DOCS v Y
Case
•
[1999] NSWSC 644
•30 June 1999
No judgment structure available for this case.
CITATION: DoCS v Y [1999] NSWSC 644 CURRENT JURISDICTION: Equity FILE NUMBER(S): 2329/99 HEARING DATE(S): 12, 13, 14, 17 and 24 May 1999 JUDGMENT DATE:
30 June 1999PARTIES :
Director General, New South Wales Department of Community Services (P)
v
Y and Z, parents of X (D)JUDGMENT OF: Austin J
COUNSEL : G Moore ( 14 May 1999) (P)
S Norton (24 May 1999) (P)
G Bartley (14 May 1999) (D)
P Gerber (24 May 1999) (D)
J C Stevenson (14 & 24 May 1999) (Special Representative)SOLICITORS: I V Knight, Crown Solicitor (P)
Leonie Miller (D)
Kathryn Renshall (Special Representative)CATCHWORDS: Family law - child welfare - anorexic child - custody and care of child - wardship of Court - Supreme Court's jurisdiction to make orders - order to authorise medical treatment contrary to child's wishes - order to exclude access by parents - order to authorise reasonable force ACTS CITED: Children (Care and Protection) Act 1987 (NSW) ss 72, 77, 88 and 96
Commonwealth Powers (Family Law - Children) Act 1986 (NSW) s 3
Family Law Act 1975 (Cth) ss 69ZE, 69ZF & 69ZK
Supreme Court Act 1970 (NSW) ss 23, 53CASES CITED: B v Director-General Department of Community Services (Supreme Court of New South Wales, No. 3308/86, McLelland J, 5 December 1986, unreported)
Darling v Darling (Supreme Court of New South Wales, No. 5385/86, Kearney J, 16 July 1987, unreported)
Director-General Department of Community Services v Australian Broadcasting Corporation (Supreme Court of New South Wales, No. 2265/96, McLelland J, 4 June 1996, unreported)
Ensby v Director-General Department of Community Services (Supreme Court of New South Wales, No. 4319/93, Bryson J, 21 April 1994, unreported)
Fountain v Alexander (1982) 150 CLR 615
Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112
K v Minister for Youth and Community Services [1982] 1 NSWLR 311
Morahan v Morahan (Supreme Court of New South Wales, No. 1405/88, Young J, 31 March 1988, unreported)
R v Gyngall [1893] 2 QB 232
Re C [1997] 2 FLR 180
Re E v E [1986] 2 SCR 407
Re J [1992] 3 WLR 507
Re R [1991] 3 WLR 592
Re S (an infant) [1967] 1 All ER 202
Re W [1992] 3 WLR 758
Secretary, Department of Health and Community Services v JWB & SMB (Marion’s case) (1992) 175 CLR 218
Wellesley v Duke of Beaufort (1827) 2 Russ 1
Wellesley v Wellesley (1928) 2 Bli NS 124DECISION: Orders made as sought by plaintiff
1 HIS HONOUR: These proceedings began by summons filed on 12 May 1999. The plaintiff sought orders that X be made a ward of this Court under the custody, care and control of the plaintiff, and that she be moved to the New Children’s Hospital at Westmead where the plaintiff would be empowered to authorise such medical procedures as may on medical advice be considered proper or desirable in X’s interest. 2 The matter came before me on 12, 13, 14, 17 and 24 May 1999, and on each occasion I made various interlocutory orders. On 17 May 1999 I ordered, amongst other things, that X be made a ward of this Court and that certain proceedings commenced by the plaintiff under the Children (Care and Protection) Act 1987 (NSW) in the Children’s Court of New South Wales in respect of X be stayed pending further order. Those orders were made with the consent of the defendants, X’s parents, and also with the consent of counsel who appeared as the separate representative of X. In the exercise of the Court’s inherent jurisdiction which I shall describe, I allowed X to appear by a special representative, by analogy with the statutory provisions which govern the representation of children in proceedings under the Children (Care and Protection) Act 1987 (NSW) and the Family Law Act 1975 (Cth). 3 On 24 May 1999, I made further orders, some of which had been opposed by the defendants. The effect of my orders on 24 May 1999 was to require that X be returned to the New Children’s Hospital at Westmead without her consent, to resume a course of treatment there which had been interrupted when she left the hospital on 20 April 1999. I made an order authorising the staff of the New Children’s Hospital to detain X, using reasonable force if necessary, and I directed that the doctors responsible for her treatment provide a written report to the Court on or before 12 July 1999 as to her treatment, progress and general well-being. The effect of my orders was temporarily to exclude the defendants from any say in the medical treatment of their daughter, and from access to their daughter in the New Children’s Hospital except with the plaintiff’s consent or by further order of this Court. 4 I shall return to describe my orders in more detail later, but I provide this outline at the outset in order to make clear the serious issues which this case has raised. At stake have been the liberty of X and the right of her parents to have access to their daughter and influence her medical treatment. In the extraordinary circumstances of the case I have decided that it is necessary, for a temporary period, to restrict X’s liberty and to prevent her parents from having any say in her treatment, or any access to her except with the plaintiff’s consent. 5 Although strictly speaking my orders to date have been interlocutory, I have endeavoured to make findings of fact on the balance of probabilities, for the limited purpose of granting the temporary relief which has been sought. I have had to make an allowance for gaps in the evidence of a kind which are inevitable in an urgent application, but in view of the very serious personal consequences for X and her parents, I have not thought it appropriate to require the plaintiff to demonstrate only that there is a serious question to be tried and that the balance of convenience favours the granting of the relief: see Re J [1992] 3 WLR 507, 516 per Lord Donaldson MR.
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONAUSTIN J
WEDNESDAY 30 JUNE 1999
2329/99 - DoCS v Y AND Z, PARENTS OF X
JUDGMENT (published to the parties 30 June 1999; revised and published generally 7 July 1999)
6 The justification for orders with such serious consequences can be understood only after a careful examination of the history of X’s illness. She is now 15 years old. Until her hospitalisation, she lived with her mother and father and two elder brothers in suburban Sydney, and attended a small private high school where she was evidently happy and doing well, apart from her illness. Her parents are well educated and hold positions of responsibility. Her father is employed by a government department, and her mother is a teacher at the school which X attends. X has enjoyed a stable, loving and caring home and family environment.
Background
7 In about June 1995 X began to complain of pains in her digestive system, for which she was at first treated by the family’s general medical practitioner. She developed a pattern of abnormal eating and suffered substantial weight loss, complaining that the pain prevented her from eating. X and her parents consulted Dr Christine Hughes, a consultant paediatrician, on 5 January 1996 and subsequently. Dr Hughes referred to some unusual behaviour and neglect of personal hygiene by X, and formed the opinion that her problem was primarily psychological, although she ordered some tests to exclude any physical cause. The results of the tests did not exclude very mild reflux, but confirmed Dr Hughes’ opinion that X’s abnormal eating was not due to any physical cause. Dr Hughes’ opinion was shared by her gastroenterology colleague, Dr John Mitchell. 8 Dr Hughes described X as thin and undernourished when she first met her in January 1996. Her weight at that time was 35 kg but it had dropped to 30-32 kg in the following March. Dr Hughes suggested to X’s parents that their daughter be referred to a child and adolescent psychiatrist, but the parents declined and said they would arrange their own counsellor. Over the ensuing couple of months Dr Hughes made occasional phone calls to the family to ask about X’s progress and the family said she was managing well with the assistance of their counsellor.
X’s illness - 1995 to August 1996
9 X continued to lose weight during 1996, and was admitted to Sutherland Hospital on 25 August 1996 weighing only 23 kg. While in hospital she was treated by Dr Chris Rikard-Bell, a family, child and adolescent psychiatrist, who had also seen her before her admission. In his subsequent report Dr Rikard-Bell said that X’s weight loss and physical state were ‘alarming’ and he expressed the view that at that time her weight should have been about 38 kg. 10 X was in Sutherland Hospital for over three months. She was immediately placed on nasogastric re-feeding but she still lost a small amount of weight. According to Dr Rikard-Bell, it was discovered that she was disconnecting her feed, interfering with the nasogastric tube and disposing of the food. After some weeks she was placed on a strict supervision programme and monitored after each feed, and gained weight, reaching 32.9 kg when she was discharged on 1 December 1996. 11 Dr Rikard-Bell noted that despite the obvious improvement, X continued to try to sabotage her re-feeding, and it was even suspected that she may have been syphoning food out of her stomach. Dr Rikard-Bell advised the family to attend family therapy sessions but he says he encountered a great deal of reluctance on the part of X’s parents and brothers. He says that X’s parents did not accept the treatment programme of the hospital, because they believed that X’s problems were gastrointestinal, despite medical evidence to the contrary. He says they would constantly question whether the right amount of feed was being given and would insist that variations of a few millilitres be corrected. 12 He found it necessary to confront them about whether they were prepared to accept X’s treatment in hospital. He told X’s father than unless a jointly agreed treatment plan could be reached, he would hold grave concerns about the possibility of X’s recovery, and he recommended family therapy sessions twice per week. Rather than following that advice, X’s parents discharged her from hospital on 1 December 1996, three days after the confrontation with Dr Rikard-Bell had occurred. 13 Dr Rikard-Bell contacted the Department of Community Services (‘DoCS’). DoCS decided not to object to X staying at home as long as she could keep her weight above 30 kg. They arranged a case conference attended by X’s father, who maintained that the cause of X’s illness was physiological, but agreed that if her weight fell to 30 kg or less she would be hospitalised. 14 When X was weighed by her general practitioner some five days after her discharge, her weight had fallen by nearly three kilograms, and so DoCS sought the urgent admission of X to the Sydney Children’s Hospital, a course to which X’s parents agreed only after DoCS threatened them with proceedings. 15 In his report dated 12 December 1996 Dr Rikard-Bell expressed grave concerns about X’s welfare, saying that the major obstacle to X being able to recover was the behaviour of her parents, who were unable or unwilling to accept that there were psychological and family issues which contributed to X’s condition. He said that the parents’ denial or resistance was extreme. It appears that Dr Rikard-Bell clashed with X’s parents but I see no reason to disbelieve his account of the facts. 16 X’s parents say that when they discharged their daughter from Sutherland Hospital, they acted with medical advice. They had arranged for her to be examined by Dr Sandra Cabot, a general practitioner who has written books on diets and nutrition. Dr Cabot diagnosed X as having irritable bowel syndrome for which she advised the liver cleansing diet about which she has written. Dr Cabot prescribed some medication to relieve reflux pain and advised that X was of a safe weight to be allowed home. X’s parents say that during her few days out of hospital, X developed a virus and vomited profusely, losing over two kilograms in weight because of that illness.
