GR v Secretary, Department of Communities and Justice

Case [2022] NSWCA 153

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: GR v Secretary, Department of Communities and Justice [2022] NSWCA 153
Hearing dates: 14, 15 June 2022
Date of orders: 18 August 2022
Decision date: 18 August 2022
Before: Gleeson JA at [1];
Brereton JA at [2];
Mitchelmore JA at [150].
Decision:

(1) Dismiss the applicant’s motion filed on 9 February 2022, with costs;

(2) Dismiss the summons for leave to appeal, with costs.

Catchwords:

CHILD WELFARE – Care proceedings – Care order – Order allocating parental responsibility – Second appeal – Appeal from Equity Division decision upholding Final Care Order of Children’s Court – Best interests of the child – Where child has undertaken substantial course of medical treatment by consent of Community Services with limited contact with parents – Where child approaching adult age and permanency planning underway – Whether child should be restored to mother’s care – Holding that there are insufficient prospects that alternative order would be made on appeal to justify granting of leave to appeal – Summons seeking leave to appeal dismissed

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 44, 71, 72, 79, 90, 173 and 233

Supreme Court Act 1970, ss 75A(7), (8), (9)

Cases Cited:

Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217

Director-General, Family and Community services, re Felicity [2012] NSWCA 272

DoCS v Y [1999] NSWSC 644

Ghosh v Medical Council of New South Wales [2020] NSWCA 122

Ghosh v Medical Council of NSW [2018] NSWCATOD 186

GKD v Director-General, Attorney General’s Department [2012] NSWCA 219

GR v Secretary, Department of Communities & Justice [2021] NSWCA 234

GR v Secretary, Department of Communities & Justice [2021] NSWCA 301

GR v Secretary, Department of Communities and Justice [2021] NSWCA 267

GR v Secretary, Department of Communities and Justice [2021] NSWCA 99

GR v Secretary, Department of Communities and Justice [2022] NSWCA 90

GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277

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 & Ors [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 (No 2) [2019] NSWSC 1725

GR v The Department of Communities & Justice [2020] NSWSC 1901

GR v The Department of Communities & Justice [2021] NSWSC 1081

Re AB [2019] NSWSC 316

Re AB (No 2) [2019] NSWSC 566

Re C [1997] 2 FLR 180

Re DG and the Adoption Act [2007] NSWCA 241; 244 ALR 195

Re W [1992] 3 WLR 758; [1992] 4 All ER 627

Secretary, Department Of Health And Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; [1992] HCA 15

Category:Procedural rulings
Parties: GR (applicant)
Secretary, Department of Communities and Justice (first respondent)
Minister for Families Communities and Disability Services (second respondent)
BB (third respondent)
Arwyn (fourth respondent)
Representation:

Counsel:

Self-represented (applicant)
J Needham SC and M Anderson (first and second respondents)
Self-represented (third respondent)
J Harris (Independent Legal Representative for fourth respondent)

Solicitors:

Crown Solicitor’s Office NSW (first and second respondents)
Legal Aid NSW (Independent Legal Representative for fourth respondent)
File Number(s): 2021/262590
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity – Expedition List
Citation:

[2021] NSWSC 1081

Date of Decision:
27 August 2021
Before:
Sackar J
File Number(s):
2020/123080

HEADNOTE

[This headnote is not to be read as part of the judgment]

The proceedings concern Arwyn – not his real name – an intelligent young person with an extreme degree of autism, as a result of which significant challenges have arisen with respect to his behaviour and parenting, and the maintenance of his health. After a lengthy litigious history, on 3 April 2020 the then President of the Children’s Court made orders allocating parental responsibility for Arwyn to the Minister for Families Communities and Disability Services until he attains 18 years of age.

On 27 August 2021, Sackar J in the Equity Division dismissed an appeal brought by the mother GR against the orders of the Children’s Court, seeking to restore Arwyn to her care. GR then sought leave to appeal. If leave were granted, the ultimate question in the appeal would be whether a different order should now be made for Arwyn’s parental care and responsibility. GR by motion also sought review of certain costs orders made pending the hearing of the application.

