EDC (a Father) v Secretary, Department of Communities and Justice

[2022] NSWSC 383

Supreme Court

New South Wales

Medium Neutral Citation:

EDC (a Father) v Secretary, Department of Communities and Justice [2022] NSWSC 383

Hearing dates:

1 April 2022

Date of orders:

1 April 2022

Decision date:

01 April 2022

Jurisdiction:

Equity - Duty List

Before:

Kunc J

Decision:

Proceedings summarily dismissed

Catchwords:

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae — Application to vary contact arrangements refused when hearing already fixed in Children’s Court

Legislation Cited:

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

Cases Cited:

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177

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

Category:

Principal judgment

Parties:

EDC (a Father) (Plaintiff)

The Secretary, Department of Communities & Justice (First Defendant)

Representation:

Solicitors:

J Wong (Crown Solicitor) First Defendant)

File Number(s):

2022/63276

Publication restriction:

No

EX TEMPORE JUDGMENT (REVISED)

Summary

1. The plaintiff (the Father) brings these proceedings in the parens patriae jurisdiction of the Court against the defendant, the Secretary of the Department of Communities and Justice (the Secretary and the Department). The Father's son (the Child) is aged two years and three months and is currently the subject of proceedings in the New South Wales Children's Court. A comprehensive hearing in relation to the Child in the Children's Court is fixed for three days commencing on 24 June 2022 (the June Hearing).

2. Pursuant to an interim order of the Children's Court parental responsibility for the Child has been allocated to the Minister for Families and Communities (the Minister). The Child is in the care of his Mother (the Mother). The current contact arrangements provide for four hours contact per week between the Father and the Child.

3. The Father has filed an application in the Children's Court for interim contact orders seeking twice weekly three hour contact visits, fortnightly overnight weekend contact and weekend contact during school holidays. That application is one of the matters to be dealt with at the June Hearing.

4. The Father has sought substantially identical relief by a summons filed in this Court. The Secretary has moved for the summons to be dismissed as an abuse of process. It is well understood that where there are proceedings on foot in a recognised specialist court such as the Children's Court, this Court will only exercise its parens patriae jurisdiction to intervene in exceptional circumstances: see, for example, GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177.

5. There is no suggestion that the Child is in physical danger, not being cared for properly or is otherwise at risk. The Father's concerns, which the Court accepts he holds in good faith, centre on what he says are the deleterious psychological consequences for the Child of the current contact arrangements and the difficulties that have arisen in relation to those arrangements.

6. For the reasons which follow the Court accepts that the Father has not demonstrated that exceptional circumstances exist in relation to the Child that would warrant intervention by this Court in its parens patriae jurisdiction. Given that conclusion and the imminence of the June Hearing, the Court is satisfied that these proceedings are an abuse of process and should be struck out.

7. The Father represented himself. Miss J Wong, Solicitor, appeared for the Department.

The facts

8. What follows in large part reproduces the helpful summary in Miss Wong's written submissions, which I gratefully adopt.

9. The Father is forty-five years old. He has four children from a previous relationship aged between seven and fourteen, the oldest of whom (J) lives with the Father. The other three live with their Mother in Canberra pursuant to parenting orders made in the Federal Circuit and Family Court of Australia.

10. The Department became involved with the Father, Mother and Child in 2020 after it received reports raising concerns about the safety, welfare and well-being of the Child. However, the family was known to the Department prior to the Child's birth in January 2020.

11. The reports received by the Department between August 2019 and March 2021 alleged domestic violence including physical, verbal, emotional and financial use of violence perpetrated by the Father towards the Mother. These allegations are contested by the Father.

12. In August 2020, the Father was charged with assault occasioning actual bodily harm for a domestic violence incident. Following that incident, a provisional Apprehended Domestic Violence Order (ADVO) was made against the Father naming the Mother as the protected person. A separate ADVO was made against the Mother, naming the Father as the protected person, after the Mother disclosed slapping the Father during this same incident. The ADVOs remain in force and are next before the Local Court in June 2022. Again, in referring to these orders the Court is not to be taken as expressing any conclusion about the inherent merits or truth of the allegations that gave rise to the ADVOs. They are not matters for this Court today.

