AA & Ors v Department of Family and Community Services

[2016] NSWSC 842

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	AA & Ors v Department of Family and Community Services [2016] NSWSC 842
Hearing dates:	16, 17 & 18 December 2015, 27 May 2016 and 1 June 2016
Date of orders:	22 June 2016
Decision date:	22 June 2016
Jurisdiction:	Equity
Before:	Slattery J
Decision:	See paragraph [239] – [240]
Catchwords:	FAMILY LAW AND CHILD WELFARE – Care and Protection – plaintiffs seek declaratory and injunctive relief in the form of 22 prayers for relief against the Secretary of the Department of Family and Community Services – plaintiffs challenge the validity of decisions made and powers exercised by Departmental officers under Children and Young Persons (Care and Protection) Act 1998 (“Care Act”) – whether the decision to assume and the manner of assuming the three older children into care on 24 June 2014 was invalid – whether the application for and the making of an ECPO regarding the children in the Children's Court on 1 July 2014 was invalid or otherwise beyond power under Care Act - whether the placement of a 'High Risk Birth Alert' at the local District Hospital on 26 August 2014 in regard to the birth of the child was beyond the powers conferred on the Secretary and the Department under the Care Act - whether Departmental officers placing 'risk of violence alerts' on Departmental files concerning the plaintiffs was within power and otherwise justified in the circumstances - whether the joinder of the defendant as an intervener in the Family Court proceedings was invalid or beyond power - whether statements made by the defendant about the status of the children as being 'in care' or removed and regarding the character of the plaintiffs as being either a criminal or having 'mental health issues' were misleading and should be withdrawn or removed from Departmental files - whether the various remedies the plaintiffs seek, including compensatory damages, are legally available and if so whether they should or should not be granted.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Government Sector Employment Act 2013 Privacy and Personal Information Protection Act 1998 Uniform Civil Procedure Rules 2005 Civil Procedure Regulation 2012
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 121; [1972] HCA 61 Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 Lamb v Contogno (1987) 164 CLR 1 Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68 Masters v Garcia (2005) 65 NSWLR 92 Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201 Stocker v McElhinney (No.2) [1961] NSWR 1043 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Whitbread v Rail Corporation of New South Wales [2011] NSWCA 130 Whitfield v De Lauret & Co Ltd (1920) 20 CLR 71
Category:	Principal judgment
Parties:	First Plaintiff: AA Second Plaintiff: BB Defendant: Department of Family and Community Services
Representation:	Counsel: First Plaintiff: in person Second Plaintiff: in person Defendant: Ms T Stevens   Solicitors: Defendant: Kira Kless, NSW Crown Solicitor’s Office
File Number(s):	2014/305921
Publication restriction:	No

Judgment

1. The first and second plaintiffs have a child and live together in a domestic relationship. In these proceedings they seek declaratory and injunctive relief against the defendant, the Secretary (“the Secretary”) of the Department of Family and Community Services and the officers of that Department, for whom the Secretary is responsible (and which is called in these reasons “Community Services” or “the Department”). The plaintiffs challenge the validity of the defendant’s exercise of certain powers under the Children and Young Persons (Care and Protection) Act (“the Care Act”) in the second half of 2014.

2. The plaintiffs commenced these proceedings by Summons on 17 October 2014 in the Common Law Division of this Court. They came before Rothman J that day. Garling J made interim orders and declarations on 27 October 2014 in the proceedings. The proceedings were later transferred to the Equity Division and fixed for final hearing on 16, 17 and 18 December 2015.

3. Garling J made pseudonym orders in the proceedings. These reasons adopt his Honour’s pseudonym orders for the title to the proceedings. But for the reader’s convenience the Court has revised the pseudonyms in the text of the reasons, so that each person is described by reference to the role that he or she has mainly in relation to the child born to the plaintiffs in October 2014.

4. The first and second plaintiff represented themselves throughout the hearing. Ms T Stevens of counsel represented the Secretary.

5. The first plaintiff (“the mother”) is the mother of the child who was born on 26 October 2014 (“the child”). The second plaintiff (“the father”) is the father of the child. The mother has been living with the father since late 2013. The mother had previously been married to a man (“the former husband”) from whom she separated in mid-2013. She and the former husband are now divorced. But the mother is still engaged with the former husband in proceedings in the Family Court of Australia. The former husband and the mother had three children between them, two boys and a girl (“the older children”).

6. The Family Court ordered that the older children live with the former husband. The relief the mother and the father seek in these proceedings relates to steps which the Secretary took in the second half of 2014 to facilitate the older children living with the former husband in conformity with the Family Court’s orders, and to place the mother and father on various administrative alerts in relation to the impending birth of the child and potentially any future children.

7. In their Further Amended Summons, the mother and father seek declarations, prerogative relief and damages against the Secretary in his role representing the officers of Community Services. The Secretary says that much of the relief sought in the Further Amended Summons is legally misconceived. The facts are more detailed.

Family Background – 2004 to 2014

8. At the time of the hearing the older children ranged in age from 9 to 3. They all currently live with their father, the former husband, in conformity with the orders of the Family Court.

9. The mother and the former husband were married in 2004. They lived together as husband and wife until their separation in mid-2013. When they separated, the mother was very closely committed to the practice of her Christian religious beliefs. The former husband did not have or show the same commitment. This appears to have been one of the reasons for their separation. Following the separation, the three older children initially lived with the mother. In late 2013 the mother commenced a relationship with the father, who is a pastor in the Christian church the mother attended.

10. In February 2014 the former husband filed a parenting application in the Family Court, seeking orders that he live with or spend time with the three older children.

11. Meanwhile the mother and father’s relationship deepened, and the father moved into the mother’s house in March 2014. The older children were then still living with her. Shortly after the father moved in, the Family Court made interim orders that the older children could continue to live with the mother but that the mother should supervise any time they spent with the father.

12. In May 2014 Community Services received a Risk of Harm Report that the father had an alleged history of sexual assaults. Within a short period, Community Services received a second Risk of Harm Report concerning alleged sexual assaults by the father.

13. In June 2014 Community Services sought to engage with the mother. Without prior notice to the mother, Community Services officers interviewed the eldest of the three older children at school. Departmental officers obtained further information from interstate police in relation to charges that had been laid against the father. It emerged that the father had been committed for trial in November 2014 for sexual assault offences and that police had charged the father in the past with sexual offences in relation to a child, although those charges had not proceeded.

14. The mother reacted to Community Services’ heightened investigation. She declined to allow the Department to access their home. And she made a number of statements to the Department that its officers perceived meant that she would not engage in protective parenting of the older children in response to any risk to them that might be posed by the father.

15. The Secretary assumed the three older children into care on 24 June 2014. They were then placed on a day-to-day care basis with the former husband, their biological father. The exact circumstances in which this decision was made and whether it was validly made is in dispute in these proceedings. The mother challenges the validity of this decision and the way that the assumption into care took place. This is the subject of argument below.

16. On 27 June 2014 the mother attended at the offices of Community Services to spend some supervised time with the older children. When she was there an incident occurred in which she telephoned 000 emergency services. She said to emergency services that the youngest of the three older children was unwell and appeared to have been drugged. The ambulance services responded to her call.

17. The same day, the Department filed an application in the Children’s Court under Care Act, s 45 for an emergency care and protection order (colloquially known as an ECPO) for the older children for a period of ten days. The orders sought were for the older children to continue to live with the former husband up to the date of a forthcoming interim hearing in the Family Court. The orders were crafted without requiring the matter to be brought back to the Children’s Court, because there were existing Family Court proceedings. In accordance with a Memorandum of Understanding made between the Children’s Court and the Family Court, the Department sought leave to intervene in the existing Family Court proceedings, rather than to seek further orders in relation to the older children in the Children’s Court.

18. On 10 July 2014 the Family Court granted the Department leave to intervene. At an interim Family Court hearing, Stevenson J made orders that have remained in place up to the hearing of these proceedings: that the older children live with the former husband; that the mother be able to spend supervised time with them; and that the mother be restrained from allowing the father contact with the older children.

19. On 5 September 2014 the Department placed a “potential Risk to Staff” alert on the Department’s files. About the same time, but the precise order of the events is said to be controversial, Community Services became aware that the mother was pregnant with the child to the father. The Department acted on information about the pregnancy by completing an “unborn high risk birth alert” and forwarding it to the local District Hospital on 26 August 2014, where it was expected that the mother would be confined before giving birth.

20. Anticipating the birth of the child in October 2014, in September 2014 the Department began to undertake its own internal assessment of what may be the potential risks to the child after birth.

21. But the mother and father took pre-emptive action. They seemed to have become aware from their continuing contact with the Department of its risk assessment for their unborn child. They applied on 17 October 2014 for an ex parte interim injunction from this Court (in its Common Law Division) restraining the Department from removing the child once the child was born.

22. They obtained the injunction. Rothman J made interim orders on 17 October 2014, which were extended by Garling J on 24 October 2014. The mother gave birth to the child at the local District Hospital on 26 October 2014. Finally, on 27 October 2014 this Court made declarations and granted an interim injunction restraining Community Services from removing the child at birth on the basis of the material before the Court at that time.

23. The father’s trial on charges of sexual assault did not proceed. On 13 November 2014, the Attorney General entered a nolle prosequi, terminating the prosecution of all the criminal charges against the father.

24. On 26 November 2014 Community Services decided to close the file on the child. Since November 2014 the Department has taken no further action in relation to the child. But these proceedings remained on foot and were ultimately listed for hearing in December 2015.

The Issues in Dispute

25. The plaintiffs’ Further Amended Summons advances 22 prayers for relief. The relief being sought is conveniently grouped under headings that mostly deal chronologically with the challenged decisions or actions of the Department. These headings are as follows:

1. Whether the 'assumption' of the three older children into care on 24 June 2014 was 'invalid' or otherwise beyond power under Care Act, s 44 (prayer for relief 4);

2. Whether the application for and the making of an ECPO regarding the children in the Children's Court on 1 July 2014 was 'invalid' or otherwise beyond power under Care Act, s 45 and s 46 (prayers for relief 5 and 6);

3. Whether the placement of a 'High Risk Birth Alert' at the Local District Hospital on 26 August 2014 in regard to the birth of the child was beyond the powers conferred on the Secretary and the Department under the Care Act (prayers for relief 8, 11 and 13);

4. Whether Departmental officers placing 'risk of violence alerts' concerning the plaintiffs on Departmental files was within power and otherwise justified in the circumstances (prayer for relief 14);

5. Whether the joinder of the defendant as an intervener in the Family Court proceedings was 'invalid' or beyond power (prayer for relief 7);

6. Whether statements made by the defendant about the status of the children as being 'in care' or removed and regarding the character of the plaintiffs as being either a criminal (the father) or having 'mental health issues' (the mother) were without authority and should be withdrawn or removed from Departmental files (prayers for relief 9, 10, 11, 15, 16, 17 and 18);

7. Whether the various remedies the plaintiffs seek, including compensatory damages, are legally available and if so whether they should or should not be granted (prayers for relief 19, 20, 21 and 22).

