A v Secretary, Department of Communities and Justice (No. 5)

[2020] NSWSC 1340

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

A v Secretary, Department of Communities and Justice (No. 5) [2020] NSWSC 1340

Hearing dates:

7 September 2020

Date of orders:

1 October 2020

Decision date:

01 October 2020

Jurisdiction:

Equity - Applications List

Before:

Williams J

Decision:

The proceeding is dismissed as an abuse of the process of the Court pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4.

Catchwords:

PRACTICE AND PROCEDURE – summary dismissal – abuse of process – where proceedings commenced in the Supreme Court seeking relief in the parens patriae jurisdiction of Court – where the basis for the relief sought seeks to re-litigate issues determined in previous proceedings in the Children’s Court and on appeal to the Supreme Court – proceedings dismissed as an abuse of the process of the Court

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9, 36, 61, 71, 72, 73, 79, 80, 81, 82, 83, 90, 91 and 105

Children’s Court Act 1987 (NSW), s 22A

Children’s Court Regulation 2019 (NSW), reg 5

Civil Procedure Act 2005 (NSW), s 56 and Pt 10

District Court Act 1973 (NSW), s 127

Supreme Court Act 1970 (NSW), ss 48, 69 and 101

Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.29, 13.4 and 50.3

Cases Cited:

A v Secretary, Department of Communities and Justice (No. 4) [2019] NSWSC 1872

A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43

CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105

Druett v Director-General of Community Services [2001] NSWCA 126

GR v Secretary, Department of Communities and Justice [2020] NSWSC 739

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226

X v Director-General of the Department of Community Services [2001] NSWCA 413

Category:

Procedural and other rulings

Parties:

A (First Plaintiff)
B (Second Plaintiff)
Secretary, Department of Communities and Justice (First Defendant)
Minister for Families, Communities and Disability Services (Second Defendant)
D (Third Defendant)

Representation:

Counsel:
Mr M W Anderson (First and Second Defendants)

Solicitors:
NSW Crown Solicitors’ Office (First and Second Defendants)
Ms M Voncina (Third Defendant)

Self-represented:
First and Second Plaintiffs

File Number(s):

2020/93375

Publication restriction:

On 7 September 2020, the Court made orders prohibiting the publication or disclosure of information that would identify, or tend to identify, the identity of the children in these proceedings or to identify the details of the first and second plaintiffs.

Judgment

Introduction

1. These reasons for judgment relate to two notices of motion filed on 19 June 2020 by the defendants seeking summary dismissal of the plaintiffs’ Summons filed on 25 March 2020 pursuant to Uniform Civil Procedure Rules 2005 (UCPR), r 13.4.

2. These proceedings concern the plaintiffs and their daughter, who was born on 21 July 2017. In separate but related proceedings before Lindsay J, the plaintiffs were referred to by the pseudonyms “A” (for the first plaintiff in this proceeding) and “B” (for the second plaintiff in this proceeding) and their daughter with whom this proceeding is concerned was referred to by the pseudonym “D”. The half-sister of D was referred to by the pseudonym “C”. Pseudonyms are necessary in this proceeding to avoid disclosing (directly or indirectly) the identity of D, contrary to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). In order to avoid confusion, I will adopt the same pseudonyms as those used by Lindsay J in those related proceedings: A v Secretary, Department of Communities and Justice (No. 4) [2019] NSWSC 1872. I will also adopt a case name that conforms with the model adopted by his Honour, with the designation as judgment “No. 5”.

Nature of this proceeding

3. D was born on 21 July 2017. She is presently under the parental responsibility of the Minister for Families, Communities and Disability Services (the Minister) until she attains the age of 18 years under orders made by the Children’s Court on 23 September 2019 pursuant to s 79 of the Care Act. Those orders were confirmed by this Court on appeal under s 91 of the Care Act on 20 December 2019: A v Secretary, Department of Communities and Justice (No. 4) (supra).

4. At the time of the hearing of the motions on 7 September 2020, D was living in foster care accommodation with her long term carer arranged by the Secretary, Department of Communities and Justice, who is the first defendant in this proceeding (the Secretary and the Department respectively).

5. The first plaintiff, A, is the birth mother of D, and the second plaintiff, known by the pseudonym B, is the birth father of D. It is convenient to refer to them collectively as the plaintiffs, except where it is necessary to distinguish between them.

6. In these reasons, it will also be necessary to make reference to C, born on 31 October 2006, who is the natural child of A from a previous marriage. Along with her half-sister D, C was removed from the plaintiffs’ care by the Secretary on 15 September 2017. She presently lives in New Zealand with her father, who has been allocated sole parental responsibility for her to the exclusion of A by order of the Children’s Court on 23 September 2019 pursuant to s 79 of the Care Act. Those orders were also confirmed by this Court on appeal on 20 December 2019.

7. By their Summons, the plaintiffs seek two separate categories of relief. The first category seeks the following orders in relation to D:

1. By prayer 1, that she be restored to the plaintiffs’ day-to-day care;

2. By prayer 2, that D be placed under the supervision of the Secretary for the period of time as the parties agree or as the Court thinks fit;

3. By prayer 3, that the parental responsibility for D is retained by the Minister, if the Secretary so desires or as the Court thinks fit;

4. By prayer 4, that the order sought in prayer 1 remain in force until D attains 10 years of age or for a period of time as the Court thinks fit; and

5. By prayer 5, any other order in relation to D that the Court thinks fit.

8. The second category of relief seeks an order that, upon the award of the relief sought in the first category of relief, the proceeding be transferred to the Common Law Division “where it will continue as a representative action pursuant to Part 10 of the Civil Procedure Act 2005.” The proposed relief sought in such representative proceedings was set out at page 49 of Annexure “A” to A’s affidavit sworn on 23 March 2020. It is not necessary to refer to this document. The plaintiffs’ no longer press for the second category of relief.

9. The plaintiffs attempted to file a proposed amended summons on 18 May 2020, but it was rejected by the Registry for the plaintiffs’ failure to obtain prior leave. At hearing of the motions, the plaintiffs informally sought leave to file the proposed amended summons and confirmed that it sets out the relief that they wish to seek if the proceeding is not summarily dismissed. In the circumstances, I decided to hear the motions for summary dismissal on the basis that the plaintiffs seek the relief in the proposed amended summons on the grounds set out therein. It is therefore convenient to set out the relief sought in full:

“Declaratory relief

6. [sic - 1] Declarations, pursuant to s 75 of the Supreme Court Act 1970, that:

(a)   [D] is a child in exceptional circumstances, warranting intervention of this Court, for the following reasons:

(i) [D] is being held in the foster care in spite of not having been found to be a child in need of care and protection pursuant to s 72 of the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act");

(ii)   [D] has never been found to be a child at an immediate risk of any harm;

2. Declarations, pursuant to s 75 of the Supreme Court Act 1970, that:

(a) The paramount principles of s 9(1) of the Care Act"), equally apply to a child while in care of the child's parents and to the child who has been or is being removed from the parents' care;

(b) Principles of s 9(2)(c) are mandatory requirements, binding on the decisions of the second defendant and the decisions of the courts;

(c) Principles of s 36 of the Care Act are to be applied in priority to the principles of s 9 and are mandatory requirements binding on the decisions of the second defendant and the courts;

3. Declarations, pursuant to s 75 of the Supreme Court Act 1970, that:

(d) The expression "lack of insight" is not specified as one of the grounds of s 71 of the Care Act and the word "insight" is not defined in the Care Act;

(e)   Decision in relation to [D] on the ground of the first plaintiff’s alleged "lack of insight" is not authorised by law.

(f)   The psychological pressure on the first plaintiff to accept the allegation against the second plaintiff, or lose her child, is an act of torture;

(g)   The removal of [D] from the plaintiffs' care and refusal to restore her to their care on the ground of the first plaintiffs "lack of insight" are unlawful acts.

Substantive orders

4. Pursuant to s 79(1)(c) of the Care Act, parental responsibility for [D] is allocated jointly to both plaintiffs on the one hand and the first defendant on the other hand, in the following manner:

(a) All aspects of parental responsibility as specified in s 79(2) of the Care Act is allocated to both plaintiffs, to the exclusion of anyone else, except for the following:

(i)   Contact between [D] and her sister [C] (who is currently in care of [C’s] father in New Zealand) is allocated solely to the first defendant until the expiry of the current orders in relation to [C];   

(ii)   Thereafter, the earlier of the expiry of these orders or until [C] attains the age of 18 years, the decisions of contact between [D] and [C] are exercised jointly by [C’s] father and [A];

(iii)   Until the expiry of these orders [D] may be relocated from the State of New South Wales only by the approval of the first or second defendant or by the decision of this Court;

(iv)   All other aspects of the parental responsibility for [D], if any, to be allocated as agreed between the parties or as decided by this Court.

