Children S Law Conference 2010

Children’s Law Conference 2010 8 May 2010

Procedural tips in running unusual care applications: undertakings, supervision, contempt and s90A orders

A presentation by Roderick Best A/Executive Director, Accountability & Review Community Services, Department of Human Services1

Introduction

This paper looks at a number of care applications that are, at first glance, very disparate and create an even greater difficulty for me than is usually the case in presenting a coherent and engaging paper to you this morning. I have, after all, been asked to talk about undertakings, supervision, contempt and section 90A orders. What can possibly link these applications – apart from the most general comment that they are all to be found in care proceedings ?

But as the given title to this paper indicates what they do have in common (apart from being in care proceedings) is that they are considered ‘unusual’. Why is it that orders which might elsewhere be unusual, are to be found in care proceedings? I think that general question will both provide a theme to run through my paper (and give it some coherence) but also provide underlying principles to how each of these applications should be approached.

When we consider what is ‘usual’ in the development of the role of the law over times gone by we can see that the law in England, of which our own law in an emanation, grew in response to a need to maintain the “King’s Peace” – peace within and across society as a whole. Criminal and civil laws were introduced and modified to assist society function with as little disruption and uncertainty as possible. Local, church and trade based rules (by communities and guilds) would be developed to resolve issues and, only when the difficulties that the rules imposed spread more generally into society, did the law as expounded by the King’s courts expand to cover those topics. When it did expand to cover the area in question, for criminal law the court retained the role of identifying who did the wrong doing and then imposing punishment. For civil law the court seeks to provide a resolution to a problem that has been specifically identified by the parties and brought before the court.

Outside of this schemata, there were some courts that looked at fairness of behaviour rather than strict single issue dispute resolution and others that dealt with what we would now call therapeutic jurisprudence. It is in the latter area where some of the work around child wards might be located. While in the days of Robin Hood and Maid Marian this work might have been motivated by the King seeking to maintain control of the wealth of the aristocracy there was also a sense of the King needing to 1 The comments in this paper are those of the author and do not necessarily, or at all, represent the views of the Director-General, Minister or State of NSW. Thanks are extended to Stacey Romeo, Anabel Morales Nogues, Derek Smith and especially David Hewitson in the preparation of this paper. They contributed the accurate and useful information and none of the errors.

1 act as a good father to those who could not look after themselves. What is meant by acting as a good father can remove the court from the style of decision-making recognisable in other courts.

If we fast forward to the present day and look at the nature of care proceedings, then the Special Commission of Inquiry into Child Protection Services conducted by the Hon James Wood and reporting in November 2008 said:

“ At the heart of the submissions made to the Inquiry was whether the Children’s Court should be empowered to embrace a more inquisitorial approach to care matters or confined to the more traditional role of deciding cases brought before it on the evidence adduced by the parties …Integral to understanding the positions adopted by those parties before me is the extent of the oversight, in contrast to judicial decision making, which exists in relation to DoCS.”2

“ The Inquiry takes the view that the Children’s Court appropriately has decision making power in relation to matters requiring a judicial response. The ability to monitor the decisions it makes is entirely consistent with this approach. However the Children’s Court is not and should not be an oversight body. The Children’s Guardian and the Ombudsman ably fulfil that role.”3

These comments seem to be comparable with earlier comments of the NSW Court of Appeal which said that:

“ In essence, the allocation of money and other resources for the care and protection of children and young persons is a matter of policy. It is preferable that such policy decisions be made by the body vested with the administrative responsibility for the proper use of the resources in question, and not by a court on an ad hoc basis.”4

After consideration within both the Court of Appeal and by a Special Commission of Inquiry the outcome is that the role of the Children’s Court is, and should be, to make judicial decisions concerning the care and protection of a child. These judicial decisions should be distinguished from ones that are more inquisitorial, or oversighting or of a policy making nature.