13. On 25 March 2021, the Department received a risk of serious harm report detailing ongoing and escalating domestic violence allegedly perpetrated by the Father towards the Mother in the presence of the Child. The report stated that the Child and the Mother were at the time admitted to Sutherland Hospital under social admission

14. On 31 March 2021, the Secretary commenced care proceedings by way of an application pursuant to s 61 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), (the Care Act) in the Children's Court.

15. On 1 April 2021, the Children's Court made an interim order allocating parental responsibility for the Child to the Minister until further order.

16. On 29 April 2021, the Children's Court made a finding that the Child was a child in need of care and protection pursuant to s 71(c) and (e) of the Care Act.

17. On 22 June 2022, a Children's Court clinician prepared an assessment report recommending restoration of the Child to the Mother and for regular contact between the Child and the Father, being twice weekly for a period of three hours, and weekend time every fortnight including siblings during school holidays.

18. On 23 July 2021, the Secretary filed a care plan recommending restoration of the Child to the Mother with the exclusion of the Father. The care plan recommended a minimum of weekly visits between the Father and the Child for a period of four hours and for such visits to be supervised for at least the initial first six months following the making of final orders.

19. On 12 August 2021, the Children's Court accepted the Secretary's assessment and made a finding that there was a realistic possibility of restoration of the Child to the Mother and a finding there was no realistic possibility of restoration of the Child to the Father.

20. On 23 August 2021, the Child returned to the care of the Mother.

21. On 8 October 2021, upon an application by the Father's legal representative, the Children's Court revoked its finding of there being no realistic possibility of restoration of the Child to the Father.

22. On 9 November 2021, the Father filed an application for interim contact orders pursuant to s 86 of the Care Act seeking contact twice weekly for a period of three hours, fortnightly overnight weekend contact and weekend contact during school holidays.

23. On 2 December 2021, the Children's Court confirmed the June Hearing and adjourned the Father's interim contact application to be dealt with at the June Hearing. The Children's Court had offered the date of 7 February 2022 to hear the Father's interim contact application. However, the Court was informed that the date was not suitable to either the Father’s or the Department's respective legal representatives. The Father will be represented by a Legal Aid solicitor at the June Hearing.

24. These proceedings were commenced by summons filed in the Duty List on 4 March 2022. The summons seeks this relief (which is broadly similar to but not identical with that sought by the Father in his interim contact application in the Children’s Court):

“1. Pursuant to s 86(1)A and s 70 of the [Care Act] that on an interim basis, unless otherwise agreed by the parents, that the [Child] have unsupervised contact with his father and siblings:

(i)   Twice weekly overnight on Tuesday and Thursday

(ii)   Fortnightly overnight from Friday to Monday morning;

(b) [sic]The Father can collect and return the child to his daycare between 10am and 2pm.”

25. The proceedings came before me in the Duty List on 29 March 2022. I ordered the parties to meet to explore whether an interim regime of contact could be devised that everyone could agree upon pending the June Hearing. Unfortunately, that meeting was unable to resolve matters.

26. Pursuant to a direction I made on the last occasion, the Secretary has today filed in Court a notice of motion for an order that the summons be dismissed pursuant to UCPR Pt 13 r 13.4(1), which provides:

“13.4 FRIVOLOUS AND VEXATIOUS PROCEEDINGS

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

(a) the proceedings are frivolous or vexatious, or

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

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

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

27. Each party filed affidavits and written submissions in addition to addressing the Court today.

Three uncontested matters

28. The following were either uncontested or on the evidence could not be seriously contested:

1. The relief in the summons is substantially to the same effect as what would be considered at the June Hearing and the same evidence and arguments would be raised. There is no doubt the Children's Court has jurisdiction to grant the relief sought in the summons.

2. There is no suggestion that, under the care of the Mother, the Child is at any risk of physical harm or other mistreatment. The case work team that visits the Child has not identified any concerns about the Child's well-being and progress, nor has the Mother.