In-patient at Sutherland Hospital - August to December 1996
17 X was admitted to the Sydney Children’s Hospital (Prince of Wales) on 6 December 1996 under the care of Dr Hughes. On admission her weight was measured at 30.2 kg. Dr Hughes says she was ‘horrified’ at X’s appearance, and noticed that she was extremely pale and extraordinarily thin. Her hair was lank and dirty and she appeared apathetic. She had grown less than one centimetre in a year, though an average 12 year old would have grown eight or more centimetres in this time. Dr Hughes says this reflected extreme malnutrition which could have long term consequences. 18 Dr Hughes consulted Dr Bohane, a paediatric gastroenterologist, who recommended further tests, which were duly carried out. Dr Bohane then said he did not believe that X’s epigastric pain would be sufficient to cause her eating disorder, though he acknowledged the possibility of some mild dyspepsia. He expressed the opinion that no further gastroenterological investigations were necessary. 19 According to Dr Hughes, the main difficulties that she experienced during X’s time in the Sydney Children’s Hospital were difficulties relating to her parents. The parents reported that X had felt nauseous and had diarrhoea and constipation whilst on nasogastric feeding at Sutherland. Therefore, after consulting a paediatric dietitian and adolescent psychiatrists, Dr Hughes and the hospital staff designed an oral re-feeding regime and it was agreed that nasogastric feeding would not be started if X could maintain or increase her weight. Subsequently X did start to eat and drink more but there was no weight gain for the ensuing three weeks, although she had a 1.4 kg weight gain during the last week of hospitalisation. 20 One explanation for the disappointing weight gain could be some information in the discharge summary from the hospital, which said that the parents were observed to support a vegetarian diet for X, and to bring food to the hospital for her, and sometimes to eat part of the meals given to her by the hospital. X’s father admits to eating some of his daughter’s food but says he always told the supervising nurse how much his daughter had actually eaten. 21 According to Dr Hughes’ report and the discharge summary, X benefited from therapy sessions and she interacted well with staff and other patients, and was ‘quite chatty and motivated’. Nevertheless X’s parents say that she was traumatised by hospitalisation. X’s father says that his daughter was very unhappy at the Sydney Children’s Hospital, and that on one occasion he and his wife found her perched on a verandah ledge threatening to jump off because she found the programme so oppressive. 22 According to Dr Hughes, from the very first day of X’s time in the Sydney Children’s Hospital her parents were trying to find ways to discharge her. The parents suggested that her local doctor should monitor her care at home, but the local doctor responded that he was unable to provide a sufficient level of expert treatment. They requested that X return to Sutherland Hospital, but doctors there told Dr Hughes that X’s condition was sufficiently serious that she needed to be in a tertiary paediatric hospital like the Sydney Children’s Hospital. The parents contacted a general practitioner who was a pastor in their church, but after discussing the case with Dr Hughes, he agreed that X required tertiary paediatric management. Then the parents requested a transfer to St George hospital, but again, after discussion with Dr Hughes, the doctors there were very reluctant to take on a complicated potentially long-stay patient from outside the hospital’s area, and felt that tertiary paediatric treatment was needed. 23 X’s father then proposed that his daughter be allowed to attend a programme at the Clear Mountain Health Resort in Queensland. In my opinion this is a revealing incident, suggesting an attitude on the part of the parents to their daughter’s treatment which seems to have continued up to the hearing of these proceedings. On inquiry, Dr Hughes discovered that this programme revolved around good eating, relaxation, meditation and physical therapies, such as aerobics and bush walking. She regarded it as a good programme for adults with stress and weight problems, but the resort had never had a child with an eating disorder and had never had a young adolescent in their programme. Dr Hughes decided that X’s health was too critical to risk her becoming a guinea pig under the care of people who had no experience with children like her. Dr Hughes’ conclusion so much accords with practical common sense that one can only wonder about the parents’ understanding and judgment. 24 X’s father says the resort was a ‘private hospital’ run by a ‘fully accredited doctor’ who had various qualifications including a PhD in nutrition and graduate diploma in paediatric care. He says that he discussed his daughter’s situation with the doctor at length, concluding as follows: ‘I believe his qualifications are more than adequate to be meeting my daughter’s needs’. To my mind this evidence demonstrates that even at the hearing, X’s father did not properly appreciate his daughter’s serious medical condition. 25 The parents’ final suggestion to Dr Hughes was that X be discharged from hospital into the care of Dr George Williams, a paediatrician who lived not far from their home. Dr Hughes discussed X’s case with Dr Williams. She felt that X would be much safer in hospital than as an outpatient and that as the programme was finally working, it would be a pity for her to be removed. Dr Williams said he was keen to take on X’s care as an outpatient, and said he would use a team approach where she would also be seen by the adolescent medical service and others at the New Children’s Hospital at Westmead. Dr Williams said that if the family did not comply with his proposed treatment, he would notify DoCS. X would be given a weekly weight goal and her parents would write out what she was eating at each meal. If she did not make the weekly weight goal, he would admit her to the New Children’s Hospital. The highly specific nature of Dr Williams’ proposals is important, in light of what subsequently occurred. I infer that Dr Williams communicated these arrangements to X’s parents. 26 Dr Hughes discussed Dr Williams’ proposal with her colleagues and officers of DoCS, and they decided that while this was not the best plan for management of X’s condition, there would be insufficient basis for DoCS to seek an order that X be kept in hospital, and so they reluctantly agreed to allow X to be discharged. 27 It is clear that the tension which had emerged between X’s parents and Dr Rikard-Bell at Sutherland Hospital was to a degree replicated at the Sydney Children’s Hospital. In his evidence X’s father says he agreed with the objectives of the eating disorder programme there, but objected to the reality of how the programme was enforced. He complains about the physical environment at the hospital’s Adolescent Unit, referring to cockroaches and fleas and the noise of an adjacent construction site, and the absence of shower curtains in bathrooms which were for both sexes. 28 He says that according to his daughter, two members of the nursing staff had a conversation in her presence about how ugly, scrawny and revolting X’s body looked, and another member of the nursing staff told X that he could smell methane gas coming out of her body because she was dying. The truth or falsity of these allegations was not fully explored before me. Their source is X’s uncorroborated account. It would be understandable for a person in X’s position to misinterpret and take offence at remarks which were not offensive when viewed objectively. I am inclined to the view that these are exaggerated accounts of incidents which, if they occurred, were more prosaic and unobjectionable. 29 Viewing the evidence as a whole, I regard it as reasonably clear that X and her parents collaborated to develop objections to the programme and her treatment, and to identify matters for complaint. I believe Dr Hughes’ account that according to her observation and the observation of the hospital staff, X frequently behaved in a well-adjusted and co-operative way. It is plausible to infer, and I do infer, that her discontent developed out of or was encouraged by her parents’ visits. X’s father says that she concealed her inner feelings from the staff but in my opinion, the more plausible explanation is that she was genuinely contented when outside the reach of her parents’ influence.
In-patient at Sydney Children’s Hospital (Prince of Wales) - 6 December 1996 to 10 January 1997
30 DoCS also arranged to have X assessed by Professor Pierre Beumont, Professor and Head of the Department of Psychological Medicine at the University of Sydney, whose report dated 3 February 1997 is in evidence. 31 Professor Beumont reviewed medical correspondence about X, and interviewed her, her parents and brothers. He found that X had set out on a two year course of restrictive eating, active resistance to regaining normal weight, and refusal to eat normally. He described her condition as an eating disorder of the anorexia nervosa type, involving severe weight loss and a behavioural disturbance characterised by deliberate attempts to lose weight. X had denied that she suffered from one of the common characteristics of anorexia, namely a dysfunctional cognition about body weight, shape and eating, attributing her food refusal to abdominal pain. Professor Beumont said that although this explanation may have been true at first, it is unlikely that abdominal pain would persist for so long in the absence of discernible physical pathology. He also postulated that X has an obsessive compulsive disorder, noting that her poor hygiene could relate an obsessional difficulty. 32 Professor Beumont said that while X was not at immediate physical risk, a serious physical risk would arise if she were again to lose a substantial amount of weight. If (as he thought likely) X maintained her weight at a little above 30 kg, she would remain at risk of chronic medical complications such as stunting of growth and inadequate reproductive functioning, and he noted that the longer an anorexic illness persists, the more difficult it is for the patient to resume a normal life. 33 In Professor Beumont’s view, X’s family were concerned and loving but had an unfortunate attitude to her illness. He found them reluctant to accept its psychological nature, speculating that they may believe that to do so would imply fault on their part. He noted that they were tending, unfortunately in his view, to consult ‘alternative practitioners’. 34 Professor Beumont referred to a general consensus about the proper treatment of anorexia nervosa. He said that optimally, X should be treated by a team experienced in managing this illness, which would usually consist of ‘psychiatrist-physician-psychologist-dietitian-family therapist-nurses’. In such a regime the parents should be involved as ‘co-therapists’. However that ideal could not be realised in the present case because the parents were estranged from the care-givers and saw themselves as being persecuted. He therefore recommended what he called a ‘gentler approach’, under which X would continue under the care of Dr Williams, with such assistance from experts with anorexic patients as Dr Williams thought appropriate to obtain. He advised DoCS to liaise in various ways with Dr Williams.
