DB v Secretary, Department of Communities and Justice

[2024] NSWSC 470

Supreme Court

New South Wales

Medium Neutral Citation:

DB v Secretary, Department of Communities and Justice [2024] NSWSC 470

Hearing dates:

12 and 18 April 2024

Decision date:

29 April 2024

Jurisdiction:

Equity

Before:

Lindsay J

Decision:

Subject to allowing the parties an opportunity to be heard as to the form of the orders to be made, the plaintiff’s summons for parens patriae relief is to be dismissed, leaving the plaintiff to pursue his appeal to the District Court of NSW from orders made by the Children’s Court of NSW under the Children and Young Persons (Care and Protection) Act 1998 NSW

Catchwords:

FAMILY LAW AND CHILD WELFARE – Parens patriae jurisdiction of the Supreme Court – Grandfather of child in care simultaneously lodges an appeal to the District Court of NSW from orders of the Children’s Court of NSW and applies to the Supreme Court for parens patriae orders - Supreme Court proceedings summarily dismissed as vexatious and an abuse of process – Best interests of child favour expedited determination of District Court appeal

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 NSW

Children’s Guardian Act 2019 NSW

Children and Young Persons (Care and Protection) Regulation 2012 NSW

Cases Cited:

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

George v Children’s Court of New South Wales [2003] NSWCA 389; 59 NSWLR 232

Harris v Department of Communities and Justice [2021] NSWSC 519

Re Eve [1986] 2 SCR 388; (1986) 31 DLR (4th) 1

Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608

Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157

Re W and L (Parameters of Protected Estate Management Orders [2014] NSWSC 1106

RH v Secretary, Department of Communities and Justice [2021] NSWCA 101

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218

Spencer v Commonwealth (2010) 241 CLR 118

Waltons v Gardiner (1993) 177 CLR 378

Wellesley v Duke of Beaufort (1827) 2 Russ 1; 38 ER 236

Wentworth v Rogers (No 5) (1986) 5 NSWLR 534

Williams v Spautz (1992) 174 CLR 509

Category:

Principal judgment

Parties:

Plaintiff: DB, maternal grandfather of a child in care
First Defendant: Secretary, NSW Department of Communities and Justice
Second Defendant: Lifestyle Solutions Australia Ltd
Third Defendant: Children’s Court of NSW
Fourth Defendant: [Removed as a party]
Fifth Defendant: Birth father of the child in care

Representation:

Counsel:
Plaintiff: Self represented
First Defendant: Claire Baldwin (senior solicitor for Crown Solicitor) and Greta Bromwich (solicitor advocate for Crown Solicitor)
Second Defendant: Luke Geary, Solicitor
Third Defendant: Submitting appearance.
Fifth Defendant: No appearance
Independent Legal Representative: Violet Willoughby

Solicitors:
Plaintiff: Self represented
First Defendant: Karen Smith, Crown Solicitor for NSW
Second Defendant: Mills Oakley
Independent Legal Representative: Willoughby Law

File Number(s):

2023/00240573

JUDGMENT

INTRODUCTION

1. Before the Court is an application by the Secretary of the NSW Department of Communities and Justice for summary disposal of proceedings instituted, and maintained, in this Court (seeking parens patriae relief) in parallel, initially, with care proceedings in the Children’s Court of NSW and, now, on appeal in the District Court of NSW.

2. These proceedings concern the welfare of a three year old child taken into care by the Secretary (exercising a power under section 44 of the Children and Young Persons (Care and Protection) Act 1998 NSW) (“the Care Act”) shortly after her birth and, soon thereafter, placed with an authorised carer (not a blood relative), with whom she has been living in foster care since that time.

THE PARTIES

3. The plaintiff in the principal proceedings is the maternal grandfather of the child. The Secretary is the first defendant, and the plaintiff’s principal contradictor. The second defendant is a “designated agency” (accredited by the Children’s Guardian pursuant to sections 4 and 72 and Schedule 3A of the Children’s Guardian Act 2019 NSW for the purposes of the Care Act and the Children and Young Persons (Care and Protection) Regulation 2012 NSW) which, from a time shortly after the child was taken into care, has had case management for the child under the supervision of the Secretary and, pursuant to section 82 of the Children’s Guardian Act 2019, a responsibility to supervise the placement of the child in the “out-of-home care” of the authorised carer of the child.

