GR v Secretary, Department of Communities and Justice

[2020] NSWSC 739

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	GR v Secretary, Department of Communities and Justice [2020] NSWSC 739
Hearing dates:	5 June 2020
Date of orders:	16 June 2020
Decision date:	16 June 2020
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1.   Refuse leave to file the notice of motion dated 22 May 2020. 2.   Vary the orders made by Kunc J on 18 March 2020 (and as varied by Robb J on 2 April 2020) by adding the following sub-orders to order (2): (e)   in the body of the email to the Associate to the Duty Judge seeking an urgent listing, it be noted that: (i)   leave is required to make an urgent interlocutory application; and (ii)   whether or not there are any upcoming listings before the Supreme Court and/or Court of Appeal in relation to any proceedings relating to [the Child]; (f)   a copy of the judgment of Robb J of 2 April 2020; and (g)   a copy of this judgment and these orders. 3.   The Plaintiff pay the First and Second Defendants’ costs of the notice of motion filed 3 June 2020 and of the Plaintiff’s application to file the 22 May Motion.
Catchwords:	CIVIL PROCEDURE – Hearings – Duty List – frequent interlocutory applications invoking parens patriae jurisdiction – application for leave to file further such application – non-compliance with earlier orders in relation to the making of such applications – application refused   CIVIL PROCEDURE — Jurisdiction — Inherent jurisdiction — abuse of process
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9(1), 33, 44, 61, 63, 69, 70, 71, 73, 76(1), 79, 79A, 83, 85, 90, 90A, 91, 99, 99A(2)(a), 99C(2), 99D(b), 105 Children’s Court Act 1987 (NSW), s 22A Children’s Court Regulation 2019 (NSW), cl 5(1)(a) Civil Procedure Act 2005 (NSW), s 56 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 50.7 Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Department of Communities and Justice (DCJ) and [the Child] (Final Orders) [2020] NSWChC Department of Communities and Justice (DCJ) and [the Child] [2020] NSWChC Director-General, Department of Community Services, Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 200 GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 GR v Secretary, Department of Families, Disabilities and Community Services [2020] NSWCA 79 GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 GR v Secretary, Department of Family and Community Services and Justice (No 2) [2019] NSWSC 1725 GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 348 GR v Secretary, Department of Family and Community Services and Justice (No 4) [2020] NSWSC 457 GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073 GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146 GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 259 GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 607 GR v Secretary, Family, Disability and Community Services [2020] NSWSC 668 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Perera v GetSwift Ltd (2018) 263 FCR 92; [2018] FCAFC 202 Re AB (No 2) [2019] NSWSC 566 Re Frances and Benny [2005] NSWSC 1207 Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 Rinehart v Rinehart [2020] NSWSC 68 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Secretary of the Department of Health and Community Services v JWB (1992) 175 CLR 218; [1992] HCA 15 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968; 360 ALR 184 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Texts Cited:	Brereton, Justice, “Children’s Issues in the Supreme Court” (Address to the Children’s Court of New South Wales Meeting, 8 April 2016) Taylor P, Elms E, Bellew Justice G and Meek M, Ritchie's Uniform Civil Procedure NSW (Looseleaf, LexisNexis)
Category:	Procedural and other rulings
Parties:	GR (Plaintiff) Secretary, Department of Communities and Justice (First Defendant) Minister for Families, Communities and Disability Services (Second Defendant) The Father (Third Defendant) K Wooi (Independent Legal Representative)
Representation:	Counsel: GR (Self represented) M Anderson (First and Second Defendants) Father (Self represented) E Stolier (for Independent Legal Representative)   Solicitors: Crown Solicitor (First and Second Defendants)
File Number(s):	2019/62836
Publication restriction:	Restriction on publication of anything that might identify child

Judgment

1. HER HONOUR: Before me on 5 June 2020 in the Duty List was the latest in a long series of interlocutory applications by the plaintiff (to whom I will refer by the pseudonym “GR”) brought in the Equity Division Duty List in which GR has sought the same, or substantially the same, relief in relation to her child (to whom I will refer as “the Child”) in respect of whom final care orders have been made by the President of the Children’s Court and all aspects of parental responsibility have been allocated to the second defendant, the Minister for Families, Communities and Disability Services (the Minister), pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act).

2. Those Children’s Court orders were made following a twelve day hearing in November 2019 and January 2020 and after the subsequent approval of a permanency plan in respect of the future care of the Child. These decisions were published on 27 February 2020 and 3 April 2020, respectively, by the President of the Children’s Court, Judge P Johnstone (see Department of Communities and Justice (DCJ) and [the Child] [2020] NSWChC, to which I will refer as the February 2020 Children’s Court Decision; and Department of Communities and Justice (DCJ) and [the Child] (Final Orders) [2020] NSWChC, to which I will refer as the April 2020 Children’s Court Decision) (I have omitted the respective citations for these decisions so as to preserve the anonymity of the Child).

3. Specifically, before me on 5 June 2020 was an application by GR for leave to file a notice of motion dated 22 May 2020 (to which I refer as the 22 May Motion) seeking urgent injunctive relief in relation to the Child. Leave for the filing of that notice of motion was required having regard to earlier orders that have been made by this Court (to which I will refer in due course). The 22 May Motion sought in essence the same relief as that which had been refused only about half an hour before GR sought to file the 22 May Motion before the Duty Judge (see below).

4. Also before me for hearing was a notice of motion filed on 3 June 2020 by the first and second defendants, respectively the Secretary (the Secretary) of the Department of Family, Communities and Disability Services (the Department) and the Minister, seeking the summary dismissal of the 22 May Motion (pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)) and other relief (relevantly, a variation to the existing regime that has been put in place by way of restraint on the bringing by GR of urgent applications in the Duty List).

5. In essence, the position of the first and second defendants is that GR has not satisfied the requirements for leave to be granted for the filing of the 22 May Motion and, in any event, that the commencement by GR of successive applications seeking the same, or substantially the same, urgent interlocutory relief is an abuse of process (such that, if permitted to be filed, the 22 May Motion should be summarily dismissed as an abuse of process).

Background

6. The general background to the present applications can be briefly stated; although it will be necessary to set out in some detail the history of the numerous applications that have been made to date, both in this Court and elsewhere, in relation to the Child (not least to explain the conclusion that I have reached that the 22 May Motion is indeed an abuse of process, as have been a succession of other similar applications since then if not before).

7. I note at the outset that the identity of the Child is protected (see s 105 of the Care Act). Therefore, as indicated above, I have in these reasons adopted the use (with no disrespect intended) of the pseudonym (again, as GR) for the mother and make reference to the Child’s father (as “the Father”) and the Child in generic terms.

8. The Child was born in 2004 and is now 15 years’ old. The Child’s parents are both parties to the present applications (the mother, GR, being the plaintiff in both the present (parens patriae) Equity Division proceedings and the proceedings to which I will refer as the Statutory Appeal Proceedings, as to each of which I refer in more detail below, and the applicant for leave to file the 22 May Motion; the Father, being the third defendant in the proceedings). The Child has been diagnosed with Autism Spectrum Disorder and a severe eating disorder (at one time described as “intermittent food refusal” and “starvation protest”).

9. The Child was first assumed into care by the Secretary, pursuant to s 44 of the Care Act, on 29 June 2018. There can be no dispute that the Child was (and remains) seriously underweight. Further, although it appears that there is a dispute as to the extent to which the Child suffers from an eating disorder (the parents relying upon medical opinion that they say is to the effect that the Child does not suffer from an eating disorder or recognisable mental condition, other than autism), it is not disputed that the Child has a history of engaging in “hunger strikes” (which I interpolate to note supports the references to “intermittent food refusal” and “starvation protest” referred to above). The parents also emphasise that the Child’s weight has continued to deteriorate during the time in which he has been in the care of the Department. Meanwhile, some of the evidence relied upon by the first and second defendants suggests a temporal link between parental visits and the deterioration but that is disputed by the parents. For present purposes the relevant point is that the Child’s weight remains an ongoing problem.

10. From February 2019, the Child has spent a considerable part of his life in hospital. He is currently under the care of Associate Professor Sloane Madden, a psychiatrist specialising in the care of children and adolescents in the Department of Psychological Medicine at Westmead Hospital. In recent months, the Child has alternated between admission to hospital and discharge to a care placement arranged by the Department (a house with 24 hour care and supervision from carers) under the parental responsibility of the Minister and the supervision of the Secretary.

11. The Child’s medical treatment has been the subject of ongoing criticism and sustained complaint by the Child’s parents (as is the Child’s placement in the care house, referred to in submissions by the parents as a “shoddy lock-up”). It is the parents’ fervent wish (frequently and passionately expressed) that the Child be returned to the care of GR (though in this regard it must be noted that it appears that it was in the parents’ (or at least GR’s) care that the Child’s weight loss and eating disorder, if it be properly characterised as such, first manifested itself).

12. The finding of the President of the Children’s Court in February of this year was that there is no realistic prospect of restoration of the Child to the parents’ care (see the February 2020 Children’s Court Decision at [453]-[454]). That decision (as are the orders made in the subsequent April 2020 Children’s Court Decision) is the subject of the Statutory Appeal Proceedings commenced by GR in April 2020 (see further below).

13. The obvious tension between the opposing positions taken as between the parents and the Department in relation to the Child’s treatment (and the Child’s own expressed, and understandable, desire to return home) no doubt explains much of the emotion with which the parents’ submissions have been expressed.

14. The fourth defendant was appointed as the independent legal representative for the Child (see ss 99, 99A(2)(a), 99C(2) and 99D(b) of the Care Act) during the course of the Children’s Court proceedings (having first been appointed as direct legal representative for the Child).

15. It is perhaps an understatement to say that the parents are highly critical of the fourth defendant. They maintain that she has not been validly appointed and are critical of the role that she has played in the proceedings (among other things accusing her of “parroting” the Department. (The first and second defendants note, however, that the President of the Children’s Court in the February 2020 Children’s Court Decision (see at [9], for example) confirmed that the fourth defendant acted as the Child’s independent legal representative due to the Child not being capable of giving proper instructions (see s 99C(2) of the Care Act).) Part of the complaint seems to be that the fourth defendant supports the position of the first and second defendants in relation to treatment and the like. Some of the relief sought in successive notices of motion filed in this Court includes the removal of the appointment of the fourth defendant.

History of proceedings

16. The history of the proceedings in relation to the Child is helpfully set out in the affidavits affirmed on 4 May 2020 and 3 June 2020 by the Acting Manager Casework employed by the Department of Communities and Justice with responsibility, as the Manager Casework, for the Child (Ms Amy Eldridge).

17. That contextual history does not seem, in substance, to be disputed (although the parents are critical of what has transpired in the course of the proceedings, including their complaint, unfounded in my opinion, that no Judge of the Equity Division of this Court has dealt with the medical evidence, and of the conclusions that have been reached by various of the judicial officers before this matter came before me).