Professor Beumont’s assessment
35 When X was discharged from the Sydney Children’s Hospital, both DoCS and Dr Hughes understood that Dr Williams would take medical responsibility for her care. Dr Williams had outlined a specific treatment regime. Since at that time there was no child protection framework in place, although DoCS had been notified and had taken an interest in X’s welfare, the fundamental responsibility for the care and treatment of X after her discharge lay with her parents. 36 The evidence of Dr Williams’ treatment of X comprises his report of 10 March 1999, annexing letters which relate to consultations on 11 February 1997, 7, 13 and 27 March 1997, 5 May 1997, 1 August 1997 and 12 September 1997. The reports show that over that period, X’s weight with clothing fluctuated from 31-35.8 kg. Several other points emerge from a perusal of Dr Williams’ reports: X gave him optimistic reports about her well-being at most of the consultations, and he appears to have accepted them; she persistently refused to submit to a stool examination and breath test and he recorded that she would take these tests ‘when she is ready’; she told him she was ‘uncomfortable’ with a dietitian’s assessment because it contained too many personal details. 37 In spite of her optimistic self-assessments, there was no significant improvement over the period of Dr Williams’ treatment. Given the very tolerant attitude adopted by Dr Williams, one wonders whether his records of X’s weight, in each case with clothing, are reliable. Perhaps the most striking thing about Dr Williams’ reports is that the course of treatment which they reflect seems to have been a long way short of the course of treatment which he outlined before X was discharged from the Sydney Children’s Hospital. 38 While X was under his care, Dr Williams consulted with Dr Michael Kohn of the New Children’s Hospital. In his report to DoCS of 28 April 1997, Dr Kohn referred to unsuccessful attempts to admit X to the New Children’s Hospital for the medical management of her malnutrition and eating disorder, despite a recommendation which had been made to the family and the availability of an in-patient bed. He made it clear that in his view, she should be treated as an in-patient, and that she was ‘at significant risk from the morbidity of her malnutrition as well as an increased risk of sudden death should any metabolic derangement occur.’
X’s treatment by Dr Williams, February to September 1997
39 The evidence before me contains very little information about X’s state of health during this period. Dr Williams reported that on 12 September 1997 her weight was 35.8 kg when lightly dressed. Various tests, including a 24 hour urine collection, had been recommended by Dr Kohn and the recommendation had been passed on by Dr Williams to X and her parents on 21 August 1997, but these tests were apparently not carried out. On 12 September 1997 Dr Williams arranged that X would return for review in six weeks, but I infer that this did not occur, since Dr Williams’ report of 10 March 1999 makes no reference to any subsequent consultation. 40 In his evidence X’s father claims that X provided stool samples for testing in June 1997, and that the results showed that she had parasite infestation, for which Dr Williams prescribed some medication. Evidently both of X’s parents regarded the discovery of a parasite infestation and its subsequent cure as vindicating the stand they had taken to date, and as implying that a physical cause should have been sought out when eating problems subsequently recurred. 41 It is difficult to know what to make of their evidence about the parasite infestation. X’s father says that Dr Williams was the doctor who prescribed medication for the parasites, but although his reports referred to recommendations for stool testing and his letter of 7 August 1997 stated that X would ‘have another stool culture done in the next week for parasites and fat content’, there is nothing in his reports to confirm that parasites were discovered. One would have thought that he would have reported on so significant a finding. In the state of the evidence before me, I am not able to find that stool tests identified parasites, but it seems to me that if they did, that discovery cannot have had the medical significance which X’s parents attribute to it. Weighing up all the medical evidence, I cannot conclude that the presence of parasites would have caused the epigastric pain of which X complained, or would have affected the diagnosis made by Drs Rikard-Bell, Hughes, Beumont and Kohn that X suffered from an eating disorder of psychological origin. 42 X’s father says that a ‘case closure meeting’, to which he was not invited, was held and subsequently, Dr Williams and he were in state of confusion as to what exactly were the continuing requirements of DoCS. X was given some counselling but the counselling sessions were stopped, apparently in the latter half of 1997. The family went on an overseas holiday over the Christmas period 1997/98, during which time X was limited in what she was willing to eat, but slowly expanded her food intake. 43 In March 1998 X had braces put on her teeth. According to her parents, the pain caused by the braces broke her eating patterns, and she slowly began to revert to a very limited food intake and to lose weight. She hid her weight loss by wearing loose baggy clothing. They say she had continual nightmares about her hospital experiences and was reluctant to go to sleep at night, slept in late in the mornings, and was regularly late for school. X’s father says ‘we continued to work very hard with [X] to again widen her diet, and to help her overcome her negative experiences in the hospital’. This statement is significant because it shows that while X’s father identified his daughter’s eating difficulty, he appears to have excluded hospital treatment as a possible response. He says that he and his wife believed they had a ‘breakthrough’ with their daughter just before her collapse in December 1998, as she had become willing to take protein food and drinks again and ‘was declaring that she wanted to choose life’. Unfortunately the breakthrough does not seem to have included resumption of an effective regime for the proper medical treatment of her serious and life-threatening condition. 44 X’s parents say that they were looking carefully for signs of anorexia at this time but did not observe any, as she was energetic and walked the dog every night, and wore baggy clothes. They say they made a mistake by trying to protect X from hospital treatment and waiting too long.
X’s condition - October 1997 to December 1998
45 X collapsed in the toilet at home and when she appeared not to be breathing, her father gave her mouth-to-mouth resuscitation and then took her to Sutherland hospital by ambulance. There she was examined by the paediatric resident, Dr Felix Choi, at 4.45am on 30 December 1998. He found that she was extremely emaciated, her weight being 20 kg. She was dehydrated, and had a very low blood pressure and heart rate. She was hypothermic at 34° centigrade. She was given intravenous fluid therapy and subsequently nasogastric feeding. Dr Choi said that her collapse was due to dehydration and severe malnutrition and that she had a very poor prognosis if not treated in a specialist tertiary centre such as Westmead. He said that X’s parents resisted that suggestion and did not appear to understand how poor their daughter’s condition was. By 5 January 1999 X herself told Dr Choi that she felt better and wanted to go home, and clearly did not understand her situation.