5. [D] is placed under supervision of the second defendant from the date as agreed between the parties or as determined by this Court, with such order continuing until [D] attains the age of ten (10) years, notwithstanding the provisions of s 76 of the Care Act.

6.   The plaintiffs are to keep the second defendant notified of any significant changes to [D]’s relevant circumstances, her health, education or any other matter reasonably requested by the second defendant.

7. Pursuant to s 73 of the Care Act, the plaintiffs give any other undertakings, on reasonable terms, having regard to the provisions of s 9(2)(c) of the Care Act.

8.   Order (4) remains in force, together with order (5), until this Court either:

(a)   hears and determines the second defendant's application for variation or rescission of these orders, if one is ever filed; or

(b)   hears and determines an application of any kind if filed by any other party.”

10. Annexed to the proposed amended summons is a document styled “Grounds for the Relief Sought”:

“Ground 1 - Inherent jurisdiction of the Supreme Court

1.   [D]’s circumstances are exceptional circumstances warranting intervention of this Court in its inherent jurisdiction:

(a) Pursuant to s 247 of the Care Act jurisdiction of the Supreme Court is not limited in any way by the provisions of the that Act;

(b)   There is no other remedy available to [D] except the remedy that the Supreme Court may grant in its inherent jurisdiction;

(c) The only way that the plaintiffs could initiate a proceeding in the Children's Court is by way of an application for a rescission or variation of the care order pursuant to s 90 of the Care Act.

(d) The plaintiffs have attempted to use the s 90 provisions in order to get the Children's Court to correct its own error in relation to the orders of that Court but have failed on technical grounds, namely that they could not prove the significant changes to the relevant circumstances in order to get leave to proceed with the application, as specified in s 90 (1) & (2) of the Care Act.

(e) An appeal to the District Court from the decision of the Children's Court in relation to the plaintiffs' s 90 application would certainly result in the dismissal of the application and would unnecessarily prolong [D]’s unwarranted detention in foster care.

Ground 2 - Misinterpretation of the Care Act

2. Section 72 (1) has two limbs only - both of which must be proved by the Secretary, namely:

(a)   that [D] was a child in need of care and protection at the time when the circumstances that gave rise to the application occurred or existed; and

(b)   that [D] would still be a child in need of care and protection at the time of the establishment hearing but for the existence of the arrangements for her protection;

(c) There is no 'third limb' to s 72 (1) that would read: "(c) or if the child would be a child in need of care and protection at some future time."

3. Section 71 of the Care Act defines the grounds on which a finding may be made that a child is a child in need of care and protection, relevantly, sub-s (3) reads: "the child...has been, or is likely to be... sexually abused or ill-treated";

(a)   Neither court concluded that [D] has been sexually abused;

(b)   Both courts concluded that [D] would be at risk of sexual harm from her father "as she grows older".

4. Section 23 of the Care Act defines the significant risk of harm to a child as "...if the current concerns exist for the safety, welfare or well-being of the child... because of the presence, to a significant extent, of, relevantly (sub-s (3)): "the child... has been, or is at risk of being... sexually abused or ill-treated;

(a)   This section emphasises the "currency" and the "presence" of the risk of the child "being" sexually abused;

(b)   Neither court concluded that [D] has been sexually (or in any other way) abused;

(c)   Neither court established that there is a risk of [D] presently "being" abused;

(d)   Both courts concluded that [D] "would be" (at some future time) at risk of sexual harm "as she grows older".

Ground 3 - Failure to adhere to the principles of intervention

5. Section 9(1) of the Care Act defines the safety, welfare and well-being of a child to be "paramount";

(a)   Both courts in their decisions ignored the "well-being" part of the paramount principle, namely, that [D] is suffering significant psychological harm due to her separation from [C] and from her parents, the only persons with whom she has maintained strong attachment;

(b)   Sub-s (2)(c) makes it mandatory that the intervention, even if the child is found to be a child in need of care and protection, must be the least intrusive intervention in the life of the child and her family;

(c)   This mandatory requirement has been ignored by both courts

(d) Section 36 principles that emphasise the immediate safety, welfare and well-being of the child as being paramount have been ignored by both courts.

Ground 4 - Jurisdictional error

6. By the misinterpretation of the Care Act (ground 2) and by the failures to adhere to the mandatory principles of the Care Act (ground 3), both courts failed to establish jurisdiction for the making of the final orders in relation to [D].

Ground 5 - Unlawful acts

7.   The second defendant, the Children's Court and the Supreme Court have breached the Australian international obligations arising from the provisions of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and s 274.2 of the Commonwealth Criminal Code Act 1995, by the following:

(a)   The first plaintiffs alleged "lack of insight" is the only ground on which the courts refused to restore [D] to hers and to the second plaintiffs care for up to next seven, eight or nine years;

(b) The "lack of insight" is not one of the grounds of s 71 of the Care Act; the word "insight" is not defined in the Care Act or in any other applicable legislation, therefore it has the ordinary dictionary meaning.

(c)   "Lack of insight", or alternatively described in psychiatry as "Anosognosia" (impaired awareness of one's illness), is one of the symptoms of a serious mental health condition, such as schizophrenia or bipolar disorder.

(d)   In both courts the first plaintiff has been subjected to the psychological pressure to accept the allegations made by [C] against the second defendant as being true and when she declined to abandon her rational reasoning, she was labelled as a person who "lacks insight", without ever having been diagnosed by a qualified medical practitioner with such or similar condition.

(e)   Such conduct of all those involved represents the act of torture that has been prohibited by the Convention, to which Australia is one of the signatory countries.

(f) Definition of the torture in Article 1 of the Convention has been adopted in Australia by Criminal Code Act 1995 (s 274.2), for which a penalty of imprisonment for up to 20 years is prescribed against the persons who act in an official capacity and who are convicted of such acts.”

11. I note that the proposed amended summons names the Minister as the first defendant and the Secretary as the second defendant. The Minister is not named as a defendant in the Summons. The proposed amended summons also names D as the third defendant, whereas the Summons incorrectly names D’s independent legal representative “Marina Voncina trading as Legal Aid of NSW” as the third defendant.

12. Notwithstanding these anamolies in the manner in which the defendants are named in the Summons, Mr Anderson of counsel prepared written submissions described as being made on behalf of the Minister and the Secretary and announced his appearance for the first and second defendants (referring to the Minister and the Secretary) at the hearing of the motions. Similarly, Ms Voncina, solicitor, announced her appearance for the third defendant, D, in her capacity as D’s independent legal representative.

13. D, and the Minister as the person with parental responsibility for D, are necessary parties to the proceeding. For this reason, and consistently with the manner in which the hearing was conducted as if the parties to the proceeding were the parties named in the proposed amended summons, it is appropriate that orders now be made under UCPR rr 6.24 and 6.29 removing Ms Voncina and Legal Aid NSW as the second defendant, joining the Minister as the second defendant, and joining D as the third defendant.

Applications for summary dismissal

14. The defendants contend that the claims for relief contained in the Summons filed on 25 March 2020, in addition to the claims for relief contained in the proposed amended summons, are an abuse of process and should therefore be summarily dismissed pursuant to UCPR, r 13.4.

15. The defendants relied upon the affidavit of Shaima Lababidi affirmed on 19 June 2020. Ms Lababidi is the caseworker in the Department with responsibility for D.

16. In response, the plaintiffs relied upon three affidavits sworn by A on 23 March, 29 June and 10 August 2020.

Context

17. The present proceeding has been commenced following a long history of proceedings in the Children’s Court and appeals to this Court concerning C and D.

18. The following account of the background to this proceeding and the summary dismissal applications is drawn from:

1. the affidavits of A sworn on 23 March 2020, 29 June 2020 and 10 August 2020;

2. the affidavit of Ms Lababidi affirmed on 19 June 2020;

3. the reasons for judgment of Crompton CM dated 23 August 2018, which were exhibited to Ms Lababidi’s affidavit;

1. the reasons for judgment of Schmidt J published on 1 February 2019 (A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43), which were exhibited to Ms Lababidi’s affidavit;

2. the reasons for judgment of the President of the Children’s Court, Johnstone DCJ, dated 23 September 2019, which were exhibited to A’s affidavit sworn on 23 March 2020 and also to Ms Lababidi’s affidavit; and

3. the reasons for judgment of Lindsay J published on 20 December 2019 (A v Secretary, Department of Communities and Justice (No. 4) (supra)), which were exhibited to A’s affidavit sworn on 23 March 2020 and also to Ms Lababid’s affidavit.

