Bi v Secretary, Family and Community Services

[2018] NSWSC 1925

Supreme Court

New South Wales

Medium Neutral Citation:	Bi v Secretary, Family and Community Services [2018] NSWSC 1925
Hearing dates:	12 December 2018
Date of orders:	14 December 2018
Decision date:	14 December 2018
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)    Revoke the order made by me on 12 December 2018 extending up to and including 5pm on 14 December 2018 the order made by Bellew J on 4 December 2018. (2)    Dismiss the plaintiffs’ notice of motion filed 3 December 2018. (3)    Order the first plaintiff on or before 5pm on 14 December 2018 to deliver to the first defendant, or as the first defendant may in writing direct, the passport issued for S, a child born on the date referred to in the first defendant’s notice of motion filed in Court on 12 December 2018. (4)    Order that, having regard to the first defendant’s proposal that S will travel from New South Wales to New Zealand and back as indicated in the affidavit of Robyn Harris sworn on 10 December 2018, the first defendant shall take all reasonable and proper steps as may be necessary to ensure that S returns to New South Wales within five days of departing for New Zealand.
Catchwords:	CHILD WELFARE – parens patriae jurisdiction – application for injunction restraining the Minister from allowing the child to visit her father in New Zealand – application dismissed
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), s 90
Category:	Procedural and other rulings
Parties:	Nikhat Bi (First Plaintiff) Abdul Khan (Second Plaintiff) Secretary, Department of Family and Community Services (First Defendant) Legal Aid NSW (Second Defendant) Children’s Court of NSW (Third Defendant)
Representation:	Counsel: P Singleton (First Defendant)   Solicitors: Crown Solicitor’s Office (First Defendant)
File Number(s):	2018/299545
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The first plaintiff is the mother of two daughters. Her elder daughter, to whom I shall refer as “S”, is the subject of the present urgent application. This is referred to shortly. The first plaintiff is divorced from S’s father, who currently lives in New Zealand. The father of the first plaintiff’s younger daughter, to whom I shall refer as “K”, is the second plaintiff.

2. S and K were both removed from the plaintiffs’ care following receipt by Family and Community Services of a risk of harm report in relation to S. The report indicated that S had disclosed that she had been sexually abused on a number of occasions by the second plaintiff. That suggestion is strenuously contested by the plaintiffs and is not in any event a relevant matter for consideration by me.

3. On 15 September 2017, S and K were taken into the care of the Minister for Family and Community Services due to concerns generated by the risk of harm report. On 20 September 2017, the first defendant filed an application initiating care proceedings in the Children’s Court at Campbelltown seeking interim orders that parental responsibility for the children be allocated to the Minister. On 22 September 2017, the Children’s Court made interim orders allocating parental responsibility for S and K to the Minister. On 12 December 2017, the Children’s Court found that the children were in need of care and protection. The plaintiffs consented to that finding without making any admissions concerning the circumstances that were said to support them. On 19 February 2018, the first defendant filed two Minute of Care Orders seeking final orders that parental responsibility for the children be allocated to the Minister until the children attained the age of 18 years. S was born in 2006. K was born in 2017.

4. On 30 April 2018, the plaintiffs filed what purported to be an application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 seeking, in effect, to re-open the Court’s jurisdiction to determine the finding as to whether the children were in need of care and protection. Magistrate Crompton heard that application on 7 July 2018 and decided on 23 August 2018 that they were. The Children’s Court has now listed the final hearing of the matter for two days commencing on 7 March 2019.

5. On 3 October 2018, the plaintiffs commenced these proceedings by summons seeking prerogative relief and other orders that S and K be restored to the care of the plaintiffs under the Court’s parens patriae jurisdiction. On 3 December 2018, the plaintiffs filed a notice of motion seeking, relevantly for present purposes, an order restraining the first defendant from sending S, or allowing S to be sent, to New Zealand to visit her father. That application arises in the following circumstances.