26. The Court will deal with the plaintiffs’ 22 prayers for relief in the Further Amended Summons under these seven headings.

27. These 22 prayers for relief were organised by the plaintiffs under various other headings that are different from the headings above, which are subject-matter related. The plaintiffs’ headings are organised according to the nature of the remedy being sought. The plaintiffs’ headings show the range of relief that she is seeking. The first is what she describes as a “prayer for protection” (prayer for relief 1). This was really an application to extend Garling J’s orders made on 27 October 2014 to cover any future children. The plaintiffs then sought what was described as “contextual prayers in nature of declaration” (prayers for relief 2 to 12). These prayers sought declarations of right in respect of a range of conduct made in June and July 2014. The next heading for the relief was “prayers in the nature of certiorari and mandamus”, covering prayers for relief 13 to 16. These were orders generally seeking to quash what the plaintiffs perceived as decisions by Departmental officers and to compel the changing of the Department’s records. The next group were described in the Further Amended Summons as “prayers in the nature of injunction” (prayers 17 and 18). These were prayers designed to prevent the Department from making statements of various kinds about the plaintiffs. The next group of relief the plaintiffs claimed was “prayers related to disciplinary action” (prayers for relief 19 to 21). These were prayers seeking both damages and the disciplining of various members of the Department. Finally, the Further Amended Summons sought “prayers in relation to costs” (prayer for relief 22), which sought the waiver of filing fees and an order for costs against the defendant.

28. This was not an appeal from proceedings under the Care Act, s 91. Such appeals are by way of rehearing and permit the judicial officer on appellate review to see and assess again witnesses who have given evidence in the Children’s Court below. This was not such a proceeding. Nevertheless the plaintiffs did use affidavit and oral evidence in support of their claims for prerogative and equitable relief. And the Court has made some findings of fact in response to that evidence, so that an understanding of the matters of which the plaintiffs, as litigants in person, complain can be achieved. But as the legal analysis later in these reasons points out, especially when prerogative relief is sought or when declarations are sought about the validity of administrative decisions, the Court is not generally empowered to make its own decision in substitution for that of the decision-maker and to make findings of fact for that purpose. It is important to understand this aspect of the task from the outset, even though the Court does make findings about contested issues below. The purpose of these findings is so that there is at least some reliable factual framework with which the Court can work. But in taking this course the Court is not substituting its own views for those of the relevant decision-makers. Prerogative relief does not allow the Court to go that far.

29. The Court will now set out a more detailed narrative of relevant findings concerning the events of 2014. This narrative sets out the Court’s relevant findings on both controversial and non-controversial issues of fact. For reasons of economy, the narrative does not always set out versions of events which the Court considered but rejected before reaching the findings that were made.

Narrative of Findings – the Events of 2014

The Credibility of Parties and Witnesses

30. The Court’s findings on the controversial matters have been based in part upon the Court’s assessment of the credibility of the witnesses who gave evidence, the mother and two Community Services officers, Ms Cristen Sharp and Ms Mary Ridley.

31. The mother presented a complex picture. She is highly intelligent, devoted to the father and all her children. But at times she could be an unpredictably argumentative witness. She generally answered questions put to her well. But throughout her questioning she demonstrated a single-minded and unquestioning defence of the father. She resolutely refused to recognise that there may be suspicions on reasonable grounds that the allegations of the father’s conduct towards children on previous occasions, through the criminal charges brought against him, increased the risk of harm for the children from him. She simply adhered to the view that he did not put the children at risk of harm.

32. The father gave evidence on affidavit but was not cross-examined.

33. Ms Cristen Sharp, a Community Services officer, was both a careful and considered witness. She was defensive in her approach to questions. But she was being questioned directly by the mother and not by counsel. She appeared to find this discomforting. But it is a fact of forensic life when parties represent themselves.

34. Ms Mary Ridley, another Departmental officer, was an excellent witness. She answered difficult questions well. She had a good recollection of all the events involving the mother and herself. They stood out for her. Ms Ridley was always able to cite grounds for all her decisions and actions in relation to the older children and the child.

Initial contact

35. The family first came to the attention of Community Services on 4 March 2014. The department’s early interest in the family was unrelated to any conduct of the father. The Department’s primary concerns in March 2014 appear to have related to the mother’s mental health and the absences of the eldest child from school.

36. The Department subsequently received a report on 23 May 2014, via its Helpline, stating that there was “police information” to the effect that the father had an “extensive assault history with children under the age of 12”. Another report was received on 12 June 2014 repeating the same information.

The Safety Assessment

37. The Department began an initial Safety Assessment with respect to the older children on 16 June 2014. Part of this Safety Assessment involved Community Services officers seeking to interview the older children away from the mother.

38. A Departmental officer, Ms Kelly, conducted an interview with the eldest child at school on 16 June 2014. Given the then unresolved allegations of criminal conduct involving children against the father, Ms Kelly’s interview was directed in part to ascertaining whether the father was spending any unsupervised time with the older children. Her notes of this interview with the eldest child, a boy, included the following exchanges:

Q. Who takes you to school?

A. Mum.

Q. Does anyone else take you to school?

A. Sometimes Mum and [the father].

Q. Does [the father] take you by himself?

A. No

…

Q. What do you like about [the father]?

A. We are building a big technic aeroplane. It’s bigger than the box. It has a motor, power and everything. It’s bigger than this table.

Q. Does Mum or [the father] help?

A. [the father].

…

Q. Does [the father] buy you things?

A. Yes. [The middle child], a lego set. Me a helicopter.

…

Q. Who gives you a bath?

A. I mostly have a shower. Sometimes I have a bath though.

Q. [The middle child]?

A. Mum showers [the middle child] and [the youngest child]. She supervises them so they don’t slip over.

Q. Who dresses you?

A. Mum dresses [the youngest child]. Me and [the middle child] dress ourselves.

Q. Does [the father] help?

A. Sometimes.

Q. What does he do?

A. Sits on the bed and watches us get dressed.

39. The information gained at Ms Kelly’s interview was of concern to Community Services. Ms Ridley’s cross-examination confirmed this in the following terms the father was “buying expensive gifts” for the eldest child, “spending certain amounts of time just with [the eldest child] upstairs playing with these expensive gifts” and “sitting on the bed watching” when they were being dressed.

40. The father said this contact with the eldest child was unexceptional. His evidence is that he bought a “technics plane” for the eldest child “to encourage his [innate] gifts”. He gave evidence that on 15 June 2014, this child “needed some help with the cogs [in the model he was building] because he hadn’t done cogs before”. The father says that he sat on the steps as he could not fit on the Lego mezzanine platform in the house, while the eldest child worked on it in this mezzanine area.

41. The eldest child then presented to the Department a picture of regular absences from school. A file note completed by Ms Ridley reports that the eldest child’s school told the Department on 16 June 2014 that the child had been absent 11 days that term without medical certificates and was “socially isolated as the result of his mother’s behaviour … does not get invited to play dates or other children’s birthday parties”. The child’s school report for the first half of 2014 indicates that he was absent 25 days and partially absent 13 days for this period.

42. The middle child attended preschool. That preschool noted in the school diary on 16 June 2014 that the former husband had informed the preschool that the Department was going to remove the children. The Court has no reason to believe that this note is not a genuine record of something said to the preschool on this occasion.

43. On the same day, 16 June two Departmental caseworkers attended the mother’s home. The mother refused them entry. She says this was because her son was “extremely upset”, as a consequence of the interview earlier that day at the school.

44. What happened that day is in dispute. The mother says that the caseworkers mentioned the allegations against the father but “didn’t ask for any particular kind of response”. She further alleges that one of the caseworkers said that they did not want to take her children.

45. The Departmental officers made notes of the interview. I have no reason to doubt their accuracy. The notes state that when asked to verbally agree to supervise the father, the mother said to them “I will not supervise. I will watch. We are honouring the Court agreement”. Community Services officers’ internal assessment notes of that day, 16 June 2014, indicate that there did not appear to these Departmental officers to be any urgency in having the children removed, “given that [the eldest child] did not disclose sexual abuse” but that the Department would nevertheless support the former husband to gain custody of the older children.

46. The next day, the Departmental officers conducted an interview with the former husband. While their notes of the 17 June interview, are somewhat cryptic, the former husband appears to have expressed concerns about the mother’s mental health, about her “brainwashing” at a new church, and about the criminal allegations that had been made against the father.

47. That same day, 17 June 2014, the mother emailed to the Department a document that she described as a “reference” from the father’s niece dated 14 June 2014. The niece states in this document that she has “worked in childcare for the past 6 years”, had been trained to spot child abuse, and that the older children showed no signs of such abuse.

48. The mother was unhappy about the interview with the eldest child on 16 June. Community Services sent a letter to the Family Court on 24 June 2014, in which the Department said it had subsequently received a telephone call from the eldest child’s school, reporting that the mother came to the school on 17 June 2014 “very angry” about the interview that had taken place with the eldest child without her prior permission and without any notification to her. The Department’s letter also records that when the mother dropped off her eldest child at the school on 18 June 2014, she “was aggressive to principal speaking ‘in tongues’ and saying the Holy Spirit told her what happened in interview with [the eldest child]”. The mother denies that these statements in the Department’s letter are accurate.

49. The Department contacted the preschool attended by the middle child on 19 June 2014. The preschool advised the Department that the Mother had not followed through on the recommendations for the child to have a speech assessment and that at an Easter event at the preschool that the mother had “pushed and smacked” the child. The preschool also advised the Department that preschool staff had expressed concerns about the food the mother had provided for the child.

50. The Safety Assessment Report, completed by Ms Ridley on 19 June 2014, indicates her contemporaneous views: based on her investigations she thought that the older children were “safe with plan”. But the Report notes two “dangers” relating to the presence of the father in the household:

Following interview with [eldest of the older children] it is of concern that he stated that he is left unsupervised with [the father] when playing upstairs. mother stated that she uses monitors throughout the home to supervise [the father] however she would not allow caseworkers into the home to confirm this.