19. As noted above, both D and C were removed from the plaintiffs’ care on 15 September 2017 following the Department receiving a Risk of Significant Harm (ROSH) report which reported that that C had disclosed to a school counsellor a pattern of sexual abuse experienced by C at the hands of B dating back to mid-2016.

20. On 20 September 2017, the Secretary filed an application initiating care proceedings in the Children’s Court at Parramatta in relation to D and C pursuant to s 61 of the Care Act. The Secretary sought care orders for the children on the grounds that each child had been, or was likely to be, physically or sexually abused or ill-treated. At the time of this application, C was nearly 11 years old and D was eight weeks old.

21. On 22 September 2017, an interim order was made by the Children’s Court allocating parental responsibility to the Minister for both C and D until further order.

22. On 12 December 2017, Blewitt CM made findings, with the consent but without admissions of the parties, that both D and C were children in need of care and protection pursuant to s 72 of the Care Act. (The question whether a child is in need of care and protection is referred to as the “jurisdictional issue” or “establishment issue”.)

23. On 30 April 2018, the plaintiffs filed an application in the Children’s Court for an order that Blewitt CM’s findings that the children were in need of care and protection be re-opened and that the establishment issue be determined on its merits. On 23 August 2018, after an interim hearing on 9 July 2018, Crompton CM considered that it was appropriate to revisit the question whether D and C were children in need of care and protection, having regard to evidence adduced at the hearing before his Honour which had not been available to the Court at the hearing on 12 December 2017. His Honour, after considering all of the evidence, reaffirmed the findings that the children were in need of care and protection. His Honour said:

“Prior to her assumption into care, [C] disclosed multiple incidents of ongoing sexual harm perpetrated upon by her by [B] between mid 2016 and the date of reporting. During the course of investigations at her school…JIRT caseworkers determined that information provided by persons interviewed in relation to her disclosures was consistent with the information provided by [C] and supported the probability of her disclosures being accurate reflections of what she had experienced in relation to [B] – see application initiating care proceedings 20/9/17.

The parents have repeatedly indicated their belief that [C] has been engaging in sexual behaviour but that it has not involved [B].

The retractions which [C] has subsequently made are to be found in her sessions with the school counsellor on 27 October and 13 November 2017, and in the letter which is said to be on [C]’s behalf from a “child advocate”, received by FACS on 9 November 2017. The credibility of the “child advocate” is not at this stage known.

Prior to the retractions [C] made very serious disclosures of sexual assault by her step-father [B]. Considerable detail was given by her on four occasions that they were made on 11 September 2017 – see affidavit of Robyn Harris 4/7/18, Annexure C. She also provides specific details of incidents when she is interviewed by JIRT – see affidavit of Robyn Harris 4/7/18, Annexure D.

The evidence filed by the Secretary in those proceedings raises serious concerns for the safety and well being of the children. Further, the mother has demonstrated an unwillingness to comply with a Safety Plan in the children’s best interests and in her affidavit of 20 November 2017 she states that [C]’s disclosures were untruthful. Her ability to act protectively in relation to children is doubtful.

I am satisfied on the balance of probabilities that the children, both of them, are in need of care and protection for the purposes of s 72(1) of the Act and I make that finding.”

24. His Honour made the following orders:

“1.   The proceedings where a finding of need for care and protection was made on 12 December 2017 are re-opened.

2. The children [C] and [D] are children in need of care and protection for the purposes of s.72 of the [Care Act].

3.   The interim order allocating parental responsibility for the children to the Minister is to continue until further order.”

25. On 2 October 2018, before the final hearing of the Children’s Court proceeding, the plaintiffs filed a summons in this Court in relation to the findings and orders made by both Blewitt CM and Crompton CM that the children were in need of care and protection. The summons sought a declaration that those findings were invalid and an order in the nature of prohibition restraining the Children’s Court from conducting a final hearing until the issue of whether the children were in need of care or protection was determined according to law. The summons also invoked the parens patriae jurisdiction of the Court seeking orders, inter alia, that D be restored to A’s care (albeit under the supervision of the Minister until final determination of the Children’s Court proceedings). The grounds on which the plaintiffs sought orders restoring D to the care of A were set out in that summons as follows:

“Ground 4 [Orders (7) – (10)] – safety, welfare and wellbeing of the children

(a)    It is not in the best interest of [D] and is detrimental to her long-term health, development and wellbeing to continue being separated from the first plaintiff.

(b) [D] has been removed from the care of the first plaintiff contrary to the principles of sections 9 and 36 of the Care Act; a less intrusive intervention was and still is available.

(c)    Supervision order is sufficient to provide safety to [D];

(d)    The evidence shows that [C] was being groomed by older males residing in New Zealand”.

26. The summons was set down for hearing on 1 February 2019. On 5 February 2019, Schmidt J handed down judgment dismissing the summons (A v Secretary, Family and Community Service (No 2) (supra)).

27. Schmidt J considered the various grounds on which it was alleged by the plaintiffs that Blewitt CM and Crompton CM had erred in finding that the children were in need of care or protection. Her Honour determined that none of those errors were made out. In respect of the plaintiffs’ claim for relief under the parens patriate jurisdiction, her Honour said (at [96]–[101]):

“96.   While there is no issue as to the Court’s power to make orders in its parens patriae jurisdiction in relation to the day-to-day care of [D], the orders sought are orders for the Children’s Court to consider and determine at the impending final hearing.

97. That Court also has power at any time to rescind or vary the care order which applies to [D] on the application of [A] or [B], if there is any significant change in her relevant circumstances: s 90.

98.   On the evidence I have discussed, I am satisfied that the Court’s power to exercise its parens patriae jurisdiction may not be exercised in this case, despite the undoubted concern which [A] and [B] have for [D]’s welfare. Further, I consider that any delay in the proceedings in the consideration of the children’s circumstances by the Children’s Court, would not be in the interests of either child.

99.   As discussed by Ward JA, as she then was, in Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97 at [22], ‘exceptional circumstances are required for this Court to interfere with orders that have been made by judicial officers exercising specialist jurisdiction such as those in the Children's Court’.

100. Such circumstances are not established when the only errors alleged against such judicial officers were that “he, or she, in the exercise of discretion failed to give due weight to a number of factual circumstances, or disproportionate weight to others, or where there is an error of fact that did not go to the fundamentals of the case”: at [23].

101.   This is such a case. There is in this case simply no evidence which would warrant the grant of the relief sought.”

28. Final hearing of the Children’s Court proceedings was then heard before the President of the Children’s Court, Johnstone DCJ, over four days on 20, 21 and 22 May and 23 September 2019. The transcript of that hearing is not evidence before me. However, a review of the ex tempore reasons given by his Honour on 23 September 2019 show that the establishment issue of whether D and C were in need of care and protection was re-considered by his Honour on the plaintiffs’ application during the course of the hearing.

29. His Honour said (at [16]–[18]):

“16.   The mother and her current partner [B] made an application at the outset of the hearing to reopen the finding that the children are in need of care and protection made previously in these proceedings pursuant to which those proceedings were established.

17.   I reopened that issue and heard submissions.

18.   I then gave short reasons in which I reaffirmed the finding being satisfied that those two children have been and continue to be in need of care and protection. I referred extensively to my decision in Re Nicole [2018] NSWChC 3.”

30. In this proceeding, the plaintiffs dispute that the President re-opened and determined the establishment issue. The plaintiffs contend that his Honour considered their application to re-open the establishment hearing, but declined to do so. That contention must be rejected, in light of his Honour’s judgment at [16]–[18] referred to above. In any event, as will become apparent below, the establishment issue was considered by Lindsay J on the plaintiffs’ appeal from the President’s orders, which was conducted by way of a hearing de novo in accordance with s 91(2) of the Care Act.