3. There is no expert evidence to substantiate the Father's concerns about the psychological or developmental impacts on the Child as a result of the current contact arrangements and some of the difficulties that have been encountered in relation to giving effect to those arrangements.

The Father

29. The Father has a PhD in a branch of the physical sciences. It is obvious from both his written material and submissions in Court today that he is intelligent and articulate. I have no doubt that his concerns are held by him in good faith. I also have no doubt that he feels a great sense of grievance with the Department and that his only motivation in bringing these proceedings is what he perceives to be in the Child's best interests. The Court's decision today should not be taken as casting any doubt on the genuineness of the Father's intentions: see Hariz v Department of Communities and Justice [2021] NSWSC 519 at [22] per Sackar J.

The Father’s concerns

30. While I have carefully read the Father's evidence and submissions, I propose only to summarise his concerns. It is not appropriate that I do more than that, given that I expect they will be fully ventilated at the June Hearing. In his address to the Court, the Father has described the current contact arrangements of four hours on a Saturday as, according to my note, “a form of deprivation, stifling and extremely degraded”. His affidavit evidence includes a description that the arrangements have exposed the Child "directly to the worst situation of a chronic state of and prolonged deprivation and trauma, delayed, disrupted and distorted development, emotional stress and suffering and dysfunctional communication between his parents".

31. He says this is a critical time for bonding with the Child, with whom he and his other children have a good relationship. He contends that the Department has unreasonably refused his request for contact visits to take place at his home rather than in a park (where they usually occur). One consequence of the extended period of wet weather in Sydney over recent months has been the cancellation of a number of the contact visits and what the Father says has been the unreasonable refusal of the Department to reschedule those visits for another time.   

32. There is an additional, important factor which the Father says the Department regularly refuses to acknowledge. The Father's son (J) has special psychiatric and social needs which mean that sitting for four hours at a meeting in a cafe or library is not possibly for J. This is why the contact visits to which the Father brings J and the Child's other siblings take place in a park or could, according to the Father, safely take place in the Father's home, which he says is a safe and suitable environment for J. The Father is deeply frustrated that, as he perceives it, the Department is being inflexible in failing to accommodate what is required for J to participate in the contact visits.

Consideration

33. It is neither possible nor desirable within the confines of a hearing in the Duty List to determine with any degree of certainty, or at all, the merits of the matters raised by the Father. The only question for today is whether, as the Department submits, there is no evidence of exceptional circumstances that would warrant the exercise of the parens patriae jurisdiction.

34. As the Father (to his credit) clearly accepted, the present application was not about him, his frustrations and grievances or how he says he has been treated by the Department. The difficulty for the Father is that there is no evidence that his concerns about the effect on the Child of the current interim regime of contact visits (and the disruptions to it because of rain and other circumstances) have a basis in fact even at the level of raising a serious question to be tried.

35. To this I add:

1. The Child's age and likely level of understanding of what is happening (I am not to be taken as suggesting that serious psychological trauma can never be inflicted on a two year old).

2. The imminence of the June Hearing.

3. The absence of any evidence of concerns for the Child's physical well-being or development under the care of the Mother.

4. This is an application concerning only contact rather than, for example, restoration. Contact should be considered in the context of the entire care plan for the Child that will be scrutinised as part of the June Hearing.

36. Having regard to the matters referred to in [34] and [35], the Court accepts the Department's submission that exceptional circumstances warranting action in the Court's parens patriae jurisdiction have not been demonstrated.

37. One is then left with a set of proceedings which duplicate part of what will be dealt with at the June Hearing. Such duplicity is a well-recognised basis to identify proceedings as an abuse of process and the Court so concludes in relation to the summons.

38. Notwithstanding the caution which must attend any peremptory termination of proceedings, the Court is well satisfied that for the reasons set out above these proceedings should be dismissed pursuant to UCPR Pt 13 r 13.4(1)(c).

39. The Court notes that, while successful on its motion, the Department does not press for its costs. There will, therefore, be no order as to costs.

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Decision last updated: 04 April 2022