Admission to Sutherland Hospital on 29 December 1998
46 On 8 January 1999 X was transferred to the New Children’s Hospital at Westmead, under the care of Dr Michael Kohn and Dr Kenneth Nunn. Dr Kohn, whom I have already mentioned, is a consultant paediatrician specialising in adolescent medicine. Dr Nunn is a consultant child psychiatrist who is Chair of the Division of Psychological, Developmental and Rehabilitation Medicine at Westmead. 47 The circumstances of her transfer to the New Children’s Hospital have not been detailed in the evidence in these proceedings, but one infers that the transfer occurred with the consent of X’s parents, procured only after substantial pressure was applied to them. X’s father refers to DoCS presenting him with a plan for his daughter’s treatment, and complains that he was not consulted in the formulation of the plan, but was told that unless he and his wife signed the plan they would be taken to court. He does not depose to the date of this conversation but it could well have been at about the time of the transfer to Westmead. 48 It is clear that X’s admission to the New Children’s Hospital put her parents in a difficult situation because of the sheer distance of the hospital from their home, a round trip of about 80 kilometres. No doubt they objected to the transfer on that and other grounds. At some stage they expressed a preference for X’s admission to Wesley Private Hospital, much closer to their home, under the care of Professor Beumont. 49 When she arrived at the New Children’s Hospital, X weighed 20.5 kg. Dr Nunn inspected X shortly after she arrived from Sutherland Hospital. He said that in all his years of treating eating disorders, he had never seen a child where the muscles around the mouth were directly visible through the skin, and had never seen in a living body the nerve root canal into the sacrum at the lower end of the spine through the skin. 50 Dr Kohn and his colleagues treated her with oral and nasogastric feeding and she gained weight approximately at the rate of one kilogram each week. In his report he said that X’s difficulties in eating as well as her restricted food options (from preferences and perceived food intolerances) meant that there was no other option than formula feeding. By 8 March 1999 her weight had risen to 30 kg and it had become possible to liberalise her diet and exercise plan. He confirmed that X’s malnutrition occurred from dietary restriction and not as a result of any underlying organic pathology. 51 In his report of 8 March 1999 Dr Kohn recorded that X’s parents continued to present difficulties, opposing ‘management’ and thereby creating ‘an environment of confusion that if unchecked would perpetuate [X’s] eating disorder and malnutrition’. He said they supported a feeding regime which would not be able to meet X’s nutritional needs, the very situation that had led to her becoming so severely emaciated. He said he was at a loss to understand the parents’ insistence in the face of the obvious detriment to X’s psychological and physical well-being. He said that X was progressing in a stable environment with a predictable regime, being treated by specialist staff with experience in managing adolescent patients with eating disorders, and stressed the importance of continuity and consistency of treatment, as well as some capacity to ‘contain the elements introduced by her parents’. 52 By mid-April 1999, X was eating some regular food such as fruit and some vegetables, supplemented by food drinks. However, she was continuing to restrict her food intake despite the hospital offering a choice of vegetarian foods, because she had concerns about food allergies. These were investigated by an immunologist and a gastroenterologist at the hospital, but no physical or laboratory evidence was found to support a food intolerance or allergy. 53 X was treated by Dr Kohn in collaboration with Dr Nunn. Dr Nunn has prepared several written reports and also gave oral evidence in the present proceedings. In his report of 8 April 1999 he noted that she was still seriously underweight and short in stature for her age. She was cooperating with eating but had a restricted diet ‘with unshakeable convictions about dairy products’. Her mood had improved since her admission but her behaviour in the presence of her parents was markedly different than throughout the day during their absence. With her parents she became more serious and the focus of their discussions was on what she was being fed and her commitment to a vegan diet. In the absence of her parents she was more lighthearted and participated willingly in ward activities. He said this:
In-patient at New Children’s Hospital, Westmead - January to April 1999
54 Dr Nunn’s diagnosis was that X has an atypical eating disorder with restricted and refusal elements. He said that approximately 5% of those with anorexia and its related disorders die each decade of the disease. In his view X fell within the group which is most at risk of perishing. However, her condition was remediable if only she could be separated from her family context. He expressed concern that X’s carers would gradually be worn down by family opposition, and noted that death was ‘an ever-present reality’. He expressed the fear that if the current treatment arrangements were not sustained it would be unlikely that anyone would mount such an effort again, and it would be necessary to take a merely palliative approach to her care. He estimated that X had a 40-60% ten years survival rate in her parents’ care, while out of their care that risk would drop very substantially. 55 Nursing staff encountered difficulties in dealing with X’s parents. Dr Nunn reported that nursing staff found negotiations with the parents to be ‘laboured’ over many issues, both substantial and minor. He was contacted by nursing staff who reported that X’s parents had approached another child in the hospital and told her that she did not have to follow Dr Nunn’s directions and could pursue alternative treatment on discharge. The conversation was overheard by another child in the ward whose parents confirmed the substance of it. 56 X and her parents have made a number of specific complaints about X’s treatment at the New Children’s Hospital. The first and most shocking relates to some photographs taken of her after her admission. Essentially their complaint is that the photographs were taken after X and her parents had withdrawn their consent and that she was photographed completely naked by a male photographer with her hands above her head, notwithstanding that Dr Kohn had promised her some privacy. 57 It is clear that some photographs of X were taken at the New Children’s Hospital. The evidence includes a photograph of part of the clothed body of a person whom I presume to be X, holding a request form for patient photography on 14 January 1999, which is endorsed with the words ‘please note cover genitals etc on frontal view’. The plaintiff sought to tender a bundle of photographs which were marked for identification and placed in a sealed envelope. Counsel for the parents objected to the tender of the photographs on the ground that their admission into evidence would unnecessarily distress X, and I excluded them from evidence. However, counsel for the parents admitted that X was not naked in any of the photographs. Dr Nunn was cross-examined on the incident. He neither admitted nor denied the allegation that X was naked when the photographs were taken, saying that he was not there at the time. He said, however, that it would be reasonable procedure in such a case for the patient to be photographed naked, so that her condition could be accurately and carefully documented as a basis for the provision of comprehensive care. He said that Dr Kohn had made a concession that she could be photographed wearing underwear, which he would not have made. He agreed that in a sense the photographs were humiliating but pointed out that such procedures are inevitable in proper medical treatment. He did not deny that a female photographer could have been arranged but said that there was limit to the number of staff which the hospital has. 58 The evidence includes three letters (or perhaps diary notes) written by X on 9, 12 and 16 March 1999. They record X’s unhappiness and complaints about her treatment, but they make no mention of the photographing incident. Also in evidence is a letter to the Minister who is responsible for DoCS, evidently written by X after 20 April 1999, when she discharged herself from the New Children’s Hospital. In this letter X complains passionately about her treatment and alleges that she was photographed naked against her will, saying that she felt degraded and shamed and was completely humiliated. If the incident had occurred in January in the way she described it late in April, one would expect it to figure prominently in her catalogue of grievances written in March. Additionally, when interviewed by Dr Sheridan at Wesley Private Hospital on 6 May 1999, in a context where she wished to persuade Dr Sheridan to accept her into the hospital, she mentioned another incident but made no reference to the photographing. In all the circumstances, I am very doubtful that she was photographed frontally naked with her hands above her head. Additionally, I am not persuaded by Dr Nunn’s evidence that it would have been medically necessary for frontal naked photographs to have been taken, in light of Dr Kohn’s endorsement on the request form. 59 The second incident complained of was that in March 1999, just before X was to be weighed, a female nurse put her hand inside X underwear, from behind, and felt her buttocks. There is no dispute that this incident occurred. However, the plaintiff’s evidence, which I accept, is that such a procedure is a routine and appropriate procedure to ensure that the anorexic patient has not concealed a heavy object on her person which would give an inaccurately high measurement of weight. One would hope that the procedure could be explained to the patient in order to remove or minimise any sense of shock or humiliation on the patient’s part. One can understand, however, that in X’s case nursing staff may have made the judgment that an advance explanation would be counterproductive. My conclusion is that the procedure did not provide any justifiable ground for complaint. 60 Thirdly, there is a complaint against Dr Nunn. In her letter to the Minister of April 1999, X complained that he frightened her, and told her that he was going to be ‘horrible’ to her and tell the nurses to be mean to her. Dr Nunn’s evidence is that this is a caricature of what he said. He sought to explain to X that she would find the experience of treatment hard and may even feel during the course of it that he as her doctor was nasty to her. Her parents, seeing her distress, might think likewise. He told X that, in effect, she should temper her expectation that everything will be easy. He says that X told him she would not feel like that, and that she liked him. I accept Dr Nunn’s evidence and find that the conversation provided no justifiable basis for complaint. 61 Another complaint against the New Children’s Hospital is that X was discriminated against, compared with other patients, who received favours which she was denied. However, having regard to the evidence of the extreme seriousness of X’s condition, I find it not surprising that her treatment regime was special in that she may not have been allowed liberties enjoyed by other, less seriously ill patients. 62 It appears that X was from time to time unhappy and angry about her treatment at the New Children’s Hospital, more or less as Dr Nunn had predicted. It appears from her three letters of March 1999, and from her letter to the Minister of April 1999, that a large part of her unhappiness stemmed from disagreement with the decisions of her doctors and the treatment they prescribed. In one of her letters of March 1999, she refers to a medical opinion, by a doctor whom she does not identify, that she would not be able to get enough nutrition from her limited diet, and continues: ‘but that is soooo not true… I can get enough from the fortified full soy milk, soy cheese, tofu, nuts and seeds, soy beans, legumes, rice (brown), cereals, and yeast free bread.’ Later she says ‘he thinks that because it’s happened twice that’ll happen again - but the 1st time it was the parasites fault, and the 2nd the PW’s fault - they gave me an eating disorder…’. Absent reinforcement from her parents, one would expect that she would eventually realise how unwise as well as pointless it was to back her own medical judgment against the judgments of the experts. The evidence of Dr Kohn and Dr Nunn is that when her parents’ reinforcement was not close at hand, she was much better adjusted to the treatment regime. 63 Some time in March 1999 X told her parents that she was frightened and did not trust the nursing staff and wanted to run away. The parents say they were at that time trying to move X to another hospital, and that they received permission from Wesley Hospital to take her there. They say that when they informed DoCS of their intentions, DoCS initiated proceedings in the Children’s Court. Afterwards X continued to threaten to her parents that she would run away. They say they tried to turn her away from the idea of running away.
‘Irrespective of intent and motive, the parents generally end up on the side of discharge rather than admission; the seeking of alternative options rather than the opinion of the current clinicians; in favour of [X’s] restrictive food practices rather than a commitment to broaden her food intake; and against the wholehearted collaborative approach with professionals that is so characteristic with other life-threatening medical illnesses.’
X’s parents amplified relatively trivial concerns in the face of her life-threatening condition. Dr Nunn found it difficult to see how X could mount any effective challenge against the relentless pressure of her parents’ influence when the efforts of experienced professionals were repeatedly thwarted and stymied. He and the hospital staff had not seen a single instance where X expressed a position or opinion independent of her parents.