31. In addressing the merits of the substantive hearing, his Honour concluded (at [70]–[71]) that there was no realistic possibility of restoration of the children to either A or B, but that there was a realistic possibility of restoring C to her birth father. In reaching this conclusion, his Honour said (at [65]–[66]):

“65.   …I am satisfied that [B] did in fact perpetrate sexual abuse upon [C] in the way she described. But even if the evidence had not sufficiently amounted to discharge the onus, on the civil standard – even taking into account the special considerations that are required to attend such allegations on the civil standard as set out in [Briginshaw v Briginshaw (1938) 60 CLR 336] – there is sufficient material before me which is credible to satisfy me that [B] poses an unacceptable risk of harm, not just to [C] but also to [D] as she grows older.

66.   Similarly, the mother’s failure to be able to accept the disclosure by her daughter, but more particularly her refutation of her position and her adherence to [B], indicate that she is incapable of taking any appropriate protective measures to look after either [C] or [D], and she also therefore, in my view, poses an unacceptable risk of harm to those children.

67.   As I indicated, I am satisfied on the balance of probabilities that [C]’s retraction of her allegations was a result of intervention and manipulation on the part of the mother.

68. More importantly, it seems to me, is the second limb set out in s 83, namely the circumstances of the children, especially [C]. So not only have I had regard to and am satisfied as to the fact that neither [A] nor [B] are likely to be able to satisfactorily address the issues that had led to the removal of the children from their care, but I am also satisfied having regard to the circumstances of those children, that they should not be restored, or that there is no realistic possibility of restoration of them to those persons.

69.   It is clear to me, as it must have been clear to [A] and [B], that the issues that led to the removal of the children from their care was in fact the sexual abuse perpetrated by [B] and notwithstanding [the plaintiffs’ solicitor]’s criticism as to the identification of those issues, I think they are very clear. And it is also very clear that neither of those persons will be able to satisfactorily address those issues, or cannot currently address those issues, nor will they be able to do so within a reasonable time, if ever.”

32. His Honour made the following orders that day in relation to C:

“The Court orders that:

1. Pursuant to section 79(1)(b) of the Care Act, all aspects of parental responsibility for the child, [C], are allocated to the Minister for a period of two years;

2. At the expiry of order 1, pursuant to section 79(1)(a) of the Care Act, all aspects of parental responsibility for the child, [C], are allocated solely to [her birth father], to the exclusion of the mother, [A]; and

3. Pursuant to section 2 of the Care Act, the Secretary shall provide to the Court, 4 and 11 months from the making of order 1, a report concerning the suitability of arrangements for the care and protection of the child, addressing:

a.   [C]’s progress in her placement with the father;

b.   the general health, well-being and welfare of [C];

c.   the level, nature, frequency, duration and type of contact between [C], [A] and [D], and any significant others;

d.   the general educational and developmental progress of [C], together with copies of any reports; and

e.   the general suitability of the arrangements for the care and protection of [C].”

33. In relation to D, his Honour made the following orders:

“The Children’s Court orders are as follows:

1. Pursuant to section 79(1)(b) of the Care Act, all aspects of parental responsibility for the child, [D], are allocated to the Minister until the child attains 18 years of age; and

2. Pursuant to section 82 of the Care Act, the Secretary shall provide to the Court 4 and 11 months from the making of order 1, a report concerning the suitability of arrangements for the care and protection of the child, addressing:

a.   [D]’s progress in her placement;

b.   the general health, well-being and welfare of [D];

c.   the level, nature, frequency, duration and type of contact between [D] and her parents, [C] and any significant other;

d.   the general educational and development progress of [D] together with copies of any reports; and

e.   the general suitability of the arrangements for the care and protection of [D].”

34. The following day, on 24 September 2019, the plaintiffs commenced an appeal pursuant to s 91 of the Care Act by summons filed in this Court (proceeding 19/298471). As the orders of 23 September 2019 were made by the Presidential Children’s Court, an appeal was required to be instituted and heard in this Court: see Children’s Court Act 1987 (NSW), s 22A; Children’s Court Regulation 2019 (NSW), reg 5.

35. That summons was amended on 28 October 2019 pursuant to leave granted by Lindsay J.

36. The prayers for relief in that amended summons relevantly sought:

1. a finding that D is not a child in need of care and protection pursuant to s 72(1) of the Care Act, and a consequential order that the Secretary’s application for care orders be dismissed (prayers 3 and 4);

2. a finding that C is a child in need of care and protection pursuant to s 72 of the Care Act but not by reason of A or B’s conduct, or A’s disbelief of C’s allegations of sexual assault (prayers 3 and 5);

3. a finding that, on the determination of whether care orders ought to have been made with respect to C, that there is a realistic possibility of restoration of C to both plaintiffs (prayer 6); and

4. a direction that the Secretary provide funding for a child/adolescent psychologist to examine C with the aim of determining the psychological issues that need to be addressed and provision of appropriate therapy to C in order to address those issues (prayer 7).

37. The appeal was heard before Lindsay J on 10, 11, 12 and 13 December 2019. The appeal was conducted by way of a hearing de novo before his Honour in accordance with s 91(2) of the Care Act. On 20 December 2019 his Honour dismissed the appeal and confirmed the orders made by the Children’s Court on 23 September 2019 (A v Secretary, Department of Communities and Justice (No 4) (supra)).

38. In his reasons for judgment, his Honour noted that the plaintiffs invited the Court to determine the “establishment phase” and the “placement” phase of the relief sought in the amended summons in two separate, procedural stages. His Honour declined to adopt that course and proceeded to hear and determine both phases in the one appeal (see [100]).

39. His Honour noted that the primary focus of the appeal was on the operation of ss 72 and 73 of the Care Act (see [101]). The case advanced by the Secretary on appeal (with the support of the legal representatives of both D and C) was that the children were in need of care and protection by virtue of s 71(1)(c) which, in terms, provides that a care order may be made in relation to a child or young person if the Children’s Court is satisfied that the child or young person is in need of care and protection because the child or young person has been, or is likely to be, physically or sexually abused or ill-treated.

40. Following a careful review of the evidence before him, his Honour made findings (at [115]–[117]):

“115.   In my opinion, the evidence of [C]’s disclosures of sexual abuse at the hands of [B], in the context in which those disclosures were made (and, over time, reaffirmed notwithstanding pressure on [C] by [A] to withdraw them) compels a finding (which I make) that [B] did sexually abuse [C] (between about mid-2016 and September 2017 or thereabouts) in substantially the way [C] described her encounters with him. In making that finding I am conscious of the gravity of an allegation of sexual abuse as it affects the plaintiffs, as well as the importance of the paramountcy principle in care proceedings: M v M (1988) 166 CLR 69 at 75-77.

116.   In my opinion, [C]’s disclosures have a ring of truth about them which cannot be discounted by criticism of particular aspects of her version of events or by the fact that, in a state of emotional turmoil, she at one time retracted her complaint against [B] in order to appease [A]. As [B] himself conceded in his oral evidence, the terms in which [C] articulated her complaint against him on 11 September 2017 were out of character for the young lady [C] was. The length of the period over which, since September 2017, [C] has maintained her complaint against [B] is such as to undermine the plaintiffs’ contention that she was simply motivated by a desire to retaliate against [B] for his restriction of her use of social media. She has maintained her complaint against him despite her distress in being separated from [A] and [D].

117.   In my assessment, the credibility of [C]’s disclosures is reinforced by [B]’s self-serving attack (based upon false statements about “nude” photographs or the like) designed to discredit [C], coupled with [A]’s demonstration of an unquestioning loyalty to [B] even at the expense of her children. I do not accept, as [A] would have it, that she has simply applied an independent, rational mind to an objective assessment of [C]’s disclosures; she has been blinded by her dependency for information upon, and her devotion to, [B]. [B]’s conduct, as related by [C], marks him out as a persistent predator, exposing both children to an unacceptable risk of harm. [A]’s continued refusal, or inability, to deal empathetically with [C] and her unwavering support for [B], mark her out as incapable of providing protection for the children and, therefore, also an unacceptable risk of harm.

118.   Although I accept that, in common with youngsters of her generation, [C] may (as her mother firmly believes) have something akin to an “addiction” to social media, in the absence of evidence of screen shots and technical analysis of her equipment and that of [B] I am not comfortable with attributing to [C] any social (let alone sexual) “impropriety” beyond having email contact with a single 15 year old boy.

119.   It needs to be said, however, that, even if [C] had been sexualised by contact with one or more vulgar, adolescent males, that could not, in my assessment, explain the graphic detail of her allegations of sexual abuse against [B] or, still less, justify conduct vis a vis her of the type she attributes to [B].”