18. The history of the proceedings can also be gleaned from the numerous judgments already published by this and other courts in relation to the Child, copies of which were included in the four volume court book prepared by the Crown Solicitor on the present applications.

19. For the avoidance of doubt, I here put on record that I have considered all of the material put before me on the present applications; that is, I have not merely had regard to the affidavit evidence prepared by Ms Eldridge to which I have referred above. I simply here note that it sets out a useful summary of the proceedings. It is neither possible nor would it be helpful, in the time available for me to deal with the latest interlocutory application by GR, for me to set out in detail in these reasons all of the evidence and submissions here relied upon by GR (much of which repeats evidence previously considered by other judges of this Court).

20. Chronologically, the history of proceedings in relation to the Child is as follows.

21. After the Child was first assumed into the care of the Secretary (on 29 June 2018), proceedings were commenced in the Children’s Court on 4 July 2018 for orders under s 61 of the Care Act on the grounds set out in ss 71(1)(b), 71(1)(c), 71(1)(d) and 71(1)(e) of the Care Act.

22. The circumstances leading up to the commencement of the initial proceedings, to which I here refer simply by way of background (though as between the parties any dispositive finding of fact in relation thereto would, until overturned, operate as an issue estoppel – see below), are recounted in the February 2020 Children’s Court Decision. Suffice it to note that the President of the Children’s Court there referred to allegations of physical violence and bullying in the home (see, for example, at [55]); allegations of prescription and/or administration of anti-psychotic medication to the Child by GR (then a registered medical practitioner) (see, for example, at [59]); and concerns of malnutrition and severe weight loss on the part of the Child.

23. Pausing here, there was some debate raised in the course of submissions before me as to the current status of GR’s registration as a medical practitioner (reference being made to a decision in which her registration was cancelled by the Disciplinary Division of the New South Wales Civil & Administrative Tribunal (the citation of which I do not here record as it would necessarily identify the identity of GR and hence tend to disclose the identity of the Child) GR tells me that this decision has been stayed (and accused Counsel for the first and second defendants of misleading the Court in this regard) but nothing turns on this for present purposes. I refer to it simply because it serves to explain one of the interim orders made (by consent) in July 2018 (as to which, see below) - namely an order restraining GR from administering medication to the Child.

24. On 5 July 2018, interim orders were made in the Children’s Court allocating parental responsibility for medical issues in relation to the Child to the Minister pursuant to s 69 of the Care Act and placing the Child under the supervision of the Secretary (the first defendant) pursuant to s 70 of the Care Act. GR was restrained from administering medication to the Child, by consent on a without admissions basis, pursuant to s 90A of the Care Act.

25. On 28 August 2018, the Children’s Court found that the Child was in need of care and protection pursuant to s 71(1)(b) of the Care Act and made agreed final care orders placing the Child under the supervision of the Secretary for a period of 12 months pursuant to s 76(1) of the Care Act. The Children’s Court on that occasion accepted, pursuant to s 73 of the Care Act, certain undertakings that were given by the parents. Those 28 August 2018 orders were the subject of an application by GR for their discharge, brought in February 2019, to which I will come shortly (as to which see [29] below).

26. The undertakings given by the parents in August 2018 included undertakings to permit the Secretary or his delegate to attend their home at reasonable times, to accept service involvement with the Child by the Child’s National Disability Insurance Scheme (NDIS) Plan, to comply with all reasonable requirements of the Department of Education regarding the Child’s attendance at school and ensuring the home was free from domestic violence (including physical abuse, verbal abuse, psychological abuse, financial abuse, denigration of family members and controlling and coercive violence).

27. A dispute subsequently arose as to the alleged non-compliance with one or more of those undertakings. The first and second defendants say that the parents did not engage with the NDIS services that the Child was eligible to receive and did not permit NDIS service providers access to the home to undertake assessments or provide the therapeutic interventions deemed necessary to address the Child’s ongoing disability needs. They say that there was also an issue of domestic violence within the household during the period of supervision. It is further said that the parents did not adhere to the undertakings given to the Children’s Court in relation to departmental attendance on the home and ongoing child protection casework. The parents, as I understand it, dispute that there was a breach of the undertakings and maintain that the Child was taken into care again (see below) for a technical non-compliance with the orders.

16. On 21 February 2019, the Child was again assumed into care and was admitted to the intensive care unit at the John Hunter Hospital in Newcastle.

17. On 25 February 2019, proceedings were commenced by GR in in the Common Law Division of this Court, by way of an ex parte application, seeking to invoke the Court’s parens patriae jurisdiction. In that application, GR sought the discharge of the orders that had been made on 28 August 2018. That application was heard by Button J, who dismissed the summons on the same day (25 February 2019).

18. On 27 February 2019, the Children’s Court made an interim order allocating parental responsibility for the Child to the Minister until further order of the Children’s Court.

19. On 7 March 2019, GR filed an “amended summons” dated 5 March 2019 in those Common Law Division proceedings, seeking to set aside that interim order of the Children’s Court and seeking an urgent recovery order for the Child as well as an order that the Department take no further action in relation to the Child until further order of this Court (to which I will refer as the 7 March amended summons).

20. That application was heard by Schmidt J on 7 March 2019. Her Honour permitted GR to file a fresh summons on that date and then proceeded to dismiss that summons. On 15 March 2019, GR’s proceedings in the Common Law Division were transferred to the Equity Division and joined to proceedings that had been commenced in this Division by the Secretary (proceedings 2019/83327), the Secretary seeking orders under the Court’s parens patriae jurisdiction authorising particular treatment orders for the Child.

21. The respective proceedings subsequently came before Kunc J, who case managed the proceedings between 19 March 2019 and 15 May 2019 (see Re AB (No 2) [2019] NSWSC 566). Relevantly, treatment orders were made in respect of the Child and were continued until 15 May 2019 (when they were discharged on application by the Secretary). (The parents characterise this treatment as amounting to an unlawful assault and battery.)

22. Meanwhile, on 12 April 2019, leave was granted by the Children’s Court for a s 90 application (for rescission of the care orders) to proceed.

23. On 17 May 2019, pursuant to leave granted by Kunc J on 15 May 2019, GR filed another “amended summons”. It seems that this amended summons sought the same relief as the 7 March amended summons save that it also sought an order for a medical professional to attend and give evidence at the hearing.

24. That application came before Lindsay J on 24 June 2019. On that occasion, Lindsay J summarily dismissed the 17 May 2019 amended summons.

25. GR then sought leave to appeal from the summary dismissal of the 17 May 2019 amended summons. On 18 July 2019 (see GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 (GR Court of Appeal 2019 (No 1) Judgment), the Court of Appeal (comprised of Basten, Leeming and White JJA): granted GR leave to appeal the decision of Lindsay J of 24 June 2019; allowed the appeal (setting aside the dismissal of the amended summons filed on 17 May 2019); and remitted the matter, on the basis that the primary judge did not ask himself the correct question in determining that the proceedings should be dismissed (see at [53]).

26. Their Honours said (at [47]-[53]):

47.   There is no doubt that applications which invoke the parens patriae jurisdiction of the Supreme Court whilst proceedings are on foot in a Children’s Court pursuant to the Care and Protection Act may readily constitute, or become, an abuse of process…

48.   Secondly, where an application is made by parents, in effect challenging an order depriving them of parental responsibility, and acting without legal representation, the court should exercise caution before summarily dismissing the proceedings. In the present case, the fact that the mother sought to “set aside” an interim care order and, on occasions, sought a stay of other orders made in the Children’s Court, indicated that there may have been an incomplete understanding of the distinction between final and interlocutory orders. Similarly, exchanges between the primary judge and each of the parents suggested that they had an incomplete understanding of the difference between the need for an affidavit to set out matters of fact which are relied upon and the use of written submissions to present argument. Both of these difficulties may commonly be found with unrepresented litigants.

49.   Thirdly, the nature of the proceedings were such as to give rise to a need for some degree of instruction as to the process which was being put in place. On the one hand, there is a high hurdle to the use of the parens patriae jurisdiction in relation to proceedings which can and have properly been commenced in the Children’s Court. On the other hand, there is a high hurdle to the summary dismissal of proceedings without a hearing on the merits. The explanations given by the primary judge in the presence of both parties at the hearing on 27 May 2019, addressed the first of these matters; however, at that stage the possibility of summary dismissal had not arisen. The possibility of summary dismissal was first raised by the judge at the hearing on 17 June when the plaintiff (mother) was not present. It is one thing to give seven days’ notice that the proceedings may be dismissed at the next hearing, unless she established good reason for them not to be dismissed; it is quite another to ensure that she has a proper understanding of what is required of her in order to keep the proceedings on foot. The latter step was not taken.

50.   Fourthly, and significantly for present purposes, the primary judge himself had to bear in mind the seriousness of the step of summarily dismissing proceedings and the need to address the relevant question, which was whether on the evidence as it might unfold, an arguable case for the intervention of the Court might be established. There are two reasons for thinking that the judge did not address that question. At [8] of his reasons of 24 June 2019, the judge appears to have formed an opinion as to the best interests of the boy, rather than whether, on the material presently before the Court, there might be an arguable case that (i) the care being provided pursuant to the orders made in the Children’s Court was not in the best interests of the boy, and (ii) the Children’s Court was not dealing as expeditiously as the circumstances appeared to require with the issue of continuing care.

51.   Secondly, at [11] the judge again appeared to have formed an affirmative opinion as to the undesirability of proceedings continuing in this Court, rather than asking whether the management of the proceedings in the Children’s Court was arguably inadequate.

52.   Thirdly, there were matters which were not addressed, including (i) the parents’ submissions, which on their face were supported by the procedural evidence supplied by the Secretary, that the Children’s Court was not giving proper consideration to their applications to vary the interim care order, (ii) the evidence that the care provided at John Hunter Hospital had seen a possible deterioration, rather than improvement, in the health of the boy and, (iii) with regard to necessary medical treatment, it had been necessary to invoke the parens patriae jurisdiction of the Court in March 2019. In addressing the last point, it would have been appropriate to note the evidence that the medical treatment was still not having an unqualified beneficial effect and there remained (and remains) a possibility that the Secretary or Minister would seek to invoke the parens patriae jurisdiction again for further medical treatment, of the more extensive kind identified in the Secretary’s summons.

53.   For these reasons, the primary judge did not ask himself the correct question in determining that the proceedings should be dismissed.

39. Pausing here, the express recognition by the Court of Appeal (at [49], as extracted above) as to the “high hurdle to the use of the parens patriae jurisdiction” in relation to proceedings which can and have been commenced in the Children’s Court is something that GR either does not understand or chooses to ignore, in that GR continues to complain of what is referred to as the “mantra” of the Crown Solicitor’s office in earlier applications where emphasis was placed on the existence of those Children’s Court proceedings.

