final care orders. In this way the interim care orders could affect, and are thus connected with, the ultimate decision as to what final care orders should be made. However, the better view is that certiorari lies in respect of an interim care order because rights are affected.

37 But, it is one thing to say that certiorari will lie if the grounds for the remedy are established; it is another to say that the decision under review is “the ultimate decision of [the] court ... in ... proceedings” within the meaning of s 69(3). In my view it is not and therefore s 69(4) does not permit the Magistrate’s reasons to be taken as part of the record. I agree with the reasoning of Kirby J to this effect in Re Alistair at [130].

38 I do not think that in s 69(3) the expression “ultimate determination” means any decision of the court or tribunal which affects the rights of subjects and is amenable to certiorari generally. But in any event, even if “ultimate determination” (s 69(3)) or “ultimate decision” (Hot Holdings Pty Ltd v Creasy) means a decision which affects rights, as distinct from reports or recommendations which do not, or a decision which is not binding, nonetheless s 69(3) refers to the quashing of “the ultimate determination of a court in any proceedings” not “an ultimate determination”. Accordingly, if, as I think is the better view, certiorari lies in respect of the interim care order, it is not established by pointing to errors or law in the Magistrate’s reasons for making interim care orders as those reasons do not form part of the record.

39 Mr Burchett relied on Hot Holdings Pty Ltd v Creasy, SB v Parramatta Children’s Court [2007] NSWSC 1297 and KF v Parramatta Children’s Court & 3 Ors [2008] NSWSC 1131. Hot Holdings Pty Ltd v Creasy is certainly relevant to the scope of the remedy. It says nothing about the construction of s 69(3) and (4) of the Supreme Court Act or what constitutes the record. In SB v Parramatta Children’s Court, Price J quashed a decision of a magistrate to the effect that the plaintiff, the child’s father, lacked standing to rebut a presumption raised by s 106A of the Act that the child was in need of care and protection. In holding that certiorari lay in such a case, his Honour applied Hot Holdings Pty Ltd v Creasy. It does not appear that any argument was addressed to his Honour as to whether the Magistrate’s reasons formed part of the record for the purpose of considering the ground of review of error of law on the face of the record. His Honour did not refer to that part of Kirby J’s judgment in Re Alistair where this question was considered. The reason for that may well be that the Magistrate’s error involved the denial of procedural fairness as the plaintiff was denied the opportunity to adduce evidence. For the purpose of determining that ground the Court is entitled to look at all relevant materials. Nor did KF v Parramatta Children’s Court & 3 Ors address this question.

40 No submission was made that it appears from the application and the orders themselves that the Magistrate acted beyond jurisdiction or made an error of law.

41 The order allocates parental responsibility to both parents. That is not an order contemplated by s 79(1) unless it is within s 79(1)(a)(iii), that is, that the parents are treated as being “suitable persons”. Parents, by virtue of being parents, have parental responsibility for their young children. It might be thought that the purpose of s 79 is, in an appropriate case, to allocate parental responsibility to others, either jointly with one or both parents or separately, or to allocate parental responsibility to one parent to the exclusion of the other. It is not self-evident that the reference to “suitable persons” in s 79(1)(a)(iii) includes the parents themselves. Moreover, s 81(1) requires that on making an order placing a child under the parental responsibility of the Minister, the Children’s Court is to make a determination of which aspects of parental responsibility are to be the sole responsibility of the Minister, which aspects, if any, of parental responsibility are to be the sole responsibility of others, and which aspects, if any, are to be exercised jointly by the Minister and other persons. It must be inferred from the order that for the period the Minister was allocated parental responsibility, the Minister was given sole responsibility. But that is not stated expressly. However, I was informed that no submissions were made to the Magistrate as to the form of the orders. Nor were any such submissions made to me. Accordingly, if there are errors appearing on the face of the orders, which I do not decide, it would not be appropriate to make an order in the nature of certiorari to quash the orders. Such a remedy is discretionary.