This position seems clear and yet despite this clarity their application to the care jurisdiction is not without difficulty. There any many judicial comments referring to the special nature of care proceedings. To quote but a few:

In the High Court it has been said:

“Neglect proceedings are truly a creature of statute, neither civil nor criminal in nature. They are therefore sui generis.”5

2 Para 11.82, 11.85 3 Para 11.256 4 George v Children’s Court of NSW [2003] NSWCA 389. Also see Re Josie [2004] NSWSC 642 5 J v Lieschke (1986-87) 162 CLR 447 at 451 per Wilson J

2 The Full Court of the Family Court said:

“Proceedings in relation to the welfare of children are not strictly adversarial, having regard to the court’s obligation to treat the welfare of the child as a paramount consideration …The overriding principle governs the procedure as well as the substantive issues.”6

Or in England:

“where the debate surrounds the future of the child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner.”7

While it is therefore accepted that care proceedings are to be dealt with ‘judicially’ it must be recognised that care proceedings are not just to respond to the application before the court but also to make orders that “serve the true interests and welfare” of the child8 This not only builds in a tension as to the role of the court but will make some of the orders of the court appear unusual in contrast to the orders of other courts.

Whereas other courts will hand down a judgment and have the power to enforce that judgment, the Children’s Court in care proceedings has limited powers of enforcement. It primarily relies upon parents and others wanting to do the right thing for children and the court having the ultimate power to remove children from the parental responsibility of the child’s parents. It does not serve the interests of the child to force people to lovingly care for the child if this would not occur, but for the order.

It is this background that gives rise to orders that recognise undertakings about how people behave, orders that direct supervision of on-going behaviours, orders that prohibit the exercise of parenting practices and the need to maintain the integrity of the court and its standing where the response of a party before the court amounts to contempt.

Let us keep in mind this tension between the need for the Court to act judicially while doing so in a unique jurisdiction striving to care and protect children.

2. Order for Undertakings

In situations where most courts would not make an order for specific performance because it would require oversight of personal activities, the Children’s Court has express legislative power to make an order accepting undertakings.9 For this order, the concerns about the care and protection of the child may not be sufficient to prevent the child or young person from living with their parent or where restoration is being considered. The orders will seek to address specific action required of the child or young person, or parent, so as to address identified care and protection concerns.

6 Separate Representative v JHE and GAW (1993) 16 FamLR 485 at 498-9 7 Sutton v London BC and Davis (No 2) [1995] 1 AllER 65 8 In re E (SA) (a minor)(wardship:court’s duty) [1984] 1 WLR 156 at 158-9. 9 Section 73, Children and Young Persons (Care and Protection) Act 1998

3 The undertakings must be from

 a ‘responsible person’ (other than the Minister or the Director General) for the child or young person with respect to the care and protection of the child or young person and/or  a child or young person with respect to the child or young person’s conduct.

The concept of ‘responsible person’ was inserted in 2006 to enable the Children’s Court to accept undertakings not only from persons with parental or care responsibility for a child or young person, but also from persons with an involvement in the life of the child or young person irrespective of that person currently having parental responsibility. This can include birth parents or primary care givers responsible for the care and control of the child or young person.10

This amendment overturns In the Matter of Cristian, Tamsin, Jennifer and Karen (No 2),11 where during proceedings for a breach of an undertaking and other matters, the Court held that it couldn’t accept undertakings from a birth mother who did not have parental responsibility.12

Undertakings must be in writing and signed by the person giving it.13 In the Matter of Raymond, Cristian, Tamsin, Jennifer and Karen,14 where the Director General alleged a breach of undertakings, an administrative error had resulted in the child Raymond not being included in the undertakings documentation. Despite the Court’s transcript indicating it was the intention of all parties to implement the undertakings the absence of a signed undertaking meant that the Court could not find that undertaking had been made.15

As the person giving the undertakings is required to sign the documentation, an inference can normally be made about consenting to the making of an order for undertakings.