4. The third defendant (the Children’s Court) filed a submitting appearance. The fourth defendant (the independent legal representative who appeared for the child in the Children’s Court) was removed as a party to the proceedings. The fifth defendant (the birth father of the child) has taken no part in the proceedings. The birth mother was not named as a defendant in the proceedings and has taken no part in them, save to the extent that she has remained in contact with her father, the plaintiff.

THE COURSE OF EVENTS

5. As required by the Care Act, shortly after taking the child into care the Secretary initiated “care proceedings” under the Act in the Children’s Court by way of an application seeking, inter alia, interim orders placing the child under the interim parental responsibility of the Minister of Families and Communities.

6. In due course the Children’s Court made interim orders placing the child under the parental responsibility of the Minister; a finding that the child was in need of care and protection; and a finding that there was no realistic possibility of a restoration of the child to the care of her birth parents within a reasonable time, noting that neither birth parent ultimately had sought restoration.

7. Over eight days between 28 April 2023 and 25 August 2023 a Children’s Magistrate heard the Secretary’s application for a final order that all aspects of parental responsibility for the child be allocated to the Minister until she reaches 18 years of age.

8. On 23 November 2023 the Children’s Court published reasons for judgment in support of a determination that the child’s best interests would be met by her remaining under the parental responsibility of the Minister until the age of 18 years.

9. On 30 November 2023, as directed by the Court, the Secretary filed with the Children’s Court an Amended Care Plan.

10. On 17 December 2023 the Children’s Court made final orders allocating parental responsibility to the Minister until the child attains the age of 18 years.

11. The maternal grandfather of the child, the plaintiff in the present proceedings, actively participated in the proceedings in the Children’s Court that culminated in the final orders made on 7 December 2023.

12. He was joined in those proceedings as a party (over an objection by the Secretary) on his own application.

13. As a finding of “no realistic possibility of a restoration of the child to the care of her birth parents” was conceded by the birth mother and (after some hesitation) by the birth father, the proceedings in the Children’s Court focused primarily on questions relating to permanency planning and placement.

14. The central contest in the Children’s Court focused upon the plaintiff’s application to have the child placed in his care. That application was opposed by the Secretary largely on the ground that a placement with the plaintiff could not realistically provide a risk-free environment for the child in light of complex family arrangements not wholly within the control of the plaintiff.

15. After reviewing the evidence before her, and commending the plaintiff for his presentation of his case in the Children’s Court, the Children’s Court Magistrate explained her reasons for finding against his application for parental responsibility of the child in the following terms (with editorial adaptation):

“It is my view the concerns raised by the Secretary throughout the proceedings with regards to [the plaintiff] are not without merit. Having said that, as the evidence unfolded those concerns were given some context and, in my view, have the potential to be ameliorated with intensive intervention and supervision by the Department [of Communities and Justice]. This is not, however, an available option; [the plaintiff] has not been authorised [as a carer]. The Department have remained steadfast in their view in this regard. I can see no practical arrangement whereby the Department and [the plaintiff] could work together to parent [the child]. I believe that any such arrangement has the potential to be disruptive and intrusive and would not be in [the child’s] best interests.

Additionally, the Court holds considerable concerns with regard to [the child’s] wellbeing if she were to be removed from her current placement. [The child] has been in her current placement since birth. She is settled, appears to be thriving and doing well. Any upheaval or change risks the potential for harm. When considering the safety, welfare and well-being of the child as the paramount consideration I refer in particular to section 9(1)(c) [of the Care Act] in deciding what action is necessary to take. In order to protect a child from harm the course to be followed must be the least intrusive intervention in the life of a child. Any transition from the current carer to [the plaintiff] would need to be carefully considered and implemented over a lengthy period of time and, again, without Department intervention and assistance, I cannot see how this could practically and safely occur. An unacceptable risk of harm to the child is to be assessed from the accumulation of factors. An assessment of unacceptable risk is a predictive exercise. The assessment of risk is an evidence-based conclusion and is not discretionary.

In summary, the evidence before the Court points to [the plaintiff] having a fraught and volatile and difficult relationship [with the birth mother], a difficult and toxic relationship with [the birth father]. Despite good intentions and an inability to practically maintain, encourage and foster relations with the extended maternal and paternal family given the difficult, complex family dynamics and, to a lesser extent, a long-standing history of police involvement and a history of DCJ involvement.

…

Despite these concerns being given context the existence of risk is still live and, in my view, the above factors in combination with removing [the child] from the current placement combine to an unacceptable level of risk to [the child]. I am not satisfied that it would be in [the child’s] best interests for parental responsibility to be allocated to [the plaintiff]. The orders sought by the Secretary serve, in my view, to appropriately address the paramountcy principles.”