42 It follows that the claim for certiorari must be dismissed.

43 Section 247 of the Act preserves the Crown’s parens patriae jurisdiction which is exercised through the Supreme Court. In Re Victoria [2002] NSWSC 647, Palmer J said (at [37]-[40]):

“[37] I do not think that there should be encouraged a procedure whereby persons who have fully contested a matter in the Children's Court and wish to appeal can by-pass the appeal provisions of the 1998 Act and come straight to this Court seeking to invoke its inherent wardship jurisdiction. Quite apart from the fact that to do so would sanction a departure from the appeal procedure laid down by the legislature in the 1998 Act, such an application would involve a quite different question from that which is normally raised on an appeal. In an application to this Court in its wardship jurisdiction, the question is not whether the decision of the Children's Court, or of the District Court on appeal from the Children's Court, was right or wrong or whether the wide powers conferred on a Court under the 1997 or 1998 Acts were rightly or wrongly exercised or could have been better exercised. The question before this Court will be: what is in the best interests of the child as matters stand at the date of this Court's judgment. It may be that the circumstances revealed in, or flowing from, the decisions of the lower Courts have a great part to play in the consideration of that question, but they will not necessarily be conclusive. Indeed, in certain circumstances what transpired in the lower Courts might be utterly irrelevant to the question before this Court in the exercise of its inherent jurisdiction.

[38] That this is so is demonstrated by the fact that an order of this Court in its parens patriae jurisdiction does not set aside an earlier order made by a statutory Court such as the Children's Court; the statutory Court's order still stands although in a sense it may be said to be superseded where it is inconsistent with this Court's order, so that an injunction in the nature of prohibition would lie to restrain the statutory Court from enforcing its earlier inconsistent order: see In re Harris 37 SR(NSW) 17, at 28-29 per Jordan CJ and Long Innes J, and at 31-32 per Maughan AJ.

[39] As I have said earlier, this Court should not encourage any process by which those dissatisfied with the result of proceedings in the Children's Court can simply set at naught the proceedings in that Court and come afresh to this Court, invoking its parens patriae jurisdiction in order to argue all over again the matters that have been debated before the lower Court. If that were to be in any way encouraged, then parties would inevitably face the risk of being involved in a multiplicity of uncontrolled proceedings fought in the Children's Court and in the Supreme Court, with the distinct possibility of conflicting concurrent orders obtained in the Supreme Court and in the lower Court.

[40] What I have said indicates, in my view, the approach which, as a general rule, this Court ought to adopt when its wardship jurisdiction is sought to be invoked in what is in substance an appeal from a decision of the Children's Court. This approach is supported, in my opinion, by decisions of this Court such as Re Weir (1953) 70 WN(NSW) 78; Ping v Van Der Kroft [1982] 2 NSWLR 731; T v H (1985) 3 NSWLR 270, at 274; and Re Anna, Bruno, Courtney and Deepak (supra) at para20 to para22. Of course, as these authorities indicate, there may be exceptional circumstances in a particular case which justify the Court in departing from that general approach.”

44 Because the order in question in the present case is an interim order, no appeal lies to the District Court from it (s 91(1)). This distinguishes the present case from Re Victoria. Nonetheless, for the reasons given by Palmer J in [39] in the passage quoted above, the Court should exercise restraint in exercising the parens patriae jurisdiction where the matter has been argued in the Children’s Court to avoid multiplicity of proceedings and conflicting orders. In Re Elizabeth [2007] NSWSC 729, Palmer J said (at [18]):

“[18] In my opinion, the fact that there is no appeal from an Interim Care Order of the Children’s Court does not, in itself, justify resort to the parens patriae jurisdiction of this Court by a person dissatisfied with the interim order. Section 90 CYP Act provides for rescission or variation of an interim order by the Children’s Court itself if there has been a significant change of circumstances. A party aggrieved by an Interim Care Order on grounds other than change of circumstances may agitate all of the issues fully on a final hearing of the care order application. Interim Care Orders are interlocutory in character and are intended only to protect the child pending a final hearing. It would be entirely destructive of the orderly, efficient and expeditious conduct of care proceedings in the Children’s Court if appeals from Interim Care Orders were to be made routinely to this Court in its parens patriae jurisdiction. The parties in the Children’s Court proceedings should be focussed on bringing those proceedings to a final hearing at the earliest opportunity; the institution of parallel proceedings in the Supreme Court will almost inevitably involve additional delay in the Children’s Court proceedings, not to mention additional expense.”

These principles have been applied on numerous occasions. (See for example Re Alan [2008] NSWSC 379 and cases there cited.)

45 However, as Young CJ in Eq said in Re Frances and Benny [2005] NSWSC 1207 (at [18]), one of the exceptional circumstances in which the parens patriae jurisdiction may be exercised is where it is urgently required that some protective order be made and the court can see that other curial processes may not be able to provide instant relief.