40. On 9 August 2019, a further “amended summons” was filed by GR, again seeking to invoke the Court’s parens patriae jurisdiction and to set aside the interim orders of the Children’s Court, dismiss the Children’s Court proceedings and for further orders to facilitate the return of the Child to GR’s care.

41. That summons was heard by Kunc J, sitting as Duty Judge, on 16 August 2019. The hearing was conducted in Newcastle on an urgent basis in circumstances where the Child was to be discharged from hospital and GR sought for him to be discharged into her care. Kunc J refused to grant the relief sought but did make orders relating to the parents’ contact with the Child and to facilitate their involvement with his care (see GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073 (the August 2019 Judgment); and see also GR v Secretary, Department of Family and Community Services and Justice (No 4) [2020] NSWSC 457 (the GR (No 4) Judgment) at [8]). Specifically, his Honour ordered, relevantly, a regime to:

…

2.   Permit any combination of his parents or grandparents not exceeding two persons to visit [the child] not less than twice weekly unless the Minister for Families, Disabilities and Communities (the “Minister”) or his delegate is of the view that any particular visit should not take place.

3.   Promptly notify each of his parents (if possible, not less than 24 hours before) of any proposed or actual hospitalisation of [the child] and the reasons for it.

4.   Permit each of the parents, if they wish, to be trained in the use of the nasogastric tube for [the child] and any other specific training that has been or will be given to [the child’s] carers.

5.   Subject to the ultimate control and decision of the Minister or his delegate in consultation with the relevant health or other professional, permit each of the parents, if they wish, to be present at and, where appropriate, participate in therapeutic sessions or medical or psychiatric examinations of [the child].

42. His Honour also gave liberty to re-list the proceedings. The first and second defendants note that Kunc J explained (at [34] of the August 2019 Judgment) that:

34.   … I was satisfied that it was appropriate to engage the parens patriae jurisdiction of this Court both to consider the mother’s application and, in the result, put in place a regime which might provide the Children’s Court with information that could be of assistance in its final determination of the care application.

43. On 28 August 2019, GR made an application to Slattery J seeking to re-list the proceedings, in circumstances where the Child had been discharged from, but then re-admitted to, hospital. Slattery J (then sitting as the Duty Judge) heard the application on 30 August 2019.

44. On 3 September 2019, Slattery J dismissed the application (see GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146). In his Honour’s reasons, Slattery J said that he did not discern exceptional circumstances to warrant any intervention of the kind sought by GR in the Court’s parens patriae jurisdiction (see at [60]). His Honour noted that there was a listing before the Children’s Court and his Honour said (at [67]):

67.   These reasons have already recorded serious allegations of what would amount to professional misconduct made by the mother in her affidavit and in her submissions against treating medical staff at the hospital. It must be said that many of these allegations seem either inherently improbable or unlikely to be substantiated at a final hearing in their most severe form. This causes the Court to doubt how strong the mother’s case of mistreatment against the medical staff will be at final hearing. This observation considerably undermines the perceived urgency of the mother’s present application.

45. His Honour ordered that GR pay the costs of the first and second defendants. Relevantly, it should be noted that one of the discretionary considerations to which his Honour referred in so doing was that GR had so recently brought another unsuccessful application before Kunc J (see at [71]).

46. On 12 September 2019, GR made another application to re-list the matter before the Duty Judge (on that occasion, Robb J), again seeking to invoke the parens patriae jurisdiction to set aside the interim orders in the Children’s Court and for the Child to be discharged from the hospital where he was under the care of the Minister.

47. Robb J refused to grant the relief sought, noting that the Children’s Court proceedings were then listed for final hearing and that GR had not made a formal interim application when the matter was last before the Children’s Court (see at [5], [23]-[25]). His Honour made clear (see at [26]) that he had declined to interfere because there were no exceptional circumstances justifying interference and that the Court had not been able to consider evidence sufficiently fully to make it safe for the Court to interfere.

48. Less than a week later, on 17 September 2019, GR filed a notice of motion seeking again to invoke the Court’s parens patriae jurisdiction and to set aside the interim orders of the Children’s Court, to dismiss the Children’s Court proceedings and for orders for the Child to be returned to her care. That motion also sought to set aside the 3 September 2019 judgment of Slattery J and to vary the orders made by Kunc J on 16 August 2019 (as well as seeking a lump sum costs order for the hearing of the notice of motion and for past and future hearings).

49. On 18 September 2019, Robb J’s associate communicated by email to the parties that “[h]is Honour has directed me to inform [GR] that she should carefully consider the consequences of applying for relief that has already been refused, as that could involve GR engaging in an abuse of the Court processes”. It would appear that GR was undeterred by the possibility that she was engaged in an abuse of process and she pressed ahead with the application.

50. On 19 September 2019, Robb J delivered an ex tempore judgment, noting that, at GR’s request, he would give GR an opportunity to serve further evidence in support of the application and would review that material. His Honour said that there was a basis for concluding that GR had abused the process of the Court but noted that no formal application had yet been made or dealt with in such a way that might justify the Court making an order that precluded GR from again making such application as she had. His Honour also said (at [11]):

11.   … The fact is that it is always possible that some new circumstances will arise that are substantial and material to the question of whether this Court should exercise its parens patriae jurisdiction.

51. It appears that a further request to re-list the matter was made by GR to Robb J’s associate on 16 October 2019, which request was refused.

52. The final hearing before the Children’s Court commenced on 11 November 2019. The hearing proceeded from 11 November until 15 November 2019. It then resumed on 25 and 26 November 2019. However, it was then adjourned on 26 November 2019 to allow for an urgent hearing to take place before Kunc J, following an application made by GR to his Honour’s associate on 18 November 2019 (his Honour then again sitting as Duty Judge).

53. On 28 and 29 November 2019, Kunc J heard that application by GR. His Honour delivered judgment on 4 December 2019 (see GR v Secretary, Department of Family and Community Services and Justice (No 2) [2019] NSWSC 1725 (GR (No 2) Judgment)).

54. His Honour was satisfied (see at [5]) that there had been a material change in circumstances so as to warrant the exercise of the parens patriae jurisdiction, being (see at [5], [11] and [49]): first, the extended period of time the Child had by then been in hospital; second, that the Children’s Court proceedings had to be adjourned to January 2020 with the consequence of further delay in the making of that decision; and, third, certain observations made by the Court of Appeal in its then most recent judgment in these proceedings (referring to GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 (GR Court of Appeal 2019 (No 2) Judgment) at [15]-[23] per Brereton JA with whom Emmett AJA agreed).

55. His Honour made orders in relation to a proposed treatment plan for the Child’s transition out of hospital (but noted that whether that transition ended with the Child’s parents or otherwise would be for the Children’s Court to determine: see at [1]). His Honour explained the rationale for those orders (see at [50]) as follows:

50   Appropriate behaviour on the part of the child’s parents is in the best interests of the child because it is a step along the way to demonstrating that the child could (not should) be returned to where the law and the community regard any child as properly belonging, namely in the care of his or her parents in the absence of significant circumstances demonstrating that such restoration is not in the best interests of the child. The child’s parents should be left in no doubt by what I said to them during the course of the hearing, and now reiterate in what follows. The Court’s objective in making the orders which I did in August and at the conclusion of this most recent hearing, is to ensure that if the Children’s Court, in the exercise of its specialist jurisdiction, does not ultimately return parental responsibility to the mother or father or both of them, it will not be for want of them having been given every possible opportunity (subject only to the safety and wellbeing of the child) to demonstrate that such a return was in the best interests of the child.

56. Between 6 and 10 January 2020, the final hearing of the proceedings in the Children’s Court resumed. Judgment was reserved on 10 January 2020.

57. Three days later, while the Children’s Court was reserved, on 13 January 2020, GR emailed a notice of motion of that date to Robb J (his Honour then again sitting as Duty Judge) in which GR sought orders in the same terms as the 9 August 2019 amended summons and the 17 September 2019 notice of motion, as well as: orders relating to the implementation of the proposed treatment plan considered by Kunc J on 28 and 29 November 2019; contact with the Child, expert assessment of the Child and a stay of the final orders of the Children’s Court.

58. On 17 January 2020, Robb J delivered an ex tempore judgment refusing to make any such orders. His Honour was not satisfied that there was presently any risk to the Child that justified intervention by this Court in the exercise of its parens patriae jurisdiction in either the proceedings before the Children’s Court or the implementation of the orders made by Kunc J (see at [10]). His Honour also noted (see at [11]) that he had advised the parents during the course of argument of the circumstances where making applications may involve an abuse of the process of the Court.

59. On 24 January 2020, GR emailed a notice of motion dated 23 January 2020 to Henry J’s associate (Henry J sitting as Duty Judge). The notice of motion sought similar orders to those that had been sought before Robb J regarding expedition of the Child’s discharge from hospital and transition into parental care, transfer of NDIS funding and contact with the Child. The notice of motion also sought to bring a summary charge of contempt of court.

60. On 31 January 2020, Henry J delivered an ex tempore judgment refusing to make the orders sought and refusing GR leave to file the notice of motion in Court. Her Honour noted concern that it was inappropriate for GR to send emails to chambers of the kind, and in the way, that GR had sent (see at [4] and [5]). Her Honour was not satisfied that there was presently any risk to the Child that justified urgent intervention by the Court in the exercise of its parens patriae jurisdiction in the manner sought by GR.

56. Her Honour further noted (see at [23]-[25]) that GR had been made aware of the risk that a repeated application by her of the kind there determined, and in the manner then prosecuted, might be subject to a claim that it might constitute an abuse of process; and that if GR wished to make an application in the future she should do so in the usual and proper way by filing a notice of motion with the registry with any supporting affidavit material and providing proper notice. Her Honour ordered that GR pay the first defendant’s costs (see at [28]-[30]).

57. On 27 February 2020, the President of the Children’s Court handed down his judgment (the February 2020 Children’s Court Decision), finding, among other things, that there was no realistic possibility of restoration of the Child to either of the parents within a reasonable period. His Honour directed the Secretary to file an amended care plan addressing permanency planning (see at [467]).

58. The President of the Children’s Court said (at [428]) that the evidence established to his satisfaction that:

428.   …the hospitalisation of and medical attention given to [the Child] has been in his best interest and reasonably required, following appropriate consultation and discussion, or pursuant to approval by the Supreme Court exercising parens patriae jurisdiction.

…

The evidence does not support the contention that the child has been imprisoned or inappropriately treated, or otherwise abused in hospital or in care.

64. His Honour went on to say (at [433]-[436]; [439]):

433.   I turn now to the evidence of physical family violence perpetrated by the mother against the father and the various disclosures made by the child as to physical abuse of him by his mother.