…

The mother and partner do not provide access to the children and this will hinder investigation.

51. The Safety Assessment Report also states the following:

Following the interview with [the eldest child] it was not suspected that sexual abuse was occurring in the home at present. However the new partner [the Father] has an extensive criminal history of alleged incidents relating to unlawful sexual abuse with children under the age of 12.

…

Currently the children’s basic and immediate needs are being met. However there are concerns that the mother is not attending to [the youngest child’s] medical needs by not allowing immunisations, [the youngest child] has only had her 2 month immunisation. The preschool have recommended to the mother in February that [the middle child] requires a speech assessment and speech therapy but she has not attended to this. [The middle child] is now isolated from his peers as they do not play with him as they cannot understand him and staff can only understand one or two words that [the middle child] says.

52. But the Department continued to gather information more widely about the father and about the family during this period. Community Services obtained additional information on 19 June 2014 about the father’s prior criminal history:

1. The father was charged interstate with unlawful sexual intercourse with a person under 12 and two counts of indecent assault on 1 August 2004. Those charges were not pursued after a nolle prosequi was entered around 20 March 2007.

2. The father was charged with sexual intercourse without consent, aggravated sexual assault, an act of indecency and assault occasioning actual bodily harm against his former partner on 20 January 2013.

3. Allegations had been made to interstate police that the father sexually assaulted his niece between 1987 and 1993 but no further action was taken in relation to those allegations.

4. A report was also made to interstate police that in 2012 the father had been “acting inappropriately” with two girls aged approximately 16 and 14 years old; the father was given a warning and the matter did not progress to criminal charges.

53. A Department file note (of unknown author) dated 20 June 2014 shows that the situation was fluid: new information was coming in; the Family Court proceedings were imminent. The file note states:

MCS did not recommend that we go out this afternoon as there is no immediacy and given that the matter is in FL court on Monday. However there are concerns. FACS is supporting the children being placed with the [former husband].

54. The mother says that when the children returned from an access visit on 21 June 2014, the middle child of the older children, a boy, indicated that the former husband had told him that the eldest child would not be “coming here”. She adduced a recording of a conversation with the child and a transcript of what he had said to her. The Court has no reason to doubt her evidence on this subject.

55. Ms Ridley attended the mother’s home on 23 June 2014 to continue her information gathering and assessment. Ms Ridley’s file note of her visit states that:

I buzzed the door bell as I could hear sounds of children and an adult in the house. There was sudden quietness. I rang the bell twice more and no one answered and there was no more noise. I left a message asking [the mother] to contact me tomorrow to arrange a time to speak with her.

56. Ms Ridley confirmed the accuracy of this file note in her oral evidence. I fully accept Ms Ridley’s account of what happened that day at the mother’s home.

57. Community Services’ files in relation to the family contain a file note dated 23 June 2014, which states:

All agreed that they children are not in immediate danger it is her mental state and not of a sexual nature that are of immediate concern

58. Ms Ridley tried yet again to make contact with the mother. On 24 June 2014, she telephoned the mother at about midday. Ms Ridley’s evidence, based on her file note of this communication was that she told the mother that she wanted to come to the home to complete a risk assessment. The note states, and Ms Ridley confirms in her oral evidence, that the mother responded to her on the telephone that she [the mother] would not communicate with them “until after 10 July” and that “you will not come through my gate without a warrant”. The date the mother mentioned, 10 July was the next day the proceedings was to come before the Family Court.

Assumption of the children into care

59. The mother’s refusal to engage with Community Services officers caused them to reassess the situation of the three older children. There is some evidence that this occurred on 24 June 2004. The Community Services officers involved in the reassessment were Ms Sharp, Ms George and Ms Ridley.

60. Ms Sharp’s evidence is, and I accept, that she formed an opinion of risk of harm to the three older children in consultation with Ms George and Ms Ridley. Her evidence is of a turning point that day, leading to a decision to assume the children into care. Although the documentary trail recording the making of the decision the same day is spare. She says that:

What tipped it over the edge … was when we tried to go out and re-engage [the mother] in these conversations, she blankly refused for us to enter her premises without a warrant. So my assessment was, was based on that information being received within that period, and determining in my view that the children were at serious risk of harm.

61. A Care Act, s 44 “order for assumption of care” was signed by Ms Ridley on 24 June 2014. The order states that the Secretary had assumed the care and responsibility of the older children. The order for assumption of care states four reasons for the making of the order (expressed in the order as dot points):

●   Community Services suspects on reasonable grounds that a child or young person is at risk of serious harm

●   The child or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers

●   Sexual abuse is suspected, AND circumstances suggest that the child/young person’s safety may be of immediate concern

●   The mother does not provide access to the children, hinders the investigation and does not provide access to the family home that have been identified as concerning and this hinders the investigation

62. Ms Ridley’s evidence was, and I accept, that these four dot points selected as reasons were part of a “pro forma” document that is maintained within the Department for use to record decisions on such occasions and “this is how it’s [the pro forma] worded”. She indicated that the third dot point referred to the interview with the eldest child who “may have been beginning to be groomed”.

63. On 24 June 2014 Ms Ridley gave to the mother the order for assumption of care. This produced a hostile reaction in the mother, who Ms Ridley says, and I accept, followed Ms Ridley and the other caseworker up the street to the car “yelling” and “speaking rather aggressively” and then she “tore up the s 44 notice”. The mother’s account differs from Ms Ridley’s. But I prefer Ms Ridley’s account of what happened on this occasion.

The Mother and the Father interact with the Department – 25 and 26 June

64. Over the next few days the mother and the father made contact with Community services by telephone and in person.

65. Departmental files record a telephone call from the mother to the Department’s Helpline on 24 June 2014. The record shows she apparently indicated that the youngest of the older children “should be being breastfed tonight”. But the Department’s evidence was that this was not a correct representation of the breast-feeding status of the younger child at that time. Ms Ridley says is that the Department had already been told by the former husband that the child was no longer breastfeeding and that the eldest child had likewise indicated this was so.

66. The mother and father attended the Department’s District premises on both 25 and 26 June 2014. They met Ms Sharp there. Both meetings are recorded in Community Services’ file notes, which are, in my view, accurate records of what passed between Ms Sharp, the mother and the father on each occasion.

67. Ms Sharp’s file note of the 25 June meeting states that Ms Sharp advised them that the Department was concerned about the historic and pending charges against the father. The file note states that after this was said the mother “slapped her hand on the table several times” and demanded that Ms Sharp obtain the criminal history of the father. The note states that Ms Sharp attempted to “calm them both down” with no apparent success before ultimately terminating the meeting. Ms Sharp was cross-examined about this meeting and her oral evidence confirms the note is accurate.

68. Another meeting between Community Services officers and the father and mother took place on 26 June. The file note of this meeting records that the mother and father were given an outline of the arrangements for supervised visits to see the older children. This seems to have been in preparation for a visit planned for the next day.

The 27 June Contact Visit

69. A contact visit between the mother and the older children took place the following day, 27 June 2014 at the local Community Services offices. The mother participated in the contact visit with the older children, which was supervised by a Departmental officer, Mr Paul Francis.

70. The contact visit did not go well. The mother’s account of what happened is that whilst in the foyer prior to the visit, Mr Francis told her that the youngest of the older children was “becoming distressed”, because the mother had not arrived yet. On the mother’s version, when the contact visit commenced, she became concerned, because the youngest child would “not respond to anything that she would normally respond to”. So the mother thought that the child might have been poisoned or drugged. She claims that she asked the caseworkers “what happened” to the child but they did not reply to her.

71. The mother then called 000. This is not in contest. The mother claims that as soon as she called 000, she and the older children were assaulted by Departmental staff. The mother reported this incident to local district police on 29 June 2014. Her witness statement to the police alleges that Mr Francis “stomped on my left foot” before he called in Ms Ridley. The mother alleges that Ms Ridley and Mr Francis then “yanked” the youngest of the older children from her and forcefully grabbed the other two older children, causing the older children to become distressed. The mother has tendered in these proceedings an audio file recorded by herself of the incident.

72. An ambulance arrived in response to the mother’s call. The ambulance paramedics examined the youngest of the older children. They were not called to give evidence. But they completed patient cards from the ambulance service, which indicated “nil injuries observed”. The youngest child was neither taken to hospital nor given any medical treatment.

73. Mr Francis also completed a file note of the visit on 27 June 2014. He did not give evidence. But I accept his report is accurate. Because the ambulance records do not support her allegations that the youngest child was drugged or seriously unwell or even warranting any medical treatment I do not regard her evidence about this incident as reliable. She initiates the whole incident by making a judgment that her youngest child was so sick that she, the mother, had to call emergency services. I infer from the subsequent lack of administration of any medical care to the youngest child that there was no proper basis for the mother to call emergency services. I do not accept her version of the incidents where it conflicts with the file notes of Mr Francis.

74. The file note of Mr Francis states what in my view happened. He says that he approached the mother and asked her to terminate the call that she was making to emergency services. He records that when he approached the mother, she told the operator that a man “was standing over her and stood on her foot”, an allegation which was false, as his note indicates was not standing on her foot. The file note states that Mr Francis then asked another Departmental officer, Ms Beecroft to get Ms Ridley and that he took the youngest of the children from the mother.

69. A later Departmental file note dated 25 July 2014 reviewing this 27 June 2014 incident also states:

Statements were taken as to the true events of the contact visit which identified that [the mother] would not initially go into contact as she only wanted to read the initiating application for court. When she did go into the contact and Paul was supervising she immediately phoned 000 and making a scene saying that [the youngest of the older children] was not well. Paul advised [the mother] would not terminate the call and she continued to be highly emotional with the children becoming distressed. Paul called me into the room and Paul, Judith Beecroft who was near the contact room and I took the children out and to their father.

76. I accept the accuracy of this file note. In infer that the mother made a baseless call to emergency services. Her motivation for doing so is difficult to fathom. As there was nothing medically wrong with the youngest child, the only ultimate effect of her call was to unsettle her own children.

Application for an ECPO – 27 June 2014

77. On 27 June 2014, as Care Act, s 45 requires, the Department took issues concerning this family to the Children’s Court. On that day it filed an Application and Report for Emergency Care and Protection Orders (ECPO) in the Children’s Court.