46 In the present case, the Magistrate’s orders have been stayed up to the date of this judgment to allow the Director-General’s application to be heard and determined. The children have remained in the care of the Minister. In that sense “instant relief” has been afforded in the parens patriae jurisdiction. The question in substance is whether that position should continue until the Children’s Court makes its final orders or is satisfied that there has been a material change of circumstances. In Re Anna [2001] NSWSC 79, Hodgson CJ in Eq (as his Honour then was) said (at [20]-[22]):

“[20] In this matter, the Court is being asked to make an order that displaces a considered order made within jurisdiction by another judicial officer. The usual principle that applies when the Court is asked to do this is that the Court will not interfere with such an order, particularly an order made in exercise of a discretion, as this is, unless the Court is satisfied that the decision is plainly wrong, or unless some error appears in the process leading to that decision, such as failure to give a proper hearing, error of law, or failure to give reasons.

[21] No one has referred me to any authority in which that approach has been strictly applied to cases of this kind. Indeed, it was submitted by Mr Singleton that, because of the nature of the Court's traditional jurisdiction, which is expressly preserved by s247 of the 1998 Act, and because of the paramountcy of the interests of the children, this Court would not regard itself as strictly limited by that approach.

[22] I think that submission is correct. However, I think the principles I have mentioned are still relevant, and that this Court would approach the matter on the basis that justification has to be shown for overriding the decision of another judicial officer.”

47 Therefore I turn to what are submitted to be the errors in the Magistrate’s judgment. In addition to the errors of law referred to in para [25] above, Mr Burchett submitted that the Magistrate made errors of fact. Of course, in considering whether the parens patriae jurisdiction should be exercised, the Court is not confined to the Magistrate’s reasons. All of the evidence before the Magistrate has been placed before me, except some oral evidence given by the mother. No further evidence was adduced before me. No oral submissions were made about the mother’s oral evidence. It appears from written submissions of the children’s representative in the Children’s Court that the mother denied most of the allegations made by her family and gave evidence that the domestic situation had improved since the father attended a psychiatrist, Dr Lawrence.

48 I will deal first with the alleged error of approach in that it is said the Magistrate impermissibly sought to determine the truth of the factual allegations. In Re Jayden, the Court of Appeal said (at [77]):

“[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.”

49 The learned Magistrate was not acting inconsistently with these principles in making a prima facie assessment of the strength of the factual allegations of violence. In an application for an interlocutory injunction the question whether the plaintiff has a seriously arguable case and where the balance of convenience lies are not watertight categories. As Young CJ in Eq said in Northern Star Agriculture Pty Ltd v Morgan & Banks Developments Pty Ltd & Anor [2007] NSWSC 98; (2007) 13 BPR 24,163 at [20], a strong score on one head may make up for a low score on another. If the circumstances are such as to permit an assessment of the strength or weakness of the plaintiff’s case that will affect the balance of convenience, or to put it another way, the assessment of what course has the lower risk of causing an injustice.

50 Section 70A requires the Court to be satisfied that the making of an interim care order is necessary in the interests of the child. Section 69(1A) requires the Court to be satisfied that it is appropriate to make an interim care order prior to determining whether the child is in need of care and protection. The learned Magistrate reminded himself that such satisfaction could be arrived at by weighing the risks involved in the children being restored to their parents or, on the other hand, remaining in the care of the Minister. The Magistrate was obliged to assess the nature of the risk of harm to the children and could only do so on the evidence then available. As the primary ground on which the Director-General contended that there was a risk of harm was of their being exposed to domestic violence, it was open to the Magistrate to consider on a prima facie level the strength of that evidence. He did not purport to “determine” the truth of those factual allegations. The highest his finding went was that it was extremely unlikely that on the evidence then before the Court, it would be concluded that anyone had ever assaulted or mistreated the children. His Honour did not overlook the fact that the various deponents by affidavit had not been cross-examined. He was entitled to conclude that the reports made to the DoCS caseworker of violence towards Frieda on 4 February 2009, which were contradicted by other evidence, would be unlikely to justify a conclusion of assault or physical mistreatment of the children. That was something he was entitled to take into account in weighing the risk of harm.