41. His Honour was therefore satisfied on the basis of these findings that the establishment issue was proved, not only in respect of C but also D. His Honour said (at [120]–[121]):

“120.   … [C] has been “physically or sexually abused or ill-treated” (and, if returned to the plaintiffs’ care, would be likely to be) at the hands of the plaintiffs, and, although she has not yet been physically abused, [D] is “likely to be” as she grows older. A lack of insight into child protection concerns and a lack of preparedness to engage with responsible authorities can justify a finding (which, in these proceedings, I make) that each child is in need of care and protection: Department of Family and Community Services (DFaCS) and Nicole [2018] NSWChC3 at [31].

121.   The children were in need of care and protection at the time they were taken into care in September 2017 and, but for the arrangements made after they were taken into care, they would still be in need of care and protection today for substantially the same reasons. Each of the plaintiffs, for the reasons identified, is and was at all material times an unacceptable risk of harm to the children such that an order for restoration of the children to their care (jointly or severally) should not be made: M v M (1988) 166 CLR 69 at 77-78; The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC5 at [67]. The pre-condition for a care order for which section 72 of the Care Act provides is satisfied.”

42. His Honour also held (at [123]–[124]), on the basis of his findings above, that the children should not be restored to the care of the plaintiffs, jointly or severally, and that there is no realistic possibility of restoration of the children to them, jointly or severally, within a reasonable time, if ever, but that there was a realistic possibility of the restoration of C to her birth father.

43. At the hearing of the motions for summary dismissal, A informed the Court that the plaintiffs had attempted to file an application in this Court for judicial review of Lindsay J’s decision, but the Registry had declined to accept the filing and had informed the plaintiffs that “there isn’t a Judicial Review for a Supreme Court Judge”. The defendants informed the Court that they had not been aware of that development.

44. On 3 March 2020, the plaintiffs filed an application in the Children’s Court pursuant to s 90 of the Care Act to vary or rescind the care order made in relation to D on 23 September 2019 (and confirmed by this Court on 20 December 2019). The application sought:

1. that leave be granted to make the application pursuant to s 90 of the Care Act on the basis that D had “become extremely stressed” since she no longer had frequent contact with C as a result of C’s move to New Zealand to be in the care of her birth father. The stress was also said to have been caused by the reduction of the frequency of contact visits between the plaintiffs and D provided for in the care plan approved by the Children’s Court and by the Supreme Court on appeal; and

2. orders that the application be heard urgently, that D be restored to the day-to-day care of the plaintiffs immediately “based on the findings by the two courts [the Children’s Court and, on appeal, the Supreme Court] and the requirements of the law”, that D be placed under the supervision of the Secretary for a period of time as agreed between the parties or as ordered by the Children’s Court, and that parental responsibility remain with the Minister (if necessary) or otherwise be allocated to the plaintiffs jointly or either of them individually.

45. The grounds for the orders sought above were said to be that the findings made by both the Children’s Court and the Supreme Court did not “warrant the keeping of [D] in out of home care – unnecessarily – for an unknown number of years since it is contrary to the principles of intervention as mandated by ss 9 and 36 of the Care Act.” The plaintiffs relied on the finding made by Johnstone DCJ at [65] of his reasons delivered on 23 September 2019 and the finding made by Lindsay J at [120] of his reasons delivered on 20 December 2020 that D would be at risk of sexual harm “as she grows older” (that is, not immediately).

46. On 20 March 2020, the s 90 application was heard by Hogg CM. His Honour refused leave to the plaintiffs to make their application. In an ex tempore judgment delivered at the conclusion of the hearing, his Honour directed himself to the requirements of s 90, recited the procedural history of the matter, and considered the findings made by Lindsay J in his judgment delivered on 20 December 2019. His Honour said:

“I am going to say this in quite short form and I want it made abundantly clear that this is how clear the Court's finding should be considered. I have read in significant detail the affidavit of the mother, [A], sworn on 3 March 2020. It does disclose absolutely no change in her level of insight. Indeed, even in the submissions that are made today, she continues the argue the evidence in which the Supreme Court spend four days of hearing and then a reasoned decision from a Supreme Court Judge, she challenges today in her submissions and in her affidavit that evidence. That discloses absolutely no change in the level of insight.

Why is that important. It is because s 90 talks about change in relevant circumstances. The relevant circumstances as dictated by the Supreme Court of New South Wales was her absolute lack of insight in relation to the child protection risks that sexual abuse or risk of sexual abuse will cause to the children or in this case the child [D], whether it is now or in the future. That is the risk assessment. That was the risk assessment of the Supreme Court. That was the risk assessment of the president of the Children's Court. That was the risk assessment that was at the heart of the original establishment of the matter some two and a half years ago. There is no change in circumstance. There is no elevated insight that could be relied upon.

The Supreme Court judgment stating that that judge was satisfied that the children should not be restored to the care of the parents either jointly or severally and that there is no realistic possibility of restoration of the children to them jointly or severally within a reasonable time, if ever, is something that the evidence certainly relied upon in this matter discloses to be the harsh reality.”

47. On 25 March 2020, the plaintiffs filed the Summons in this Court which commenced the present proceeding. The Summons was initially made returnable on 27 April 2020. Prior to that date, however, the plaintiffs filed a notice of motion on 13 April 2020 which sought urgent relief in the Equity Duty List. Prayer 2 of the relief sought in that notice of motion was a restraint on the Secretary from removing D from her then foster carer until further order of the Court.

48. The notice of motion and the proceeding was then listed for directions before Lindsay J on 14 April 2020. The transcript of that occasion reveals that:

1. his Honour was informed by the plaintiffs that D was expected to be moved to a new (and permanent) foster carer the following day, unless urgent relief could be obtained to prevent that move from taking place. The plaintiffs submitted that this move was unwarranted in circumstances where D had been with her previous foster carer for almost five and a half months, had been moved to different foster carers multiple times during the previous two years, and to move her in the immediate future would expose her to unnecessary risk given the COVID-19 pandemic. The plaintiffs explained that the Summons was filed in the Equity Division of the Court because, on their understanding, that was the Division of the Court that “could have a look” at D’s circumstances;

2. his Honour was informed about the plaintiffs’ unsuccessful application to vary or rescind the care orders made in respect of D in the Children’s Court on 20 March 2020. His Honour was informed that the 28 day period of time in which the plaintiffs could appeal from Hogg CM’s decision in the Children’s Court to the District Court pursuant to s 91 of the Care Act had not yet expired (I interpose here to note that in accordance with 28 day period stipulated in UCPR r 50.3 the plaintiffs had until 17 April 2020 in which to appeal Hogg CM’s decision). His Honour explained to the plaintiffs that they had a right to appeal that decision to the District Court and enquired of the plaintiffs whether they proposed to exercise their right of appeal. The plaintiffs responded that they did wish to exercise their rights to appeal and, after further prompting from his Honour, said that they could file an appeal in the District Court by 17 April 2020;

3. his Honour stood over the notice of motion (and the proceeding) until 17 April 2020 to allow the plaintiffs to file the foreshadowed appeal and to allow time for the first and second defendants to file and serve evidence addressing the concerns expressed by the plaintiffs about moving D to another carer in the midst of the COVID-19 pandemic; and

4. the first and second defendants undertook not to move D to her proposed permanent carer (without leave of the Court) pending the determination of prayer 2 in the notice of motion filed by the plaintiffs.

49. His Honour made orders and directions at the conclusion of this hearing, including:

“2)   NOTE that the Minister informs the court that the transmission of the child, [D], to her proposed long-term carer will not occur (without the leave of the court) pending determination by the court of the application made by the plaintiffs in para 2 of the notice of motion filed by the plaintiffs on 13 April 2020.

…

6) NOTE that the plaintiffs today inform the court that they propose to appeal to the District Court of New South Wales against the order made by Magistrate Hogg in the Children’s Court of New South Wales on 20 March 2020 dismissing an application for an order under s 90 of the [Care Act] in respect of the child, [D].”

50. When the matter came back before Lindsay J for further directions on 17 April 2020:

1. the plaintiffs informed the Court that they had not yet commenced their appeal proceedings in the District Court because they were still trying to find legal representation. The plaintiffs sought an adjournment for at least two weeks in order to find such representation;

2. the defendants indicated that they would not oppose any application for an extension of time by the plaintiffs to file an appeal in the District Court against Hogg CM’s decision, provided that such appeal was instituted within three weeks (that is, by 8 May 2020); and

3. in circumstances where the plaintiffs sought a further adjournment of the notice of motion, the first and second defendants sought to be released from their undertaking not to move D to her permanent foster carer. That application was granted by his Honour.