78. The ECPO Report notes concerns about “child sexual assault”, “child physical assault” and “parental incapacity due to mental illness” and states that the preschool advised the mother to take the middle child for a speech assessment and speech therapy “however this has not occurred” and that the Department was advised that the youngest child “has only had her 2 month immunisations”.

79. The ECPO Report also makes reference to the interview conducted with the eldest child. It states that the child “disclosed that he played in an upstairs area of the home with [the father] unsupervised”. The Report indicates that the mother said that she could watch the father using security cameras placed throughout the house and states that the father showed the caseworkers “what looked like a security camera”.

80. Finally, the ECPO Report contains a section entitled “Prior alternative action”. This section of the Report form appears to be designed to identify what other action had been taken by the Department before the application for an Emergency Care and Protection Order. None of the boxes containing examples of such prior alternative action are marked in a way which would identify the prior alternative action that had been taken. But a note within the ECPO Report does record that contact was made with the family on a home visit and that there was another “attempted home visit” to the mother. Ms Sharp was cross-examined about this part of the ECPO Report. She said to the mother in cross-examination that “we were finding it extremely difficult to, we were finding it very difficult to have that intervention with you, to look at other options for your family”.

Attendance at the Mother’s Home on 30 June 2014

81. On 30 June 2014, Ms Ridley and another caseworker attended the mother’s home to provide her with revised details for future supervised visits. Ms Sharp’s evidence is that her understanding is that Ms Ridley and the other caseworker were asked to leave and put anything that they had to give the mother into the letter box.

82. Officers in the Department decided the same day that the mother was a risk to their safety. Mr Francis signed a “Notification to the Sheriff of the Court of Person(s) at Risk” that day. This notification suggested that staff, legal representatives for the children and the former husband were “persons at risk”. His notification recorded the basis for action as “verbal or physical abuse towards staff and father of her children”.

The ECPO and subsequent proceedings

83. The Children’s Court made an ECPO on 1 July 2014, under Care Act, s 46 operative for a period of 10 days.

84. The mother took counter action within days. She filed an application under Care Act, s 90 on 3 July 2014 alleging that the well-being of the older children had “significantly deteriorated” since 24 June 2014. The mother also filed an affidavit sworn the same day supporting her s 90 application. The affidavit dealt with a range of issues. Among other matters, it explained the mother’s beliefs that the father is the head of their household. She said on this topic that:

The “description of my household with [the father] as the head of house is a description of the SPIRITUAL structure of our family unit. It in NO WAY implies as the other party argued without reply, that [the father]’s authority in the family negates my personal freedoms or ability to function as an individual, and it in NO WAY implies that I would allow [the father] or anyone else to act in any random or dangerous way in my home.

85. The mother’s affidavit went on to explain her reasons for believing that the allegations against the father of sexual misconduct against young children were not true. She said that her belief was based on:

a) My own witness of his upright and unlustful character over a one and a half year period both before and after the commencement of our relationship

..

d) my experience when working in schools and universities of seeing many young people make false allegations against teachers that makes me wary of jumping to unevidenced conclusions

…

86. On 9 July 2014, the Department applied for leave to appear as an intervener in the Family Court proceedings. The position articulated to the Family Court by the Department was that the children should live with the former husband and that the mother should be able to visit the children at a nominated contact centre without the father.

87. The mother’s Care Act, s 90 Children’s Court application and the Department’s application to intervene in the Family Court both came on for hearing the next day. The Children’s Court dismissed the mother’s Care Act, s 90 application on 10 July 2014. The notes of the Department record that “Court agrees that there is no jurisdiction and no basis for the application”. As the Court noted at the hearing of the matter, it is not particularly clear what occurred in the Children’s Court that day.

88. On 10 July 2014 the Family Court gave the Department leave to intervene in its proceedings. The Family Court also made interim orders for the children to live with the former husband and spend time with the mother on a supervised basis but without the father.

The High Risk Birth and Risk to Staff Alerts

89. In late August – early September 2014 Community services issued two administrative alerts in relation to the mother and the father, one external to the Department and one internal. In their Further Amended Summons, the plaintiffs seek relief in respect of both of these alerts.

90. On 28 August 2014, a System Officer of the South Eastern Sydney Local Health District issued a “Birth Alert” email with respect to the mother, attaching information that the Department appears to have been provided to that Health District. The birth alert from the Department is dated 26 August 2014 and refers to reports “relating to child sexual assault, child physical assault and parental incapacity due to mental illness”.

91. About a week later, on 5 September 2014, an internal “potential risk to staff” person alert was also placed on the Department’s file. The Department’s case is that this 5 September alert was placed on file as a result of the mother’s actions during the 27 June 2014 contact visit. Ms Sharp said, and I accept, that the alert was recorded in conformity with the Department’s 2007 policy entitled Preventing and Managing Client Initiated Violence. This alert states that the mother has made “false allegations of assault against staff members … reports to police and has carried recording devices and recorded staff”. I accept Ms Sharp’s evidence that the Risk to Staff Alert is used solely for internal purposes and that the Department’s practice is not to disclose such alerts to other agencies. In the course of the proceedings, the Department indicated that the alert is still current but that it continues only to be used solely for internal purposes.

92. The Department states that it received a “Risk of Significant Harm Report” on 8 October 2014, in relation to the unborn child. One might expect such a report to record information given by external callers phoning into the Department. The form of this Contact Report is structured as a record of information received through contact with the Department. It refers to the allegations against the father and concerns about the mother’s mental health. But this particular Contact Report appears to have been internally generated, given that reference is made within it to the “caller” (the information supplier), as the interview with the eldest of the older children. And the Report makes reference to various other interactions between the Department and the mother, rather than to information acquired from third parties outside the Department. Before Garling J, the Department appears to have conceded that the report came from someone within the Department.

93. On 9 October 2014, Ms Georgoulas, an officer with Community Services, contacted the mother to advise her that the Risk of Significant Harm Report had been received. A “Group supervision” timeline of the same date indicates that the Department was of the view that the mother was requesting a home birth.

94. On 10 October 2014, the mother and father attended the Department’s local offices. There they discussed the allegations against the father and Departmental officers’ concerns about the mother’s mental health.

95. On 13 October 2014, the mother emailed the Department, providing medical certificates for herself and the father from a general practitioner to “lay to rest any questions you may have related to mental health”. Ms Sharp responded the same day indicating in her reply that a clinical assessment by a specialist rather than a general practitioner assessment would be required.

96. Community Services manages its voluminous internal information with database management tools, including one described as a Client Context Risk Management (CCRM) Tool. An entry into CCRM completed in relation to the unborn child on 17 October 2014 indicated that the Department was concerned about the mother’s mental health. The entry noted that the mother was:

Fixated on issues in conversation and cannot move forward to understand risk

Consistent complaints in relation to her perception of perceived in justice by NSW Police, Education, FACS, Children’s Court, FLC, Crown Solicitors. This also includes consistent complaint about the perceived injustice of [the father] in relation to his criminal history and current pending charges.

The Supreme Court Proceedings and the Birth

97. As earlier indicated in these reasons, the plaintiffs launched these proceedings in the Common Law Division of this Court on 17 October 2014. The mother initially approached the Court ex parte.

98. On 17 October 2014, Rothman J made orders at the ex-parte hearing restraining the Department “from taking any child born to the plaintiffs on or after 17 October, 2014, or taking any step to interfere with the care and control of any such child”.

99. But despite this Court’s orders some of the evidence, within the local District Hospital’s files suggested that some officers within Community Services may have continued to hold plans to assume the plaintiffs’ new baby into care as soon as it was born. A NSW Health Social Work progress report in the mother’s hospital records dated 20 October 2014 notes, as the entry appears, “FACS current plan is ASSUMPTION FOLLOWING BIRTH OF UNBORN”. Perhaps some time had elapsed before the making of the Court orders had reached right down to every level of Community Services. It is difficult to tell. But a further report two days later in the hospital records states that on 21 October 2014, Ms Georgoulas confirmed that the plan remains and that the Department were to be contacted when the mother presented in labour.

100. The Department created three file notes on 21 October 2014 relating to the mother’s impending birth. These notes state that the local District Hospital advised Community Services that the mother was at the hospital “believing she is in labour” and that the mother had a letter saying that the Department could not remove the unborn child. These Departmental notes also indicate that Ms Tesoriro informed the Hospital that she was not aware of such a letter and that Ms Georgoulas told the hospital social worker that “the current plan is still in place”.

101. In her 24 October 2014 affidavit, Ms Sharp indicated that the Department’s concerns in relation to the unborn child related to the criminal charges still then pending against the father, the historical allegations against the father, and the current mental health of the mother.

102. Ms Sharp’s evidence, which I accept, was that assumption following birth was a possibility considered but that no decision to take that course had been made. Her evidence is that there would have been a safety assessment undertaken at the birth. If the Secretary had decided to take this course, the Secretary would have had to first apply to the Court to vary the orders made in the Common Law Division. In the event this did not occur, Garling J subsequently made orders on 24 October 2014 extending Rothman J’s orders.

103. The mother and father’s child was born on 26 October 2014. The District Hospital’s progress/clinical notes dated 26 October 2014 indicate close contact between the Hospital and Departmental officers immediately after the birth. The District Hospital notes contain the following entry:

FACS looking into case & will get back to us in about an hour. If parents try to D/C prior to call security & police if needed. Advised by [the Doctor] not to mention this matter to [the mother] & [the father] at this stage.

104. On 29 October 2014, the father made a complaint to the HCCC with respect to the family’s treatment at the District Hospital. His complaint alleges that the Hospital provided a four-hour check out option with at-home midwifery support. But that they were denied access to midwifery support at home on the basis that they discharged “against medical advice” because the midwife claimed that the placenta had an odour.

105. On 26 November 2014, the Crown Solicitor’s Office emailed the mother and father on behalf of the Department indicating that the Department’s file relating to their baby would be closed. That seems to have been what happened.

106. On 15 December 2014 the Chief Executive of the Local Health District responded to the HCCC complaint about the plaintiffs’ treatment at the hospital during the mother’s admission for the birth, acknowledging that the “management of the placenta was inappropriate” and apologising for refusal of the midwifery support program. The father had expressed concerns there was an underlying reason for their treatment at the District Hospital. The letter from the Local Health District notes that the nurses had been aware of the birth alert and states that the Department was contacted when the mother presented at the District Hospital, at which point the Hospital was informed of the injunction.