Notification of an alleged breach of undertakings can be given to the Children’s Court by the Director General or a party to the proceedings.16

The Children’s Court once notified of the alleged breach must give the parties an opportunity to be heard about the allegation.17 A determination is then to be made by the Court as to whether the undertaking has been breached and if so, it will make appropriate orders.18

10The Hon. J. Della Bosca, Second Reading Speech for Children and Young Persons (Care and Protection) Amendment (Parent Responsibility Contracts) Bill, Legislative Council Hansard, 27 September 2006 and section 73(7) Care Act 11 CLN 3 2006 (Swain CM 27 February 2006) 12 Ibid., paragraph 45 13 Section 73(2)(a) 14 CLN 3 2006 (Swain CM 13 February 2006) 15 Ibid., paragraphs 4 and 6 16 Section 73(4) Care Act 17 Section 73(5(a) Care Act 18 Section 73(5) (b) and (c) Care Act

4 What happened In the Matter of Rajiv19 was that ‘DoCS filed and served a notification of a breach of a supervision order and a notification of a breach of undertaking,’20 but with no other material. The court found that persons alleged to be in breach should be supplied with sworn verified material and given an opportunity to test the evidence. Those persons should also be entitled to file their own affidavit material.21

“It is the obligation of the Court where there is an alleged breach of a supervision order, an obligation imposed by section 77(3) to give the parties an opportunity to be heard concerning the allegation. Now, I think that necessarily imports the idea that the parents are aware of what the alleged breach is and in this instance they have been made aware of that because a formal notification has been served on them and indeed a copy has been given to Mr Butland and to Mr Braine who appear for them.

Once they have been given an opportunity to be heard, and in this instance they have accepted that opportunity of telling me through Mr Butland and perhaps not quite so vociferously by Mr Braine that the allegations which the Department rely upon are contested, the Court is to determine whether the order has been breached. Now, an important question is how that determination should take place. There is no suggestion in the legislation that the persons who are alleged to be in breach should be supplied with sworn verified material from the Department and given an opportunity to test the accuracy of that evidence and there is no provision in the legislation which specifically entitles the persons alleged to be in breach to file their own affidavit material.

I think that it must be inferred that those things are to happen because it is after all the Court who has to determine all those matters and it is not clear to me how a Court can determine a matter absent consent without evidence which can be tested because evidence that cannot be tested is not much use, and without the persons who are alleged to be in breach being afforded the opportunity to put sworn evidence on. For that reason I agree with Mr Butland, not for the reasons that he expressed but for the reasons that I have given, that his client should be supplied with the affidavit material from the Department, should have an opportunity to cross-examine and should have the opportunity of which his client might or might not take advantage of, to file contradictory sworn material.

In those circumstances, the question of the breach of supervision order cannot be dealt with today and section 73(3) which deals with alleged breaches of undertakings must for the same reasons go over to another day.

19 CLN 3 2002 (Mitchell CM, 16 April 2002) 20 Ibid p.2 21 Ibid. p.2

5 I intend therefore to require the Department to file and serve its material in connection with the alleged breaches on or before 7 may and to give the mother and if he chooses the father leave to file affidavit material on or before 21 May.22

The question on breach of an order for undertakings (and suppression orders which I am about to consider) is whether the legislative scheme for breach should be followed or whether a section 90 application for recession or variation should instead be pursued. An application on breach can only be brought by Community Services whereas a section 90 application can be brought by a wider range of people. A section 90 application will need to establish that the breach met the threshold test of a significant change of circumstances and this does not exist in the case of a breach application. Query whether it should be argued, if the facts permitted, that the breach allegation was not properly brought because the factors justifying the breach were not the true justification of the action but instead were merely being improperly advanced as such around compliance with section 90. 23

Returning to our original question, how do these considerations reflect the application of this unusual order to serve the true interests and welfare of the child?

3. Supervision orders

Supervision orders are appropriate where a child or young person is in need of care and protection, but the concerns do not prevent the child or young person from residing with their family but do require close monitoring of and mentoring responses to the child which are designed to assist that child’s care and protection. The Act does not envisage supervision of the child’s parents instead the Act talks of ‘placing a child…under the supervision of the Director-General”. This creates a significant difference with supervised contact where it is the contact (i.e. the behaviour of the parent) being supervised.