64 On 15 March 1999 the plaintiff commenced proceedings in the Children’s Court in relation to X, alleging that she is in need of care within the meaning of the Children’s (Care and Protection) Act 1987 (NSW). On 17 March 1999 that Court made an order under s 77(1)(a)(v), pending determination of those proceedings, that X be placed in the care of the plaintiff. 65 On 19 March 1999 Professor Beumont wrote to X’s parents indicating that he would take over X care at Wesley Private Hospital, provided that two conditions were met. The first was an assurance by Doctors Kohn and Nunn that X’s transfer to Wesley would be in her best interests. The second was for Wesley to offer her a place. It appears that X’s parents do not have private health cover for her. Professor Beumont noted that Wesley takes some uninsured patients ‘pro deo’ but that would be a matter for the hospital’s chief executive officer. 66 On 22 March 1999 Dr Nunn wrote to Professor Beumont pointing out that X was under the care of the Director General, and that both he and Dr Kohn believed that a change of doctor and venue would seriously compromise the continuity of X’s care and the configuration of services that had been assembled for her. Professor Beumont responded on 29 March, saying that the facilities of the New Children’s Hospital for a patient of X’s age and severity of illness are superior to those which he could offer at Wesley or Royal Prince Alfred Hospital (‘RPAH’). He said he would be willing to have X transferred to either Wesley or RPAH under his care, but only after discussion and consultation with Doctors Nunn and Kohn and with their agreement. He pointed out that RPAH could not admit her unless it obtained authority from the Department of Health to take an extra tertiary patient above its agreed load, and in the case of Wesley the chief executive would need to consent to a prolonged admission on a pro deo basis. He said in his opinion X was better placed at the New Children’s Hospital than RPAH or Wesley, but had offered his assistance in the hope that he could broker a resolution of the conflict between X’s parents on the one hand, and DoCS and the doctors at the New Children’s Hospital on the other. Without pre-empting his eventual opinion, he said it was likely that he would recommend that X should stay at the New Children’s Hospital with some modifications being made to accommodate her parents’ concerns. 67 Dr Nunn provided a report for the Children’s Court, dated 25 March 1999, in which he opposed a further assessment of X by Professor Beumont, on the ground that it would serve to destabilise and undermine the capacity of DoCS and the New Children’s Hospital to maintain the framework of protection which they had put in place. 68 The proceedings came before the Children’s Court for mentions and interlocutory applications, including an application by X’s parents which led the Children’s Court on 25 March 1999 to grant them leave for Professor Beumont to assess X. A pre-hearing conference was convened for 20 April 1999, by which time it was hoped that Professor Beumont’s assessment would be available. However, although the conference was held, Professor Beumont’s further assessment had not at that stage been made, and has not been made up to the present time. 69 After X discharged herself from the New Children’s Hospital on 20 April 1999, the Children’s Court proceedings were overshadowed by proceedings in this Court, and on 17 May 1999 I made an order staying the proceedings in the Children’s Court until further order.
The Children’s Court proceedings
70 X left the hospital on the afternoon or evening of 20 April 1999. Hospital staff searched the hospital and surrounding area and contacted Parramatta Police. X’s parents arrived for their evening visit at around 7pm and were informed that X was missing. They said they did not know where she was. 71 DoCS and the doctors at the New Children’s Hospital became very concerned for her welfare. Dr Kohn reported that if she were to stop eating and drinking, her health would rapidly deteriorate, and if she resumed her earlier eating habits she would gradually lose weight, with the risk of bone, kidney, brain, liver and other organic damage, as well as risks from her mental condition. 72 The police issued a media release stating that X was missing and required urgent medical attention. This was publicised on radio and television without response. X’s parents received various anonymous telephone calls saying that X was fine and was eating and drinking. They received a letter from her in which she said she was eating and drinking ‘really well’ but could not come home because she was ‘too scared of being sent back to Westmead Children’s Hospital’. They found a letter in her belongings in which she said she was running away because she could not cope any more, and that she was putting weight on at the hospital but ‘they’re torturing me in my emotions/psychologically’. 73 On about 30 April 1999 the Director General of DoCS received a telephone call from the Reverend John Scott, who said he was telephoning on behalf of X’s parents. He purported to speak for X and, in effect, endeavoured to negotiate for X’s return to Wesley Private Hospital, rather than to the New Children’s Hospital, and for discontinuation of the Children’s Court proceedings. Reverend Scott also spoke to the police, and sought to reach an understanding with them that they would not lay charges against the people involved if X was returned. Eventually X and a solicitor retained to act for her arrived at Wesley Private Hospital on the evening of 5 May 1999.
X ‘escapes’ from the New Children’s Hospital - 20 April to 6 May 1999
74 X was interviewed by officers of DoCS at Wesley Private Hospital on 7 May 1999. She refused to return to the New Children’s Hospital but said ‘things were quite a lot better’ at Wesley. She said she was safe while missing, but would not indicate where she had been. 75 X was interviewed by Dr Margaret Sheridan, a psychiatrist working in the eating disorders programme at Wesley Private Hospital. Dr Sheridan could only give a descriptive report but observed that X was significantly underweight and her case would warrant treatment in a hospital unless she was able to gain weight as an outpatient on a steady basis. In her report of 10 May 1999 Dr Sheridan explained that in the absence of Professor Beumont overseas, she was the only psychiatrist working in the eating disorders programme at Wesley Private Hospital, with an exceptionally heavy case load. She said that in view of limited resources, she was not willing to take on a patient with the complexities of X. 76 On 11 May 1999 the Chief Executive Officer at Wesley Private Hospital contacted DoCS to confirm that due to the absence of Professor Beumont overseas, and the case load of Dr Sheridan, Wesley was not in a position to take on a patient whose case had the complexity of X. He said the New Children’s Hospital had the expertise and background knowledge of X to provide a more appropriate service.
X as an in-patient at the Wesley Private Hospital - 5 to 24 May 1999
77 The proceedings in this Court began when an ex parte application was made by the plaintiff to me as duty judge on 12 May 1999, for leave to file in court a summons seeking an order that X be made a ward of this Court and that she be moved to the New Children’s Hospital, as well as other orders. I made orders for abridgment of service and other ancillary orders, and the matter returned for further hearing on 14 May 1999. 78 At that hearing both the defendants, X’s parents, and X herself were represented by counsel. By consent, they invited me to make orders, pending further order, declaring X to be a ward of court under the control of the plaintiff, staying the Children’s Court proceedings, and adjourning the proceedings in this Court until 24 May 1999 so that the plaintiff could carry out an assessment of the suitability of Bronwyn and Graeme Lougheed to provide residential care for X. 79 However, the parties could not reach agreement as to where X should reside until 24 May, what access her parents should have to her during that time, and whether I should direct the plaintiff to allow an independent assessment of X. I proceeded to an interlocutory hearing on those matters until late on the evening of Friday 14 May, reserving my judgment until the following Monday morning. On Monday 17 May I made the orders which the parties had sought by consent, and declined to make any of the orders which had been opposed. The result was that X remained at Wesley Private Hospital until the adjourned hearing on 24 May 1999 and her parents had access to her there, but there was no further independent medical assessment of her. 80 On 24 May 1999 the plaintiff, X’s parents (the defendants) and X were represented by counsel. X’s parents put forward some alternative proposals for X’s care, advocating that she be placed with either Dr and Mrs Barratt or Bronwyn and Graeme Lougheed. I shall consider these proposals later. 81 After hearing further evidence and submissions, I made the following orders in substitution for all orders previously made:
The present proceedings
82 I indicated that I would deliver written reasons for my decision to make these orders. The present judgment contains these reasons.
1. That the young person X born 21 December 1983 be and remain until further order a ward of the Supreme Court of New South Wales.
2. That pending further order the Director-General of the Department of Community Services or her delegate be granted custody, care and control of the said child.
3. That the appointment of KATHRYN RENSHALL, Solicitor, of 249 Bronte Road, Waverley, New South Wales, as the separate representative of the said young person continue until further order.
4. That the proceedings commenced by the Director-General pursuant to the Children (Care and Protection) Act 1987 in the Children’s Court of New South Wales in respect of the said young person be stayed pending further order.
5. That the said young person reside as an in-patient at the New Children’s Hospital for the purpose of administration of such treatment as may be necessary in the opinion of Dr Kenneth Nunn and/or Dr Michael Kohn.
6. That leave be granted to the staff of the New Children’s Hospital to detain the said young person at or return her to the hospital and to use reasonable force (if necessary) in so detaining or returning her.
7. That leave be granted generally to Dr Kenneth Nunn and Dr Michael Kohn to furnish such treatment and nursing care as is in their opinion necessary and as may be appropriate to ensure that the said young person suffers the least distress and retains the greatest dignity.
8. It is noted that these orders are made as being in the best interests of the said young person and are exercisable whether or not she consents thereto.
9. That Dr Kenneth Nunn and/or Dr Michael Kohn are directed to provide a written report to this Honourable Court and to the parties and the separate representative on or before 12 July 1999 as to the treatment, progress and general wellbeing of the said young person.
10. (a) That the Director-General ensure that the staff of the New Children’s Hospital involve the defendants and the separate representative in all decisions relating to access between the said young person and her parents, Y and Z.
(b) In the event that no agreement as to access is reached, it is noted that it is the intention of the parties and the separate representative to restore this matter to the List for further consideration of that issue by this Honourable Court.
11. (a) That the Director-General be directed to destroy all copies and negatives of photographs of the said young person currently in the possession of staff of the Department of Community Services.
(b) It is noted that the Director-General undertakes to request the staff of the New Children’s Hospital to place all photographs of the said young person in a sealed envelope within the hospital file.
12. That leave be granted to the separate representatives to provide copies of all judgments herein to Dr Kenneth Nunn and to inform him of the concerns expressed by the said young person as to her readmission to the New Children’s Hospital.
13. That it be noted that the Director-General undertakes that she will not request that any additional photographs of the said child be taken while she is an in-patient at the New Children’s Hospital.
14. That the following undertakings from the staff of the New Children’s Hospital given via Dr Kenneth Nunn be noted:
(a) That additional photographs of the said young person will be taken only if such are considered medically necessary by Dr Kenneth Nunn and/or Dr Michael Kohn.
(b) If the said young person consents to being weighed while attired only in a hospital gown, no search of her clothing need be carried out.