51 Nor do I consider that the Magistrate erred in saying that removal of the children from their parents was a matter of last resort. Contrary to submissions of counsel for the Director-General, his Honour did not say that because removal was a “last resort” that it should not be undertaken even if such removal were necessary to protect the children from harm. I do not read his Honour’s discussion of these principles as espousing any different position from that stated in s 9(d) of the Act. Section 9 relevantly provides:

“9 What principles are to be applied in the administration of this Act?

The principles to be applied in the administration of this Act are as follows:

(a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.

...

(d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.”

52 His Honour was entitled, and indeed, obliged, to consider what measure was necessary for the safety, welfare and well-being of the children. That required consideration of the positive benefits of the children remaining with their parents.

53 However, the other challenges to his Honour’s reasoning have more substance, as does counsel’s reference to other evidence to which his Honour did not refer otherwise than in a summary way and which is material to an assessment of the risk of harm to the children. Whilst the affidavit of the DoCS caseworker described the events of 4 February 2009 as a “Critical Incident”, the evidence of potential for violence to the children, as well as evidence of their exposure to domestic violence between the parents is not confined to that incident.

54 A record of the Southern Area Health Service Facility at Bega of 13 February 2005 reported the mother as having stated that both she and her daughter had been assaulted by the father. There is evidence that the DoCS caseworker had been told by the local police officer that he had known the family for about ten years and knew them pretty well and did not “think he could guarantee the children’s safety in that home.”

55 A police report of 23 October 2007 stated that the father’s mother had reported the father as a result of suffering severe mood swings and otherwise from the effect of his car accident, having, on that evening, abused his parents, driven off and performed several burn-outs along the road leading to their property, made about 50 telephone calls to his mother, and threatened harm to himself, his parents and to the local police officer. On 27 October 2007 there is a police report that the father’s mother reported the father as stating that he would harm himself and his family and the police officer. Of course, such evidence is second-hand hearsay, but the proceedings are not adversarial and such evidence is admissible. The court has a discretion to act on material which is rationally probative (Roberts v Balancio (1987) 8 NSWLR 436 at 440; Re Victoria at [11]).

56 The father was admitted to Bega Hospital on 23 or 24 October 2007, having been brought in voluntarily by the police following an angry outburst, but discharged himself the next morning. On 28 October 2007 the mother’s father informed the police that the mother had been assaulted by the father and that he had concerns for the children. The mother’s father reported that there had been a number of assaults which the mother had not reported. The mother’s father reported that when he told his daughter that he had spoken to the police, she became abusive towards him and refused to talk any further about the matter. The police decided that they would take no further action unless the mother made a complaint.

57 A police report of 9 May 2008 describes an outburst of anger of the father towards a driver of a motor vehicle, who made a right-hand turn in front of the father’s vehicle. It reported that the father then tailgated the driver who, afraid of being assaulted, drove to the police residence. There, a loud argument broke out between the two of them with the father threatening to injure the driver. The police intervened and prevented any violence.

58 The police records refer to an assault by the father on police in front of the children on 24 June 2008. The report said that at the time the father had stopped taking his medication. The police report records the father yelling, and swearing at the police, assaulting them and making violent threats of assault of the police officer’s wife and children. He was charged with offences in relation to these events. He was given bail on 25 June 2008. The bail conditions included that he take medication, that he not drink or use prohibited drugs, and that he not enter the mother’s premises. On 9 December 2008 he was convicted in relation to this event of offences of using an offensive weapon to prevent lawful detention, assaulting a police officer in the execution of his duty, intimidating a police officer in execution of his duty, destroying or damaging property, and using offensive language in or near a public place.

59 The police records refer to another incident of road rage on 20 August 2008 in relation to a former friend. It described both parties as having armed themselves with a pipe or something similar prior to the police intervening.

60 On 14 September 2008, the police were called in relation to assaults committed by the father on the mother. On 8 January 2009 the father was convicted on a charge of assault occasioning actual bodily harm and of three counts of common assault. He was given a bond in relation to these offences on terms requiring him not to assault, molest, harass or otherwise interfere with the mother, to take medication and to attend for counselling, rehabilitation or educational development in accordance with medical advice. The police report of the incident in September 2008 records that despite the bail conditions of 25 June 2008, the father had slept over at the family home for about the previous two weeks. The police report states that after a verbal argument between the father and the mother, the father struck the mother resulting in her earring tearing part of her ear and causing her to bleed. Other assaults were described. The police report said that the mother took the children and her bags and put them in the car to leave the property. It described a further assault on the mother in the presence of the children. A similar incident was said to have occurred the following morning again in the presence of the elder child. The police again reported that the father lost control and in a rage tried to drag the mother from the car and bit her. There is evidence that she also bit him. According to the police report the father denied the allegations of assault and claimed that her ear was hit by accident during a struggle and that he bit her in self-defence after having been bitten by her. However, it follows from the father’s subsequent conviction on these charges that either he did not maintain this position, or, if he did, that the Local Court found that the charges had been proved beyond reasonable doubt.