Before the supervision period expires, the Children’s Court may require a report to be presented which addresses the following matters:  the outcomes of supervision  whether the purposes of supervision have been achieved  whether further supervision is required to protect the child or young person, and  whether any other protective orders are required.24

Alternatively the Children’s Court may require one or more reports during the supervision period which describes the progress of supervision.25 The Court also has

22 Ibid. 23 Compare Re Jayden [2007] NSW CA 35 24 Section 76(4) (a) Care Act 25 Section 76(4)(b) Care Act

6 the option to require reports throughout the period of supervision as well as one prior to the completion of the supervision period.26

The Children’s Court may give to the legal representative of the child or young person a copy or part thereof of any report presented under section 76(4) and a copy of any medical or assessment report presented to the Children’s Court.27

A supervision order can be extended for a further period not exceeding 12 months.28 The Children’s Court may on its own motion or upon application by the Director General, after giving the parties an opportunity to be heard, extend the supervision period as it considers appropriate.29

What is not clear is how often a supervision order can be extended i.e. can it only be extended once or on a number of occasions? Crawford CM has commented that this is a matter requiring clarification, although he favours the view that an order may be extended more than once: ‘To do otherwise may encourage courts to act on the side of caution and make orders of the longest possible duration possible, mindful that only one extension is possible.’30

The Director General may notify the Children’s Court of an alleged breach of a supervision order.31 The Children’s Court must give the parties an opportunity to be heard concerning the allegations and determine whether the order has been breached. If the Court finds the order has been breached, it may make such orders it considers appropriate in the circumstances.32

Former Children’s Magistrate Crawford has provided a critique of the law with respect to supervision saying “that a supervision order should be developed to a greater extent as a collaborative model and one that engages the family and not just the child [and where]…the relationship between officers and family to one where each has rights, obligations and responsibilities with these directed towards achieving a common goal of protection for the child and enhancement of the child’s quality of life.’33

In the absence of legislative change the challenge for practitioners is to draw minutes of orders that strive for such an outcome that seems so closely aligned with the objects of the legislation.

Returning to our original question, how do these considerations reflect the application of this unusual order to serve the true interests and welfare of the child.

4. Orders prohibiting parenting acts

26 Section 76(4) Care Act 27 Section 76(5) Care Act 28 Section 76(6) Care Act 29 Ibid. 30 Ibid. 31 Section 77(2) Care Act 32 Section 77(3) Care Act 33 Ibid p.14

7 On its face this order can be made against anyone and not just against someone having parental responsibility. It is the conduct which is defined in the context of parental responsibility and not the nature of the person who is subject to the order.34 If equivalent provisions are considered then it is possible that an order may even be made against someone who is not party to the proceedings.35

The order must be about a person's exercise of parental responsibility and so will impact on dealings between that person and the child. It will not extend to prohibiting parents contacting each other as this does not deal with the relations between the parent and the child.36

When might an order be appropriate:

 When it is considered that the parent caring for the child might not (whether or not allowed by court orders) keep the child from the other parent, this order places an obligation on that other parent.37

 Prohibitions on a person changing the residence of the child or removal of the child from the jurisdiction. 38

 Prohibitions on a person preventing the use of physical discipline of the child or other similar conduct.

 Prohibitions around contact issues so as to control who may be present or who the child can associate with or what the child can eat or what places the child can visit

 Prohibitions concerning a persons conduct or state in the presence of the child. For example, not to care for the child while affected by drugs; not to engage in domestic violence in the presence of the child.

Former Children’s Magistrate Crawford has suggested that the provision might be used to stop a child being circumcised39 or to stop parents from avoiding the provision of medical treatment.40 However, in the absence of positive orders (including the giving of consent to medical procedures) the use of this order may not be accompanied by adequate supporting powers to achieve the necessary outcome. Use of the parens patriae power of the Supreme and Family Courts may be preferable.