51. The orders and directions made by his Honour that day included the following:

“2)   ORDER that the Minister…be released from the undertaking recorded in notation 2 of the notations and orders made on 14 April 2020.

3) NOTE that the Plaintiffs have not yet instituted an appeal in the District Court of NSW from the dismissal by the Children’s Court of NSW on 20 March 2020 of their application under s 90 of the [Care Act], the subject of notation 6 in the notations and orders made on 14 April 2020.

4) NOTE that an appeal under s 91 of the [Care Act] from the dismissal order of 20 March 2020 is an appeal to the District Court, not to this court.

5)   NOTE that the Defendants inform the Court that they will not object to an appeal to the District Court being instituted outside the prescribed time provided, at least, that such an appeal is instituted no later than 8 May 2020.”

52. On 19 April 2020, D was transitioned to live with her long-term, permanent foster carer.

53. The plaintiffs did not commence appeal proceedings in the District Court within the three week period contemplated during the directions hearing of 17 April 2020. No such appeal proceedings had been commenced at the time of the hearing of the summary dismissal motions on 7 September 2020.

54. As I have referred to earlier in these reasons, the plaintiffs attempted to file an amended summons in the Registry without leave of the Court on 18 May 2020. The Registry refused to accept the filing of that document.

55. Notices of motion for summary dismissal were filed by the defendants on 19 June 2020 and listed for hearing before me on 7 August 2020.

56. The plaintiffs filed a notice of motion on 4 August 2020 seeking to vacate the hearing date of the summary dismissal motion on the basis that:

1. the date was not suitable for the counsel they hoped to have represent them;

2. the plaintiffs wished to file additional evidence in relation to the summary dismissal application, stating they would be in a position to do so by the afternoon of 7 August 2020 or the morning of 10 August 2020; and

3. the second plaintiff, B, was in isolation after having returned from a business trip to Victoria during the COVID-19 pandemic and A was also isolating as she is a member of the same household.

57. Having regard to these considerations and the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW), I vacated the 7 August 2020 hearing date and the motions for summary dismissal were subsequently re-listed for the hearing before me on 17 September 2020.

Developments in respect of D

58. In her affidavit affirmed on 19 June 2020, Ms Lababidi deposed that, since being moved to her permanent foster carer on 19 April 2020, D has been in good health and is reported to be meeting appropriate development milestones.

59. D has monthly contact visits with the plaintiffs. During the COVID-19 pandemic, those contact visits were temporarily suspended at the request of the plaintiffs due to health concerns. According to Ms Lababidi, face-to-face visits were re-commenced in June 2020 and occurred weekly for a period of 2 hours up until 19 July 2020 in order to make up for the missed visits during the pandemic.

60. However, since 19 July 2020, face-to-face visits between D and the plaintiffs were held on a monthly basis for a period of 2 hours. Ms Lababidi deposed that D has had monthly contact with C via FaceTime but has not had any face-to-face contact with her since C moved to New Zealand to live with her birth father, in December 2019.

Defendant’s submissions in support of the summary dismissal applications

61. The defendants submitted that this proceeding is an abuse of process because:

1. the plaintiffs essentially seek the same relief in relation to D that the plaintiffs sought in their appeal under s 91 the Care Act that was heard and determined adversely to the plaintiffs by Lindsay J in December 2020, and in their application under s 90 of Care Act in respect of which leave was refused by the Children’s Court on 20 March 2020;

2. the plaintiffs have not appealed from the judgment of Lindsay J;

3. the plaintiffs have not appealed to the District Court from the decision of the Children’s Court on 20 March 2020;

4. an appeal to the District Court from the decision of the Children’s Court decision on 20 March 2020 is the appropriate forum for the plaintiffs to make any application to have D returned to their care on the basis of any alleged change in D’s circumstances. The plaintiffs have chosen not to appeal and have chosen to commence proceedings in this Court because the plaintiffs believe that they would not succeed in an appeal to the District Court;

5. the plaintiffs’ conduct in bringing this proceeding to re-litigate issues that have already been determined by Lindsay J on 20 December 2019 and by the Children’s Court on 20 March 2020, rather than availing themselves of applicable appeal processes:

1. gives rise to a risk of inconsistent findings of this Court in relation to the same issues; and

2. is vexatious or oppressive,

3. in the absence of evidence demonstrating an urgent need for this Court to exercise its exceptional parens patriae jurisdiction and intervene for the protection of D: GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [197]–[226]; and

6. the evidence does not disclose any circumstances relating to D that have not already been considered by the Children’s Court in making the care order on 23 September 2019, by Lindsay J in dismissing the appeal from that order on 20 December 2019 and by the Children’s Court in declining leave to make an application under s 90 of the Care Act on 20 March 2020.

62. In relation to the submission mentioned immediately above, the plaintiffs adduced evidence to the effect that, to their observation, D is suffering emotional distress as a result of the care arrangements that have led to her being removed from the plaintiffs’ care, being placed in temporary foster care before being transitioned to long-term foster care and being separated from C as a result of C being placed in the care of her birth father in New Zealand. I refer to that evidence in more detail below.

63. The defendants submitted that emotional distress of this kind is a known consequence of care orders that is taken into account by the Children’s Court when making such orders in the exercise of its specialist statutory jurisdiction.

64. Specifically, the defendants refer to ss 80 to 83 of the Care Act.

65. Section 80 provides that the Children’s Court must not make a final care order without considering a care plan for the child prepared by the Secretary.

66. Section 82 provides:

“Report on suitability of arrangements concerning parental responsibility

(1)     The Children’s Court may, when making an order other than a guardianship order in any care proceedings (the relevant proceedings) allocating parental responsibility of a child or young person to a person (including the Minister) other than a parent, order a party to the relevant proceedings to prepare a written report concerning the suitability of the arrangements for the care and protection of the child or young person.

(2)     The report must—

(a)  be provided to the Children’s Court within 12 months or such earlier period as the Court may specify, and

(b)  include an assessment of progress in implementing the care plan, including progress towards the achievement of a permanent placement, and

(c)  unless the Court orders otherwise, be given to each of the other parties to the relevant proceedings.

(3)    If, after considering the report, the Children’s Court is not satisfied that proper arrangements have been made for the care and protection of the child or young person concerned, the Court may, on its own motion, conduct a review of progress in implementing the care plan (a progress review) and re-list the matter for that purpose.

(3A)  Before conducting a progress review, and within 30 days of receiving the report, the Children’s Court—

(a)  is to give notice of the progress review to each party to the relevant proceedings, and

(b)  may invite the party to give evidence and make submissions at the progress review, in relation to the progress in implementing the care plan, including progress towards the achievement of a permanent placement.

Note: Section 98 provides that in proceedings with respect to a child or young person, the child or young person (among others) may appear in person or be legally represented.

(4)     The Children’s Court cannot, however, rescind or vary the order, or make a new order allocating parental responsibility, on its own motion.

(5)    (Repealed)”

67. As recorded in the reasons for judgment of Lindsay J (A v Secretary, Department of Communities and Justice (No. 4) (supra) at [35]), the Children’s Court did make orders under s 82 in relation to D. Those orders require the Secretary to prepare reports four months and eleven months after the Children’s Court orders made on 23 September 2019, concerning:

“a.   D’s progress in her placement;

b.      the general health, well-being and welfare of D;

c.      the level, nature, frequency, duration and type of contact between D and her parents, C and any significant other;

d.      the general educational and development progress of D together with copies of any reports; and

e.      the general suitability of the arrangements for the care and protection of D.”

68. At the time of the hearing of defendants’ summary dismissal motions, the second of those reports had recently been prepared. The defendants acknowledged that it would open to the plaintiffs to make a further application to the Children’s Court under s 90 of the Care Act for leave to apply to rescind or vary the care orders relating to D on any grounds arising from that s 82 report. This submission did not accept that the s 82 report reveals a basis for an application under s 90, but it is open to the plaintiffs to form their own view about that matter. Indeed, it is open to the plaintiffs to make such an application at any time. Section 90(2) of the Care Act provides that the Children’s Court may grant leave if it appears that there has been a significant change any relevant circumstances since the care order was made or last varied.