Analysis of the Plaintiffs’ Claim

107. In substance, the relief the plaintiffs claim is judicial review of the various administrative decisions made within Community Services. But the relief which the plaintiffs claim does not always readily identify the decision that is being challenged. These reasons attempt to identify the decision in question, and to deal with it on the basis of the plaintiffs’ submissions.

108. But one aspect of the proceedings was not complicated. The plaintiffs at no stage challenged the authority of Departmental officers to make relevant administrative decisions under delegation from the Secretary of the Department. The decisions under challenge were made by different officers. None of their delegations to make those decisions was in question. The plaintiffs and the defendant put submissions on the basis that Departmental officers were valid delegates of the Secretary of the Department to make the questioned decisions.

109. A number of the plaintiffs’ claims could best be characterised as complaints about statements that Departmental officers had placed on Departmental files. Even the relief they sought about so-called administrative decisions, in many cases really fell into this category. The Court has dealt comprehensively with this issue under the heading below “(6) Statements made by the Department”. To the extent that the relief sought under headings (1) to (5) really relates to the correction of Departmental records, the Court’s analysis, in particular in relation to the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”), is contained under heading (6), and is not repeated under the earlier headings, (1) to (5).

110. Analysis of the plaintiffs’ claim is now organised by reference to the seven headings referred to earlier in these reasons for the plaintiffs’ prayers for relief.

1)   Assumption into care – 24 June 2014

111. The plaintiffs seek four declarations relating to the assumption of the older children into care:

1. An extension of Garling J’s declaration to cover any future children who may come within their care (prayer for relief 1);

2. A declaration that the Department has not established an opinion under s 34 of the Act with respect to any member of the plaintiffs’ family on 16 June 2014 (prayer for relief 2);

3. A declaration that the Department had not established an opinion under s 34 of the Act with respect to any member of the plaintiffs’ family on 24 June 2014 (prayer for relief 3);

4. A declaration that the s 44 assumption of care order was invalid (prayer for relief 4).

Legislation Relevant to the Assumption into Care

112. Section 34 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that:

(1) If the Secretary forms the opinion, on reasonable grounds, that a child or young person is in need of care and protection, the Secretary is to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child or young person.

(2) Without limiting subsection (1), the action that the Secretary might take in response to a report includes the following:

(a) providing, or arranging for the provision of, support services for the child or young person and his or her family,

(b) development, in consultation with the parents (jointly or separately), of a care plan to meet the needs of the child or young person and his or her family that:

(i) does not involve taking the matter before the Children’s Court, or

(ii) may be registered with the Children’s Court, or

(iii) is the basis for consent orders made by the Children’s Court,

(b1) development, in consultation with one or more primary care-givers for a child or young person, of a parent responsibility contract instead of taking a matter concerning the child’s or young person’s need for care and protection before the Children’s Court (except in the event of a breach of the contract),

(c) ensuring the protection of the child or young person by exercising the Secretary’s emergency protection powers as referred to in Part 1 of Chapter 5,

(d) seeking appropriate orders from the Children’s Court.

113. Section 44 of the Act provides:

(1) If the Secretary:

(a) suspects on reasonable grounds that a child or young person is at risk of serious harm, and

(b) is satisfied that it is not in the best interests of the child or young person that the child or young person be removed from the premises in which he or she is currently located,

the Secretary may, instead of removing the child or young person from the premises under a power of removal conferred by or under this Act, assume the care responsibility of the child or young person by means of an order in writing, signed by the Secretary and served on the person (whether or not a parent of the child or young person) who appears to the Secretary to be in charge of the premises.

(2) An order under this section does not cease to have effect merely because the child or young person to whom it relates is transferred to different premises.

114. These provisions of the legislation must be considered in context.

Consideration of the Parties’ Submissions

115. Section 34 opinion. The plaintiffs challenge the validity of the older children’s assumption into care on 24 June. They first submit that no documentation evidences the Secretary forming a Care Act s 34 opinion that any of the children were in need of care and protection. They submit that the formation of an opinion in conformity with s 34 is a precondition for the valid exercise of the power on 24 June under Care Act, s 44 and that in the absence of a s 34 opinion, the exercise of the s 44 power was invalid.

116. The plaintiffs seek to draw support from remarks of Garling J to the effect that it was unclear what opinion was formed. But Garling J’s hearing was not a final hearing. The Department concedes a “lack of precise documentation in regard to section 34 in this case”. The Department explains that there “is not a clear practice of recording the section 34” opinions because the range of options available under s 34 includes “very conservative measures”.

117. Section 44 grounds. The plaintiffs challenge the grounds for the 24 June s 44 decision. They take issue with the four reasons identified in the s 44 order and submit: that there were no reasonable grounds for the formation of an opinion to satisfy s 44 that the children were “at risk of serious harm”; and, that there is no evidence that such an opinion was actually formed in this case. They argue that the first of the four reasons recorded in the “Order for assumption of care” dated 24 June 2014 was not in fact a reason. They further submit that there is no evidence to substantiate the second or third recorded reasons, because the Safety Assessment Decision report of 19 June 2016 made clear that sexual abuse was not suspected and the basic needs of the children were being met. The plaintiffs also argue that Ms Ridley’s concerns about grooming following the interview with the eldest child are evidence of “jumping to wild conclusions”. They further complain that the interview with the eldest child “hasn’t been properly documented” and “no independent witnesses” were present. As to the fourth recorded reason, they cite Garling J’s remark that “I assume nothing adverse can be drawn about the failure to give access”.

118. Was an opinion formed for the purposes of s 44? Ms Sharp gave evidence as to the Department’s practice of recording opinions formed. Her evidence in cross-examination was that the considerations taken into account in a decision to assume a child into care:

should be recorded in a case note but it’s not a practice that happens very well in our agency in terms of specific decision making documentation

119. By “our agency”, Ms Sharp clarified that she was referring not just to the local district branch of Community Services but “generally as a practice” throughout the Department. But I am satisfied from the findings earlier made that the necessary opinions were formed for the purposes of Care Act, s 34 and that a s 44 opinion was formed.

120. Were the identified Section 44 grounds sufficient? The Department’s case is that the criminal charges against the father, concerns about the mother’s mental health, failure to engage with the Department, and final refusal to engage until 10 July taken together conveyed a serious risk of harm.

121. Ms Sharp conceded that the only information of “neglect” that the Department had at that time was in relation to speech therapy for the middle child. But she said it was not a “primary issue” in the decision-making process. Ms Sharp stated that she believed that the caseworkers did not know who the health professional was at that time and was not sure what inquiries Ms Ridley might have made to obtain that information. The evidence indeed suggests that the mother had in fact taken the child to a speech therapist.

122. But the short answer to the plaintiffs’ case is that there was certain material upon which the Department was entitled to form an opinion under Care Act, s 44. It was up to the Department to evaluate the quality of that material and the weight that it gave to it. The present proceedings are not a merits review. No prerogative relief should be given on the grounds that there was insufficient material from the Department to act under Care Act, s 44.

123. Section 44 – a Risk Assessment precondition. The plaintiffs contend that a procedural precondition exists for the valid formation of a Care Act, s 44 suspicion. They submit that a suspicion could not have been formed on reasonable grounds for the purposes of s 44 without a risk assessment and therefore the exercise of the power was invalid.

124. The Department’s risk assessment process involves several steps. Ms Sharp’s evidence was that an initial Safety Assessment pivots around the concept of “immediate safety of children”. A determination is made as to whether the children are “safe” (no current concerns), “unsafe” (in need of care and protection) or “safe with plan” (there is a need to plan with the family for some protective intervention). She stated that:

If it’s ‘safe with plan’, we then proceed to a risk assessment, where we look at risk issues for children that may not be immediate, and that’s where we do some more analysis around getting further information from different sources under chapter 16A and we, we look at what those issues are for the children in an assessment and then we develop a case plan with the family.

125. Ms Sharp said, and I accept, that Community Services were not able to complete a risk assessment, because the mother would not allow them to enter the residence. Ms Ridley gave similar evidence that I also accept. She said that a risk assessment could not be completed because it would be “essential” to sight the premises as part of that assessment.

126. The mother submitted that the Department should have obtained a warrant to enter the home and complete a risk assessment. In closing submissions, she argued that:

I could not be held accountable for any lack of investigation, but rather the department should be held responsible because it wasn’t my job to do their investigation

127. But nothing in the legislation indicates that a risk assessment is a mandatory precondition of action under Care Act, 44. Moreover Care Act, s 44 suspicion “reasonable grounds” can themselves be made out by the refusal of a party to allow a risk assessment to proceed, as occurred here.

128. Ms Ridley was asked why a warrant was not obtained to enter the house. She explained that “we refrain unless it’s absolutely essential to get a warrant”. She thought that the best way to work with a family is to “develop a good rapport and not have the police and any intervening agency like that come with us”. Ms Sharp’s evidence was to similar effect that it was “not common” to get a warrant in such situations.

129. Section 44 – Alternative action. The plaintiffs further argued that the assumption of care was invalid because the Department failed to consider alternative action in accordance with s 9(2)(c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). That provision states:

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

130. The plaintiffs further submit that the Department failed to comply with s 36(1)(a) and (c) of the Act because the Department failed to give paramount consideration to the “usual residential setting” or to articulate the risk of “serious harm”. Section 36 provides:

(1) In deciding the appropriate response to a report concerning a child or young person, the Secretary must have regard to the following principles:

(a) The immediate safety, welfare and well-being of the child or young person, and of other children or young persons in the usual residential setting of the child or young person, must be given paramount consideration.

…

(c) Removal of the child or young person from his or her usual caregiver may occur only where it is necessary to protect the child or young person from the risk of serious harm.

(2) The principles in this section are to be applied in priority to the principles in section 9 in deciding the appropriate response to a report concerning a child or young person.

131. Ms Sharp conceded that “there may not be clear documentation” of alternatives in this case but argued that “we always consider least intrusive options before forming a decision of an assumption or a removal”.

132. The plaintiffs’ contentions are not persuasive on this issue. Firstly, there is evidence that the Department did attempt the least intrusive options before assuming the children into care. They did so by visiting the house but were kept out by the mother. Secondly, consideration of alternatives is not a precondition to valid action under Care Act, s 44.