Especially in relation to the medical treatment of a child, in a manner contrary to a parent's wishes likely compliance with the order is a matter that should be given careful thought. An order which is made but not complied with may not only be inconsistent with the child’s safety but also result in other action which may have protected the child not being taken.41

34 Section 90, Children & Young Persons (Care and Protection) Act 1998 35 Re H and others (minors)(prohibited steps order) [1995]4 All E.R.110;Ray v Males[2009] Fam CA 219 36 Croydon LBC & A[1992] 3 A11ER 788 37 Re Sophie [2008] NSW CA 250 38 Re D(a minor) (Child: removal from jurisdiction) [1992] 1 A11 ER 892 39 Compare ReJ (Specific Issue Orders. Muslim upbringing and circumcision) [1999] 2 FLR 678 40 Compare Director-General, DocS v BB [1999] NSWSC 1169 41 Croydon LBC v A (1992) 2 FLR 34

8 This raises the question whether a prohibition order should be obtained or whether an order accepting undertakings should instead by sought. Undertakings can only be given by someone involved in the proceedings and who is prepared to give them. Undertakings can be given on a range of conduct and are not just limited to the relationship between the person exercising parental responsibility and the child. Breach of an order accepting undertakings permits access to an enforcement regime. It may be that while a person is not prepared to agree to a course of action they are prepared to abide by a court order requiring them to act in a certain way. That would be a situation for a prohibition order.

Returning to our original question, how do these considerations reflect the application of this unusual order to serve the time interests and welfare of the child.

9 5. Contempt

I have previously said that in care proceedings the Children’s Court has limited powers of enforcement. This is because the nature of the proceedings is about securing the true interests and welfare of the child. Forcing a person to care and protect a child does not achieve this.

Having acknowledged these limitations over power of enforcement is that of contempt.

The Children’s Court has an express power of contempt42 and so does not need to rely upon its general powers in section 15. This express power draws upon the power of the Local Court43 which in turn refers to the District Court.44

Contempt is often considered to be something that affronts the dignity of the presiding judicial officer or the court whereas the true nature of the offence is about safeguarding the due administration of justice.45 Contempt can take three forms: that by publication, ie the face of the court or by disobedience of court orders. The high emotions, sense of personal right and the importance of a child to a parent means that each of these forms of contempt can be illustrated by examples from the care jurisdiction. I will not touch upon contempt by publication today even though it might be useful to conduct a case study of a website that has been operating for a few months which names individuals associated with care proceedings as abusers might help elucidate when, or when not, does this contempt exist.

Contempt in the face of the court is behaviour that obstructs the activities of a court.46 The behaviour can be ‘calculated’ to obstruct47 or deliberate considered with an objective test of actually obstructing.48 Traditionally the behaviour must be observed by the judicial officer but there is authority holding behaviour in the court precinct to also amount to contempt.49

The High Court has set out the procedural safeguards of preserving minimum standards of fairness when it said:

“It is a well recognised principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him …. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations…. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of placing before the court any

42 Section 21, Children’s Court Act (1987) 43 Section 27A, Local Courts Act (1982) 44 Section 199, District Court Act (1973) 45 Attorney General v Times Newspapers [1967] AC 273 at 322 per Lord Cross 46 Izuora v The Queen [1953] AC 327; Ex parte Bellarto: Re Prior [1963] SR (NSW) 190 at 202 47 Giscombe (1984) 79 Cr App Rep 79 at 84 per Lord Lare CJ 48 Ex parte Tuckerman: Re Noah [1967] 3 NSWR 23 49 Ex parte Tubman: Re Lucas [1967] 3 NSWRH1 but see: European Asian Bank AG v Wentworth(1986) 5 NSWLR 445 at 458 per Kirby P

10 explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.” 50

The standard of proof for contempt (whether civil or criminal) is beyond reasonable doubt.51

While it is the case that contempt may be ‘purged’ by an apology to the court and making reparations including the payment of costs52 this does not mean that the contemptor will still not be punished.53 Until the contempt is purged the contemptor cannot seek any other remedy from the court – even where to do so might be in a child’s best interests.54

Where the contempt is disobedience of a court order then:  the court must have the power to make the order55  the orders must be clear, certain and unambiguous56  the person required to comply must have knowledge of the order57

The contempt is the disobedience and there is no need to prove contumacy. 58 The contempt exists for all purposes once known to the court and does not just date from the time a court finds the behaviour to have been in contempt.59

For the Children’s Court there is a specific power of contempt in section 21 of the Children’s Court Act (1987). This is said to be the same power as held by the Local Court. The local Court has the same powers of contempt as the District Court but the contempt is both in the Local Court and the District Court as expressly limited to contempt of court committed in the face of the Court.60 Does the Children’s Court therefore have any power over contempt for disobedience of a court order? I suggest not.

