Abraham v Department of Communities and Justice

[2019] NSWSC 1071

Supreme Court

New South Wales

Medium Neutral Citation:	Abraham v Department of Communities and Justice [2019] NSWSC 1071
Hearing dates:	15 August 2019
Date of orders:	15 August 2019
Decision date:	15 August 2019
Before:	Henry J
Decision:	Dismiss the plaintiff’s summons; make recovery orders in respect of the child.
Catchwords:	CHILD WELFARE – whether appropriate for Court to exercise parens patriae jurisdiction where Children’s Court of NSW has already made orders – Court declined to exercise jurisdiction   FAMILY LAW – children – jurisdiction of Children’s Court of NSW – whether child “ordinarily resident” in NSW – recovery order made
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 4, 61, 136, 137 Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8 Family Law Act 1975 (Cth), ss 60CC, 67B, 67U Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 9
Cases Cited:	MAW v Western Sydney Area Health Service [2000] NSWSC 358 Re Tilly v Minister for Family and Community Services [2015] NSWSC 1208
Category:	Principal judgment
Parties:	Yael Abraham (Plaintiff) Department of Communities and Justice (Defendant) Jane (Child)
Representation:	Counsel: Self-represented (Plaintiff) C Christaki (solicitor) (Defendant) N Callander (solicitor) (Child)   Solicitors: Crown Solicitor’s Office NSW (Defendant) Legal Aid NSW (Child)
File Number(s):	2019/00255161

Judgment – Ex tempore (Revised)

1. These proceedings came before me late this afternoon as the duty judge. The fundamental question to be resolved is whether the child I will refer to as Jane (not her real name), who is aged ten, should remain in the custody of the plaintiff, Ms Yael Abraham, or whether a recovery order should be made in favour of the Department of Communities and Justice (the Department) pursuant to s 67U of the Family Law Act 1975 (Cth).

2. Jane is not related to Ms Abraham but has been living with Ms Abraham and her family in Sydney on and off since approximately February this year. Her father passed away three years ago and her mother has, by all reports, serious addiction and mental health issues.

3. On 5 August 2019, the Secretary of the Department made an application in the Children’s Court of NSW for an interim order allocating parental responsibility for Jane to the Minister pursuant to s 61(2) of the Children and Young Persons (Care and Protection) Act, which order was granted on 6 August 2019. Accordingly, since that time the Minister has had interim care responsibility for Jane.

4. Ms Abraham has, in the past, been authorised as a carer for the purposes of the Children and Young Persons (Care and Protection) Act 1998 (NSW). On 16 July 2018, Ms Abraham was notified by the Department that she is no longer authorised to provide care for any further foster children. She has not made a formal application to be approved as an authorised carer for Jane and is not currently approved to do so.

5. By summons, which I gave her leave to file in Court tonight, Ms Abraham seeks the following orders:

1. that the care orders made by the Children’s Court on 6 August 2019 in respect of Jane be dismissed;

2. that the Department be restrained from removing Jane from her care; and

3. a declaration that the child is not currently a child at risk.

6. This is not the first time Ms Abraham has come before this Court on an urgent basis in relation to the interim care order made in respect of Jane. On the afternoon of 6 August 2019, in circumstances where she had not been granted leave to join the Children’s Court proceedings, Ms Abraham appeared on an urgent ex parte basis before Hallen J, sitting as the Equity Duty Judge, in relation to a proposed application concerning Jane. No summons was filed by Ms Abraham on that occasion and Hallen J adjourned the matter to the next day.

7. On 7 August 2019, a legal representative of the Department appeared before Hallen J in person and Ms Abraham appeared by telephone. Again, no summons was filed by Ms Abraham in relation to her application regarding Jane’s care. It appears that her application was resolved as a result of undertakings given by Ms Abraham to the Court, which Hallen J noted in the following terms:

1. she [Ms Abraham] will return the child [Jane]…to New South Wales by 2.00pm on Monday 12 August 2019;

2. she [Ms Abraham] will, by noon on Thursday 8 August 2019, inform the Department…of the address at which the child [Jane] is currently staying;

3. she [Ms Abraham] will consent to an officer of the Queensland Department of Child Safety visiting with the child [Jane] on either Thursday 8 August or Friday 9 August 2019, on 3 hours’ notice; and

4. she [Ms Abraham] will consent to an officer of the Department…visiting the child on Monday 12 August 2019 at the address in Sydney at which the child is then staying.

8. It is not in dispute that Ms Abraham and the Department subsequently agreed to an arrangement whereby Ms Abraham was not required to comply with her undertaking to return Jane to New South Wales on Monday 12 August 2019. They instead agreed to an arrangement whereby Ms Abraham would facilitate Jane spending time with her aunt, Sonya, during the week of 12 August (while they were both in Queensland) and would then deliver Jane to her aunt’s care at a location in Queensland on the evening of Thursday, 15 August 2019.