Plaintiffs’ evidence and submissions in relation to the summary dismissal applications

69. As noted above, A relied on three affidavits in opposition to the summary dismissal motions. Those affidavits contain a mixture of submissions and facts but no objection was taken by the defendants to the admission of the content of the affidavits for the purposes of determining the motions.

70. The content of those affidavits may be summarised as follows:

1. Paragraphs 9 to 27 of A’s affidavit sworn on 23 March 2020 set out the body text of the affidavit on which the plaintiffs relied in support of their s 90 application in the Children’s Court. In that text, A deposed that D is “severely distressed” as a result of her separation from C. A cites examples of her assessment of the high degree of attachment between C and D, including:

1. that the second word that D learned was her half-sister’s name;

2. that D would pick up items belonging to C lying around the house and return them to C;

3. that D would become very upset if C showed any signs of becoming angry with D;

4. that when A would talk to D about C or show her pictures of C, D would become upset;

5. that on one occasion when the children were separated, D became very upset and would insist that C get into the car with her; and

6. that during the placement of the children with one or more foster carers, C would be left to care for D, including at times when one of those foster carers would go out at night.

A also outlines her plans in respect of D should the care order be rescinded or varied. Those plans include reintroducing C into D’s life so that “the two of them will not be strangers to each other”, a commitment to not leave D alone in the care of B (a commitment which is said to be supported by B), opening A’s house to nominated caseworkers from the Department to supervise A’s care of D, undertaking to personally teach D on sexual education matters, and restricting or controlling D’s access to the internet.

2. Paragraphs 28 to 39 of A’s affidavit sworn on 23 March 2020 refer to evidence relevant to the representative action pursuant to Part 10 of the Civil Procedure Act which, as noted above, is not pressed by the plaintiffs. It is therefore not necessary to refer to this evidence.

3. Paragraphs 1 to 8 of A’s affidavit sworn on 29 June 2020 relate to D’s circumstances since A’s earlier affidavit sworn on 23 March 2020. A deposes to D’s transition to her permanent foster carer on 19 April 2020. She deposes that since the transition, there has been “no visible health impact” on D, and notes that it “may only be the question of [D]’s emotional state at the moment”. A deposes to D’s “very fragile state” and says that she often becomes upset or cries during contact visits with A and B. A deposes that she is afraid that the reduction of contact visits to one face-to-face contact visit a month from 19 July 2020 would “have a negative impact on the attachment of [D] with [B] and [herself] and, importantly, to [D]’s long term psychological well-being”.

4. The balance of A’s affidavit sworn on 29 June 2020 makes various allegations to the effect that counsel for the Secretary and the Minister have misled the Court on previous occasions, addresses A’s views or feelings about the findings made by this Court or the Children’s Court concerning her “lack of insight”, and addresses minor disagreements with the way that Ms Lababidi set out the history of the matter in her affidavit affirmed on 19 June 2020. It is not necessary to refer to these matters for the purpose of this judgment, save to note that the allegations that counsel for the Secretary and the Minister misled the Court are, in substance, expressions of disagreement with submissions made by counsel as to the effect of the evidence and the applicable legislation and legal principles. The fact that the plaintiffs strenuously disagree with submissions made by counsel, and with the Court’s acceptance of those submissions, does not mean that the Court was misled.

5. Much of A’s affidavit sworn on 10 August 2020 contains further allegations that counsel for the Secretary and the Minister misled the Court. Again, it is not necessary to refer to this content for the purposes of this judgment save to repeat my remarks above concerning allegations of this nature. A explains her reasons for bringing and maintaining the present proceeding in paragraphs 3 to 5 and 8 of her affidavit:

“3. As indicated by [counsel for the Secretary and the Minister] and [legal representative for [D], the reason for their opposition to the summons is that our s 90 application in the Children’s Court for the variation/rescission of the care order in relation to [D], having been dismissed at the leave stage should be taken on an appeal to the District Court.

4.   As explained in my affidavit of 29 June, we wanted to give a chance to the Children’s Court to correct its own mistake following the confirmation by the Supreme Court of the finding by the Children’s Court that [D] is not a child at the immediate risk but rather she would be at such risk “as she grows older”. The conclusion does not warrant that [D] be held in foster care until 2027, 2028 or thereabouts.

5. The only way we could bring an application to the Children’s Court was by way of s 90 application, since the Care Act does not provide any other avenue once the final orders have been made.

…

8. Since my “lack of insight” has been confirmed by this Court there is no utility even if our s 90 application was a classic one, taking the matter of the District Court.”

A continues in her affidavit to explain her reasons for invoking this Court’s “inherent jurisdiction” in relation to D. She refers to the report of a face-to-face contact visit between D, the plaintiffs and a contact worker which took place on 5 July 2020. Reference was made to the particular part of that contact report describing the events that took place upon the plaintiffs and D saying goodbye. The report stated:

“[D] became a little agitated when saying goodbye but she did not cry like the last two weeks. [A] tried soothing [D] when she was upset, [A] reminded [D] that she was going home to play with the new toys… [D] said OK in a quiet voice and appeared to suck in her sadness. [D]’s face grimaced as she sat in the seat and said goodbye to [A]. I drove off [D] soon fell asleep.”

Referring to this part of the contact report (which A deposes is evidence of D’s strong, emotional connection to the plaintiffs and evidence that D is “internalising her grief” about her separation from the plaintiffs), A says in paragraph 13 of her affidavit (emphasis in original):

“That is exactly the purpose of the summons that we have brought to this Court: to protect a helpless child that is not able to protect himself…[D] could be spending at least the next seven years with her mum and dad, since the courts found that she is not at an immediate risk of harm.”

71. In their written submissions dated 2 September 2020 and 7 September 2020, the plaintiffs submitted that:

1. this proceeding raises a serious issue to be tried as to whether the Children’s Court and this Court (Lindsay J) incorrectly construed and/or incorrectly applied the Care Act in making (and, in the case of Lindsay J, confirming) the care order in relation to D, including by failing to have regard to the provisions of ss 9, 36 and 71 of the Care Act (construed in the manner contended for by the plaintiffs). The plaintiffs emphasise that this issue arises in circumstances where D was found to be at risk of sexual abuse from B as she grows older, but (in the plaintiffs’ submission) was not found to be at immediate risk of harm if she were to remain or to be returned to the care of the plaintiffs. The plaintiffs submit that the care orders are inconsistent with a finding that D is not at immediate risk of harm;

2. in those circumstances, D’s placement in foster care amounts to “unlawful detention” and “deliberate infliction of harm” on D by depriving D of her bond with her natural family;

3. the inconsistency that the plaintiffs submit exist between the findings of the Children’s Court and this Court (Lindsay J) on the one hand, and the care orders on the other hand, “may be resolved only by this Court’s parens patriae power”. The President of the Children’s Court and Lindsay J have refused to answer the question why D is being kept in foster care if she is not at immediate risk of harm; and

4. the proceeding “could not by any stretch of imagination fall into the category of either frivolous, vexatious, no cause of action or an abuse of process of the court proceedings”.

72. The plaintiffs’ written submissions contain further allegations that counsel for the Secretary and the Minister and D’s independent legal representative have misled the Court, and various other criticisms of their conduct. All of those allegations and criticism are predicated upon the plaintiffs’ interpretation of the Care Act and the plaintiffs’ subjective views about the scope of the role of the independent legal representative. It is neither necessary nor appropriate to address those allegations and criticisms in the context of determining the applications for summary dismissal. However, I note again that a submission made to a court by counsel or a solicitor is not misleading merely because it propounds an interpretation of the law, or advocates for a particular application of the law, with which the plaintiffs vehemently disagree.

73. In oral submissions made on behalf of both plaintiffs at the hearing on 7 September 2020, A submitted that:

1. the plaintiffs accept Lindsay J’s finding that D will be at the risk of harm from both plaintiffs if returned to their care as she grows older;

2. the present and continuing emotional impact on D of the care arrangements has damaged and is continuing to damage D. That is an exceptional circumstance that warrants the exercise of the Court’s parens patriae jurisdiction to make the orders sought in the proposed amended summons returning D to the care of the plaintiffs; and

3. the plaintiffs should not be deprived summarily of the opportunity to present their case that the Court should exercise its parens patriae jurisdiction in that manner in all the circumstances of this case.

Consideration and determination

74. Rule 13.4 of the Uniform Civil Procedure Rules provides:

“13.4   Frivolous and vexatious proceedings

(1)     If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)  the proceedings are frivolous or vexatious, or

(b)  no reasonable cause of action is disclosed, or

(c)  the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)     The court may receive evidence on the hearing of an application for an order under subrule (1).”