16. Having formally found that the child’s best interests would be served by allocating parental responsibility to the Minister until she reaches the age of 18, the Children’s Magistrate made the following additional observations (with editorial adaptation):

“[The plaintiff] should be assured that this decision has come after a considerable degree of thought and consideration and has not been made lightly. It has been conceded by both the Secretary and the [independent legal representative of the child] that [the plaintiff] is a very important figure in [the child’s] life and it should be the priority of the Department that he remains as such. The most recent care plan that it may, in the future, be appropriate to reduce the level of supervision for contact with [the plaintiff] and allow for unsupervised family time. I strongly encourage the Department to continue to aim for such an arrangement so that [the child] may enjoy a more natural relationship with her grandfather.”

17. The complex family arrangements identified in the Children’s Court as an impediment to an allocation of parental responsibility in favour of the plaintiff centre upon the drug culture that has gripped the birth mother (his daughter) and the birth father, a toxic environment to which the birth mother was apparently, tragically introduced by her own mother (the plaintiff’s former wife).

18. The “long-standing history of police involvement” and the “history of DCJ involvement” to which the Children’s Magistrate referred can be taken as no reflection on the plaintiff personally but as a reference to the dysfunctional conduct of the child’s birth parents and to the plaintiff’s engagement with public authorities when the child’s birth mother was herself taken into care and the subject of substantial litigation in which the plaintiff was actively involved.

19. The current proceedings, in this Court, were commenced by a summons filed by the plaintiff on 28 July 2023 seeking orders directed to the conduct of the then pending proceedings in the Children’s Court, including directions, in effect, that the Secretary provide funding for the care of the child (implicitly by him) and that the Children’s Court override any decision made to deny him the status of an authorised carer.

20. That summons was subsequently amended, most recently on 18 March 2024 after the plaintiff had received the benefit of pro bono legal advice. It is presently cast in terms of orders that might be sought in an appeal from the Children’s Court to the District Court under the Care Act, although it is accepted by the Secretary, the plaintiff and the second defendant for the purposes of this judgment that the plaintiff has sought to invoke the inherent, parens patriae jurisdiction of this Court.

21. On 1 December 2023 the plaintiff filed a summons in the District Court by way of an appeal under the Care Act, seeking an order that he be allocated parental responsibility of the child until she attains the age of 18 years.

22. When those proceedings came before Gibson DCJ on 1 March 2024 the plaintiff conceded to her Honour that his hope is to press the proceedings in this Court and then, if unsuccessful in this Court, to pursue a full appeal to the District Court under section 91 of the Care Act. He sought a stay of the District Court proceedings to facilitate the conduct of these proceedings. The application for a stay was refused, but the District Court proceedings were nevertheless adjourned pending developments in this Court.

23. On 25 August 2023 the Secretary filed a notice of motion seeking orders for summary disposal of these (Supreme Court) proceedings. A further notice of motion (in substance seeking the same summary disposal orders) was filed by the Secretary on 26 February 2024. It is that second notice of motion that is presently before the Court.

CONTEXT

24. I proceed on the basis that the plaintiff is a man of good character who has done his best to care for his children (two daughters, the wayward birth mother and an older sister who has lived a stable life) and cares deeply for the welfare of the child as a member of his family.

25. That said, he has not, to date, been content to play the role of a grandfather to the child. He has been anxious to play the role of a father to her. His insistence that he be allocated parental responsibility for the child, setting himself against the Secretary and the second defendant, has possibly contributed to his lack of contact with the child in recent days.

26. His more modest ambition to be approved as an “authorised carer” of the child (and, incidentally, to receive funding attached to that status) has been sacrificed to the larger contest (of parental responsibility) thus far lost by him: in allocation of parental responsibility to the Minister; and the refusal of the Secretary and the second defendant to approve him as an “authorised carer” so as to permit him to have care of the child for an extended period of time, rather than occasional contact.

27. Part of the problem with these proceedings and the care proceedings in both the Children’s Court and the District Court is that the second defendant rejected the plaintiff’s application to it to be approved as an authorised carer notwithstanding that an independent assessor’s report (dated 14 October 2022) recommended that he be approved. The second defendant’s internal “Authorisation Panel” resolved not to approve the plaintiff as a carer and, on or about 14 November 2022, the second defendant wrote to the plaintiff advising him of that decision.