9. By her summons filed at the hearing, Ms Abraham now seeks to be excused from that arrangement as she does not want to deliver Jane to the Department’s care tonight via Jane’s aunt, or at all. This has led to the Department proposing competing orders which seek Jane’s recovery from Queensland.

10. The above background explains the urgency of these proceedings and why I have given my judgment at 11pm tonight. It also explains why my reasons are, in the circumstances, necessarily brief.

11. The Department was represented at the hearing by Mr Christaki. He contests the making of the orders sought in the summons and seeks recovery orders in circumstances where Ms Abraham had taken Jane out of the jurisdiction to live with Ms Abraham and her family in Queensland, having left Sydney to do so on 2 August 2019.

12. The legal representative for Jane, Ms Callander, also appeared at the hearing and agrees with the Department.

13. At the hearing, Ms Abraham, who was self-represented, filed in Court and relied on four pages of her own unsigned and undated affidavit. She was also provided with an opportunity to give evidence in the witness box, which she did, and was given copies of some relevant authorities referred to in oral submissions by the Department and Ms Callander.

14. Before turning to the orders sought by Ms Abraham in her summons, it is appropriate that I record my views on her evidence. I did not find Ms Abraham to be a convincing or credible witness. She gave evidence that was inconsistent in a number of respects on issues that were very relevant to her application, including the dates on which she sought to leave Sydney and relocate to Queensland, whether she had the consent of Jane’s birth mother to take Jane out of her school in Sydney and relocate with her to Queensland, and her position in relation to the Department’s attempts to gain access to Jane. She also had difficulty answering simple and direct questions, including whether she had applied to be an authorised carer for Jane. I have concluded that she has not.

15. I accept that this is an emotional situation for Ms Abraham and also accept that she genuinely cares for, and her family may have established bonds with, Jane. I am not, however, satisfied that she was completely frank about her reasons for moving to Queensland with Jane and the timing of that move. I also do not accept her evidence that the Department had consented to her caring for Jane and relocating with Jane to Queensland on or before 2 August 2019 in the absence of any documentary evidence to that effect.

16. Having heard the evidence and the submissions of the parties, I am not satisfied that any of the orders sought by Ms Abraham should be made by the Court and propose to dismiss her summons. This is for the following reasons.

17. I do not accept Ms Abraham’s submission that the Children’s Court did not have jurisdiction to make the care orders in respect of Jane on 6 August 2019.

18. Pursuant to s 4(a) of the Children and Young Persons (Care and Protection) Act, the Children’s Court has jurisdiction to exercise functions imposed under that Act, including the making of interim care orders, in respect of children and young persons who ordinarily reside in New South Wales.

19. At the time the application was made by the Department and the interim care order was granted on 6 August 2019, Jane appears to have been physically present with Ms Abraham’s family in Queensland. Despite this, I am of the view that, at the relevant time Jane would be considered to have ordinarily resided in New South Wales. The evidence before me, in the form of the Department’s application to the Children’s Court, indicates that Jane was enrolled at the Bondi Beach Public School and Ms Abraham could not point to any written communication with the school indicating otherwise. Further, according to the Department’s application, at the time the Children’s Court order was made, Jane’s mother had not apparently consented to her being relocated with Ms Abraham to Queensland. Ms Abraham’s own evidence also suggested that she did not know how long they would be there.

20. I also consider that the purposes of the Children and Young Persons (Care and Protection) Act, the objects of which include to ensure that children receive such care and protection as is necessary for their safety, welfare and wellbeing, and the related jurisdiction of the Children’s Court, should not be defeated by the mere assertion that a child who has always resided in New South Wales had moved out of the State a mere two and a half days prior to a care application having being made and determined.

21. For those reasons, I am not satisfied that the Children’s Court order should be dismissed on the basis of Ms Abraham’s submission that it did not have jurisdiction because Jane did not ordinarily reside in New South Wales at the time the order was made.

22. Ms Abraham’s proposed orders seeking to restrain the removal of Jane and a declaration that she is not currently a child at risk are not orders which I am satisfied are appropriate for this Court to make in circumstances where the Children’s Court has already made an interim care order in favour of the Department and the matter is coming back before that Court on 29 August 2019.

23. If Ms Abraham wishes to challenge the Children’s Court order, it is more appropriate for her to do so in that forum. This is particularly in the context where I am not satisfied that there are exceptional circumstances which warrant my intervention with the interim care order. To the contrary, the provisions of the Children and Young Persons (Care and Protection) Act make clear that Ms Abraham, as someone other than an authorised carer, may be guilty of an offence by keeping Jane in her care: s 136(2) Children and Young Persons (Care and Protection) Act.

24. Further, while the Court’s parens patriae jurisdiction is well recognised and understood, it is essentially protective in nature and, although broad, is to be exercised cautiously. Its existence and exercise are founded on a need to act on behalf of those who are in need of care and cannot act for themselves. In exercising the parens patriae jurisdiction, the paramount consideration of the Court is the promotion of the health or welfare of the subject of the exercise of the jurisdiction. Its exercise should not be for the benefit of others. Furthermore, it has limits: see MAW v Western Sydney Area Health Service [2000] NSWSC 358 at [27] and [31].