15. That it be noted that the Director-General undertakes that she will arrange for a female photographer to take all further photographs of the said child which may be deemed medically necessary by Dr Kenneth Nunn and/or Dr Michael Kohn.
16. (a) That the Director-General is ordered to arrange a formal case conference within seven (7) days of the date of these orders and a case conference thereafter once every four (4) weeks.
(b) It is noted that the Director-General undertakes to confer by telephone with the defendants Y and Z every second working day as to the said young person’s treatment, progress and general wellbeing and that such contact shall be made with A.M. Cora Ingram.
17. It is noted that the defendants, Y and Z, are to be permitted to write one letter per week to the said young person provided that all such correspondence shall be forwarded via A.M. Cora Ingram, with the intention that she shall check the contents thereof to ensure that such do not undermine the treatment program for the said young person.
18. The Director-General will use her best endeavours to facilitate reasonable access to the young person by the separate representative, and pastoral visits once a week on Sunday afternoons.
19. That no material be published in respect of these proceedings which would identify the young person.
20. The defendants are restrained from discussing with the young person the evidence given by Dr Nunn by written report or orally in these proceedings.
21. These orders are in substitution for the orders made in these proceedings on 12, 13, 14 and 17 May 1999, and the Court’s orders made on those days are dissolved.
22. Liberty to the parties and the separate representatives to apply on 24 hours notice to have the matter restored, if possible, to the List of his Honour Justice Austin.
83 At the hearing the plaintiff submitted that this Court has jurisdiction to make the orders which the plaintiff sought. The defendants did not challenge the Court’s jurisdiction. Nevertheless I satisfied myself that I had the power to make the orders which I eventually made, and I now set out my reasons for reaching this conclusion. 84 The orders which I made on 17 and 24 May 1999 are in three categories, relating to wardship and parental access, compulsory medical treatment and stay of proceedings. The remainder of the orders of 24 May 1999 either note various undertakings or are ancillary to orders in one of the three categories mentioned. I shall deal with the Court’s power to make orders in each of these three categories.
Jurisdiction of the Supreme Court
85 My orders of 24 May 1999 included an order that X be a ward of this Court until further order, under the custody, care and control of the plaintiff (orders 1 and 2). The Court’s power with respect to wards of court derives from the historical jurisdiction of the English Court of Chancery, and is part of the parens patriae jurisdiction. Lord Eldon LC explained the jurisdiction in Wellesley v Duke of Beaufort (1827) 2 Russ 1, 20 [38 ER 236, 243] thus:
Wardship and parental access
86 Originally the function of wardship was to protect the property of a minor, where the parents were dead or unable to protect it themselves. However the jurisdiction was expanded from its origin in property to become a jurisdiction concerned with the protection and welfare of children more generally. The effect of making a child a ward of court is that the custody of the child, in the widest sense, rests in the court, which then has wide powers in relation to the ward to the extent that the court’s consent is required for all important steps taken in the ward’s life: Re S (an infant) [1967] 1 All ER 202, 209. The court’s power supersedes the rights and powers of the parents or other guardians (R v Gyngall [1893] 2 QB 232, 239) and the court takes over the ultimate responsibility for the ward, though it grants the care and control of the ward to a named person or persons (see N V Lowe & R A H White, Wards of Court (2nd ed, 1986), 6-9). 87 In New South Wales the Court of Chancery’s jurisdiction in wardship was formerly exercised by the Supreme Court in Equity, and that jurisdiction was vested by the Supreme Court Act 1970 (NSW), s 23 in the present Court, to be exercised as a matter of practice by the Court in the Equity Division. This was confirmed by s 53 of the Supreme Court Act, which assigned to the Equity Division proceedings which would have been commenced in the Supreme Court of Equity prior to 1972, including specifically proceedings for the wardship of infants (s 53(3)(j)). In K v Minister for Youth and Community Services [1982] 1 NSWLR 311 it was held that the inherent parens patriae jurisdiction with respect to children was not confined to wardship, and the Court could make orders about the custody and care of children without first declaring them to be wards of court. 88 The Court’s historical jurisdiction has survived the enactment of New South Wales legislation dealing with the welfare of children. In K v Minister for Youth and Community Service (cited above) Helsham CJ in Eq held that the court’s inherent power to protect the interests of infants, deriving from the parens patriae jurisdiction, had not been displaced by the Child Welfare Act 1939 (NSW). His Honour said (at 323):
‘[I]t belongs to the King, as parens patriae having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law 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 round them.’ (On appeal, sub nom Wellesley v Wellesley (1828) 2 Bli NS 124 [4 ER 1078]; see also Re Eve [1986] 2 SCR 407; 31 DLR (4th) 14.)
89 The Children (Care and Protection) Act 1987 (NSW), the Act under which the Children’s Court proceedings in the present case were brought, clearly recognises the inherent jurisdiction of the Supreme Court. Thus, while s 72(1)(c) gives the Children’s Court the power to make an order declaring a child to be a ward, s 73(4) states that the Children’s Court is not to make such an order if it would be inconsistent with an order made by the Supreme Court ‘in the exercise of its jurisdiction with respect to the custody and guardianship of children’. Section 88(4) states that nothing in Part 5 (which deals with children in need of care) limits the jurisdiction of the Supreme Court ‘with respect to the custody and guardianship of children’. Section 96 contains an equivalent provision with respect to Part 6 of the Act (which deals with wards and protected persons). In my opinion these statutory references to the Supreme Court’s jurisdiction with respect to the custody and guardianship of children identify or include the Court’s inherent parens patriae jurisdiction. 90 I turn to consider whether the Family Law Act 1975 (Cth) is an obstacle to this Court’s exercise of the parens patriae jurisdiction. It is clear that under the Family Law Act the Family Court and other courts exercising jurisdiction under that Act have a statutory jurisdiction which is similar to the parens patriae jurisdiction of the Supreme Courts of the States: Secretary, Department of Health and Community Services v JWB & SMB (Marion’s case) (1992) 175 CLR 218. The amendments to the Family Law Act which gave those courts a general jurisdiction with respect to child welfare were made by the Family Law Amendment Bill of 1983. According to the Attorney-General’s Second Reading Speech, those amendments were intended to implement the recommendations of the Watson Committee, which had recommended that the substance of the wardship jurisdiction be conferred exclusively on courts exercising jurisdiction under the Family Law Act in relation to children to whom that Act applies: Australian Senate Parliamentary Debates (Hansard), 1 June 1983, 1098; Watson Committee Report (Wardship, Guardianship, Custody, Access, Change of Name), November 1982, recommendation (2). 91 However, whatever may have been the intention of the Watson Committee, it appears that the amendments to the Family Law Act did not exclude the Supreme Courts of the States from making orders with respect to wardship and the custody and care of children. For one thing, the statutory powers vested in courts which exercise jurisdiction under the Family Law Act have been cross-vested to the Supreme Court by the Jurisdiction of Courts (Cross-vesting) Acts 1987 (Cth and NSW). Additionally, it appears that the inherent parens patriae jurisdiction of the Supreme Courts of the States has not been extinguished by the Family Law Act. 92 The constitutional power of the Commonwealth Parliament to make laws with respect to the protection or welfare of children is limited: Fountain v Alexander (1982) 150 CLR 615. However, the Parliaments of some States including New South Wales have referred certain matters relating to children to the Parliament of the Commonwealth so as to augment the Commonwealth’s legislative power under s 51(xxxvii) of the Constitution: see Commonwealth Powers (Family Law - Children) Act 1986 (NSW). In the case of New South Wales, however, the matters referred to the Commonwealth are expressed not to include the taking of action which would interfere with a person acquiring custody and care of a child under a provision of the Children (Care and Protection) Act 1987 (NSW), or the jurisdiction of the Supreme Court to make orders in respect of children who are in such custody (Commonwealth Powers (Family Law - Children) Act, s 3(2)(a) and (c)). 93 By s 69ZE of the Family Law Act, Part VII of that Act (which relates to children) applies to New South Wales only for so long as a law such as the Commonwealth Powers (Family Law - Children) Act remains in force; and Part VII extends to New South Wales only so far as it makes provision with respect to matters referred to it by the State legislation or matters incidental to the execution of any Commonwealth constitutional power. It follows that, relevantly, Part VII of the Family Law Act should not be construed so as to interfere with orders giving a person custody of a child under the Children (Care and Protection) Act, or orders made in the exercise of the jurisdiction of the Supreme Court with respect to children who are in such custody. 94 Section 69ZK of the Family Law Act says (relevantly) that nothing in that Act affects the jurisdiction of a court under a child welfare law to make an order by which a child is placed under the care of a person under a child welfare law, or the operation of a child welfare law in relation to a child. ‘Child welfare law’ is defined in s 60D to mean a law of a State prescribed for the purposes of the definition. Regulation 12B and Schedule 5 prescribe specified provisions of the Children (Care and Protection) Act, including the sections which authorise the Children’s Court to make orders and interim orders declaring a child to be a ward under the State legislation (ss 72(1)(c)(ii) and (iii) and 77(1)(a)(v) and (b)(iii)), and also the sections which expressly preserve the jurisdiction of the Supreme Court with respect to the custody and guardianship of children (ss 88(4) and 96)). I should note that there is an argument that the predecessor of s 69ZK, namely old s 60H, continues to apply to New South Wales (see R Chisholm and J Dewar, Butterworths’ Australian Family Law (looseleaf), volume I para [s69ZK.12]), but it is unnecessary for me to determine that question because the old and new provisions are not different from one another in any way which is material to the present case. 95 In my opinion, the result of this complex web of provisions is that the parens patriae jurisdiction of the Supreme Court of New South Wales, including its jurisdiction with respect to wardship and other orders for custody, is not affected by the Family Law Act, in a case where the Supreme Court makes an order in respect of a child who is already in custody under the Children (Care and Protection) Act 1987 by virtue of an order of the Children’s Court. That is the situation in the present case, having regard to the order of the Children’s Court made on 17 March 1999 under s 77(1)(a)(v). Indeed, if the Family Law Act purported to affect the Supreme Court’s jurisdiction in such a case, the Act would be unconstitutional to the extent that it relied for validity on the referral of power under the Commonwealth Powers (Family Law - Children) Act, having regard to s 3(2)(c) of the latter Act. But the Family Law Act does not, as a matter of construction, purport to affect the Supreme Court’s jurisdiction in such a case, because of s 69ZK. 96 Indeed, as I read it, the Family Law Act does not purport to affect any part of the jurisdiction of the Supreme Court which is preserved by ss 88(4) and 96 of the Children (Care and Protection) Act. This means, in my view, that the whole of the parens patriae jurisdiction of the Court with respect to the wardship, custody and care of children is unaffected by Part VII of the Family Law Act. However, since in the present case the Court’s orders relate to a child already in custody by virtue of orders of the Children’s Court, it is unnecessary for me to decide this point. 97 Although I cannot find any detailed consideration of Court’s parens patriae jurisdiction with respect to custody of children after the enactment of the 1983 amendments to the Family Law Act, McLelland J and Bryson J have both referred to the relevant provisions of the Family Law Act and have concluded that the jurisdiction survives, although in the cases before them the child was a ward by virtue of orders of the Children’s Court: Director-General Department of Community Services v Australian Broadcasting Corporation (Supreme Court of New South Wales, No. 2265/96, McLelland J, 4 June 1996, unreported) and Ensby v Director-General Department of Community Services (Supreme Court of New South Wales, No. 4319/93, Bryson J, 21 April 1994, unreported). There are other cases in which the wardship jurisdiction was invoked by this Court after the 1983 amendments: B v Director-General Department of Community Services (Supreme Court of New South Wales, No. 3308/86, McLelland J, 5 December 1986, unreported), Morahan v Morahan (Supreme Court of New South Wales, No. 1405/88, Young J, 31 March 1988, unreported) and Darling v Darling (Supreme Court of New South Wales, No. 5385/86, Kearney J, 16 July 1987, unreported).