6. S has supervised telephone contact with her father in New Zealand approximately twice each week. During a home visit on 29 November 2018, S told a Child Protection caseworker that contact with her father was going well. S indicated that she would like to start attending a new school in New Zealand and to live with her father. In order to explore that prospect, the first defendant commenced in November 2018 to make arrangements for S to travel to New Zealand in order to have face to face contact with her father and her maternal grandparents before Christmas. The current proposal is for S to be accompanied by, and to reside with, a Family and Community Services caseworker or equivalent throughout the visit, which is expected to last for about three days. Supervised visits with S’s father are anticipated to occur with the possibility of an unsupervised visit on the third day. These proposals will all be subject to satisfactory progress and S’s agreement. Despite some misunderstanding on the part of the first plaintiff, who was concerned that S would be permitted or encouraged to stay with her father, that prospect has been entirely discredited.

7. The plaintiffs oppose S being permitted to travel to New Zealand in accordance with these arrangements or in any circumstances at all. They are concerned that S has been in email contact with a male correspondent in New Zealand, possibly a pupil at the school S seems hopeful of attending, which has been sexually explicit and arguably criminal in nature having regard to S’s age. These concerns, which I accept are genuinely held and expressed, are not supported by any objective material and are not assisted beyond the fact of the plaintiffs’ explication of them in Court to me.

8. Although this Court would not ordinarily exercise its parens patriae jurisdiction in respect of a matter pending before the Children’s Court unless sufficient reason were shown, the first defendant does not take any issue in that regard for present purposes. I am asked in effect to deal with the plaintiffs’ limited application to restrain S travelling to New Zealand on its merits.

Consideration

9. I take the position to be that the exercise of my discretion is primarily informed by an understanding and application of what is in the best interests of S. At its most basic, that analysis is framed between the first defendant’s concern to explore and promote the relationship between S and her father at one extreme and the plaintiffs’ fears that S will abscond and stay in New Zealand where her safety and welfare may not be adequately protected at the other. The first plaintiff also feels and has eloquently expressed a sense of grievance at the fact that the access that is proposed between S and her father will be more liberal and more generous than that afforded to her under the current regime. As sympathetic to that emotion as I am, it is not something that assists my understanding of the matters that are critical to an assessment of S’s best interests.

10. The plaintiffs have suggested that an alternative arrangement might be that S’s father, and even her parents, could just as easily be brought to Australia. Whatever may be the extent of, or limitations upon, the first defendant’s ability to arrange that, there is no evidence, as opposed to a submission, that S’s father would be willing or able to do so.

11. In my opinion, the proposed arrangement for S to visit her father in New Zealand is patently in her best interests. She will be able to meet and interact with him in an environment, presumably his home, in which he feels comfortable, as opposed to some neutral, and correspondingly artificial, environment if he were to come here. The evidence does not permit me to conclude that there is any risk that S will not return to Australia as the proposed arrangement anticipates. Suggestions that a 12 year old child would have the wherewithal or the wit to abscond and to remain permanently or indefinitely undetected in New Zealand find expression in emotion rather than reality, and can confidently be put to one side. In any event, the orders that I propose ought clearly to operate both to ensure S’s return to Australia with the assigned officer on the one hand and to assuage any fears that the plaintiffs might retain until that occurs on the other hand.

12. S was born in New Zealand and came to Australia on a New Zealand passport. That passport is currently held by the first plaintiff who has refused so far to provide it to the first defendant. The first defendant has sought an order that the first plaintiff surrender that passport to the Minister by delivering it to the Community Services Centre operated by the Department of Family and Community Services by no later than 5pm on 14 December 2018.

13. The first plaintiff did not make any submissions with respect to this issue.

14. In my opinion, the following orders should be made:

1. Revoke the order made by me on 12 December 2018 extending up to and including 5pm on 14 December 2018 the order made by Bellew J on 4 December 2018.

2. Dismiss the plaintiffs’ notice of motion filed 3 December 2018.

3. Order the first plaintiff on or before 5pm on 14 December 2018 to deliver to the first defendant, or as the first defendant may in writing direct, the passport issued for S, a child born on the date referred to in the first defendant’s notice of motion filed in Court on 12 December 2018.

4. Order that, having regard to the first defendant’s proposal that S will travel from New South Wales to New Zealand and back as indicated in the affidavit of Robyn Harris sworn on 10 December 2018, the first defendant shall take all reasonable and proper steps as may be necessary to ensure that S returns to New South Wales within five days of departing for New Zealand.

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Decision last updated: 25 February 2020