133. The section 44 decision – Improper purposes. The plaintiffs further submit that s 44 should not be used to transfer children from court-ordered home to a non-custodial parent. They emphasise that there was “no change in circumstances” between the assumption of the children into care and the hearing before the Family Court on 23 June 2014. The plaintiffs allege Ms Ridley failed to warn them about removing the children in the conversation with the mother on 24 June 2014 in which the mother declined to communicate until 10 July and they submit that the preschool’s diary note of 16 June 2014 is evidence that a removal plan was already in place at that earlier date.

134. In my view, there was no evidence of a plan to remove the children before 24 June 2014. In my view, the trigger for the decision was the refusal of the mother on that day to allow the Department’s officers into the house, combined with the other information. But even the existence of such a plan would not, in my view, vitiate the exercise of discretion under Care Act, s 44, provided s 44(1) was complied with, which in my view it was.

135. The plaintiffs also submit that the service of the s 44 notice on the former husband was invalid. They submit it should instead have been served on the former husband’s father, the actual lessee of the premises as “the person in charge of the premises” (s 44(1)) they occupy. But in my view, this does not occasion any invalidity.

136. Declaration about future children. The plaintiffs also seek declaratory relief to protect any future children that might come within their care. This is said to be justified on the basis that no risk factors listed in “international literature” in relation to the safety of children are present with respect to themselves.

137. Community Services answers the claim for a declaration about future children. The Department submits that a declaration with respect to any future children that might come within the care of the mother and father would be an unwarranted fetter upon the Department’s future exercise of its statutory obligations. The Department submits that the older children are now the subject of orders of the Family Court and there is no evidence that the Department will make further applications with respect to the children: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2; Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201.

138. The Court agrees with this submission. No purpose would be served in making a declaration about the mother’s future children when her circumstances and those of the father may change. Such a declaration would be quite inconsistent with the objectives of Care Act, s 9, which require the Department to be constantly responsive to changes that may affect the welfare of the child.

139. The plaintiffs make an overarching s 44 submission. They say that the lack of a proper basis for the s 44 decision shows that there are “major investigative problems that are systematic in the Department” and that the Departmental officers failed to “test allegations that were made by people that they interviewed or heard from”. The declarations the plaintiffs seek are said to be an important means of repairing damage to their reputations that they allege has occurred. If they are granted the declarations the plaintiffs say they will show them “in places such as the children’s school and preschools, various churches, the neighbourhood and in the Family Court”.

140. This submission is not persuasive. This argument is really seeking some kind of Royal Commission into the Department, which is not a relevant consideration for the grant of the discretionary relief the plaintiffs claim. And it should be remembered that the plaintiffs’ reputations are only of secondary consideration to the welfare of the child and the older children when the Department’s officers are discharging their duties: Care Act, s 9.

2)   Validity of the 27 June 2014 ECPO Orders

141. The plaintiffs seek declarations that the Department’s ECPO application was invalid (prayer for relief 5) and that the ECPO granted by the Children’s Court was invalid (prayer for relief 6). The plaintiffs submit the ECPO application did not comply with s 63 of the Care Act, because it did not show that the Department had attempted alternative risk mitigation strategies.

142. The ECPO application was initiated under Care Act, s 45 and dealt with by the Children’s Court under Care Act, s 46. Care Act, s 63 governs some of the procedural requirements for the bringing of a Care Application. It provides:

(1) When making a care application, the Secretary must furnish details to the Children’s Court of:

(a) the support and assistance provided for the safety, welfare and well-being of the child or young person, and

(b) the alternatives to a care order that were considered before the application was made and the reasons why those alternatives were rejected.

(2) The Children’s Court must not:

(a) dismiss a care application in relation to a child or young person, or

(b) discharge a child or young person who is in the care responsibility of the Secretary from that care responsibility,

by reason only that the Children’s Court is of the opinion that an appropriate alternative action that could have been taken in relation to the child or young person was not considered or taken.

(3) Subsection (2) does not prevent the Children’s Court from adjourning proceedings.

143. The plaintiffs redeploy their earlier Care Act, s 34 arguments in relation to the ECPO orders. They submit that the Department had not formed an opinion in conformity with s 34 before making the ECPO application, and that as a result all steps taken on the application were invalid.

144. The Department fields two arguments in answer to the plaintiffs’ primary ECPO argument. The Department first contends the statutory scheme does not indicate that non-compliance with s 63 leads to invalidity. The Department submits this interpretation is consistent with the nature of an ECPO as an emergency order operative for a maximum of 14 days. The Department’s submissions are persuasive. All that Care Act, s 63 requires is for the Department to put evidence before the Children’s Court. If it does not do so, Care Act, s 63 makes clear that that is not the basis for the Children’s Court to dismiss an application: Care Act, s 63(2).

145. Next the plaintiffs argue that the Department did not take or attempt any alternative action, which is a precondition to ECPO action. But the Department replies that it attempted alternative action. The Department relies on its officers’ several unsuccessful efforts to meet with the mother. In my view it did take alternative action. But even if it did not, no invalidity would follow: Care Act, s 63(2).

146. Next the plaintiffs complain about the period of the ECPO. They submit that: the ECPO was invalid because it was granted for 10 days as opposed to the statutory maximum of 14 days; and, that Community Services had a strategy of applying for an ECPO of 10 days instead of 14 to “create leverage in the Family Court” and to “deviate the welfare case out of the Children’s Court”. This is not persuasive. The authorising section for ECPOs, s 46 allows them to be issued “for a maximum period of 14 days”.

147. The Department accepts that the purpose of the selection of a 10 day period for the ECPO was to “marry up” with the proceedings in the Family Court. Its contention is persuasive that there is now no utility in making the declarations sought, as the ECPO expired well before these proceedings commenced on 10 July 2014.

148. The plaintiffs contend for the ECPO’s invalidity on other grounds. They submit: that the Department’s evidence was not tested, and that the Department was therefore treated like a quasi-expert; that the plaintiffs were denied natural justice; and that the decision to grant the ECPO was irrational and unreasonable and made in bad faith.

149. This claim for relief is misconceived. It is a collateral attack on the decision of the Children’s Court under Care Act, s 46. Such relief should not be entertained on a Summons such as this when there are remedies for review available under the Care Act itself.

3)   The High Risk Birth Alert - August 2014

150. The plaintiffs seek a range of declarations and orders about the High Risk Birth Alert. The first is that the Department was not entitled to place a High Risk Birth Alert against the mother’s name on 28 August 2014. The second is that the Department was not entitled to place a new High Risk Birth Alert against the mother’s name. Thirdly, the plaintiffs seek an order quashing the High Risk Birth Alert against the mother’s name. Finally, the plaintiffs seek orders that the Department be “punished” for contravening Rothman J’s orders.

151. The plaintiffs deny that the Department could place a High Risk Birth Alert on the plaintiffs’ file on 28 August 2014. They submit the Department did not know, as at 28 August 2014, that the mother was pregnant. Without that knowledge, they submit that the Department could not properly make an alert under Care Act, s 245C, which seems to be the relevant authorizing provision. That section authorises the supply of information between agencies and provides:

(1) A prescribed body (the "provider" ) may provide information relating to the safety, welfare or well-being of a particular child or young person or class of children or young persons to another prescribed body (the "recipient" ) if the provider reasonably believes that the provision of the information would assist the recipient:

(a) to make any decision, assessment or plan or to initiate or conduct any investigation, or to provide any service, relating to the safety, welfare or well-being of the child or young person or class of children or young persons, or

(b) to manage any risk to the child or young person (or class of children or young persons) that might arise in the recipient’s capacity as an employer or designated agency.

(2) Information may be provided under this section regardless of whether the provider has been requested to provide the information.

152. The plaintiffs submit the Department issued the High Risk Birth Alert prior to obtaining a Care Act, s 25 report, conduct that was said to be contrary to s 245B(3) and contrary to the Department’s own 2011 Responding to Prenatal Reports Policy. Care Act, s 245B(3) provides:

(3) A reference in this Chapter to information relating to the safety, welfare or well-being of a child or young person includes a reference to information about the following:

(a) an unborn child who is the subject of a pre-natal report under section 25 or a referral to an assessment officer under section 27A,

189. This issue has arisen in a number of cases since the creation of a permanent administrative decisions tribunal in this State. For example in Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68, the Court of Appeal has said that the parties should use the appeal panel of the Administrative Decisions Tribunal before seeking judicial review in that Court. In another case the Court of Appeal expressed its reservations about pre-empting a statutory tribunal’s fact-finding tasks, and indicated that the plaintiff should await a tribunal decision and then consider the plaintiffs’ options for judicial review: Masters v Garcia (2005) 65 NSWLR 92 at 115 – 117 (per Basten JA) (“Masters”). An important consideration in Masters was that there was no reason to think that the tribunal below would fail to exercise its powers properly.

190. There are many other relevant considerations in the exercise of the Court’s discretion to allow the alternative remedy to proceed rather than grant declaratory or other relief: is the issue presented one of law or fact; is the alternative forum better equipped to determine the relevant issue; what effect would intervening have on the Court’s lists more widely; would early judicial resolution be a clear advantage; would the tribunal below be assisted by this Court’s decision or would the Court be assisted by allowing the opinion of the tribunal below to be formed first and then allow a process of refinement to occur when the matter is re-argued before this Court; and, what would be the effect of this Court granting relief upon the procedures of the alternative forum. These matters are of importance in this case.

191. The PPIP Act sets out a comprehensive procedure for the review of allegedly inaccurate information held on the files of government agencies in this State. Here is not the place to set out in full an explanation of the PPIP Act jurisdiction. But its essential features are relevant and may be shortly noted.

192. Under PPIP Act, s 15 a public sector agency, as defined within the legislation, that holds personal information about an individual must at the request of that individual make appropriate amendments to the personal information to ensure that it is accurate and that having regard to the purpose for which the information was collected or is to be used that information is relevant, up-to-date, complete and not misleading: PPIP Act, s 15(1). The statutory definition of “public sector agency” in the PPIP Act, s 3 appears to be wide enough to embrace the operations of Community Services. Community Services did not contend otherwise.

193. PPIP Act, s 15(2) sets up a procedure that if the public sector agency is not prepared to amend personal information in accordance with a request by the individual to which the information relates, then the agency must, if so requested, take such steps as are reasonable to attach to the file information and in such a manner as is capable of being read with the file information, “any statement provided by the individual of the amendments sought”.

194. And PPIP Act, s 15(3) provides that if personal information is amended in accordance with the section that the individual affected by the amendment “if it is reasonably practicable” is entitled to have recipients of that information notified of the amendments made by the public sector agency.