28. The plaintiff is an experienced litigator, having brought proceedings in relation to the birth mother when she was a young person (in which she was given a pseudonym, “Madison”).

29. The following judgments have been published in relation to the “Madison” proceedings:

1. Re Madison [2014] NSWSC 1874;

2. Re Madison (No 2) [2015] NSWSC 27;

3. DB v The Secretary, Department of Family and Community Services [2016] NSWCA 83; and

4. DB v The Secretary, Department of Family and Community Services [2016] HCASL 268.

THE SECRETARY’S DISMISSAL MOTION

30. The Secretary’s motion seeks an order for dismissal of the plaintiff’s proceedings pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 NSW or an order for the plaintiff’s summons to be struck out pursuant to UCPR rule 14.28.

31. Those two rules are in the following terms:

“13.4 Frivolous and vexatious proceedings

(cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)

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

(a)    the proceedings are frivolous or vexatious, or

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

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

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

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

…

“14.28 Circumstances in which court may strike out pleadings

(cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3)

(1)   The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading--

(a)    discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)    has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)    is otherwise an abuse of the process of the court.

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

32. It is convenient to deal with the Secretary’s application in the context of these rules of court, but important to acknowledge that the inherent jurisdiction of the Court extends to the making of orders designed to prevent its process being abused: Williams v Spautz (1992) 174 CLR 509 at 518; Waltons v Gardiner (1993) 177 CLR 378 at 392-393.

33. That said, the application for an order under UCPR rule 14.28 is misconceived because the operation of that rule is confined to the striking out of a “pleading”, an expression defined in UCPR rule 1.2 (and the Dictionary to the Rules) as including a statement of claim, defence, reply or subsequent pleading but not a summons or notice of motion.

34. The Secretary’s application fits easily within UCPR rule 13.4(1)(a) or rule 13.4(1)(c), but does not sit comfortably within UCPR rule 13.4(1)(b) because an application for parens patriae relief is directed not to an entitlement of the plaintiff applicant but to protection of a person who, by reason of infancy or incapacity for self-management, is in need of protection.

35. An officious application for parens patriae relief might be challenged on the ground that it is “frivolous or vexatious” or “an abuse of the process of the Court”, and the applicant’s standing to make an application might be challenged if the application is not calculated to serve the protective purpose of the Court’s jurisdiction (Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [92]-[94]), without attributing an extended meaning to the expression “cause of action”.

32. Any application for summary disposal of proceedings (which is to say, a disposal of proceedings without a hearing on the merits) must be approached with caution: Spencer v Commonwealth (2010) 241 CLR 118 at 131-132 [24]. Allowance must also be made for the fact that the plaintiff in these proceedings is an unrepresented litigant (Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-537), albeit a person experienced in the conduct of care proceedings and their intersection with an exercise of parens patriae jurisdiction.

33. Caution is particularly required upon a consideration of an application for summary disposal of an application for parens patriae relief because the primary focus of an exercise of parens patriae jurisdiction is not upon vindication of a right of a plaintiff but upon protection of a person in need of protection. That said, for the same reason, an order for the dismissal of an application for parens patriae relief does not, of itself, operate as an impediment to a fresh application for parens patriae relief.

34. The nature of the Court’s parens patriae jurisdiction has been authoritatively determined by the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259 by reference, inter alia, to Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21 and Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243. The Crown, as parens patriae [parent of the nation], has an inherent jurisdiction to do what is for the benefit of a person lacking capacity for self-management by reason of age or disability. Its limits (or scope) have not been, and cannot be, defined. There is in theory no limitation on the jurisdiction, although it must be exercised in accordance with principle.

35. The classic statement of Lord Eldon in Wellesley vDuke of Beaufort, quoted by the High Court, bears repetition:

“[The jurisdiction] belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded upon the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them.”

40. The following extracts from the judgment of LA Forest J of the Canadian Supreme Court in Re Eve, implicitly endorsed by the High Court, also bear repetition (with editorial adaption and omitting citations of authority):

“[The Court’s protective jurisdiction, derived from the Crown] continues to this day, and even where there is legislation in the area, the courts will continue to use the parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit…: [1986] 2 SCR 411; 31DLR (4th) 17.

… [The] theoretically unlimited nature of the jurisdiction … has to do with its scope. It must, of course, be used in accordance with its informing principles … : [1986] 2 SCR 414; 31 DLR (4th) 19.

… [A] court may act not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended. … [The] jurisdiction is a carefully guarded one. The courts will not readily assume that it has been removed by legislation where a necessity arises to protect a person who cannot protect himself: [1986] 2 SCR 426; 31 DLR (4th) 28.