434.   As regards the evidence of the mother's physical and emotional abuse of the father, as set out in his application for an AVO, and the various disclosures to caseworkers, I am satisfied as to the truth of those allegations, and that the abuse occurred as alleged.

435.   As regards the disclosures of abuse by the child, I refrain from making explicit findings. I am satisfied, however, to the requisite standard of proof, that the accumulation of those disclosures is sufficient to give rise to an unacceptable risk of harm to the child, which I assess as significant. I am further satisfied that due to the mother's lack of insight, that risk is not yet capable of being sufficiently ameliorated to permit a restoration at the present time. Whether this position changes pursuant to the Proposed Treatment Plan remains to be seen, but as at the present time it militates against restoration.

436.   It was the unanimous view of the three conclave expert medical witnesses before Justice Kunc, and accepted by him, that there should be no immediate, or imminent, restoration to the parents, either by way of a trial or otherwise. I am also satisfied as to that position, to the requisite standard.

…

439.   To the present time and continuing, the parents have collectively and individually demonstrated a total inability to safely care for [the Child]. Their failure to ensure [the Child] was appropriately fed and nourished is well documented. They were dysfunctional and incapable of managing [the Child]. They have allowed themselves to be manipulated, physically abused and held to ransom by [the Child]. They have consistently failed to work with the medical professionals and caseworkers in a cooperative and respectful way. They have not demonstrated any capacity to change, and continue to be critical of the medical professionals and caseworkers. They still have no insight into [the Child]'s needs or his precarious medical condition, and would be totally incapable of caring for the child alone. They refuse to accept the need for ongoing medical supervision of [the Child].

65. His Honour accepted the evidence of the independent expert psychiatrist, Dr Milch, (whose independence is disputed by the parents) as follows (at [443]):

443.   As to the mother, I agree with what Dr Milch said in his report of 4 October 2019 at paragraphs 125, 127 and 128:

“The child needs to be placed in circumstances in which he receives adequate care and control. His parents have been consistently unable to provide this, having previously empowered him to behave in an inappropriate manner. As there was no indication that this would change, it is not possible to recommend that the child could be successfully placed with his mother or father. This is contrary to the child's repeatedly expressed view that he wished to reside with his mother in the family home.

Should he be returned to his mother's care at home, in accordance with her proposal and the child's wishes as supported by his father, it is probable that she will be unable to provided adequate supervision and monitoring of his basic physical needs. It is probable that the mother will fail to comply with requirements by child protection and health authorities to ensure that he receives adequate monitoring and intervention. This view is based on the review of her approach to parenting and interaction with educational, health and child protection professionals involved in his care in recent years.

Given the child's developmental disabilities and profound associated emotional and behavioural problems, there is no indication at present that the child will have a dramatic change in his behaviour in the foreseeable future. It is possible that the child may adapt to his new circumstances but only once he has understood that there are clear limits placed around his behaviour. This has been challenging to implement to date, given his experience of the parents' views and the unresolved dispute regarding his care."

66. On 2 March 2020, GR emailed the associate to Kunc J seeking an urgent listing of the matter and informing his Honour’s associate (among other things) that she had “adjourned my Court of Appeal application until next Monday to allow his Honour Kunc J to hear the urgent application”. Kunc J made directions for the filing of evidence and adjourned the matter to 6 March 2020.

67. On 5 March 2020, a notice of motion was filed by the Department (in its then iteration) seeking that all previous orders in the proceedings be discharged and that the extant amended summons be dismissed.

68. On 6 March 2020, Kunc J stood that motion over to the Registrar’s List on 10 August 2020 and granted liberty to the Department (as it then was) to apply if it appeared “that any amendment is required to any earlier order of this Court as a result of the final orders to be made by the Children’s Court as a consequence of [the February 2020 Children’s Court Decision]”. His Honour later explained that he made that direction because GR had acceded to his Honour’s suggestion that her amended summons be stood over, in effect, to abide the outcome of her then foreshadowed appeal from the Children’s Court (see GR (No 4) Judgment at [11]).

69. On 18 March 2020, Kunc J made orders, in the inherent jurisdiction of the Court, to the effect that the parents could only bring an urgent interlocutory application in the Duty List with the leave of the Duty Judge (see GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 259 (March 2020 Judgment); and see also GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 348 (GR (No 3) Judgment) at [10] per Robb J; GR (No 4) Judgment at [34] per Kunc J).

70. His Honour relevantly noted (see March 2020 Judgment at [3]; [5]; [19]) that:

3.   Particularly in recent months, including before, during and after a 12 day hearing before the President of the Children’s Court, the mother has been making numerous applications to the Equity Division Duty Judge for these proceedings to be relisted urgently, so that she could apply for the child to be restored to her, or to her and the father. Many of these applications have been made informally, usually by a peremptory email to the Associate to the Duty Judge from time to time. These applications have been a distraction to the other parties and to the Court.

…

5.   … The frequent, informal attempts by the mother to seek relief in the Duty List are completely inconsistent with the just, cheap and quick resolution of the issues genuinely in dispute, the interests of the other parties to these proceedings, the interests of other litigants who have claims on the Duty Judge, and the proper administration of justice generally…

…

19.   … I am satisfied that the mother’s pattern of frequent email applications to the Associate to the Duty Judge have reached the point of being vexatious and an abuse of process. The Court’s jurisdiction to protect its own process and ensure against abuse is engaged.

71. His Honour made clear (see at [21]) that he had given thought to whether proceedings should be taken against GR under the Vexatious Proceedings Act 2008 (NSW) and said that if this were “ordinary” civil litigation he would not have had any hesitation to do so.

72. Specifically, his Honour ordered on 18 March 2020 that:

1.   Until further order, neither the father nor the mother may make any urgent, interlocutory application to the Duty Judge in relation to the child without the prior leave of the Duty Judge for the time being.

2.   Any application for such leave is to be made by email to the Associate to the Duty Judge for the time being, copied to the other parties, and must include:

(a)   a notice of motion specifying the precise relief sought;

(b)   the affidavit evidence proposed to be relied upon including any evidence as to urgency; and

(c)   a copy of this judgment.

73. Again undeterred, on 20 March 2020 at 1.21pm, GR emailed the associate to Robb J seeking an urgent re-listing of the proceedings. In the proposed notice of motion, GR sought orders for the Child to be returned to her care (and not removed from her care), a summary dismissal of the Children’s Court proceedings, return of the Child’s NDIS funding, the setting aside of the interim order of the Children’s Court, contact orders, an order regarding her expert witnesses’ access to the Child and costs. Robb J refused to grant leave for GR to make an ex parte application in the Duty List.

74. From 20 March 2020 to 24 March 2020, GR made a number of applications to associates to the then Duty Judges (as noted by Lindsay J in his Honour’s notations to orders made on 24 March 2020). On 24 March 2020, Lindsay J declined GR’s application for leave to make an application to the Duty Judge.

75. On 26 March 2020, Lindsay J made orders and directions in response to a renewed application by GR for a relisting of the matter and referred the application to the Duty Judge for consideration in chambers on 2 April 2020.

76. On 2 April 2020, Robb J (then the Duty Judge, to whom the application in chambers had been referred) delivered judgment (to which I have referred as GR (No 3) Judgment), varying the orders made on 18 March 2020 by Kunc J to add a further order requiring any application to the Duty Judge based on a claim that there was an urgent medical necessity for a hearing in the Duty List to be supported by a report from an appropriately qualified medical professional.

77. In that respect, his Honour noted that GR habitually included in her draft affidavits in support of applications for leave to commence proceedings in the Duty List generally worded hearsay evidence of statements allegedly made to her by doctors concerning the need for the child to be urgently returned to her care (see at [41]).

78. His Honour said (at [4]):

4.   … In essence, the objective of the mother, in her multitude of applications to duty judges in Equity in this Court, has been to obtain orders, in the exercise of the Court’s parens patriae jurisdiction, to stay or interfere with the exercise by the Children’s Court of its jurisdiction in those proceedings. Although the mother has had a measure of success in the Court of Appeal on one occasion, this Court has consistently refused to make any order that prevented the Children’s Court from determining the proceedings before it in due course.

79. Robb J also noted (at [37]-[39]) that:

37.   … the distraction and waste of judicial time that has flowed from the mother’s conduct should not be underestimated. There are the applications that have led to what is now the 15 judgments delivered by this Court and the Court of Appeal. These proceedings have been before a judge or registrar of this Court on about 33 occasions since 25 February 2019. On 27 May 2019, a judge of this Court made an order dismissing an application made by the mother on 17 May 2019 for an order, in the exercise of the Court’s parens patriae jurisdiction, setting aside an interim order made by the Children’s Court giving parental responsibility for the child to the Minister. On 18 July 2019, the Court of Appeal set aside the order made on 27 May 2019: GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177. Kunc J dealt with the mother’s application on the merits on 16 August 2019 and declined to grant the relief sought by the mother to set aside the Children’s Court orders: GR v Secretary, Department of Family and Community Services and Justice: [2019] NSWSC 1073. Slattery J, on 3 September 2019, dismissed an application by the mother for orders setting aside the interim orders of the Children’s Court that gave interim parental responsibility to the Minister, to have the Children’s Court proceedings dismissed, and to have the child discharged into the care of the mother: GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146. On 7 November 2019, the Court of Appeal refused leave to the mother to appeal from the orders made by their Honours, as well as orders that I made in an unpublished judgment: GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277.

38.   Of the applications made by the mother to the Court, about 16 applications have been dealt with by the making of formal orders or notes since Kunc J made the orders on 16 August 2019. Those applications have all, to a greater or lesser extent, involved claims for the same relief, being one or all of orders setting aside the interim order granting parental responsibility of the child to the Minister, staying the Children’s Court proceedings, and forthwith returning the child to the care of the mother, or the parents.

39.   A mere count of the number of applications does not paint an adequate picture of the extent of the communications from the mother to the staff of the duty judge for the time being that have had to be dealt with. In what turned out to be an overly optimistic attempt to bring order to the communications between the mother and associates of judges of the Court, at the beginning of this year I arranged for the associates to compile and send to me copies of all of those communications. My aspiration was to personally compile a single chronological file of the communications. That aspiration was not feasible, as I received printed out communications and related material from the associates that I have measured to be about 13 cm thick in total. Mere bulk is not, of course, a reliable indicator of the nature of the communications between the staff of the Court and a litigant. However, a large part of the communications consists of emails sent to the associates of duty judges, with attachments, often on a daily basis if not more frequently. Duty judges frequently have to waste considerable time in dealing with these communications from the mother.

80. As adverted to above, Robb J varied the orders made by Kunc J on 18 March 2020 by adding the following sub-order to order (2):

(d)     if the application is based on a claim that there is an urgent medical necessity for a hearing in the Duty List, a report by an appropriately qualified medical professional explaining the nature of the change in the medical circumstances of the child the subject of the application, the nature of the orders that should be made in the interests of the child, and the reasons for the urgency.