61 As a result of these events the police took out an apprehended violence order against the father. The mother left the family property. For a time she stayed with her father. Between 22 and 27 October 2008, DoCS received three risk of harm reports in relation to domestic violence between the parents. The detail of those reports is disputed by the mother. The New South Wales Department of Housing provided emergency accommodation for the family in Milton between 23 September 2008 and 16 October 2008.

62 An officer of DoCS made a home visit on 29 October 2008 and interviewed the father. The DoCS caseworker deposed that no immediate risk of harm issues were identified during this home visit and there were no concerns identified in relation to the physical home environment. At that time the mother and children were not living with the father in the house. The father advised that he had been referred to counselling and was aware of the current AVO conditions. He advised that the mother was seeking to have those conditions changed in order to resume their co-residence.

63 As noted earlier in these reasons, on 24 November 2008 both the father and the mother signed the parenting plan summarised in para [23] above. At this time they were still living apart because of the father’s bail conditions, or the terms of the apprehended violence order, or both.

64 It would appear that the father was seeking to deal with his bursts of anger. He saw a psychologist in Bega and was referred to a psychiatrist in Canberra, Dr Lawrence. Dr Lawrence reported that the father is suffering from a clearly established post-traumatic stress disorder, one of the symptoms of which is that he has outbursts of anger quite often. He reported that in order to cope the father has turned to alcohol and cannabis as a form of self-medication which has led to more problems. He reported that both the father and the mother have been helped by the psychologist and by the consultations and medications prescribed by their general practitioner. Dr Lawrence said that the father had suffered a major physical and psychological trauma. He said:

“He will need continuing medical and psychological help for quite some time. ... It should be clearly understood that rehabilitation of his state is a step wise process and that the less stress [he] is subjected to will enhance his recovery and mental health.”

65 He noted that the father and the mother were both very open with each other and mutually supportive and were clear concerning issues they had to deal with and could address them constructively.

66 The mother’s sister deposed that the mother had told her of various incidents of domestic violence. She made a further report to DoCS on 5 February 2009 due to phone conversations which she says she had with the mother, the father and the father’s mother between 13 January 2009 and 5 February 2009. It appears that after 8 January 2009 the mother and father started living together again. The mother’s sister deposed to receiving a telephone call in the week of 13-20 January 2009 from the mother in which the mother screamed hysterically asking for help. She deposed that she could hear the father screaming abuse at the mother in the background. The mother’s sister and the mother’s mother gave evidence to the effect that the mother did not report incidents of domestic violence to the police which she reported to them or which they witnessed.

67 There is a conflict of evidence in relation to the events of 4 and 5 February 2009. The thrust of the mother’s evidence is that the report made to DoCS about that incident was grossly exaggerated. She deposes that on that morning the father appeared to be stressed. After he took Frieda to the school bus stop and returned, the mother telephoned the father’s mother which was part of their dispute resolution system. The father’s mother took the mother to a friend with whom she stayed for a few hours in a nearby town. The mother then returned and picked up the children. She telephoned the father and told him that she needed some space and time and they decided that the best thing to be done was that she go to the women’s refuge. She had stayed there previously. Her friend dropped her there. She told the lady at the refuge that she was fine and just needed some space and time to think. Later, she returned to the father’s parents’ house. The DoCS caseworker deposed that the worker at the Bega women’s refuge had advised that the mother had previously resided at the refuge for a couple of months when pregnant with the younger child. It appears that on 5 February 2009 the mother and children returned to the father. On 6 February 2009 the Director-General assumed the care responsibility for the children.

68 Whilst it was open to the Magistrate to consider that the evidence of the events of 4 February 2009 were not as serious as one would think based on the reports made to the Department’s caseworker, and whilst he was entitled to conclude that on the evidence as it currently stood, it was unlikely that a conclusion would be reached that the children had ever been assaulted or physically mistreated, there was powerful evidence that the children were at risk of physical ill-treatment. The learned Magistrate noted evidence of an incident in which the father had verbally threatened violence to the children.