Though the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion to exercise it is unlimited. It must be exercised in accordance with its underlying principle. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised … The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as the seriousness of the matter increases. This is particularly so in cases where a Court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual: [1986] 2 SCR 427; 31 DLR (4th) 29.”

41. The Court’s parens patriae jurisdiction is expressly preserved by section 247 of the Care Act.

42. In the context of care proceedings in the Children’s Court, and on appeal from the Children’s Court, governed by the Care Act it is commonly said that the Court will not, upon exercise of parens patriae jurisdiction, intervene so as to override the statutory scheme governing proceedings in the Children’s Court as a specialist court, with defined rights of appeal, unless there are “exceptional circumstances”.

43. A classic statement of the law on this point is that found in the judgment of Palmer J in Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 at [35]-[42], with emphasis added:

“[35]   … The substantial question is what is the appropriate forum for the determination of this contest in the circumstances of this case.

[36]   In my opinion, I must have primary regard to the fact that the 1998 Act provides for the operation of a specialist jurisdiction within the Court system of this State. Matters concerning the welfare of children are to be dealt with by a Children’s Court consisting of Magistrates highly experienced in the determination of such issues. The 1998 Act also specifically provides that appeals from the Children’s Court lie to the District Court; s.91 provides a machinery for the conduct of those appeals and vests the District Court with the appropriate jurisdiction to make all such orders as the Children’s Court might make for the welfare of the child.

[37]   I do not think that there should be encouraged a procedure whereby persons who have fully contested a matter in the Children’s Court and wish to appeal can by-pass the appeal provisions of the 1998 Act and come straight to this Court seeking to invoke its inherent wardship jurisdiction. Quite apart from the fact that to do so would sanction a departure from the appeal procedure laid down by the legislature in the 1998 Act, such an application would involve a quite different question from that which is normally raised on an appeal. In an application to this Court in its wardship jurisdiction, the question is not whether the decision of the Children’s Court, or of the District Court on appeal from the Children’s Court, was right or wrong or whether the wide powers conferred on a Court under the 1997 or 1998 Acts were rightly or wrongly exercised or could have been better exercised. The question before this Court will be: what is in the best interests of the child as matters stand at the date of this Court’s judgment. It may be that the circumstances revealed in, or flowing from, the decisions of the lower Courts have a great part to play in the consideration of that question, but they will not necessarily be conclusive. Indeed, in certain circumstances what transpired in the lower Courts might be utterly irrelevant to the question before this Court in the exercise of its inherent jurisdiction.

[38]   That this is so is demonstrated by the fact that an order of this Court in its parens patriae jurisdiction does not set aside an earlier order made by a statutory Court such as the Children’s Court; the statutory Court’s order still stands although in a sense it may be said to be superseded where it is inconsistent with this Court’s order, so that an injunction in the nature of prohibition would lie to restrain the statutory Court from enforcing its earlier inconsistent order: see In re Harris 37 SR(NSW) 17, at 28-29 per Jordan CJ and Long Innes J, and at 31-32 per Maughan AJ.

[39]   As I have said earlier, this Court should not encourage any process by which those dissatisfied with the result of proceedings in the Children's Court can simply set at naught the proceedings in that Court and come afresh to this Court, invoking its parens patriae jurisdiction in order to argue all over again the matters that have been debated before the lower Court. If that were to be in any way encouraged, then parties would inevitably face the risk of being involved in a multiplicity of uncontrolled proceedings fought in the Children's Court and in the Supreme Court, with the distinct possibility of conflicting concurrent orders obtained in the Supreme Court and in the lower Court.

[40]   What I have said indicates, in my view, the approach which, as a general rule, this Court ought to adopt when its wardship jurisdiction is sought to be invoked in what is in substance an appeal from a decision of the Children’s Court. This approach is supported, in my opinion, by decisions of this Court such as Re Weir (1953) 70 WN(NSW) 78; Ping v Van Der Kroft [1982] 2 NSWLR 731; T v H (1985) 3 NSWLR 270, at 274; and Re Anna, Bruno, Courtney and Deepak (supra) at paras.20 to 22. Of course, as these authorities indicate, there may be exceptional circumstances in a particular case which justify the Court in departing from that general approach.