81. On 3 April 2020, the President of the Children’s Court delivered judgment (the April 2020 Children’s Court Decision) and made final orders allocating all aspects of parental responsibility for the Child to the Minister until the Child attains 18 years of age. The President of the Children’s Court was satisfied that the Amended Care Plan, which incorporated the Proposed Treatment Plan ordered by Kunc J, was not inconsistent with any orders of this Court (see at [94]).

82. On the same day, GR filed online a notice of motion, emailed to the associate to Kunc J, seeking, among other things, a stay of the final orders of the Children’s Court and that the Child be returned to her care. Specifically, the orders sought by GR in that notice of motion, included the following:

1.   This notice of motion is to be returnable instanter and heard by Kunc J, as a contempt of his Honour’s orders:

2.   Order that [the Child] be placed in his own home forthwith in his mother’s care

3.   Order that [the Child] is not to be removed from his home or any other place in his mother’s care without leave of this Court

4.   Stay the Final Care Order of Children’s Court Case 2018 / 203310

5.   Summary Charge of Contempt of Court against the 1st to 12th defendants as servants and agents of the 1st and 2nd defendants as in the Statement of Charge attached to this Notice of Motion

6.   Order that the NDIS funding for [the Child] is to be returned to his mother’s control forthwith

7.   Order that expert witness Professor Stewart Einfeld and up to two other expert witnesses be given access to [the Child], his carers, and his entire medical records at one hour’s notice

8.   Order unrestricted unsupervised daily visits for both parents 7 days a week anytime, including on weekends and public holidays until [the Child] is discharged to his parents

9.   Order that the 1st and 2nd defendants pay all of the applicant [sic] and 3rd defendant’s ongoing costs and costs to date of transport, accommodation, meals and incidentals since 15 March 2019 within 2 days, due to their moving [the Child] and the Children’s Court application to Sydney

10.   Costs for this application and moiety

…

83. Also on 3 April 2020, the first and second defendants applied to have the orders made by Kunc J on 29 November 2019 (see above) discharged. Kunc J listed the matter for hearing on 24 April 2020. What is immediately apparent from the orders that GR then sought is that GR was seeking, on an interlocutory basis, in substance the final relief of the kind that would be sought on an appeal from the Children’s Court Decisions.

84. Meanwhile, on 9 April 2020, GR filed a summons seeking leave to appeal the decision of Robb J of 2 April 2020 (commencing Court of Appeal proceedings 2020/108351). GR also filed a notice of motion on 9 April 2020 in the Court of Appeal proceedings seeking that the Child be returned to her care and seeking the orders set out at prayers 5 and 6 of the notice of motion filed on 3 April 2020.

85. On 20 April 2020, in the Court of Appeal proceedings (2020/108351), GR’s notice of motion filed 9 April 2020 was heard by Basten JA.

86. On 24 April 2020, Basten JA dismissed that notice of motion and also refused further relief sought orally on the hearing of the motion (see GR v Secretary, Department of Families, Disabilities and Community Services [2020] NSWCA 79).

87. His Honour noted (at [9]) that the orders sought by GR were not orders in the nature of a stay designed to maintain the status quo while proceedings in the Court of Appeal were unresolved; rather, they were an “attempt to obtain the final relief varying the status quo, being orders which had been sought, but not obtained, in the Court below”.

88. Also on 24 April 2020, it appears that GR unsuccessfully attempted to file an “Amended Summons” in the parens patriae proceedings (2019/62836) which were then before Kunc J. His Honour did not permit that course.

83. On 24 April 2020, Kunc J dismissed GR’s amended summons dated 5 March 2019, subject to two reservations: first, insofar as GR’s notice of motion dated 3 April 2020 included prayers for relief in relation to alleged contempt of the Court orders, that part of the claim was permitted to continue (see at [33]); and second, his Honour said that the procedural restraints which had been imposed in relation to GR’s frequent applications to the Duty Judge (as varied by Robb J) were to continue (see at [34]-[35]).

84. His Honour published reasons for that decision on 28 April 2020 (GR (No 4) Judgment, to which I have referred above), including the following (at [25], [28] and [29]):

25.   I accept the Department’s submission that, notwithstanding his rehospitalisation, the evidence is clear that the child’s medical circumstances are not so serious as to constitute exceptional circumstances warranting the continuing intervention by this Court in its parens patriae jurisdiction. When that fact is combined with the Children’s Court having now made final orders, including on the basis of a contact plan inconsistent with that provided for in the Remaining Orders, the outcome in the Children’s Court should prevail (unless and until altered on appeal). Applications in the parens patriae jurisdiction are not to be made in a way which circumvents the prescribed appellate process from courts of specialist jurisdiction.

…

28.   Insofar as the orders referred to in Remaining Order 8, they were made in very different circumstances. The purpose of those orders as explained in No 2 is reproduced in paragraph [9] above. At the time those orders were made, the child was still in hospital. There had been no determination by the Children’s Court about his future care arrangements or in whom parental responsibility would be vested. The purpose of the regime which I ordered was to give the parents an opportunity to demonstrate their suitability to care for the child in a way that might be able to be taken into account at the hearing in the Children’s Court. Given the Children’s Court proceedings have now concluded, the purpose of those orders has now been completely spent.

29.   What I have written thus far explains why, to the extent they had not already expired according to their terms, the Remaining Orders were vacated. The reason why the proceedings themselves should be terminated by the peremptory dismissal of the amended summons is slightly different. As is apparent from the amended summons set out in paragraph [7] above, the purpose of these proceedings brought by the mother is to recover the child. The mother has now filed her appeal from the decision of the Children’s Court. That appeal seeks to overturn the decision of the Children’s Court and for her to recover parental responsibility for the child. It is an abuse of process for there to be two sets of proceedings extant which, in effect, seek the same relief. Subject to the two reservations which I set out below, there is now no proper purpose for the continuation of the present proceedings. I therefore dismissed the amended summons.

91. It is also relevant to note that his Honour said in those reasons the following (at [30], [31], [36] and [37]):

30.   As a matter of procedure, the appeal is now the appropriate vehicle for any interlocutory regime that the mother may wish to seek from the Court. So much was also apparent from Mr Brezniak’s submissions [submissions for the Father] which I have set out in paragraph [23] above. As I put to him during the course of argument, what those submissions were really directed to was putting into place a regime that was inconsistent with the final orders of the Children’s Court pending the determination of the mother’s appeal.

31.   Such an application, and arguments to that end, are not to be entertained in these proceedings. If the mother chooses to make an application to like effect in the appeal proceedings, that is her right. The juridical basis for that application will be different to the present case, because it will not involve the parens patriae jurisdiction. Any such application will have to be determined by reference to the principles which govern what relief the Court might grant pending an appeal.

…

36.   In that context, I should record my acceptance – on the basis of the Department’s evidence as it was before me – that the description of the child’s future treatment as “two steps forward, one step back” is likely to be accurate. I respectfully repeat and add my agreement to this observation made by Basten JA in the CA judgment:

“11.   None of this is to deny that the parents, both of whom participated in the hearing before me, have deep concerns as to the ongoing health and wellbeing of their son, and hold fears for his future which appears to be out of their control. They were clear and articulate in the expression of these concerns. What is troubling, however, is their apparent belief that those who are caring for their son, or are responsible for caring for their son, do not share their concerns for his health and wellbeing. There is more than one view as to the treatment he should be receiving and the place where he should reside. Those differences of opinion have been addressed at length in the Children’s Court which is the proper primary jurisdiction in such matters. …”

37.   It is to be hoped that, in particular, the mother will come to understand that not every set back or vicissitude which the child may experience during the course of the implementation of the outcome in the Children’s Court will justify the urgent intervention of this Court in its parens patriae jurisdiction. It is very much to be hoped that such a circumstance does not arise. If it does arise, and the mother is able to provide medical evidence in support, then the Court will deal with that application. In the meantime, I urge the parents (as I have on previous occasions) to co-operate fully and respectfully in the implementation of the current arrangements for the child under the parental responsibility of the second defendant. For them to do so is in the child’s best interests and by no means inconsistent with their diligent and expeditious preparation for the hearing of the mother’s appeal.

92. As to the statutory appeal brought by GR from the final orders made in the Children’s Court pursuant to s 91 of the Care Act (it will be recalled proceedings 2020/123080 and to which I have referred as the Statutory Appeal Proceedings), that matter was listed before me for case management (with the first such directions listed for 26 May 2020).

93. Pausing here, I note that such an appeal is brought in this Court (rather than the District Court) where the appeal is from a final order made by the President of the Children’s Court (see s 22A of the Children’s Court Act 1987 (NSW); cl 5(1) of the Children’s Court Regulation 2019 (NSW)). The appeal has now been listed for hearing before the Expedition List Judge, Sackar J, for five days commencing on 18 November 2020 and directions have been made for the filing of evidence in relation to this hearing (which will be a de novo hearing). The November listing for the hearing of the Statutory Appeal Proceedings was the first available for a five day hearing (and even then I have some doubt as to whether the hearing will be completed within five days). If an earlier listing becomes available then attempts will be made to list the matter at an earlier date (although, bearing in mind the likely need for updated medical evidence, that may not be practicable, in any event).

94. On 27 April 2020, GR filed a notice of motion in the Statutory Appeal Proceedings seeking, among other things, a stay of the final orders of the Children’s Court or in the alternative an order that the Child be returned to her care. I again interpose to note that such an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order, subject to any interlocutory order (see s 91(7) of the Care Act). Further, an appeal to the Supreme Court does not operate as a stay of proceedings under the decision of the court below, except so far as the Court (or, subject to any direction of the Court, the court below) may direct (see r 50.7 of the UCPR).

95. On 5 May 2020, GR’s notice of motion of 27 April 2020 (which had come before me in the Applications List) was listed by me for hearing before Slattery J on 14 May 2020.

96. However, before that hearing date arrived, on 13 May 2020 at 8.41pm, GR emailed the associate to Williams J (then the Duty Judge) as to an urgent treatment order. Her Honour’s associate responded at 10.48pm, noting that any application needed to comply with the orders of 18 March 2020 and 2 April 2020.

97. On 14 May 2020, Slattery J heard GR’s application for the relief set out in prayers 3 to 7 of her 27 April 2020 notice of motion, including for a stay of the final care orders pending determination of the appeal or, in the alternative, an order that the Child be placed in his own home forthwith in his mother’s case; an order that the Child not be removed from his home or any other place in his mother’s care without the leave of Kunc J after a contested hearing (with a minimum of five working days’ notice to GR by email and phone); an order that the NDIS funding for the Child be returned to GR’s control; and a recovery order for the Child to his home in his mother’s care. Slattery J reserved judgment. As explained by Kunc J (at [31] of the GR (No 4) Judgment), the principles applicable on the stay application before Slattery J were those applicable where a stay is sought pending appeal (cf applications in the parens patriae jurisdiction per se, where exceptional circumstances need to be shown for the jurisdiction to be exercised – see below).