‘In its role as parens patriae [the Court] has always had power to interfere with the actions of guardians where necessary to protect the welfare of wards. This is, of course, a power not restricted to wards nor arising because of wardship. It is a power of the Sovereign to protect persons who from their legal disability stand in need of protection… [I]t would seem to me that good reason would have to be shown why the Court’s jurisdiction over these children is excluded.’
98 The orders which I made on 24 May 1999 include orders authorising Doctors Nunn and Kohn to furnish such treatment as is in their opinion necessary, and authorising the staff of the New Children’s Hospital to detain X there, noting that these powers were exercisable whether or not X consents (orders 5, 6, 7 and 8). 99 In Marion’s case, cited above, the court noted that contemporary descriptions of the parens patriae jurisdiction over children accept that in theory there is no limitation on the jurisdiction. Hence, in the High Court’s view, the jurisdiction can be used to authorise the medical sterilisation of a retarded girl, even if the parents cannot consent to the operation. 100 In Re R [1991] 3 WLR 592 the English Court of Appeal held that in the exercise of its wardship jurisdiction the court could override the decision of the ward to refuse medical treatment (in that case, anti-psychotic drugs). This would be so, the court held, even though the child were of sufficient maturity and intelligence to understand the nature and implications of the proposed treatment - that is, that even if she had been ‘Gillick competent’: Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 X 112. 101 The use of the court’s wardship powers in a case of anorexia nervosa is well illustrated by Re W [1992] 3 WLR 758. There the judge at first instance found that W had sufficient understanding to make an informed decision but that he had jurisdiction to authorise medical treatment without her consent. He concluded in view of the medical evidence that he should do so, and the Court of Appeal dismissed an appeal from that judgment. Lord Donaldson MR pointed out (at 762) that one of the symptoms of anorexia nervosa is a desire by the sufferer to ‘be in control’ - a desire well illustrated by X’s behaviour - and refusal of treatment is an obvious way of demonstrating this. Hence the need for a power, to be used in an extreme case, to order medical treatment without consent. The first and paramount consideration is the well-being, welfare and interests of the child. The child’s wishes are highly relevant but not conclusive. As Lord Donaldson MR said (at 770):
Medical treatment
102 In Re C [1997] 2 FLR 180 it was held that the court had the power to direct an anorexic patient to remain as a patient at a clinic until discharged by her consultant or until further order of the court. The court’s power included the power to authorise her detention at the clinic with the use of reasonable force, if necessary. This case is particularly germane to the orders which I have made. 103 Obviously the Court’s power in the inherent jurisdiction to countermand the wishes of the child is to be exercised sparingly and with great caution. However, as Lord Donaldson MR acknowledges, there may be cases where it is necessary to do so. I have carefully considered the wishes of X as well as the wishes of her parents, but I have reached the view that this is clearly such a case. X’s wishes are affected by her illness, which appears to be preventing her from understanding the seriousness of her medical condition and from taking proper account of the expert medical advice which is available to her. The justification for overriding her wishes is that on the evidence, her long term health and even her survival are seriously at risk unless steps are taken to give her the medical treatment she needs. For reasons set out below, the only viable option for provision of medical treatment is in the New Children’s Hospital, to which she must therefore go notwithstanding her opposition.
‘I regard it as self-evident that this involves giving them the maximum degree of decision-making which is prudent. Prudence does not involve avoiding all risk, but it does involve avoiding taking risks which, if they eventuate, may have irreparable consequences or which are disproportionate to the benefits which could accrue from taking them.’
104 On 17 and 24 May 1999 I ordered, by consent, that the Children’s Court proceedings be stayed pending further order. The intention and effect of my order was clear. By virtue of ss 73(4) and 90(1)(b)(ii) of the Children (Care and Protection) Act 1987 (NSW) my order declaring X to be a ward of the Court had the effect of overriding any orders of the Children’s Court, and my order that proceedings in that Court be stayed had the effect of restraining the parties to the proceedings before me from taking any further steps in the Children’s Court proceedings. On reflection, I am not sure whether I was right to order a stay of proceedings rather than to make orders restraining the parties from taking further steps in the proceedings (compare the approach of the Federal Court where proceedings have been instituted in a State Court, described by Meagher, Gummow and Lehane, Equity Doctrines and Remedies (3rd ed, 1992), paragraph [2104]). But in my view nothing turns on that, since the purpose and effect of the orders which I made is clear. 105 The plaintiff submitted that it was appropriate for this Court to intervene rather than leaving the custody and care of X to be determined by the Children’s Court, because the inherent jurisdiction of this Court is broader and more flexible than the jurisdiction of the Children’s Court. That the Court’s inherent jurisdiction is highly flexible cannot be denied. As N.V. Lowe and R.A.H. White (Wards of Court, 2nd ed, 1986) say (at 9):
Stay of Children’s Court proceedings
106 It does not seem to me that there is any prejudicial lack of certainty about the arrangements in this case, given that my orders have placed X in the care and control of the plaintiff’s officers. The use of the inherent jurisdiction to sidestep restrictive legislative provisions can, of course, be dangerous, since the restrictive provisions would in many cases have been inserted to provide important protections. However, the breadth and flexibility of the Court’s powers in the inherent jurisdiction can be a real advantage in a case such as the present. In particular, in the exercise of its powers in the inherent jurisdiction, the Court can make orders overriding the refusal of the child and her parents, authorising detention with reasonable force, and limiting the parent’s access to their child. Although the matter was not fully developed in the plaintiff’s submissions, it seems to me unlikely that this combination of results could have been achieved in any simple way having regard to the statutory provisions which would have applied in the absence of this Court’s intervention, under ss 20(1) and (2), 72, 77(1) and 1(A), 90 and 93 of the Children (Care and Protection) Act 1987 (NSW). Having regard to these considerations, I was satisfied that in the special circumstances of this case, it was appropriate for the Court to intervene to establish a regime for X’s custody and care which superseded the regime which would have applied under orders of the Children’s Court.
‘Another notable feature of wardship is that it is not a creature of statute. This has enabled it to develop and adapt to changing social conditions and values. At the present time the wardship jurisdiction has managed to combine a high degree of flexibility with relative lack of formality and ease of access to the court. The court is able to exercise wide powers without being hampered by technical problems which frequently arise from statutory provisions. Such a high degree of flexibility has, however, both its virtues and its dangers so that, for example, while the court has the power to ensure that technicalities do not obstruct the welfare of its wards, at the same time lack of certainty thereby produced could prejudice their welfare.’