[41]   In the present case, DOCS says that exceptional circumstances are constituted by the inordinate delay which Victoria has suffered in the determination of her custody status in the proceedings which have so far occupied the Children's Court. I am the first to agree that it is a truly appalling state of affairs that this child's custody status should have been the subject of such protracted proceedings. By this, I do not intend to criticise in the slightest degree the conduct of the case by the learned Magistrate in the Children's Court. I very well appreciate there are constraints on the resources of that Court so that it will often be impossible to give large blocks of time to the hearing of a complex case, such as this one undoubtedly is. The fact of the matter remains, nevertheless, that completely unacceptable delay has occurred in the determination of this dispute.

[42]   However, that delay alone does not justify, in my opinion, the parties in leap-frogging the appeal provisions of the 1998 Act and coming directly to this Court. To allow such a process would be to thrust onto this Court the burden of appeals from the Children's Court simply on the ground that the District Court lacks sufficient resources to discharge its obligations to hear cases, particularly urgent cases, in a timely manner. To allow that process would be to shift the burden of the problem from one Court to another without addressing its cause.”

44. Another judgment commonly referred to in support of the proposition that “exceptional circumstances” are required before parens patriae orders are made interfering with care proceedings in the Children’s Court (or on appeal in the District Court) governed by the Care Act is the judgment of White J in Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 at [44]-[45], with emphasis added:

“[44]   Because the order in question in the present case is an interim order, no appeal lies to the District Court from it (s 91(1)). This distinguishes the present case from Re Victoria. Nonetheless, for the reasons given by Palmer J in [39] in the passage quoted above, the Court should exercise restraint in exercising the parens patriae jurisdiction where the matter has been argued in the Children’s Court to avoid multiplicity of proceedings and conflicting orders. In Re Elizabeth [2007] NSWSC 729, Palmer J said (at [18]):

“In my opinion, the fact that there is no appeal from an Interim Care Order of the Children’s Court does not, in itself, justify resort to the parens patriae jurisdiction of this Court by a person dissatisfied with the interim order. Section 90 CYP Act provides for rescission or variation of an interim order by the Children’s Court itself if there has been a significant change of circumstances. A party aggrieved by an Interim Care Order on grounds other than change of circumstances may agitate all of the issues fully on a final hearing of the care order application. Interim Care Orders are interlocutory in character and are intended only to protect the child pending a final hearing. It would be entirely destructive of the orderly, efficient and expeditious conduct of care proceedings in the Children’s Court if appeals from Interim Care Orders were to be made routinely to this Court in its parens patriae jurisdiction. The parties in the Children’s Court proceedings should be focussed on bringing those proceedings to a final hearing at the earliest opportunity; the institution of parallel proceedings in the Supreme Court will almost inevitably involve additional delay in the Children’s Court proceedings, not to mention additional expense.”

These principles have been applied on numerous occasions. (See for example Re Alan [2008] NSWSC 379 and cases there cited.)

[45]   However, as Young CJ in Eq said in Re Frances and Benny [2005] NSWSC 1207 (at [18]), one of the exceptional circumstances in which the parens patriae jurisdiction may be exercised is where it is urgently required that some protective order be made and the court can see that other curial processes may not be able to provide instant relief.”

45. In CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105 at [15]-[16] Basten JA approved the following statement of principle by me at first instance (reported at [2014] NSWSC 1855 at [19]-[20]), to which I adhere:

“[19]   The availability of the Supreme Court’s protective jurisdiction is not an invitation for parties interested in the welfare of a minor to engage in an exercise of forum shopping, pursuing applications in the Supreme Court during the pendency of regular proceedings in the Children’s Court, because dissatisfied with rulings made, or anticipated, in the Children’s Court.

[20]   By virtue of its governing legislation, the Children’s Court has sufficient power over its own processes to ensure that its proceedings are conducted, as they must be, in a manner that is procedurally fair. Absent exceptional circumstances, it should be left to discharge its legislative functions, subject to the appeal processes for which the legislation provides.”

46. In paragraph [16] of his judgment Basten JA made the following further observations:

“The caution expressed in these paragraphs is amply supported by authority, including Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40] (Palmer J); Re Frances and Benny [2005] NSWSC 1207 at [17] and [18] (Young CJ in Eq), and, recently, R v Baby S [2014] NSWSC 871 at [20]-[23] (White J). It will rarely be in the best interests of the children concerned to disrupt the orderly process of investigation and fact finding in the Children’s Court by diverting the time, energy and resources of the parties from that exercise into separate proceedings in the Supreme Court …”

47. Although those observations were directed to proceedings in the Children’s Court they apply equally to proceedings in the District Court which, on appeal from the Children’s Court, proceed by way of a fresh hearing in which the Secretary has carriage of the proceedings and bears the onus of proving his case.