69 One of the disturbing aspects of the evidence which is not addressed in the Magistrate’s reasons is that the father experiences apparently uncontrollable outbursts of anger from time to time, particularly if he omits to take his medication. Whilst one can have sympathy with the father that his accident should have brought him to such a condition, that sympathy cannot affect the assessment of risk to the children. Dr Lawrence’s report suggests that his rehabilitation, being a “stepwise process”, may take some time. Quite apart from the events of 4 February 2009 (the reports of which the Magistrate thought were exaggerated), the events described above show that there is a very real risk not only of psychological, but of physical harm, to the children in their present environment.

70 The learned Magistrate did not describe that evidence, except to note the convictions, and to say that there were at least six incidents of significant domestic violence, the evidence strongly suggested that one or both of the children had witnessed that violence, and there was evidence that in one incident the father had verbally threatened violence to the children. The evidence went beyond that. The father was convicted of violence not only towards the mother, but also to police officers. There was other evidence of apparently uncontrollable rages concerning other persons which resulted in police intervention, although no charges were laid. The fact that the children have not been assaulted does not mean that there is an absence of risk of assault.

71 In para 15 of his reasons quoted above (at [17]), the learned Magistrate said there was little of substance to suggest that the children are likely to be physically mistreated. Likelihood of physical mistreatment is not the test. The question is whether there is an unacceptable risk of mistreatment (M v M [1988] HCA 68; (1988) 166 CLR 69 at 78; Re Jayden at [79]).

72 In any event, as the learned Magistrate acknowledged, being raised in an atmosphere of domestic violence is likely to have a highly detrimental effect on young children. The learned Magistrate placed weight on the fact that the events of 4 February 2009 were not as serious as one might be entitled to think from the reports to Ms Hopkins. Accepting that to be so, it does not explain why there is not an unacceptable risk of real harm to the children in their present environment. The learned Magistrate was justified in forming the view on the evidence that the parents had recognised the problem and had taken steps to do something about it. Whilst the attached parenting plan could not be considered as a means of resolving the problem, that finding was justified, particularly in the light of the parents having sought medical assistance and devising a plan to attempt to deal with incidents of domestic violence if they arose by the mother contacting the father’s mother. But the question is not whether the parents have recognised the problem and attempted to do something about it. The primary question is what is required in order to protect the children from an unacceptable risk of harm. The learned Magistrate recognised that without evidence of substantial action on the part of the parents to eliminate domestic violence it is reasonable to conclude that an order for removal of the children would be made as a final order. His Honour did not consider, and could not reasonably have considered, that such action has been taken to date to remove the risk of harm. The question under s 9(d) is what is the least intrusive intervention in the life of the children consistent with the paramount concern of protecting them from harm and promoting their development?

73 Given the clear evidence of risk of harm and the absence of evidence that action has been taken to date which could be expected to be effective to deal with that risk, there is no proper basis for the Magistrate’s conclusion that leaving the children with the parents until the case can be heard does not represent such an unacceptable risk of real harm to them as to warrant an interim order removing them from their parents. The Magistrate evidently placed weight on the undertakings which the parents gave. However, to place any significant reliance on those undertakings there would have to be a basis for the Magistrate to be satisfied that the undertakings would be honoured. The father did not give evidence. Given the evidence in Dr Lawrence’s report and the evidence of periodic outbursts recorded by the police which show the father’s present inability to deal with stress and his vulnerability to bursts of uncontrolled anger, his undertaking could not be regarded as providing any substantial assurance of removal of the risk of harm. Indeed, as Mr Burchett submitted, there was evidence of domestic violence after the parenting plan was entered into. Further, notwithstanding that the reports of the incidents on 4 February 2009 might have been exaggerated, the situation was sufficiently serious to lead the mother to move herself and the children to the father’s mother’s home and to the women’s refuge.

74 The paramount consideration is the safety, welfare and well-being of the children. Difficult questions of judgment may often arise, particularly on an interim hearing, in assessing the risk of harm and in assessing what is the least intrusive intervention to protect children from harm. In the present case, the risk of harm is manifest. I am satisfied that the learned Magistrate erred in his assessment of that risk. He placed substantial weight on the fact that the reports of the incident of 4 February 2009 appeared to be exaggerated without addressing with any particularity the risks exhibited by the other events and the risks arising from the father’s medical condition. His decision is liable to be reviewed on the principles stated by Hodgson CJ in Eq in Re Anna at [20].