107 As at 24 May 1999 there were the following options for X’s further treatment: discharge of X into the care of Dr and Mrs M M Barratt; discharge of X into the care of Bronwyn and Graeme Lougheed; treatment under the supervision of Professor Beumont and Dr Sheridan at Wesley Private Hospital; treatment under the supervision of Professor Beumont at Royal Prince Alfred Hospital; return to Sydney Children’s Hospital (Prince of Wales); resumption of the health care programme at the New Children’s Hospital; and discharge of X into the care of her parents. 108 Some of these options can be dismissed quickly. Dr and Mrs Barratt were put forward as potential carers by X parents at the hearing on 24 May 1999. Dr Barratt is a partner in a private pathology practice, who has developed a specialised interest in gastroenterology because one of his 11 children has a severe gastroenterological illness. Dr and Mrs Barratt live in a large eight bedroom home on ten acres overlooking Penrith Lakes, with the three of his children who remain at home. Mrs Barratt is a trained physiotherapist. Dr and Mrs Barratt have generously offered to X’s parents that they would provide accommodation to her without cost and manage all aspects of her rehabilitation, in a loving and supporting environment. 109 In my opinion, the proposal to place X with Dr and Mrs Barratt must be firmly rejected. The medical history of X shows that time and again there have been medical investigations to establish whether there is any gastroenterological basis for her condition, and time and again the specialist findings have been that X’s disorder cannot be explained by any gastroenterological or other physical condition. 110 It appears to me from Dr Barratt’s letter that if X was placed in his care, he would treat her on the basis that her problem was gastroenterological rather than psychiatric. His letter recounts that at one stage his own child’s medical condition was assessed to be psychiatric, with atypical anorexia features; but ‘investigations persisted and she was found to have two highly pathogenic, abnormal bowel organisms’. A course of treatment based on the hypothesis that X had a similar physical condition would be successful only if the hypothesis proved to be true. The preponderance of medical evidence is to the contrary. Treatment based on such a hypothesis, if false, would be extremely dangerous and life-threatening for X. It would be irresponsible to opt for that treatment, even if it was administered in facilities more sophisticated than a rural homestead overlooking Penrith Lakes. 111 Placing X in the care of Bronwyn and Graeme Lougheed was another proposal developed by her parents. At the hearing the plaintiff provided a written placement assessment report of Mr and Mrs Lougheed, prepared by two of its senior officers. The assessment report is a thorough document which reveals that Mr Lougheed is in his early 40s and Mrs Lougheed is in her late 20s; they have been married for a little over two years and are happily married; if X were to live with them it would be necessary for them to move from their rented two bedroom home unit into a three bedroom residence; Mrs Lougheed is primarily engaged in counselling young women with eating disorders but has no counselling qualifications; she has some qualifications in fitness training and a diploma of nutrition and has recently commenced a counselling course; Mrs Lougheed developed an eating disorder when 14 from which she recovered about two years ago; Mr and Mrs Lougheed have a strong network of support through family, friends and fellow Christians; Mrs Lougheed met X late in 1998 and they ‘clicked’ straight away. The assessing officers conclude that Mr and Mrs Lougheed are genuine and caring people but they cannot at present offer a suitable physical environment for X; there is a potential for Mrs Lougheed’s roles as friend and counsellor to become blurred; neither Mr nor Mrs Lougheed have had sufficient experience at either parenting or counselling to undertake the care of X at this stage, but they have the potential to be good foster carers in the future. The officers recommend that Mr and Mrs Lougheed undertake the foster parents’ training course run by their local community services centre and then apply to be reassessed. 112 I agree with this assessment. Mr and Mrs Lougheed may be able to assist X at some future time, but it would be very risky from several points of view to entrust X to their care at this stage. 113 Wesley Private Hospital seemed at one stage to be an available alternative. However, Dr Sheridan made it clear in her report of 10 May 1999 that she could not take on X in view of her current patient load. On 19 May 1999 the operations manager at Wesley informed DoCS in writing that Wesley would continue to care for X until midday on 25 May 1999 but that it was imperative that the matter be brought to conclusion by that time. I infer that Wesley was unwilling for X to remain as an in-patient there for any significant period after the hearing on 24 May 1999. Additionally, both the operations manager and Dr Sheridan, in her further report of 20 May 1999, made it clear that in their opinion X requires a structured programme which may have to extend over a number of months and was at risk and in distress in the absence of such a programme. In these circumstances, Wesley Private Hospital was not an option for further treatment or care of X after the hearing on 24 May 1999. 114 In correspondence in March 1999 Professor Beumont raised the possibility of treating X at Royal Prince Alfred Hospital. However, it appears to me that that is not a real prospect. Professor Beumont indicated that X would be an additional patient above the agreed load the hospital, a distinctly sub-optimal position given the level of care and attention which she obviously requires. Further, Professor Beumont is not prepared to undertake responsibility for X unless Doctors Nunn and Kohn consent, and it is plain that they will not consent because they strongly believe that transferring X to a new treatment programme is contrary to her best interests. 115 There is no evidence as to whether the Sydney Children’s Hospital (Prince of Wales) would be able to accept X as an in-patient again, but even if they were, it appears to me that such a course would be less desirable than for her to resume her treatment at the New Children’s Hospital. X and her parents seem to have formed such a strong dislike of both institutions that nothing would turn on their attitude. The Sydney Children’s Hospital would have to build up a new ‘constellation of care’ (to use Dr Nunn’s words) whereas such a structure is already in place at the New Children’s Hospital. 116 This leaves the Court with only two alternatives, namely for X to resume at the New Children’s Hospital or for her to be returned to her parents, who would make such arrangements as they see fit. The sad truth is that, although X parents are loving and dedicated and desperately want their daughter to recover, during the last four years they have stood squarely in the path of the medical experts who have endeavoured to cure her. It is not as if they have made mistakes which they now recognise and will avoid in future. At the hearing on 24 May 1999 they wanted to send X to a semi-rural home in the care of a pathologist who appears to be disposed to the view that her anorexia is a misdiagnosed bowel organism and if that option was not acceptable to the Court, they would place their daughter with well-meaning but inexperienced foster-carers whose home unit is not large enough to accommodate her. Their view is, it seems, that anything is preferable, however speculative and risky, to the expert treatment offered at a specialist adolescent eating disorders unit at a major hospital. Their objection to the New Children’s Hospital cannot be put down to a clash of personalities or some peculiarity about that hospital. They have constantly resisted and undermined their daughter’s medical treatment at each of the three public hospitals in which she has been an in-patient. All the indications are that they would develop a similar attitude of resistance to any other form of in-patient or institutional treatment. One could not be confident that in time, no similar problems would emerge with Wesley Private Hospital. 117 It remains the case, as it has been for some time, that X’s health and even her survival are seriously at risk. The expert medical opinions of Dr Nunn, Dr Kohn, Dr Sheridan and Professor Beumont, each of which I accept, is that X is in need of extended hospitalisation for the administration of a tightly organised and strict treatment programme involving re-feeding, physiotherapy, psychotherapy, and in particular, ongoing monitoring. Only an institution large enough to have a specialised unit can provide adequate facilities of that kind. There is simply no other alternative, on the evidence, to the New Children’s Hospital. At Wesley, X appeared to be eating her prescribed menu and yet over a period of more than two weeks she gained only 200 grams, and I infer from Dr Sheridan’s report of 20 May 1999 that she was sceptical as to whether X was properly following the programme at Wesley. Dr Sheridan diagnosed an obsessive compulsive disorder, and though a search for laxatives did not discover any, she noted that X spent long periods of time in the bathroom. 118 Dr Sheridan’s report of 20 May 1999 conveyed a note of urgency, especially in her conclusion that ‘her weight is now dropping and she requires significant intervention for her obsessionality. It is imperative that she does not sit around waiting to be treated for a lengthy period of time.’ That is the state of affairs with which the Court was confronted on 24 May 1999.
Options for X’s further treatment
119 Given the strong and uniform evidence of the medical experts, and the lack of any plausible alternative, I decided on 24 May 1999 that the only proper course for the Court to take, in the best interests of X, was to order her to return to the New Children’s Hospital. The decision would have been the obvious and inevitable one to make if the only evidence had been the evidence of the medical experts. What made the case excruciatingly difficult was X and her parents’ passionate opposition to the New Children’s Hospital. In addition to the evidence of her parents to which I have referred, I received a personal letter from X which was tendered by her counsel. In that letter X graphically restated her opposition to the New Children’s Hospital, which she described as ‘too terrifying’. She implored me not to send her back, and she told me that she needed to be with her family where she felt loved and supported, and that she missed them so very much. She said, ‘families are meant to be together’. 120 In my opinion X does not understand how serious her own medical condition is. And she is wrong about the New Children’s Hospital. It may be that not everything which has happened there was handled as sensitively as it might have been. But I have found that her basic complaints are unfounded. I accept the plaintiff’s evidence that she adjusted reasonably well to the hospital regime when distanced from her parents and their influence. 121 That being so, I decided on 24 May 1999 that the sensible course over the ensuing six or seven weeks would be to give the medical experts the opportunity to treat X in the conditions which they regard as necessary, freed from the disruptive influence of her parents. Dr Nunn or Dr Kohn will provide a written report to the Court by 12 July 1999 and in the meantime, any of the parties may apply to me if difficulties arise. The orders which I made on 24 May seek to protect and reassure X on such matters as the taking of additional photographs and the procedure for weighing her.
Conclusions
* * * * * * * * * *
Last Modified: 07/07/1999
Actions
Download as PDF
Download as Word Document
Citations
DOCS v Y [1999] NSWSC 644
Most Recent Citation
Re Beth [2013] VSC 189
Cases Citing This Decision
38
GR v Secretary, Department of Communities and Justice
[2022] NSWCA 153
Secretary, Department of Family and Community Services v Smith
[2017] NSWCA 206
Spruill v Director-General of the Department of Community Services
[2001] NSWCA 413
Cases Cited
2
Statutory Material Cited
0
Fountain v Alexander
[1982] HCA 16
Fountain v Alexander
[1982] HCA 16