Held, per Gleeson JA [1], Brereton JA [148], and Mitchelmore JA [156]), dismissing the summons for leave to appeal and the applicant’s motion:

The primary judge’s evaluative judgment – that in all of the circumstances, his Honour was unable to be satisfied that the applicant was capable of having responsibility for Arwyn at home, and that Arwyn was deriving substantial benefits from his present placement – is difficult to dispute. In the context of a second appeal, where there are concurrent findings in the Children’s Court and on appeal in the Equity Division, there are insufficient prospects of this Court making an order disturbing the current arrangements for the less than four months that it would be in force to justify a grant of leave to appeal: [1] (Gleeson JA); [118]-[119], [148] (Brereton JA); [154]-[155] (Mitchelmore JA).

Judgment

  1. GLEESON JA: I agree that the summons for leave to appeal should be dismissed with costs, for the reasons given by Mitchelmore JA. I also agree that the applicant’s notice of motion filed 9 February 2022, challenging the costs order made by Simpson AJA should be dismissed with costs, for the reasons given by Brereton JA.

  2. BRERETON JA: Arwyn – not his real name – whose interests are the focus of these proceedings, is an intelligent young person who has an extreme degree of autism, as a result of which he has been prone to isolate himself from others, preferring the company of his computer to that of other human beings and communicating orally only selectively; to controlling and sometimes violent behaviours towards his parents; and to restrict his food intake, sometimes to the point of endangering his own life. Parenting him would have challenged the most capable of parents. It is to the great credit of both his parents, his mother the applicant GR and his father the third respondent BB, that despite everything that has occurred, before and during the proceedings, they both remain dedicated to his welfare. It is unfortunate that the frustration, despair and sometimes concrete thinking of the mother, who is an obviously intelligent woman and (contrary to some suggestions) does not demonstrate any frank psychosis, has contributed to a situation in which, where Arwyn’s interests demand co-operation and goodwill between the parents and the agencies involved in his care, there is only hostility.

  3. After a lengthy litigious history, on 3 April 2020 the then President of the Children’s Court (Johnstone ChCP) made orders allocating parental responsibility for Arwyn to the Minister for Families Communities and Disability Services (“the Minister”) until he attains 18 years of age. [1] On 27 August 2021, Sackar J in the Equity Division dismissed an appeal brought by GR from the orders of the Children’s Court. [2] GR now seeks leave to appeal to this Court. There is also before the Court a motion filed by GR seeking review of interlocutory orders made by Simpson AJA.

    1. During the proceedings the relevant department was first the Department of Family and Community Services, and later the Department of Communities and Justice. For convenience I refer consistently to the relevant agency as “Community Services”.

    2. GR v The Department of Communities & Justice [2021] NSWSC 1081 (“Judgment below”).

  4. As will become apparent, there are aspects of the case which are troubling. At the forefront of them is the very fact that an autistic child who four years ago at the age of 13 was residing with his parents, albeit in less than satisfactory circumstances, has ostensibly in his better interests spent most of the last three years – perhaps the most important period for formation of a young person’s life and character – involuntarily confined and hospitalised, and at times sedated and “force fed” by nasogastric tube when refusing to eat in protest at his removal from his preferred place. To my mind the position is not nearly so clear cut as, but significantly more ambiguous than, that suggested by the judgment below. In particular, it is not clear to me that overall Arwyn has been benefitted by the course of admissions and treatment which has been undertaken – that is to say, while his circumstances were and were likely to remain fraught if he were not assumed into care, it is questionable whether the trauma associated with his repeated admissions and involuntary treatment resulting in limited gains is preferable. While I eschew any suggestion that there has been deliberate impropriety on the part of Community Services, I am concerned that there has at times been far too ready a disposition to consent to extreme medical treatments for Arwyn, and to confine him, without the authority of the Court, and to exclude his parents, in particular GR, from contact with him and access to information about his treatment. Associated with this, I am also concerned that GR, as a litigant in person, has been denied the opportunity to obtain what could have been relevant evidence, by interventions that have deterred medical professionals from engaging with her. There is not a little irony in the circumstance that while it appears that GR’s administration of Olanzapine, an antipsychotic drug, to Arwyn, was one of the triggers for Community Services’ intervention, it seems to have been the prescription of large doses of depot Olanzapine by Associate Professor Madden that ultimately ameliorated his condition while in the care of Community Services. I am not unconcerned that there has been a disposition, on the part of Community Services, medical professionals, and even courts – generated in part by GR’s fraught interpersonal interactions, social insensitivity and hostility, her persistent and sometimes inflammatory approaches and applications (which I see as largely driven by frustration and desperation), and a perception that she has been less than honest – to view her repeated attempts to have Arwyn restored to her care as vexatious, to leap too readily to conclusions adverse to her, and to reject some of her more meritorious arguments.

