· 2021-11-01T16:20:48+0000 · 750 posts

Orders Vesting Minister with Parental Responsibility Disputed by New South Wales Department of Communities and Justice

Secretary, Department of Communities and Justice & Opunui [2021] FedCFamC1A 41 (20 October 2021)

The primary judge rejected the mutual proposal of the parties and the Independent Children’s Lawyer for orders directing the children to live with the mother and vest her with sole parental responsibility. The primary judge found the mother posed an unacceptable risk of harm to the children and made orders vesting the Minister for Families, Communities and Disability Services with parental responsibility for the children. The Secretary of the New South Wales Department of Communities and Justice appeals the order. The Court, in determining whether or not to grant the appeal, considered how the Secretary did not specify how the intervention amounted to recognisable appealable error.

Facts:

Final parenting orders in respect of the children were first made between the parents in October 2015, providing for the children to live with the mother and for her to have sole parental responsibility for them, but leaving to her discretion the nature of children’s interaction with the father. Mr B, the man to whom the mother bore more children in a subsequent relationship, was alleged to have sexually abused the parents' eldest child W. Such induced the father’s institution of fresh proceedings in May 2018. At that time, he sought the discharge of the orders made in October 2015 and substitute orders for the children to live with him and for him to have sole parental responsibility for them, which application the mother resisted. W retracted her complaint about a year later in late 2018.

Pursuant to s.91B of the Act, the primary judge twice requested the Secretary of the New South Wales Department of Communities and Justice (“the Secretary”) to intervene in the pending proceedings, in May 2018 and June 2018, to which the Secretary then responded and intervened in July 2018. In July 2018, interim parenting orders were made giving the Secretary parental responsibility for the children. Using such authority, the Secretary was expected to determine the children’s interim care arrangements. The Secretary allowed the children to continue living with the mother, even though the primary judge had provisionally found the children were exposed to an unacceptable risk of harm in the care of either parent.

On 22 March 2019, the primary judge noted that "the court requires an understanding of the type of placements that the Minister would contemplate that are accredited to provide statutory out of home care for these young people in the event that an order is made restraining either or both of the parents from permitting the children to reside in their respective care." The Secretary is on notice that the court may find at a final hearing that there is an unacceptable risk posed by either or both of the parents and may restrain such parent against whom a finding is made from permitting the children to reside in their care. The primary judge found that both parents pose an unacceptable risk of harm to the children in their full time care and therefore rejected the proposal mutually urged upon her Honour by the parties and the ICL. On 29 October 2020, her Honour made orders under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of three children which were contrary to those mutually proposed by their mother, their father, the Secretary and the Independent Children’s Lawyer (“the ICL”).

The State Minister was vested with parental responsibility for the children (Order 1), it being accepted at the trial that, if given such parental responsibility, the Minister (acting through departmental staff) would use the authority to support the children’s continuing residence with the mother. The Secretary appealed from that solitary order seeking orders specifying the children must live with the mother and granting her sole parental responsibility for them, subject to another coercive order compelling both parents to submit to his supervision and to obey his directions for 12 months after the orders were made. Two further orders restraining the father from causing or allowing the children to live with him and restraining the mother from causing or permitting the children to be brought into contact with Mr B, were unappealed.

Issue:

Whether or not the primary judge erred in finding that the mother posed an unacceptable risk of harm to the children and made orders vesting the Minister for Families, Communities and Disability Services with parental responsibility for the children.

Applicable law:

Children and Young Persons (Care and Protection) Act 1998 (NSW) - provides that the Minister could not remove the children from the mother's care without breaching its requirement in the absence of an immediate risk of harm and satisfaction of the criteria contained in the State Act including sections 8, 9 and 36

Family Law Act 1975 (Cth) Pts VII, XIV, ss 60CA, 65AA - provides that the choice confronting the primary judge casts into stark relief the statutory mandate that the children’s best interests must be the paramount consideration in determining the proceedings.

Burke v LFOT Pty Ltd(2002) 209 CLR 282; [2002] HCA 17 - provides that all evidence must be weighed and assessed having regard to the capacity of a party to adduce it.

Carroll & Director-General, Department of Human Services [2011] FamCAFC 4 - where the Secretary’s conferral, by an order made under the Act, with the right to supervise and give binding directions to adult carers of children has arisen.

D-G of Department of Human Services (NSW) & Tran & Anor (2010) FLC 93-443; [2010] FamCAFC 151 - provides that the primary judge had power under the Act to make an order allocating parental responsibility for the children to the Minister.

DL v The Queen(2018) 266 CLR 1; [2018] HCA 26 - explained why parental responsibility for the children was conferred on the Minister, which satisfies the requirement for sufficiency of reasons.

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 - provides that a finding is open and hence immune from appellate challenge if it is either premised upon or permissibly inferred from foundational evidence.

G v H (1994) 181 CLR 387; [1994] HCA 48 - where the drawing of an inference is an exercise of the ordinary powers of human reasoning and experience, unaffected by any rule of law, and is part of the fact finding process.

House v The King (1936) 55 CLR 499; [1936] HCA 40 - where a ground is misconceived if it contends one particular finding is “unfair and/or manifestly unreasonable”, when that is a ground of appeal which only pertains to a judgment or decree resulting from an exercise of discretion.

Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66 - held that it is doubtful the primary judge could have made a stand-alone order compelling the mother to accept counselling or to attend therapeutic courses in the hope of improving her parenting capacity.

Secretary of the Department of Health and Human Services & Ray & Ors (2010) FLC 93-457; [2010] FamCAFC 258 - provides that the Secretary could not be forced to submit to the jurisdiction exercised under the Act.

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 -

where it was held that if an admission into evidence did not cause any procedural unfairness, a new trial would be futile.

Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 - provides that all evidence must be weighed and assessed having regard to the capacity of a party to adduce it.

Analysis:

The Secretary did not attempt to elaborate the submission that the proposed supervision order was a superior option to the Minister’s investiture with parental responsibility for the children. The Secretary failed to elaborate by pragmatically explaining to the primary judge how his supervision, which could only have been exerted by his delegates’ occasional random checks upon the mother and children, could have safeguarded the children against the constant risks of harm in the mother’s care which the primary judge identified. The primary judge was not satisfied that the package of “protective measures” for which the Secretary advocated could offer sufficient protection for the children and was plainly convinced that conferring of parental responsibility upon the Minister was the only viable option. Even though the primary judge rejected the mutual proposal of the parties and the ICL for orders directing the children to live with the mother and giving her sole parental responsibility for them, it was uniformly accepted that under the appealed orders the children would continue to live with the mother at the Secretary’s direction, in the exercise of his parental responsibility for them.

The Secretary next submitted it was “unfair and manifestly unreasonable” for the primary judge to draw an “adverse inference against the mother” for failing to disclose the admission Mr B made to her about his sexual abuse of W, but the Secretary did not explain why it was not validly open to place weight on the mother’s failure to adduce such potentially important evidence on one of the pivotal issues in the trial. The primary judge did not draw any adverse inference “against the mother” merely as a consequence of her failure to adduce evidence from Mr B. The primary judge simply determined the issue of risk on the available evidence.

Conclusion:

The Court dismissed the appeal. The Court concluded that the reasons for the contention that the findings of the primary judge were unfair and unreasonable were inadequate. No order is made as to costs. The issue of the existence of power to make the supervision order sought by the Secretary is a debate for another day, not least because the Secretary had not turned his mind to the issue and he had no contradictor in the appeal in relation to these grounds.

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