75 In Director-General of the Department of Community Services v Priestley [2004] NSWSC 639, Young CJ in Eq said (at [8]):

“[8] ... The matter is put as one of child protection and the court always gives allegations of that nature very serious consideration, but there must be, if this court is to re-examine a matter involving child protection, some very strong evidence that the decision of the Children’s Court did not pay enough attention to a matter that is so fundamental that children really and truly are at risk rather than there being a suspicion they might be.”

76 This case falls in the former category. Accordingly, I consider that in the exercise of the parens patriae jurisdiction orders should be made for the children to remain in the care, custody and control of the Minister for Community Services. Such orders can be made without the necessity for orders making the children wards of the court (K v Minister for Youth and Community Services [1982] 1 NSWLR 311 at 323; Director-General, NSW Department of Community Services v Y [1999] NSWSC 644 at [85]-[88]). The existing order of the Children’s Court remains on foot. However, prohibition would lie to prevent enforcement of that order (In re Harris at 28). It is appropriate to continue the stay of the order of the Children’s Court, insofar as it provides for the granting of interim parental responsibility to the parents.

77 The Director-General seeks an order that the children remain in the care, custody and control of the Minister pending final orders being made by the Children’s Court. That is an appropriate order, but there should be a further order to the effect of that made in Re Anna that that order may be superseded by a different interim care order made by the Children’s Court, if either material fresh evidence or a material change of circumstances justifies such a different order, in the view of the Children’s Court.

78 The Director-General also seeks orders that:

1. The parents’ capacity for parental responsibility be assessed;

2. a psychological and/or a psychiatric assessment of the children occur; and

3. the Children’s Court Clinic or another appropriate person conduct the assessment and prepare an assessment report for the Children’s Court.

79 No submissions were addressed as to this court’s jurisdiction to make an order for the compulsory assessment of the parents’ capacity for parental responsibility or to require an assessment of the children or the parents to be conducted by the Children’s Court Clinic. Section 54 of the Act provides:

“54 Assessment of person’s capacity for parental responsibility

(1) The Children’s Court may, for the purposes of an assessment order, appoint a person to assess the capacity of a person with parental responsibility, or who is seeking parental responsibility, for a child or young person to carry out that responsibility.

(2) Such an assessment may be carried out only with the consent of the person whose capacity is to be assessed.

(3) This Division applies to such an assessment in the same way as it applies to the assessment of a child or young person.”

80 At least if the children were made wards of the court, an order could be made for their psychological or psychiatric assessment. However, the matter is before the Children’s Court on 18 March 2009, presumably for the purposes of directions being made in connection with the final hearing. The Director-General will be entitled to apply for an assessment order under either s 53 or s 54 of the Act or under both sections. In my view it is better to leave those aspects of the matter with the Children’s Court.

81 No submissions were made in relation to contact orders in relation to the children. I was told that arrangements for contact have been implemented. If any order is sought in relation to contact between the children and their parents, application can be made to the Children’s Court at Bega for that purpose. As the parties are located in the South Coast region, it is appropriate that such applications be made there rather than the parties being put to the trouble and expense of making applications to this court in Sydney.

82 For these reasons I make the following orders:

1. Order that the children remain in the care, custody and control of the Minister for Community Services pending final orders being made by the Children’s Court of New South Wales.

2. Order that order 1 may be superseded by a different interim order made by the Children’s Court, if either material fresh evidence or a material change of circumstances justifies such a different order, in the view of the Children’s Court.

3. Order that the orders of the Children’s Court at Bega of 24 February 2009 in proceedings Nos. 4 and 5 of 2009 in so far as they give interim parental responsibility to the parents, be stayed until further order of this Court or of the Children’s Court in accordance with orders 2 or 3.

4. Order that the claims for relief in paras 1 and 3 of the summons be dismissed.

83 If any party wishes to make an application for costs, such an application can be made in writing to my Associate with a copy to the other parties. Any application should include an outline of submissions in relation to the claim for costs. Any such application should be made within seven days. If any such application is made, the other parties are to respond to that application within seven days in writing addressed to my Associate with copies to the opposite parties. I will deal with any application for costs on the papers.

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LAST UPDATED:
18 March 2009