48. An application for summary disposal of parens patriae proceedings designed to interfere with the conduct of care proceedings in the Children’s Court, or on appeal from the Children’s Court, can be granted on the basis that the parens patriae proceedings amount to an abuse of process in so far as they duplicate the decision-making process on essentially common questions to be determined in the care proceedings, the orthodox principle being that the Court’s parens patriae jurisdiction should not be exercised to interfere with care proceedings except in an exceptional case: RH v Secretary, Department of Communities and Justice [2021] NSWCA 101 at [3] and [10].

49. The present proceedings are vexatious and an abuse of the process of the Court in that the plaintiff instituted them, and seeks to maintain them, with the intention of engaging in a forum shopping strategy with proceedings under the Care Act (initially in the Children’s Court, now in the District Court) running in parallel with these proceedings in the hope of the plaintiff managing them to his advantage, if need be playing one off the other.

50. This in itself is indicative of an abuse of the process of the Court, exposing the child and those interested in her welfare to forensic battles (directed to similar questions) with a risk of conflicting orders and different pathways to appellate review.

51. In my opinion, and significantly, the proceedings are also an abuse of the process of the Court because the best interests of the child lie in an early, orderly determination of the plaintiff’s appeal to the District Court which, in disposition of the appeal, is armed with the powers conferred by the Care Act on the Children’s Court.

52. With editorial adaptation, the judgment of Sackar J in Harris v Department of Communities and Justice [2021] NSWSC 519 at [20] and [22] (approved by McCallum JA in RH v Secretary, Department of Communities and Justice [2021] NSWCA 101) provides a convenient exposition of the field of operation of UCPR rule 13.4 in a case factually different from the present one but close enough to illustrate underlying principles:

[20]   What is principally at stake I presume, and this is the plaintiff’s concern, is the welfare of his children. Ultimately, both here and in the Children’s Court, their interest will be of paramount concern as indeed they should be. If care arrangements, different from those which are currently in place, are to be made a specialist court in my view is the best vehicle or the best venue in which those matters can be debated and decided, especially given the fact that an appeal would be open to the plaintiff to the District Court from [the Children’s Court]. The appeal pursuant to section 91(2) [of the Care Act] would be by way of a new hearing and fresh evidence, or any additional evidence could be called if that was thought relevant. …

[22]   Whether proceedings are vexatious or abuse of process does not go necessarily to the motive of the person who is seeking to bring the proceedings. Merely the duplication of proceedings, which are concurrent, is enough where the same causes of action are sought to be agitated in two places at once. There is no reason why, if impropriety is going to be asserted that it cannot be asserted in the Children's Court and reviewed, if needs be, by an experience[d] District Court judge in due course on fresh evidence for example, if appropriate.”

53. The plaintiff’s criticism of the current legislative regime for case management for a child in out-of-home care by a designated agency (such as the second defendant) is not without foundation. Responsibility for the child in the present proceedings is divided between the Secretary (representing executive government) and a collateral institution (the second defendant) with its own bureaucracy, subject to review in different contexts by the Secretary, the court system (at different levels, the Children’s Court, the District Court and the Supreme Court, in a Division of the Supreme Court or the Court of Appeal) and the NSW Civil and Administrative Tribunal.

54. Although the legislative regime has a formal coherence of its own a person outside the institutional structure of the regime endeavouring, or bound, to engage with the regime in practice (such as the plaintiff) might reasonably find it overwhelming, if not also destructive of fragile family relationships.

55. Nevertheless, these proceedings provide no vehicle for the plaintiff to conduct (as he appears at times to have wanted to conduct) a campaign for systemic reform. The focus of the proceedings in this Court, and in the District Court, is on the welfare of the child. The District Court has ample jurisdiction to protect the interests of the child as the paramount consideration and to accommodate the plaintiff’s familial interest in care of the child.

53. Nor are these proceedings a vehicle for the plaintiff to agitate an argument that the Secretary can, and should, be compelled to provide him with the same resources and assistance, including funding, as might be provided to him if he were approved to be an authorised carer under the Care Act. The plaintiff’s case at its core is that, by one means or another, he should be recognised as the child’s primary carer with either parental responsibility for her or approval of him as an authorised carer.