  5. But despite these reservations and concerns, I have come to the conclusion that the proper disposition of this application requires that leave to appeal be refused. That is essentially because the ultimate question in an appeal would be whether, considering the position that obtains in the present rather than that which existed in the past, and in circumstances where Arwyn is now only a few months short of 18 years of age, a different order should now be made for Arwyn’s parental and care responsibility for those remaining months. In my judgment, there is no realistic prospect that a different order would now be made.

Background

  1. What follows is a very abbreviated and incomplete account of the saga which precedes the present application. It focusses more on Arwyn and his care and medical treatment than on the litigious history, although there is some reference to some of the more important aspects of the latter.

  2. Findings have been made, by Johnstone ChCP and by Sackar J, adverse to GR’s honesty. Those judges enjoyed a considerable advantage over this Court in reaching their conclusions, having had a much more extensive opportunity than this Court to see and hear her. Even if it were open to this Court to take the view that her many overstatements and misstatements were not manifestations of deliberate dishonesty but reflect a propensity selectively to hear, remember and repeat what she wants or likes to hear, it would still require great caution to rely upon what she attributes to others, and resort must be had to the sources, rather than to her restatements.

Early life and primary school

  1. Arwyn was born on 27 October 2004. It became apparent early in his life that he had disabilities. The father left his employment to become Arwyn’s primary carer, while the mother practised as a general medical practitioner in Charlestown. Arwyn completed kindergarten at Charlestown South Primary School in 2010, where he was observed to have difficulties in organising himself for activities, and regularly not to finish his recess or lunch meals. [3] His father reported that he was assessed as autistic by a child psychologist and his autism was affecting his learning and social interaction. [4] In 2011, a consultant clinical psychologist reported that Arwyn had a number of behavioural difficulties, including “a very limited diet”, and made a number of recommendations to assist his parents to manage them. [5]

    3. Rozi Marsh, letter of 16 August 2010.

    4. BB, statement of 27 November 2010.

    5. Dr Lee Sturgeon, report of 17 January 2011.

  2. In the meantime, GR encountered a number of conflicts at work and in connection with an investment property. [6] Arwyn’s behaviour continued to deteriorate; he became increasingly violent towards his father, and he had a poor school attendance record. [7] However he was much happier and more willing to attend school in 2016, when he moved from Charlestown South Primary School to an opportunity class at New Lambton South Public School.

    6. Dr Davies, report of 18 May 2012.

    7. Ms Rhiannon Pilgrim, Occupational Therapy Assessment of 30 July 2015.

  3. On 1 April 2016, Arwyn was admitted to John Hunter Hospital with a three-day history of an irritable left hip. An ultrasound showed some extra fluid in the hip joint space suggestive of inflammation. Later, Dr Thomson Bowe would report that extensive investigation including an MRI showed no evidence of any serious cause such as infection. [8] According to the hospital notes, left hip joint aspiration and MRI of the pelvis on 4 April 2016 disclosed no evidence of septic arthritis. On 3 April 2016, Community Services received a report which expressed concerns that GR was unwilling to permit Arwyn, who had presented with a sore hip, to stay in hospital for a proper diagnosis, was misusing her status as a medical practitioner to obtain medical results, misdiagnose his condition and prescribe unnecessary medication (she maintained that he had a septic hip, which the evidence did not support); that she had previously wanted Arwyn medicated for behaviours not currently seen to be displayed; and it was noted that there was an historic report raising concern about very restrictive behaviours by the parents and a clear regression in Arwyn’s emotional health and cognitive and general functioning. [9] However, nothing suggesting any of those concerns appears in the discharge referral. [10] The father has submitted what appears to be a letter of Dr Walker, radiologist of Hunter Imaging Group, of 8 April 2016, which appears to express the opinion that the same MRI of 4 April 2016 evidenced septic arthritis. [11] The mother prescribed antibiotics, and according to the parents, the hip problem resolved.