195. PPIP Act provides a very useful procedure. It sets up a process in which a complainant about the content of public sector agency information is required to draft an amendment to the information on file, so that the agency will be in a position to consider the precise changes the complainant wants to what is recorded. This is a simple and useful measure to make sure that the differences between the complainant and the relevant government agency are adequately defined at the outset. And even before that point is reached, the Department has to be asked in a non-adversarial atmosphere whether it accepts the amendments being proposed or declines them. One of the difficulties of the present case is that before the plaintiffs sought the relief that they now do about changing the content of the Department’s files they did not go through the kind of discipline that PPIP Act, s 15 requires.

196. Another advantage of using the PPIP Act, s 15 rights of request is that even if the public sector agency does refuse to amend its own records, it may nevertheless be required to place on its own files, if reasonable, any statement provided by the individual of the amendments sought. Thus the Department’s own file may end up having on it information which appears to be contested. The legislation appears to accept that the PPIP Act, s 15 process may not lead to complete resolution of what is the correct factual position but may mean that the Department ends up with a hybrid file, where its own information is qualified by a statement, placed on file under PPIP Act, s 15, containing other information from the person affected.

197. If an individual is dissatisfied with the response of a public sector agency under PPIP Act, s 15, the individual has remedies under PPIP Act, Part 5. The person aggrieved by the conduct of a public sector agency is entitled to a review of that conduct, which in the first instance will be undertaken by the public sector agency concerned: PPIP Act, s 53(1) and (2). But the application for review must be in writing and must consider relevant material submitted by the applicant and the Privacy Commissioner. From a completed review the public sector agency can take a variety of actions and including no further action, a formal apology, appropriate remedial action including monetary compensation, undertakings not to repeat the conduct and the implementation of administrative measures to ensure the conduct will not occur again: PPIP Act, s 53(7). The Privacy Commissioner has an oversight role in the management of applications for internal review under PPIP Act, s 53: PPIP Act, s 54.

198. A person who has made a PPIP Act, s 53 application who is not satisfied with the findings or the action taken by the public sector agency may apply for administrative review to the Civil and Administrative Tribunal: PPIP Act, s 55.

199. Assuming in the plaintiffs’ favour, but without deciding the matter, that the Court could grant a declaration as to what statements of fact about the plaintiffs should be on the Department’s file, there are strong reasons in this case for the Court not to exercise its discretion to intervene to make such a declaration about any of the Department’s records. The principal reasons why the Court now declines to do so are the following.

200. First, the PPIP Act institutes an efficient procedure for isolating the exact contest between existing public sector agency information and the amendment or qualification the plaintiff wants. These proceedings were commenced on an urgent basis by the plaintiffs and added to by amendments over time. The Department has not been asked to undergo the orderly PPIP Act, s 15 procedure to decide what amendments should be made to its files before this matter came to Court. In my view, to grant declaratory relief now would circumvent this very useful statutory process.

201. Secondly, the plaintiffs ask the Court to determine questions of fact or mixed questions of fact and law, when they ask the Court to amend the Department’s records. This Court has the disadvantage of not having heard from all the witnesses and would have to draw inferences from documents to determine contested facts. Notwithstanding this, the Court has made a number of findings of fact incidental to consideration of the relief which the plaintiffs have sought in other areas. But when it comes to correcting the record on a public sector agency’s files, efficiency and economy suggest that fact-finding should be left to the Civil and Administrative Tribunal and not undertaken in the first instance by this Court. To use the words of Walsh J in Forster, “the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders”.

202. Thirdly, the plaintiffs did not advance any argument to suggest that this case was so exceptional that it should not come within the PPIP Act procedure. Notwithstanding the strong contest between the plaintiffs and the Department about the matters in issue in these proceedings, the dispute they have about the accuracy of the Community Services files are not dissimilar from those in many other such contests. They have not shown good reason why the statutory procedure should not be used. To grant relief in this case, a case which does not shown exceptional circumstances, would be likely to undermine the existing statutory jurisdiction of NCAT and the statutory procedure mandated by PPIP Act, Part 5.

203. Fourthly, the statutory procedure has a number of advantages over approaching this kind of contest in the first instance on a contested summons in the Equity Division or the Administrative Law Division of this Court. The statutory procedure has the advantages of: specifically authorising nuanced relief including apologies; file rectification without necessarily fully resolving factual disputes; provision of information to third parties who may receive misleading information; and compensation (PPIP Act, s 53(7)); involving the Privacy Commissioner with a degree of oversight in the internal review process (PPIP Act, s 54); and, requiring implementation of specific administrative measures from an expert tribunal to “ensure the conduct will not occur again” (PPIP Act, s 53(7)(e)). Such advantages can only be replicated in this Court by reinventing these statutory procedures, attaching them to existing remedies and probably at a far greater cost than the alternative available statutory remedy.

204. Fifthly, to the extent that plaintiffs complain about the disclosure of information by Community Services to NSW Health and individual hospitals, PPIP Act, s 53 and 55 allows specific orders to be made for the correction of disclosed information by the public sector agency, including to other public sector agencies: PPIP Act, s 55(2)(d) and 55(3). This will allow the plaintiff to obtain relief in relation to NSW Health.

205. For these reasons, in exercising its discretion, the Court declines to grant the declaratory relief sought in relation to the statements.

7)   Remedies

206. Availability of damages. The plaintiffs seek damages to compensate for the various forms of maladministration that they allege against the Department. They name a figure for compensatory damages: they say $39 million is appropriate. They also seek $39 million in exemplary damages. This is said to be a “symbolic figure”, representing the “39 strikes that Jesus was lashed with before the crucifixion”.

207. The Department responds that no cause of action has been pleaded that would found a recognised form of legal claim sounding in damages. In my view, the Department’s submissions are persuasive on this issue. Unless specifically authorised by statute (and there is an example of this in the PPIP Act, s 53(7) and 55(2)(e)) damages are not a recognised remedy for review of administrative action.

208. Merits of the claim. Although the plaintiffs’ claim for damages lack proper foundation, it nevertheless advances various reasons why an award of damages is said to be merited. The plaintiffs support their claim for damages with emphasis that: the mother did not see her children for nine months and then only in visits for the next eight months; that the father has not seen them since the day they were assumed into care; and, that the mother’s extended family has not seen the children since then either.

209. The Department responds. It contends that the mother’s failure to see the older children was a self-inflicted penalty. Community Services said that the mother was not precluded by order from seeing her children for nine months. The restriction upon her was that she was not permitted to see them with the father.

210. The plaintiffs further argue that the Department has forced them to seek an injunction in stressful circumstances to protect the child, compromised their post-birth experience, caused them reputational harm, and led to forced-weaning of the youngest of the older children. They further emphasise that the Department did not close the file on the child until 4 December 2014.

211. Finally, in support of their damages claim the plaintiffs argue that the Department has communicated with them in a hostile manner. They argue that the Department has failed to apologise for its conduct or to correct its files about them.

212. None of these merits arguments lays a foundation in law for a claim for damages. But to the extent that the Court has made findings in the historical narrative, it should be observed that those findings do not support the claims of misconduct against the Departmental officers. Having seen Ms Ridley and Ms Sharp give evidence, I do not accept that either of them communicated with the plaintiffs in a hostile manner or that they have any need to apologise to the plaintiffs for their conduct. The issue of correction of files has already been dealt with. The Department closed the file on the child on 4 December 2014. The Department does not wish to take further action in respect of the child or future children unless new information emerges. It made this clear at the hearing. This should really have been the end of the matter, which has now been prolonged because of the plaintiffs’ desire to continue to seek remedies in terms of the prayers for relief. There is no evidence that the Department has sought to take any step towards assuming any form of responsibility for the child under the Care Act after 4 December 2014. As these reasons explain below, even the plaintiffs’ application before Robb J in May this year lacks evidence of any real threat of further action by the Department.

213. The plaintiffs have submitted that exemplary damages are in order here because Community Services officers have breached statutory and fiduciary duties to the family, having acted in excess of powers, have shown no remorse, and have never attempted to correct their unauthorised use of their powers.

214. Exemplary damages. The plaintiffs’ claim for exemplary damages raises two issues for consideration: (1) are exemplary damages available as an adjunct to or consequent upon the relief that the plaintiffs seek; and (2) if exemplary damages were available, is this a case where they would be likely to be awarded.

215. Exemplary damages are not a remedy available to the plaintiffs were they otherwise to be successful in showing that they are entitled to relief in the nature of prerogative relief or to a declaration. Exemplary damages are not a recognised remedy for failed or inadequate administrative action. The remedy finds no place in administrative law.

216. But the conduct of the Department’s officers in this case comes nowhere near the circumstances which might qualify for an award of exemplary damages. What are such circumstances?

217. The principles governing an award of exemplary damages in Australia may be shortly stated. They are still authoritatively stated in the High Court decision of Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 (“Uren”). The Court may award exemplary damages where in respect of the defendant’s conduct there has been “conscious wrongdoing in contumelious disregard of the plaintiff’s rights”. This was confirmed by the High Court in Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 (“Gray”) at [14], which held that while “it may be doubted whether a single formula adequately describes the boundaries of the field in which they may be properly awarded… the phrase… of ‘conscious wrongdoing in contumelious disregard of another’s rights’ describes at least the greater part of the relevant field”.

218. The principal focus of the Court’s inquiry is upon the wrongdoer, not upon the party who was wronged: Gray at [15]. This is due to the underlying purpose of exemplary damages, as both a punitive measure to punish a defendant’s reprehensible conduct and to act as a deterrent: Whitfield v De Lauret & Co Ltd (1920) 20 CLR 71 at 81. But the Court requires more than a mere finding of fault; rather, it must find that the defendant engaged in positive misconduct with necessary intent or recklessness to justify the grant of such an award: Whitbread v Rail Corporation of New South Wales [2011] NSWCA 130, McColl JA at [20].

219. The Court may award exemplary damages where a defendant engages in conduct "variously described as 'wanton and malicious', as 'conscious wrongdoing in contumelious disregard of the plaintiff's rights', as 'outrageous', 'atrocious', 'vindictive', 'arrogant', 'high handed' or 'insolent'": Lamb v Contogno (1987) 164 CLR 1 at 3 (“Lamb”). However, such damages are awarded rarely: Whitbread v Rail Corporation of New South Wales [2011] NSWCA 130, McColl JA at [19].