98. On 22 May 2020, at approximately 4.30pm, Slattery J handed down judgment (via a telephone hearing in light of the then restrictions on in person Court hearings). His Honour refused GR’s application (see GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 607).

99. Around half an hour later, on 22 May 2020 at 5pm, GR emailed the chambers of Rees J (then the Duty Judge) seeking to “list case 2019 / 628836” (i.e., the very proceedings in which both Kunc J and Robb J had made orders intended to restrain continued applications by GR to the Duty Judge) to invoke the parens patriae jurisdiction of the Court (to which, as will be recalled, I here refer as the 22 May Motion). GR sent a further six emails between 5.27pm and 6.11pm to the chambers of the then Duty Judge in support of that application.

100. The 22 May Motion is, of course, the subject of the present applications. The first and second defendants maintain that the orders sought in the prayers in the 22 May Motion are an abuse of process.

101. Relevantly, the 22 May Motion seeks in substance the same relief that had been refused by Slattery J, under a reserved judgment, only half an hour before. Specifically, prayer 4 in the notice of motion before Slattery J is relevantly identical to prayer 3 in the notice of motion now before me; prayer 5 in the notice of motion before Slattery J is relevantly identical to prayer 4 in the notice of motion now before me; prayer 6 in the notice of motion before Slattery J is identical to prayer 6 in the notice of motion now before me; and prayer 7 in the notice of motion before Slattery J, though not identical in terms to any prayer for relief in the notice of motion now before me, sought relevantly the same relief in terms of practical effect to, among others, prayer 3 in the notice of motion now before me.

102. Rees J’s associate responded to the parties by email at 7.59pm on 22 May 2020, noting that her Honour had made orders in chambers listing the matter for further directions before me on 26 May 2020 (when the Statutory Appeal Proceedings were already listed before me for directions) and notifying GR that she could seek leave to file the motion when the latter was listed on that occasion. The email also noted that the proposed motion sought “essentially the same relief, between essentially the same parties, on essentially the same evidence, as was determined [that day] by Slattery J”.

103. GR was notified by email on 25 May 2020 that the Secretary would seek to have the 22 May Motion struck out as an abuse of process and costs if it were proceeded with by GR.

104. On 26 May 2020, the Statutory Appeal Proceedings and the (proposed) 22 May Motion came before me for directions in the Applications List. On that occasion, I made directions for the filing of evidence in the Statutory Appeal Proceedings (and, as adverted to above, listed the matter before the Expedition List Judge for hearing on the first available date for a five day hearing before his Honour). I also made directions to enable GR’s application for leave in relation to the 22 May Motion and the first and second defendants’ proposed strike-out or summary dismissal motion to be ready for hearing by me in the Duty List on 5 June 2020.

105. Relevantly, on 26 May 2020, GR indicated before me that (see T 8.9):

Your Honour, I am just trying to say that the only new material is one email that was sent by FACS itself so they should not take one week and the orders need to be made today in order to protect my son from another very high dose of depot antipsychotic injection tomorrow in a lockup house in Blacktown which is potentially lethal without the backup of a hospital. There is a material change in circumstances since Justice Slattery heard the case and his Honour has not made any determination on this aspect, it’s new treatment. It’s new treatment. It’s illegal treatment, it’s risky, and there is no medical indication. He is not psychotic.

106. Pausing here, it was not “new treatment” in the sense that the anti-psychotic medication had been administered on 13 May 2020 and the parents had been advised of this (see below); it had been a matter that could have been the subject of evidence, or an application to adduce such evidence, when the matter was before Slattery J; and, in any event, the position of the first defendant on 26 May 2020 was that there was no injection planned for the following day (as was made clear to GR in the course of that directions hearing) yet she pressed ahead nevertheless with her application for leave to file the 22 May Motion.

107. Also on 26 May 2020, GR prepared a notice of motion (expressed as being in the Court of Appeal proceedings 2020/1083510) seeking orders to set aside Slattery J’s judgment of 22 May 2020 and seeking relevantly the same orders as those set out in prayers 2 to 7 of the 22 May Motion, together with a further order to prevent the administration of olanzapine via injection.

108. On 27 May 2020 at 9.53am, GR sent an email to the associate to Leeming JA (who was that day sitting as the Equity Division Duty Judge) for the relief set out in that 26 May 2020 notice of motion - relief that, apart from the additional relief sought (to set aside the 22 May 2020 judgment of Slattery J and to order that planned fortnightly depot antipsychotic injections and all medications except antibiotics, simple analgesics and emergency resuscitation medications be ceased forthwith), was identical or relevantly the same as that sought in the 22 May Motion (though GR here seeks to distinguish the two by reference to the proceedings in which the motions are listed as being brought).

109. That motion dated 26 May 2020 was listed before Leeming JA at 11am.

110. His Honour dismissed the application, delivering an ex tempore judgment, in which his Honour noted that nothing had been said by GR in her email to his Honour’s associate about the fact that leave was required for the notice of motion and that nothing had been said by GR about GR having been before me the previous day nor as to the hearing due to occur on 5 June 2020 (see his Honour’s reasons at [4]). His Honour said (at [2], [7] and [12]):

2.   The application was provided to my Associate at approximately 10 o'clock this morning, accompanied by in excess of 700 pages of supporting material, all in electronic form. I gather from what has been said on behalf of the first, second and fourth respondents that they were given no advance notice of the application, no differently from the Court.

…

7.   However, conspicuous by its absence from the material sent either to the Court or to the other parties is the evidence, whether in the form of documents or affidavit, upon which she wishes to rely upon in this proceeding as to the events in the last 48 hours. Likewise conspicuous by its absence from the proceedings is any report from Emeritus Professor Einfeld or any other appropriately qualified professional addressing the matters in order 2(d), which I have referred to above.

…

12.   I say again that in the event that any further application is made to the Duty Judge in relation to the welfare of this child, it is essential that the mother or father supply, before the application is heard, copies of all of the material upon which they wish to rely. I assume that on the email system somewhere there is an email - or maybe it has not yet arrived - from the mother. Whatever that email is will be printed out and marked MFI B for the purpose of this application.

111. The very next day, on 28 May 2020 at 9.20am, GR made what seems to have been an almost identical application to White JA (who was sitting that day as Equity Division Duty Judge) seeking orders in an amended notice of motion (again expressed to be filed in the Court of Appeal proceedings) on 27 May 2020; the only difference between that and the notice of motion the previous day being the inclusion of an application for the Court to “[g]rant the relief sought before Slattery J in orders 3 to 7 in the Notice of motion of 27 April 2020 in 2020/123080”. It appears that the email under cover of which this process was sent to chambers of White JA was identical to that sent to the chambers of Leeming JA the previous day.

112. White JA ordered that the amended notice of motion (which purported on its face to be in the Court of Appeal proceedings) be transferred into the Equity Division and be dismissed (see GR v Secretary, Family, Disability and Community Services [2020] NSWSC 668). His Honour said (at [21]):

21.   I have been told that a subpoena has been issued, apparently in connection with that application, and that documents have been provided to the applicant. She says that the documents provided are not a complete answer to the subpoena. Be that as it may, it is clear that at least that part of this proposed application will be before the Chief Judge in Equity for hearing of at least the possible merits of the application. In those circumstances, to bring a fresh proceeding before two new judges sitting in the Equity Division this week, has all the appearance of judge shopping. When I put that proposition to the applicant, she did not disclaim it.

113. In the course of argument on the motion, Dr Fairley (who was in the virtual courtroom) informed White JA that he was “not sure that anything has urgently changed” and that the Child’s circumstances were not dissimilar to what they were weeks or months ago (see at [13]; T 13.39). That, of course, is highly relevant to the restriction imposed by the orders made by Kunc J and as varied by Robb J (as well as is the position as it was explained to me on 5 June 2020 – to which see below.)

114. On that occasion, GR made clear that she had approached White JA as a Judge of the Court of Appeal (T 19.33), though, as I have said, his Honour was that day sitting as Duty Judge in the Equity Division. White JA made clear (at [2]) that it would be entirely inappropriate for a notice of motion seeking relief in the Equity Division to be directed to a Judge of Appeal sitting in that capacity: “[t]hat is entirely inappropriate because the relief sought is relief that could only be given, if given at all, in the Equity Division”.

17.   Moreover, at paragraph 30 of the same affidavit, it is said that contact was suspended between 14 September and 24 September. How that is reconcilable with order 2 made by Kunc J, which limits the forming of an opinion that contact is undesirable to a particular occasion, is also not at all clear. It is therefore not difficult to understand why the parents might have come to the view that the Department is acting somewhat unilaterally – in their words, as a “law unto itself” – in these respects. Those matters, which tend to show that what Kunc J was seeking to implement was being circumvented if not defeated, might amount to a change of circumstances which could be raised on a new application in the Equity Division. Most, if not all, of these circumstances arose after the last of the judgments the subject of the present application, and could not have been raised on those applications

18.   In addition, although this is not clear, there remains a concern that [the Child] might be receiving treatment that would require the Court’s permission in accordance with cases such as Marion’s Case and Director General, Department of Community Services; Re Thomas. Whether [the Child] has been subject to such restraints or confinement as exceeds what is within the scope of ordinary parental responsibility is not at all clear at this stage, but it is equally not clear that he has not been.

19.   Some submissions have been made concerning the mother’s parenting capacity, which is said to be a very important consideration in the Children’s Court proceedings. In many care proceedings, the parenting capacity of a parent is a vital issue. In this case, it will ultimately be a matter for the President of the Children’s Court to weigh the various issues, although one might be attracted to the view that the crucial question here is what course is best going to encourage and incentivise [the Child] to eat, rather than concerns about marginal defects in parenting capacity arising from a supposed psychotic illness which, if it exists at all, certainly does not appear to be florid. This is a case in which, perhaps exceptionally, the short term seems to be at least as important, if not more important, than the long term future for [the Child].

20.   All those matters, as I have said, give marks of strength to the parents’ case….

[Footnotes omitted]

172. GR says that the “the alleged findings” of the Children’s Court in the February 2020 Children’s Court Decision “were wholly lacking in any evidence, and unsupported by any reasons, in a Court that allegedly ‘rubber stamps’ over 99 % of applications by FACS, because rules of evidence, the UCPR and CPA don’t apply in the Children’s Court”.

173. GR says that this means that she is in “the top 1% of cases where a final care order was not ‘rubber stamped’, because the final care plan was so hopeless, and really because FACS have no prospects of ever being able to care for [the Child]”. GR says that she is also in the “select 10% or less of cases that get a win and total reversal in Court of Appeal in GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177, by the alleged top [three] Judges in the state of NSW”.