Linked with the power of contempt for disobedience of a court order is contempt for failure to comply with an undertaking given to the court. Why this attracts contempt sanctions is the principle that as the undertaking is given specifically to the court61 it has the same legal effect as an injunction.62 Where a court does not have injunctive powers it cannot enforce an undertaking and so should not accept an undertaking in the first place.63 The Children’s Court does not have injunctive powers.

50 Coward v Stapleton (1953) 90 CLR 573 at 579 – 80 51 Witham v Holloway (1995) 183 CLR 525; Keeley v Brooking (1967) 143 CLR 162 52 LGM & CAM [No2] (2008) 38 FamLR 229 53 Australian Consolidated Press v Morgan (1965) 112 CLR 483 at 498-9 pu Windeyer J 54 Young v Jackson (1986) 11 FamLR 331 per Young J 55 Petechowsky v Registrar of Court of Appeal (1999) 198 CLR 435 56 Attorney General (UK) v Punch Ltd [2003], AC 1046 57 Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166. this may need only be knowledge of the substance of the order: Madiera v Roggette Pty Ltd (No 2) [1992] 1 QdR 394 58 Witham v Holloway (1995) 183 CLR 525 59 Young v Jackson (1986) 11 FamLR 331 per Young J 60 Local Courts Act (1982) section 27A, District Court Act (1973) section 199 61 U & I Global trading (Aust) Pty Ltd v Tasman – Warajoy Pty Ltd (1995) 60 FCR 26 62 Trade Practices Commission v CG Smith Pty Ltd (1978) 30 FLR 368; Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 69 ALR 534

11 The absence of jurisdiction for the Children’s Court to make a finding of contempt for breach of an order and the inability of the court to accept an undertaking (as distinct from an undertaking under section 73) do not appear to have been drawn to the Courts attention in the Matter of Jack64 where his Honour Hunt CM otherwise discusses aspects of breached undertakings and possible contempt in the context of care proceedings.

Where there is a power of contempt for disobedience of an order then traditionally the person in whose favour the order was made is the one able to instigate proceedings. 65 In care proceedings Community Services has elected not to instigate contempt proceedings where it considered that to do so would further damage relations with a parent which would just exacerbate a lack of service provision to the child. This decision was criticised by the Supreme Court.66 As the contempt is of the authority of the court then it is open to the court to institute proceedings,67 as can the Attorney- General68 and possibly even members of the public.69

Once a party has commenced contempt proceedings it may not be competent for that party to discontinue70 especially where the welfare of a child is at stake.71

Conclusion This paper seeks to look at ‘unusual care’ orders.

Where a court is seeking to achieve orders that result in a child being care and protected by the daily delivery of personal services that might otherwise be provided by a good parent demonstrating nurturing love and affection then any of those orders may be unusual. This will especially be the case if the orders are truly structured to serve the interests and welfare of the child. Once those orders are made, the absence of significant powers of enforcement again renders a care court and its proceedings unusual, but again this situation will only be unusual to the extent necessary to pursue the welfare of the child.

Truly, what can be unusual in care proceedings takes many guises.

Thank you for your patience as I have journeyed through this personal exploration of unusual corners of the care jurisdiction.

63 Thomson Australia Holdings Pty ltd v Trade Practices Commission (1981) 148 CLR 150 at 164-165 per Gibbs CJ, Stephen Mason and Wilson JJ 64 (2002) 2 CLN 8 65 Witham v Holloway (1995) 183 CLR 525 66 Re Jules (2008) 40 Fam LR 122 67 Registrar of Court of Appeal (NSW) v Permewan Wright Consolidated Pty Ltd unreported 4 May 1979 NSWCA 68 Attorney General (UK) v Times Newspapers Ltd[1992] 1AC191 69 Matthews v Seamen’s Union of Australia [1957] 1FLR 185 70 Australian Design Council v Borello (1989) 17 IPR 389; Jensen & Baker [1972] 2QB53; Poje v Attorney-General (Can) [1953] 2DLR 785 71 In the Marriage of McJarrow (1980) 50 FLR 429