75. The Court should exercise caution before summarily dismissing a proceeding without a hearing on the merits. That is particularly so in a case such as the present where the plaintiffs do not have legal representation and the proceeding concerns an application to the Court in its parens patriae jurisdiction concerning the parental responsibility and care arrangements for the plaintiffs’ child: GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 at [47]–[53].

76. The Court’s task in determining the summary dismissal application in this case is not to decide what is in the best interests of the child D. The Court’s task is to determine whether the proceeding is an abuse of process.

77. The onus of satisfying the Court that the proceeding is an abuse of process is a heavy one, which rests on the defendants as the parties alleging abuse of process: at GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [203] and the authorities there cited.

78. Having carefully considered the history of proceedings relating to D, the proposed amended summons and the parties’ submissions, I have concluded that the proceeding is an abuse of process and should be summarily dismissed pursuant to UCPR r 13.4.

79. In substance, the proceeding seeks to re-litigate the same issues that have been determined by Lindsay J in his Honour’s judgment and orders made on 20 December 2019.

80. The plaintiffs dispute this, emphasising that they accept the finding of Lindsay J that D will be at risk of harm as she grows older if she is returned to the plaintiffs’ care.

81. The plaintiffs characterise this finding as a finding that D is not at immediate risk of harm in the plaintiffs’ care.

82. In my view, that characterisation is highly questionable, when the finding is considered in the context of all of other findings made by his Honour, including the findings (at [115]–[121] of A v Secretary, Department of Communities and Justice (No. 4) (supra)) that:

1. B did sexually abuse C between about mid-2016 and September 2017. B’s conduct marks him as a persistent predator;

2. A had demonstrated unquestioning loyalty to B, even at the expense of her children;

3. A did not apply an independent, rational mind to an objective assessment of C’s disclosures of the sexual abuse. Rather, A had been blinded by dependency on B for information, and devotion to B;

4. each of C and D were in need of protection due to:

1. in the case of C, the sexual abuse that she had suffered and, if returned to the plaintiffs’ care, would be likely to suffer;

2. in the case of D, the sexual abuse that she is likely to suffer as she grows older if she were to be in the plaintiffs’ care; and

3. a lack of insight into child protection concerns and a lack of preparedness to engage with responsible authorities.

83. In any event, the finding that D will be at risk of sexual abuse as she grows older if she is returned to the plaintiffs’ care was one finding of fact that supported Lindsay J’s finding referred to immediately above that D was a child in need of care of protection (the protection finding). It is the protection finding, together with his Honour’s finding (at [122]–[123] of A v Secretary, Department of Communities and Justice (No. 4) (supra)) that there was no realistic possibility of C and D being restored to the care of the plaintiffs within a reasonable time (if ever), that resulted in his Honour confirming the orders made by the Children’s Court and dismissing the plaintiffs’ appeal under s 91 of the Care Act (see A v Secretary, Department of Communities and Justice (No. 4) (supra) at [125]–[126]).

84. In this proceeding, the plaintiffs do seek to attack the protection finding and orders made by Lindsay J in relation to D. That is plain from the proposed amended summons and the plaintiffs’ written submissions that I have summarised above.

85. The declaration sought in the proposed amended summons that D is a child in exceptional circumstances warranting the intervention of the Court because (inter alia) she is being held in foster care despite not having being found to be in need of care and protection pursuant to s 72 of the Care Act, is directly contrary to the protection finding made by Lindsay J.

86. The orders sought in the proposed amended summons are directly contrary to Lindsay J’s orders confirming the orders made by the Children’s Court on 23 September 2019. The orders sought by the plaintiffs in the proposed amended summons, if made, would have the effect of overriding the orders made by Lindsay J.

87. The parens patriae jurisdiction of the Court is an exceptional jurisdiction: GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [201] and the authorities there cited. Taking the plaintiffs’ evidence concerning D’s emotional state at its highest, the circumstances relied on by the plaintiffs as warranting the exercise of the Court’s parens patriae jurisdiction are not new circumstances. As the defendants submitted, the emotional impact on D of being removed from her parents and placed into care, and of any changes to those care arrangements, are matters that are taken into account by the Children’s Court in the exercise of its specialist statutory jurisdiction concerning the care of children. Under the orders made by the Children’s Court in relation to D, and confirmed by Lindsay J, the Children’s Court is receiving reports concerning D’s progress in her foster care placement, her health and wellbeing. The Children’s Court has power under s 82 of the Care Act to review the implementation of the care plan for D. The plaintiffs also receive a copy of the reports provided to the Children’s Court. It is open to the plaintiffs to seek leave to make further applications under s 90 of the Care Act to vary or rescind the care orders made in relation to D on the basis of any significant change in relevant circumstances since the care order was made, irrespective of whether any such change relates to matters reported to the Children’s Court under s 82.

88. The commencement of a proceeding in this Court seeking to re-litigate issues already determined previously by this Court is an abuse of process. It is vexatious to the defendants to be required to address the same issues repeatedly. It is also contrary to the public interest in the administration of justice because it gives rise to a potential risk of inconsistent decisions by this Court on the same issues, which brings the administration of justice into disrepute: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [89] (Gummow A-CJ, Hayne, Crennan and Bell JJ); GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [222]–[223].

89. It does not follow that the plaintiffs lacked the means to challenge the judgment and orders of Lindsay J.

90. It would have been open for the plaintiffs to have sought leave to appeal from Lindsay J’s judgment and orders of 20 December 2019. His Honour’s decision was a “judgment or order of the Court in a Division” (s 101(1)(a) of the Supreme Court Act 1970 (NSW)). It was a final judgment or order in the proceeding, but leave would have been required because the subject matter at issue in the proceeding (that is, the welfare of the affected child or children) was incapable of being valued, thereby attracting the operation of s 101(2)(r) of the Supreme Court Act: see CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105 at [28]–[29].

83. If the orders made by the Children’s Court had been made by a judicial officer other than the President of that Court, the plaintiffs’ appeal under s 91 of the Care Act would have been heard by the District Court rather than by this Court. There would have been no appeal from the District Court exercising its statutory functions under s 91 to the Court of Appeal because a statutory appeal to the District Court is not an “action” from which an appeal to the Court of Appeal lies pursuant to s 127 of the District Court Act 1973 (NSW): see Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [8], citing Druett v Director-General of Community Services [2001] NSWCA 126 at [11]–[13]; X v Director-General of the Department of Community Services [2001] NSWCA 413 at [24]. However, it would have been open to the plaintiffs to seek prerogative relief in respect of the District Court decision by invoking the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act. Any such application would have been assigned to the Court of Appeal pursuant to s 48 of the Supreme Court Act. The plaintiffs would have had to establish an error of law on the face of the record or jurisdictional error: Re Felicity; FM v Secretary, Department of Family and Community Services (No. 3) (supra) at [8]. I mention this only because it may be relevant to the course initially attempted by the plaintiffs of seeking to file what they described as an application for judicial review of Lindsay J’s decision.

Conclusion and orders

92. For all of the above reasons, the proceeding should be summarily dismissed pursuant to UCPR r 13.4. For the same reasons, I would have refused leave to file the proposed amended summons. However, it is not necessary to make a formal order refusing leave as the proceeding is to be dismissed.

93. The defendants submitted that the plaintiffs should pay their costs of the notices of motion and the proceedings. However, in circumstances where the plaintiffs do not have legal representation and the course that they took in commencing this proceeding may have been affected by a misunderstanding about the appropriate avenue to challenge orders made by this Court (as opposed to by the District Court) on appeal from a decision of the Children’s Court, I consider that the appropriate order is that each party pay their own costs of the notice of motion and the proceedings.

94. I make the following orders:

1. Order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 6.29 that Marina Voncina and Legal Aid NSW be removed as the second defendant to this proceeding.

2. Order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 6.24 that the Minister for Families, Communities and Disability Services be joined as the second defendant to this proceeding.

3. Order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 6.24 that the child known in this proceeding by the pseudonym “D” be joined as the third defendant to this proceeding.

4. Order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4 that this proceeding be dismissed as an abuse of the process of the Court.

5. Order that each party pay his or her own costs of the proceedings.

**********

Amendments

06 October 2020 - Para [38] - changed the word "phrases" to "phase" throughout this paragraph.

Decision last updated: 06 October 2020