174. GR says that the February 2020 Children’s Court Decision was “based entirely on false allegations by the 1st and 2nd defendants to Court, and wholly unsupported by the medical evidence”.

175. Moreover, GR says that the February 2020 Children’s Court Decision is now superseded by the “unprecedented crisis of the global pandemic, with an urgent need to remove [the Child] from imprisonment by [the Department] in hospital putting him at risk of death from [COVID]-19, and placement in [GR]’s care at home, to comply with new urgent mandatory laws”.

176. GR also notes that, on 7 November 2019, “Emmett AJA and Brereton JA said that the care of FACS [has not] worked, and [that it was] time ‘to give the alternative a go’ and return [the Child] home”.

177. GR says that, despite having no guardianship order (it will be recalled that the interim order was discharged by Kunc J on 15 May 2019), and therefore “not being legally able to bill the NDIS”, the first and second defendants have increased NDIS funding in a design “to keep the subject in their own home from $43,000 to $350,000 per annum, and use that funding while he is a public patient under their voluntary consent incarcerated in hospital for 14 months, subjected to restraints and induced comas for force feeding”. GR says that this was and is the basis for order 7 in her 20 March 2020 notice of motion. Specifically, that proposed order is in the following terms:

7.   Order that the NDIS funding for [the Child] is to be returned to his mother’s control forthwith.

178. Section 85 of the Care Act provides:

85    Provision of services to facilitate restoration

A government department or agency or a funded non-government agency that is requested by the Children's Court to provide services to a child or young person or his or her family in order to facilitate restoration is to use its best endeavours to provide those services.

179. Further, GR invokes s 56 of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act). GR maintains that her notice of motion provides a just, quick and cheap resolution for proceedings that have “gone on too long without resolving the issues in dispute, and without providing much needed relief to [the Child] severely abused for 14 months in the care of FACS”.

180. The Father relies upon two expert reports to the Children’s Court, from Professor Einfeld and Dr Michael Fairley, that were submitted prior to the making of orders on the final care plan on 3 April 2020. He says these need to be considered in the full context of what Associate Professor Madden has said and achieved, in conjunction with his medical team, for the care of the Child in the thirteen months since the Child’s assumption into care on 28 February 2019. It is noted that (at [450] of the February 2020 Children’s Court Decision), the President of the Children’s Court quoted Associate Professor Madden’s evidence to Kunc J on 25 and 26 November 2019 that: “so I think the goal weight or the minimum safe weight is 45 to 46 kilograms and I think given – if we continue as is, we’ll achieve that within three weeks”.

181. The Father appears to accuse the first and second defendants of seeking to “reprogram [the Child’s] mind” and of abuse of the Child’s human rights (again, also referring to the 1989 United Nations Convention on the Rights of the Child).

182. More specifically, the Father says that the Child is “bed-ridden” whenever he visits and says that “apparently, most of the time, except some limited and intermittent engagement with the Physio [sic] and he was attending hospital school, before COVID-19 restrictions, only when allowed by the school, to enter the class room in bed and attend from the bed”.

183. The Father repeats the submission made by him to the Children's Court prior to April 2020 Children’s Court Decision as follows:

The legal test of “unacceptable risk to the child” is the legal test applied by the Court: see M v M 1988 [HCA 68] [sic]; Nu v NSW Secretary of Family and Community Services [2017] NSWCA 221 each referred at paragraph 306 of the decision of this Court. The father of [the Child] wishes to be understood to submit that the development of the COVID 19 epidemic exposes [the Child] to such an “unacceptable risk” as explained and understood in the legal context whilst ever, during this epidemic, [the Child] remains in hospital or remains and resides in community housing as envisaged in the proposed care plan

184. It is submitted that the danger of infection to the Child with COVID 19, with his much-compromised physical condition, would be much reduced if the Child is at home in a private residence with a parent.

185. In that respect, the Father notes that the President of the Children's Court stated (at [307] of the February 2020 Children’s Court Decision):

307.   M v M dealt with past sexual abuse of a child but the principles there set out apply to other forms of harm, such as physical and emotional harm.

186. The Father also invokes the paramountcy principle (see s 9(1) of the Care Act), referred to at [304] of the February 2020 Children’s Court Decision as “first and foremost”, which he argues applies here in consideration of the risk to the Child whilst ever he remains in hospital or some other community facility during the current pandemic which the Father says is predicted to last many more months.

187. Pausing here, it should be apparent from the above survey of the various submissions on which the parents have relied, that the substance of their complaint is as to matters that will arise for final determination in the Statutory Appeal Proceedings; not matters of an interlocutory nature.

Determination

188. It is convenient first to say something about the procedural manner in which the present application has come before me.

The extant orders of Kunc J and Robb J

189. In one respect, the short disposition to the present applications is that GR has not established what is required, under the orders made by Kunc J (as varied by Robb J), for an urgent interlocutory application to the Duty Judge in relation to the Child (and hence for her to be granted leave to file and prosecute her 22 May Motion).

190. That is because what is required under those orders (which, though the subject of an application for leave to appeal, remain binding on GR, as she here appears to accept) is not simply the provision (to the associate and copied to other parties) of a notice of motion specifying the precise relief sought but also the following: one, the affidavit evidence proposed to be relied upon, including any evidence as to urgency; two, a copy of Kunc J’s judgment; and three, significantly for the purposes of the present application, if the application is based on a claim that there is an urgent medical necessity for a hearing in the Duty List, a report by an appropriately qualified medical professional explaining the nature of the change in the medical circumstances of the Child, the nature of the orders that should be made in the interests of the Child and the reasons for the urgency.

191. As to third of those items, to be abundantly clear, the 22 May Motion, if based on an urgent medical necessity for a hearing (and it is not apparent that there was any basis for such an assertion as at 5pm on 22 May 2020), was required to be accompanied by a report of the kind specified by Robb J. That is, not the re-supply of all the medical evidence and reports that had already been before the Court; but, rather, something identifying why an urgent application for interlocutory relief at the time of the application was regarded by the medical expert(s) as necessary. That was conspicuously absent at the time and is still conspicuously absent. This is in circumstances where GR here seems candidly to admit that the medical experts on whom she here relies can say nothing further than what they have already said in relation to the Child’s treatment.

192. Following from the above, if the 22 May Motion was not based on an urgent medical necessity for a hearing in the Duty List (such that a medical report of the kind specified by Robb J was not necessary) then this reinforces the complaint that it was and is an abuse of process.

193. GR has complained volubly on the present application that, in the time since 22 May 2020, the first and second defendants have not adduced medical evidence. However, GR must understand that it is not their application for any urgent orders in relation to the Child’s medical treatment; it is hers. The evidentiary burden lies on her in this regard at least in the first instance.

194. The unfortunate reality (and while I have every sympathy for the difficult position faced by the parents, and the Child himself, in his current state of health) is that what GR and the Father have been seeking in their repeated attempts to invoke the parens patriae jurisdiction of this Court is, first, to circumvent the Children’s Court hearing and then to stay (and, indeed, for all practical purposes reverse) the orders made by that Court and the care plan that has been approved by that Court (at the end of a lengthy hearing in which, contrary to the accusations that the Court simply “rubber stamped” the Secretary’s application, the President of the Children’s Court carefully reviewed, and provided a lengthy and detailed judgment dealing with, the evidence before the Court).

195. As Basten JA recognised, what GR is seeking in her various applications for interlocutory relief is the final substantive relief that can only properly be determined on a hearing of the statutory appeal from the orders of the Children’s Court (that appeal, as noted earlier, now being listed for an expedited hearing, albeit not being able to be heard until November of this year).

196. Insofar as both parents have raised issues as to the jurisdiction of the Children’s Court to make orders of the kind that have been made or to approve the amended care plan (and as to the legality of the orders that have been made), invoking what was said in Re Thomas and in Marion’s Case, those are matters to be dealt with in the ultimate determination of the Statutory Appeal Proceedings.

An abuse of process

197. This brings me to the abuse of process complaint made by the first and second defendants.

198. The spectre of these successive interlocutory applications being determined to be an abuse of process has been raised with GR on more than one occasion. I have noted already the view expressed by, for example, Robb J that there was a basis for concluding that GR had abused the process of the Court. Indeed, GR has been cautioned several times since then about committing an abuse of process (as set out in the above chronology of proceedings).

199. The orders put in place by Kunc J and varied by Robb J were an attempt to avoid continuing abuses of process of that kind. Regrettably, they have proved to have been of only limited success in that regard, because GR has continued, seemingly undeterred, to make successive urgent applications to different judges sitting in the Duty List and in different sets of proceedings – the parens patriae proceedings and the Statutory Appeal Proceeding – seeking the same, or substantially the same, relief and based on the same, or substantially the same, evidence. At least some, if not each, of those applications have been made in non-compliance with, and indeed one might say even in defiance of, those orders.

200. More specifically (and this is the complaint that has led to the further variation sought of the orders initially made by Kunc J restricting such applications), GR has not been candid with various of the duty judges to whom her applications have been made as to the fact that there was already an application seeking the same relief before the Court and listed for hearing before another judge. That warrants a variation of the relevant orders as proposed by the first and second defendants.

201. With that in mind, I start from the proposition that the parens patriae jurisdiction of this Court is an exceptional jurisdiction (as has been made abundantly to GR by the many judicial officers before whom GR has come). For example, in Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157, Palmer J stated the proposition that the jurisdiction is to be exercised only in exceptional cases (and see also; Re Frances and Benny [2005] NSWSC 1207 at [18] per Young CJ in Eq, as his Honour then was; both cited by Justice Brereton, speaking extra-judicially in “Children’s Issues in the Supreme Court” (Address to the Children’s Court of New South Wales Meeting, 8 April 2016), to which GR has herself drawn the Court’s attention).

202. In this respect, where GR’s applications have been to invoke the parens patriae jurisdiction per se (leaving aside for the moment the application before Slattery J for an interim stay pending appeal), it was and is necessary for GR to establish such exceptional circumstances or a material change (such as an urgent medical necessity) to warrant the intervention of this Court. Indeed, time and again, GR’s interlocutory applications have been refused because the Court has not been satisfied that such exceptional circumstances (whether justifying interference with the Children’s Court proceedings, or with the orders that are currently in place) have been established. For an interim stay pending appeal (as was before Slattery J), in the circumstances it was still necessary to establish exceptional circumstances for interference (the applicable test being as to whether the appeal would be or be likely to be rendered nugatory if the stay were not granted and then to establish that the balance of convenience favoured the stay); whereas what GR was seeking was the final relief on an interlocutory basis on advance of the hearing and determination of the Statutory Appeal Proceedings.