    8. John Hunter Hospital, Medical Assessment Report of 1 July 2018.

    9. Community Services, contact record of 3 April 2016.

    10. John Hunter Hospital, Discharge Referral of 1 April 2016.

    11. The provenance and authenticity of that letter has not been established. The opinion it expresses is discrepant with all the other evidence, and it is to be noted that on 10 February 2022 Dr Voutnis of Hunter Imaging informed Ms Eldridge of Community Services that “a few years ago” they had done “a whole lot of imaging for this woman and her son”; that GR was under the impression that [Arwyn] had a hip problem, but they found no problem, concluding “there’s nothing in his hip, it’s completely normal”.

  4. Following comprehensive diagnostic assessments of Arwyn on 21 September and 12 October 2016, in order “to review his developmental progress and ongoing needs, to assist with school planning, particularly to assist with the transition to high school” in 2017, a child development psychologist considered his social communication delays, obsessive interests and sensory sensitivity to be consistent with a diagnosis of Autism Spectrum Disorder (Social Communication Support Level 2, Behaviour Support Level 2) with Anxiety Disorder, and reported: [12]

“During an initial appointment with [the father], he expressed ongoing concerns regarding [the child]’s behaviour at home related to his ongoing high sensitivity to smell, obsessive interests around computer technology and gaming, poor hygiene and his increasing aggression shown at home ...

... [the child] had previously been attending regular psychology intervention due to the difficulties in his behaviour at home … he experiences difficulty responding to limits and boundaries that are attempted to implement particularly around bedtime, meals and reducing the time spent engaging in obsessive interests...

There has been an escalating level of frustration and aggression as [the child] responds negatively to a range of situations at home, with particular demands on his father, who is the main carer…

Of concern is Arwyn’s continuing behavioural disturbance which continues to occur within the home setting, with limited response of the family to be able to implement consistent boundaries and behavioural strategies to manage his quite difficult behaviour. His ongoing significantly manipulating and controlling behaviour, high sensory sensitivity, phobias and obsessive interests are having a significant emotional impact on the functioning of the family, particularly on his primary carer. In addition, Arwyn’s ongoing sensory, emotional and behavioural challenges have a significant impact on his own functioning.”

12. Ms Kerrie Baker, Psychological Assessment Report of 2016.

  1. The following recommendations were made: [13]

    13. Ms Kerrie Baker, Psychological Assessment Report of 2016.

“(1) The child will need support as he transitions and adjusts to a new school and to develop friendships. He will need ongoing monitoring ...

(2) The child and his family require intensive family based psychological intervention around the significant behavioural issues that occur at home ...

(3) In conjunction with this intensive family therapy intervention, a review by a psychiatrist is highly recommended ...

(4) The family need ongoing respite and support ...

(5) Occupational therapy intervention in regard to his sensory sensitivity ...

(6) The child needs ongoing support and intervention to develop his social communication and social thinking skills ... to enable him to interact with peers ...

(7) To develop his understanding of social interaction, reading cues, and in general to develop his social thinking skills ...

(8) Ongoing support and funding through the National Disability Insurance Scheme (NDIS) ...”