25. Ms Abraham seeks the Court’s intervention because of her concern about the impact on Jane of her removal from Ms Abraham’s care to that of an aunt whom Ms Abraham says Jane does not know well.

26. I accept that removing Jane from Ms Abraham’s care may be stressful and difficult for Jane particularly where she has been recently uprooted by Ms Abraham from her familiar surroundings, friends and routine in Sydney. But that is not enough to warrant the Court exercising its parens patriae jurisdiction in circumstances where doing so would prevent the Department from carrying out its statutory duties and result in the Court making an order that requires a person to act contrary to statute. That is, requiring Ms Abraham to care for Jane in circumstances where she is not authorised to do so under the relevant legislation and there is an existing interim care order in place: see ReTilly v Minister for Family and Community Services [2015] NSWSC 1208 at [38]–[40].

27. The final issue for determination is whether the Court should make recovery orders in the terms sought by the Department. The orders sought would enable the relevant Department case workers and/or persons from the Department of Child Safety Queensland to do all things necessary, in conjunction with Jane’s aunt, to effect the return of Jane to the care of the Minister.

28. This Court has jurisdiction to make a recovery order of that type pursuant to s 9(2)(a) of the Jurisdiction of Courts (Cross-vesting) Act1987 (Cth) and s 67U of the Family Law Act.

29. Jane’s best interests are paramount in deciding whether to make a recovery order: see s 67B of the Family Law Act. Section 60CC of the Family Law Act sets out a number of relevant considerations to which the Court may have regard in deciding whether to make a recovery order.

30. I accept the submissions of Ms Callander and the Department that it is in the best interests of Jane to be removed from Ms Abraham’s care and for the Department to arrange for her to live with her aunt, at least until the Children’s Court proceedings resume on 29 August 2019. Doing so should enable Jane to be in the care of a biological family member which is likely to provide her with the best opportunity of re-establishing a relationship with her birth mother and other family members. This is a relevant consideration: s 60CC(2)(a) of the Family Law Act.

31. I also accept that if the Court does not make a recovery order at this time and Jane was to remain with Ms Abraham on a full-time basis, it may lead to some negative attitude on the part of Jane towards her biological family given the way in which Ms Abraham has discussed Jane’s aunt and her mother during the course of the hearing, including making some very serious and what appear to be unsupported allegations about the aunt and her past conduct.

32. Jane’s aunt has been through all relevant probity checks by the Department and is provisionally authorised as a carer under s 137 of the Children and Young Persons (Care and Protection) Act, unlike Ms Abraham.

33. The Court has not had the benefit of hearing Jane’s views on these matters other than through assertions made by Ms Abraham. That said, she is young, only ten years old, and may have been influenced by Ms Abraham. The prospect of obtaining views from her which would be useful to the Court is, therefore, in doubt.

34. I can only proceed on the material before me, such as the information contained in the Department’s application to the Children’s Court for the interim care order, which includes material that indicates that Jane’s mother had concerns about Jane living with Ms Abraham and did not want Jane to relocate with her to Queensland. That information is, in my view, significant to this application.

35. As I have noted earlier, this is likely to be a difficult time for Jane and the Court accepts that she may experience some additional disruption as a result of a recovery order. But she is currently subject to an interim care order made by the Children’s Court and is in the custody of someone who is not an authorised carer under the relevant legislation. She has been removed from her usual surroundings in Sydney at short notice without clear written authority to do so from her mother or the Department, and it appears she may not have current contact with her biological family other than another aunt.

36. In these circumstances, I am satisfied that it is in the best interests of Jane to make a recovery order in the terms sought by the Department subject to some changes which I have discussed with the parties to try and facilitate a transition of Jane to the care of the Minister and her aunt in Queensland during the course of tomorrow with as little disruption and stress as possible.

37. At the hearing, Ms Abraham undertook to the Court to facilitate the smooth transition of Jane to her aunt and the Department in any way she can if I made recovery orders. I would expect her to fulfil that undertaking, recognising that it may be painful for her to do so. We all need to place Jane’s best interests, rather than our own personal feelings, at the forefront in this matter.

38. Finally, I note that making the recovery orders does not prevent Ms Abraham from seeking to be joined to the Children’s Court proceedings, although I make no comment as to whether there is any merit in such an application. I also note that the orders do not prevent her and her family from seeking to keep in contact with Jane via her aunt on an informal basis, as acknowledged by Ms Callander during final submissions.

39. For these reasons, I decline to make the orders sought by Ms Abraham in her summons, will make recovery orders in the terms amended, dated and initialled by me and placed with the papers, and otherwise dismiss Ms Abraham’s summons.

40. I also make a suppression order pursuant to s 8(1)(a) and s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that there be a prohibition on the publication and disclosure of the name of the child referred to in these proceedings, the address of the child’s aunt, and over the terms of the recovery and other orders that I have made here tonight.

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Decision last updated: 20 August 2019