203. Recently, in Rinehart v Rinehart [2020] NSWSC 68 (Rinehart), albeit in a very different context, I considered the principles applicable where it is said that the commencement or continuation of proceedings is an abuse of process. I there noted (see at [583] and [617]) that the onus of satisfying the Court that there is an abuse of process is “a heavy one” and lies upon the party alleging it (citing Williams v Spautz (1992) 174 CLR 509 at 529; [1992] HCA 34 (Williams v Spautz) per Mason CJ, Dawson, Toohey and McHugh JJ); and that the fact that “the same transactions and events are the subject of two separate proceedings in different forums … does not lead inexorably to the conclusion that there is an abuse” (citing Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson v Nicholls) at [110] per Gummow ACJ, Hayne, Crennan and Bell JJ).

204. In the present case, the various applications have been in the same forum (that is, the Duty List of the Equity Division of this Court, even though GR, when seeking relief from before each of Leeming JA and White JA, might have thought it relevantly different in that each of their Honours is a Judge of Appeal) albeit in different contexts – in the parens patriae proceedings in some cases and in aid of the Statutory Appeal Proceedings in others.

205. However, the fact remains that essentially the same application is being brought over and over and over again (on the basis of essentially the same allegations and evidence); and occupying an inordinate amount of Court time at the expense of other litigants in the Court.

206. In Rinehart, I noted that proceedings have been held to be an abuse of process where: the Court’s processes are invoked for an illegitimate or improper purpose (referring to Williams v Spautz; Rogers v The Queen (1994) 181 CLR 251 at 287; [1994] HCA 42 per McHugh J); the use of the Court’s processes is unjustifiably oppressive to one of the parties or vexatious (referring to Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55); and the use of the Court’s processes in the manner contemplated would bring the administration of justice into disrepute (see Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 per Mason CJ, Deane and Dawson JJ).

207. I also noted that the categories of abuse of process are not closed (referring to Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518-520; [2015] HCA 28 per French CJ, Bell, Gageler and Keane JJ; Perera v GetSwift Ltd (2018) 263 FCR 92; [2018] FCAFC 202 at [144]; Michael Wilson v Nicholls at [89] per Gummow ACJ, Hayne, Crennan and Bell JJ) and that it has been recognised that the doctrine of abuse of process is fluid and adaptable (referring to Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos) at [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ; Jeffery and Katauskas Pty Ltd v SSTConsulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 at [70] per Heydon J).

197. I do not suggest that the applications brought by GR have been for an improper or illegitimate purpose (although I must emphasise that the very serious accusations of corruption and misleading conduct should not have been bandied around as they have been in oral submissions). I accept that GR genuinely (and passionately) believes that the action she is taking is in the best interests of the Child and that she has faith in the medical experts on whom she relies.

198. However, I consider that the successive iterations of the same application are unjustifiably oppressive and vexatious in the absence of evidence to establish that there is an urgent medical necessity for interlocutory relief.

199. In this particular respect, I have no little concern as to the impact that GR’s interminable applications no doubt have had, and continue to have, on the resources of, among others, the Child’s treating practitioners, care and support team, the Crown Solicitor and Counsel. Further, Associate Professor Madden has referred to the destabilising effect of the ongoing proceedings on the Child and this is obviously a matter of great concern.

200. The bringing of successive applications before different judges sitting in the Duty List or otherwise in this Division (noting that there were applications on three successive days in May this year before three different judges: on 26 May 2020, the return of the 22 May Motion in the Applications List before me for directions when the application in relation to that motion was set down for hearing; on 27 May 2020 before Leeming JA sitting as Duty Judge; and on 28 May 2020 before White JA sitting as Duty Judge) does give rise to the spectre of conflicting judgments and gives rise to the very real potential for the administration of justice to be brought into disrepute.

201. That this is so, is well illustrated by the purported abuse of process the subject of the present application – namely, the application brought and relief sought by the 22 May Motion and the context in which this process has been prosecuted.

202. Specifically, this application was sent to the associate to the then Duty Judge (then Rees J) no more than half an hour after an application for almost exactly the same relief had been dismissed, under a reserved judgment, by another Judge of the Equity Division and it was based on relevantly the same underlying facts.

203. It should be noted that when the matter was before me for directions on 26 May 2020, GR identified the change in circumstances which warranted that 22 May Motion as being the sending of an email as to the discharge of the Child from hospital (on 25 May 2020) and informed me (as it transpired, incorrectly) that the urgency lay in the fact that the Child was to be administered an anti-psychotic injection the following day.

204. As to that email, self-evidently an email sent on 25 May 2020 cannot have justified the bringing of the 22 May Motion at the time (that is, because the email had not been sent at the time). As to the then anticipated administration of anti-psychotic medication, even apart from the fact that this was not a new development (since GR was aware that such medication had been administered previously; and was aware of this by the time Slattery J dealt with her application), it was not even an imminent threat, since (as it transpired) the medication had already been administered (on 25 May 2020), but, even when she was made aware of this, this did not deter GR from pressing ahead with the 22 May Motion (nor from bringing the subsequent two ill-fated applications on 27 and 28 May 2020).

205. Insofar as the parents have invoked s 56 of the Civil Procedure Act and the statutory mandate for the just, quick and cheap resolution of the real issues in dispute, I respectfully agree with what was said by Kunc J in his Honour’s judgment of 18 March 2020, namely that the conduct of GR in her frequent attempts to seek relief in the Duty List is inconsistent with that mandate.

206. Moreover, as adverted to above, not only are such applications oppressive and vexatious to the first and second defendants (and, in the opinion of Associate Professor Madden, disruptive to the treatment of the Child and having a destabilising effect on the Child), they burden judicial resources and frustrate the due disposition of other litigants’ matters. I am acutely concerned as to the more general disruption to the proper administration of justice that these applications are having and will have if permitted to continue.

207. The finite resources of this Court cannot be expended continually on successive applications for the same relief, as has been the case here; and the blatant attempt at “judge-shopping” by GR should not be condoned.

208. The majority of the High Court of Australia, comprising Dawson, Gaudron, McHugh and Gummow JJ, in Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 said (at 591):

It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue [their Honours there referring to Moore v Inglis (1976) 50 ALJR 589]. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of the word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.

… it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.

[Emphasis added]

220. In UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968; 360 ALR 184 (UBS AG v Tyne), Kiefel CJ, Bell and Keane JJ (with whom Gageler J agreed) said (at [1]) that:

1.   … The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute…

[Footnotes omitted]

221. Their Honours noted (at [38]) that the “timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute” (citing Batistatos at [14] per Gleeson CJ, Gummow, Hayne and Crennan JJ; and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).

222. To underscore the preceding, in general, it is contrary to the public interest in the administration of justice for there to be permitted the risk of inconsistent decisions on the same issues; and there would be oppression at the continuation of proceedings with the risk of conflicting judgments if the same or similar issues will arise for determination in each. It is relevant in this context to note Gordon J’s observations (albeit in dissent as to the result) in UBS AG v Tyne that (at [151]):

151.   The administration of justice may be brought into disrepute, in such a way as to amount to abuse of process, if the public perception is that the legal system is unfair, inefficient, ineffective, expensive (both for the parties and in terms of the use of public monies) or contrary to the rule of law. Permitting a proceeding to continue in such circumstances might suggest tolerance of behaviour that is contrary to the just, efficient and timely resolution of disputes including attempts to relitigate questions already resolved.

[Footnotes omitted]

223. Following on from this, her Honour referred (at [155]) to considerations of finality, fairness and maintenance of public confidence in the administration of justice. Gageler J, agreeing with the majority, also emphasised (at [80]) the public interest in the timely and efficient administration of civil justice. For their part, the plurality (at [58]) spoke of oppression in the significant delay in the resolution of the disputes and the inevitability of increased costs.

224. All those concerns are amply present in the case before me. They are observable if one only considers the background to the present application, as I have sought to outline in these reasons (which, I fear, itself does not fully capture the extent of the matter).

225. As many of the judges before me have already noted, the parens patriae jurisdiction is an exceptional jurisdiction. None has foreclosed the bringing of such an application in appropriate circumstances (where there can be seen, objectively, to be an urgent medical necessity with which to deal). However, the day to day vicissitudes of the Child’s treatment and care do not constitute “urgent medical necessity” (as Kunc J has already pointed out). Similarly, criticism of the approved treatment programme (approved after considered expert evidence) does not of itself warrant an order effectively seeking to pre-empt the determination of the Statutory Appeal Proceedings. Still less does it warrant day to day emails to the associates of Duty Judges raising complaints as to the current treatment of the Child (not all of which seem to have been copied to the first and second defendants), seeking information or interim orders to be made (such emails continuing both before and after the hearing of the present application).

226. As to the invocation by the Father of the paramountcy principle, it is of course necessary to have regard to the best interests of the Child; the difficulty is that the parties are diametrically opposed as to what this means in the circumstances of the present case and the parents do not accept the ruling that has been made in this regard by the President of the Children’s Court (again, that being an issue that will be for consideration in the Statutory Appeal Proceedings on a de novo basis).

Costs

227. I bear in mind that GR is unrepresented and that the Father (although having had the benefit of legal advice and assistance) was unrepresented on the hearing of the present applications. The Court of Appeal, albeit in a different context, referred to the difficulties commonly faced by unrepresented litigants (see as quoted at [38] above), among other things in having a lack of complete understanding of matters such as the distinction between final and interlocutory orders.

228. However, GR has been cautioned more than once as to conduct of the kind in which she has here engaged being or likely to be seen to be an abuse of process. In those circumstances, where she has continued to engage in such conduct it is appropriate that she bear the first and second respondents’ costs of the present applications. Indeed, there may well have been a case for costs to have been payable on the indemnity basis but this was not sought and GR has not had the opportunity to be heard on such a costs order.

Orders

229. For the above reasons, I have concluded that leave should not be granted for the filing of the 22 May Motion. However, I note that, even had I been disposed to grant leave, I would have dismissed the 22 May Motion as an abuse of process (that, of itself, being a reason to refuse the grant of leave).

230. In light of the preceding, I make the following orders:

1. Refuse leave to file the notice of motion dated 22 May 2020.

2. Vary the orders made by Kunc J on 18 March 2020 (and as varied by Robb J on 2 April 2020) by adding the following sub-orders to order (2):

(e)   in the body of the email to the Associate to the Duty Judge seeking an urgent listing, it be noted that:

(i)   leave is required to make an urgent interlocutory application; and

(ii)   whether or not there are any upcoming listings before the Supreme Court and/or Court of Appeal in relation to any proceedings relating to [the Child];

(f)   a copy of the judgment of Robb J of 2 April 2020; and

(g)   a copy of this judgment and these orders.

3. The Plaintiff pay the First and Second Defendants’ costs of the notice of motion filed 3 June 2020 and of the Plaintiff’s application to file the 22 May Motion.

**********

Amendments

17 June 2020 - [82] - anonymisation of child's name

18 June 2020 - Coversheet amendment, typographical error

Decision last updated: 18 June 2020