220. The Court has heard the evidence of the plaintiffs and a number of officers of the Department. The Court has had the opportunity to assess the conduct of the principal officers of Community Services involved with the plaintiffs on important occasions the subject of the plaintiffs’ claims for relief. At no stage of their dealings with the plaintiffs; in my view, did the officers of the Department act in a way that would attract the language used in Uren, Gray or Lamb. These officers were not motivated by ill-will towards the plaintiffs but were all from what the Court could see doing their best to protect the three older children and the child from harm and to act in their best interests in accordance with the objectives of Care Act, s 9. There have been aggressive encounters between the Departmental officers and the plaintiffs from time to time. But it is the mother in particular who has initiated or escalated hostilities on all these occasions. Far from acting in a high-handed, malicious or arrogant way, the Department’s officers have taken conspicuous care to respect the mother’s civil rights at common law and to proceed in a reasonable and measured way in the discharge of their statutory duties under the Care Act.

221. Relief for defamation. The plaintiffs say that many of the statements in the Department’s files are defamatory of them in the different ways indicated. But allegations of defamation are not a sound basis for the plaintiffs to obtain either an interlocutory or a final injunction. Such injunctions are very rare because of the law’s traditional reluctance to interfere with freedom of speech: Stocker v McElhinney (No.2) [1961] NSWR 1043 and Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440. As persons discharging statutory functions in the public interest, the Department officers and the Secretary probably have a variety of defences available to them to an action in defamation, which is all the more reason why such a remedy should not be countenanced in this case. But the plaintiffs are still seeking declaratory relief about the misstatements in the Department’s files.

222. Disciplining Departmental officers. Prayers for relief 19 and 21 seek related relief: prayer 19, that the defendant be punished for violating the orders of Rothman J on 17 October 2014; and, prayer 21, an order in the nature of mandamus compelling the Department to internally discipline caseworkers who intimidated and assaulted the mother on 27 June 2014, and any other caseworkers responsible for invalid administrative actions or the making of false or misleading statements pertaining to the family.

223. As to the alleged violation of the orders of Rothman J on 17 October 2014, there is an established Court procedure for punishing persons for contempt of the Court’s orders. The plaintiffs have not pursued that procedure. The procedure requires the plaintiffs to formulate into a contempt charge the exact breaches of the Court order that are alleged, and to identify the person or persons who are said to be guilty of the particular contempt alleged in each charge. The plaintiffs have not formulated the required charges nor have they identified with the necessary precision the individuals to be charged and the precise conduct to be charged against each individual. It would be quite unfair to the individuals concerned to even consider the grant of such relief in the absence of the plaintiffs complying with the established procedure which is designed to afford procedural fairness to the persons affected.

206. The need to follow proper procedures is especially important given the issues at stake in relation to the possible breach of Rothman J’s orders on 17 October 2014. Rothman J’s principal order was that “the defendant be restrained from taking any child born to the plaintiffs on or after 17 October 2014 or taking any step to interfere with the care and control of any such child”. It would only be possible to establish a breach of this order by particular individuals if it could be shown that they had been notified of the order. Just which officers within the Department had copies of the order after 17 October 2014 is unclear, as is the question of whether any positive steps were taken by any Departmental officer to interfere with the care and control of the child after the date of Rothman J’s orders. The inferences that the plaintiffs seek to draw from file notes about this question are only one view of a picture which is able to be looked at in several different ways.

207. The plaintiffs seek to have the Secretary of the Department discipline caseworkers and Departmental officials who are responsible for assaults upon her and for invalid administrative action. This relief cannot be approved for a number of reasons. Firstly, the Court finds no basis to conclude that any caseworker assaulted the mother or the three older children on 27 June 2014. Moreover, the Court has not found any invalid administrative action has occurred in relation to the mother or the father. And the issue of false or misleading statements on Departmental files to proceed will need to be the subject of a separate process. Finally, the plaintiffs cite the Government Sector Employment Act 2013, s 68 (“GSE Act”) as a basis for disciplining those employees. Apart from the fact that there is no ground to discipline the employees, the GSE Act does not confer any jurisdiction on this Court to discipline government sector employees as defined within the GSE Act. To the extent that there may have been breaches of regulations made under the GSE Act, they are remediable only by summary prosecution before the Local Court: GSE Act, s 87.

208. The plaintiffs further seek an order that the Court’s filing fees for them be waived or be payable by the Department and that each party should pay their own costs of the proceedings.

209. As to the issue of costs, these are not Care Act proceedings, so costs would normally follow the event in accordance with Uniform Civil Procedure Rules, r 42.1. But there may be argument about that question. The matter will be listed for such argument if necessary in due course.

210. But on the issue of Court fees, this is a matter for the Registrar in Equity. Under Civil Procedure Regulation 2012, Part 4, reg 11, the Registrar of the Court has the power to direct that “the whole or any part of any fee payable to the Registrar be waived, postponed or remitted”. If the plaintiffs want any fees in these proceedings remitted, waived or postponed they should approach the Registrar. The proceedings will remain on foot for a limited period to allow them to take this course, if they wish.

Events after the hearing in December 2015

229. In late May this year, the mother made an application for interlocutory relief to Robb J while the Court’s present judgment was reserved. This Court had informed the mother that it was likely that judgment would be delivered in June of this year. Indeed that is what has now happened. But the mother believed it was necessary to seek further interlocutory relief because of an imminent likely change in her circumstances.

230. She appeared before Robb J on the evening of Friday, 27 May 2016 and informed his Honour (who was sitting as duty judge) that she would be having another baby within two weeks. Her application was based upon the imminent birth of this next child.

231. She gave some recent background to Robb J. She explained that she had presented to her local District Hospital for an urgent check-up before the birth and consulted an on-duty obstetrician there. She says that during the consultation she noticed a green “social worker” sticker within the file. When she asked the on-duty obstetrician why there was such a sticker on the file, he said that he could not tell her. He explained that his role was purely an obstetric one. She said to Robb J she then made other enquiries about this social worker sticker but no one was able to tell her why it was in the file. She told Robb J that the District Hospital had refused to release the file to her until yesterday. She finally obtained a copy of the file on 27 May with some redactions to it concerning third-party information.

232. She gave Robb J some relevant history of the main proceedings. She told Robb J that she had presented a case in the December 2015 hearing about the High Risk Birth Alert that the Department had registered for her previous birth, and that the Department had said that it was no longer current. She told Robb J that as a result of hearing this from the Department in December 2015 she felt a sense of security, and thought that she did not need any interlocutory protection before judgment. But she apparently formed the view from her interaction with the District Hospital in late May 2016 that Community Services had probably engaged the Hospital in discussions over her then unborn child’s future welfare on the basis of the old High Risk Birth Alert. She indicated that she believes what she had seen meant the Hospital staff were likely to be distracted to her medical detriment by Departmental social workers, as had happened in the past.

233. The mother was also generally critical before Robb J of the existence of wrong information within the District Hospital’s file. Her principal concern was that a number of hospital errors she mentioned may have been caused by medical staff being distracted by Community Services officers. The plaintiffs were concerned that if communications between Community Services officers were continuing with the District Hospital that it may jeopardise the safety of her impending birth.

234. Especially given the late time of day and the apparently urgent nature of the application the mother made, his Honour decided to request that the Department take no further action until the following Wednesday but without making formal orders. He did note, however, in his observations to her that so far as he could see there was “no evidence that [Community Services] is going to do anything… in relation to your… child”. And he noted that the Department had not taken any other recent steps adverse to her that she could identify. The redacted copy of the Hospital’s file in relation to the mother was tendered in a folder as Exhibit A. This file does not appear on my review to contain any entries that evidence any moves by the Department in recent times to assume the mother’s unborn baby into care.

235. Robb J did not appear to have any formal process before him that day. He therefore stood the proceedings over to 2.00pm on Wednesday, 1 June 2016 for further hearing. He directed that the plaintiffs serve his orders on the Department by 4.00pm on Monday, 30 May. But without making orders his Honour requested that Community Services not interfere with the plaintiffs’ care and control of any child that happened to be born to the plaintiffs between 27 May and 1 June.

236. The matter came back before Robb J on 1 June. The mother appeared before the Court and had not yet given birth. The Department was legally represented by Ms M. Neville of counsel. The plaintiffs filed a motion seeking orders restraining the defendant from removing any child born to the plaintiffs after 1 June 2016 or from taking any steps to interfere with the care and control of any such child. Other orders in the nature of prohibition were also sought.

237. But the Department made its position clear to the Court, as it had before. Ms Neville indicated to Robb J, and the Court noted, that in response to the plaintiffs’ application the Department “has no intention presently of interfering in the birth of the unborn child” and “intends to take no steps to interfere in the care and control the child once born”. Ms Neville indicated that will remain the position “unless there is new information received [by the Department] that would indicate that the child is at risk of harm”.

238. Having noted that statement from the Department, Robb J decided that the Court would make no further order. As the motion before Robb J resulted in no further orders, the Court does not anticipate that any other consequential orders are now required arising out of that application. But the episode tends to confirm that there is no basis for granting an injunction to restrain the Department from taking any action in relation to the plaintiffs. I accept that the Department’s file on this family is closed, and has been for some time but for the continuation of these proceedings.

Conclusions and orders

239. The plaintiffs have failed to make out the final relief that they seek and it follows from the Court’s reasons that the existing interim relief should be discharged. Their Further Amended Summons should be dismissed. Costs would ordinarily follow the event. But there may be an application for a specific costs order. And the plaintiffs may wish to approach the Registrar to seek the remission of their filing fees and the defendant may wish to ensure that all existing orders are discharged by identifying them individually in proposed final orders. So in those circumstances, I will not immediately dismiss the Further Amended Summons but will stand proceedings over for any supplementary argument in relation to costs and the bringing in of short minutes of order to Friday, 19 August 2016 at 9:30am before me.

240. The Court therefore orders:

1. Stand the proceedings over for any supplementary argument in relation to costs to Friday, 19 August 2016 at 9:30am before me.

2. Direct the parties to bring in short minutes of order to give effect to these reasons.

3. Direct the parties to exchange any submissions in relation to costs by Friday, 12 August 2016 at 4pm.

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Amendments

10 August 2016 - Coversheet Representation field - changed "First plaintiff" (where it occurs the second time) to "Second Plaintiff"

paragraph [173] - changed "on which was just counselled" to "on which he was just counselled"

paragraph [174] - changed "speech on thought content" to "speech or thought content"

paragraph [220] - changed "Grey" to "Gray"

Decision last updated: 10 August 2016