54. It is neither necessary nor appropriate for this Court, in these proceedings, to enter a debate about whether (and, if so, in what circumstances) the Court’s inherent parens patriae jurisdiction extends to an order that the Secretary be compelled to provide financial support in aid of the family of a particular child under care. Re Paul [2023] NSWSC 1635 at [76]-[77] and [81]-[84]; Re Paul (No 2) [2024] NSWSC 106 at [15]-[16] was an exceptional case in which, after extensive debate about how to care for a disabled child, the Secretary was persuaded to provide funding for special care of the child.

55. The judgment of the Court of Appeal in George v Children’s Court of New South Wales [2003] NSWCA 389; 59 NSWLR 232 per Ipp JA (with whom Sheller and McColl JJA agreed) at [129]-[130] counsels caution against mandatory funding orders against the Secretary:

“[129]   The pool of funds available to DOCS for carrying out its manifold duties is finite. The pool is derived from the Consolidated Fund in accordance with the applicable Appropriation Act that is passed each year. No doubt, as with all government departments, DOCS works out its budget each year by reference to the amount allocated to it under the governing Appropriation Act. In doing so it will allocate a particular sum for the provision of services to children and young persons in need of care and protection. If the Children’s Court is empowered to order DOCS to expend money other than in accordance with the current budget applicable, the result will be that some children who otherwise would have benefited will not receive the services intended. The money available for the services to be provided to them will have to be used to accommodate the orders of the Children’s Court.

[130]   In essence, the allocation of money and other resources for the care and protection of children and young persons is a matter of policy. It is preferable that such policy decisions be made by the body vested with the administrative responsibility for the proper use of the resources in question, and not by a court on an ad hoc basis. This approach underlies the many instances in the CYP Act where the provision of services is expressly left to the discretion of the Director-General and the Minister. In my view there is no reason why the legislature intended this approach to be different in regard to the powers of the Children’s Court under s 74.”

59. If, contrary to my assessment, there are questions of high policy which might usefully be addressed in this Court, or on appeal from my judgment (or on appeal from the District Court) in the Court of Appeal, they are unlikely to be ripe for consideration until the plaintiff has pursued his appeal in the District Court.

60. During the course of the hearing of the Secretary’s summary disposal application I canvassed with the parties ways in which, under the management of the District Court, the plaintiff’s appeal to the District Court might be conducted so as to confine the issues for determination to those centrally important, and to moderate forensic attacks destructive of relationships of trust that need to be developed between those concerned in day-to-day care of the child, now and in the foreseeable future.

61. For the benefit of the parties generally, and for the plaintiff in particular, I also invited the Secretary and the second defendant to provide written submissions on the following topics:

1. the available avenues for appeal by the plaintiff on his application to be assessed as an authorised carer;

2. the proposed issues in dispute in the District Court proceedings and the Secretary’s proposal for how those issues might be narrowed and clarified in a non-adversarial way; and

3. information regarding financial support which may be available to the plaintiff should the child be placed under his parental responsibility in the District Court proceedings.

62. The Secretary and the second defendant responded constructively to the Court’s invitation. Their respective written submissions have been marked for identification as MFI 1D10 and MFI 2D11.

63. Given the need for confidentiality attaching to protective proceedings such as these, I do not propose to publish those written submissions in whole or part. I propose, instead, to order that the parties draw the submissions to the attention of the judge allocated to hear the District Court proceedings as an aide memoire. The parties are also at liberty to place before the District Court any of the transcript, evidence or other materials relating to these proceedings.

64. I am satisfied that it is in the best interests of the child that these proceedings be summarily dismissed, leaving the plaintiff to pursue his District Court appeal in an expeditious manner.

ORDERS

65. Subject to allowing the parties an opportunity to make submissions about the form of the orders to be made, I propose to dispose of these proceedings by notations and orders to the following effect:

1. ORDER that the Secretary provide to the judge allocated to hear the plaintiff’s District Court appeal a copy of the documents respectively marked as MFI 1D10 and MFI 2D11.

2. NOTE the agreement of the Secretary recorded in paragraph 21 of MFI 1D10 about his conduct of the proceedings in the District Court.

3. ORDER that these proceedings otherwise be dismissed.

4. NOTE that dismissal of these proceedings does not, of itself, operate as a bar to any future exercise by the Court of its parens patriae jurisdiction relating to the child.

66. In disposing of these proceedings, and in leaving the plaintiff to pursue his District Court appeal, I encourage the parties to work towards a constructive outcome in which the child can enjoy an ongoing relationship with her grandfather.

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Decision last updated: 29 April 2024