  1. In December 2016, the family embarked on a cruise, to the USA and South America. Arwyn became violent to his parents, particularly his father whom he assaulted daily, resulting in security being called. [14] According to a report by the ship’s doctor, the mother went ashore in Valparaiso, Chile, and purchased Olanzapine (an antipsychotic agent typically indicated for schizophrenia and related psychoses, and bipolar disorder), over the counter. (This was disputed by GR, but the doctor’s report was accepted by Sackar J). On account of the risk posed by Arwyn’s propensity to violence, the family was required to disembark at the first suitable port. [15]

    14. Dr Kable, report of 20 February 2019.

    15. Mark Mason MD, report of 26 December 2016.

Secondary school

  1. On 19 January 2017, and again on 22 March 2017, Arwyn (then aged 12 years) was twice prescribed Olanzapine, each prescription being for a quantity of 28 with 5 repeats. Although these prescriptions were written by GR, she said that it was prescribed by two psychiatrists. [16] In an email she sent to Dr Kable on 27 February 2019, seeking his support for her attempt to have Arwyn restored to her care, GR herself wrote, “Say that I only prescribed Olanzapine twice as a follow up script to that prescribed in the Central Florida Behavioural Hospital on 7 January 2017 to Arwyn for acute psychotic episode, and on your advice to continue it”. [17] A report of Dr Llinas confirmed that he had recommended Olanzapine when he saw Arwyn in December 2016 at the Central Florida Behavioural Hospital in the USA. [18] The medication was admittedly administered by GR, by mixing it in his water; GR says that she did this on the advice of Dr Kable. Dr Kable’s notes of his consultation with GR on 21 February 2018 record “They gave 3 week olanzapine after talking to me”. [19] On 23 March 2017, Community Services received a report that GR was administering Olanzapine to Arwyn, by dissolving it in his water without his knowledge, and was pressing for a diagnosis of a psychotic disorder when he was clearly autistic; also, that Arwyn was consistently reporting that GR beats him with an open hand and BB holds him down so that she can. [20] On 2 May 2017, Community Services received a further report, expressing concerns about “educational neglect” in that Arwyn was not attending school, and also referring to GR belittling the father and being a hoarder, resulting in trip hazards in the home. [21]

    16. Johnstone ChCP cites a decision of NCAT ([2018] NSWCATOD 186 at [118] which quotes an excerpt of a report from Dr Hutt, which does not identify who wrote the prescriptions. This NCAT decision was itself subsequently quashed on appeal: Ghosh v Medical Council of New South Wales [2020] NSWCA 122.

    17. GR, email to Dr Kable of 27 February 2019.

    18. Dr Llinas, email of 25 March 2019.

    19. Dr Kable, notes of 21 February 2018.

    20. Community Services, contact record of 23 March 2017.

    21. Community Services, contact record of 2 May 2017.

  2. Violence by Arwyn against his father persisted, while he shunned his mother and did not speak to her. [22] On 8 May 2017, Community Services received a report that Arwyn was engaging in “serious self-harming/risk-taking behaviour” including being “constantly abusive (to the point of injury) towards [BB]” and that it appeared that the parents were unable to cope. [23] On 15 May 2017, Community Services received a report that GR had disclosed that Arwyn was bashing his father and that they needed immediate respite for Arwyn. [24] On 16 May 2017, Community Services received a further report of domestic violence by GR against the father (including that the father had stated that on Valentine’s Day, in Arwyn’s presence, GR had been verbally abusive to the father and threatened to cut him with a knife), that Arwyn was not attending school, and that firemen had attended on multiple occasions to remove barricades erected by Arwyn for his own safety. [25] On 18 May 2017, Community Services received another report that Arwyn was becoming almost uncontrollable at home, that the parents’ relationship was becoming violent, and that Arwyn had not been at school since 9 May 2017. [26] On 19 May 2017, Community Services received yet another report, expressing concerns that though Arwyn was supposedly a high functioning Autistic child, he did not appear to be high functioning; that he barricaded himself in his room while his mother was at home, and ran away and screamed when he saw his mother; that he had disclosed that GR injected him with an anti-psychotic drug; that the father had stated that he had two hip infections; and that Arwyn was very attached to his father, who was physically exhausted and saw no way out of the situation. [27]

    22. Dr Kable, report of 20 February 2019. .

    23. Community Services, contact record of 8 May 2017.

    24. Community Services, contact record of 15 May 2017.

    25. Community Services, contact record of 16 May 2017.

    26. Community Services, contact record of 18 May 2017.

    27. Community Services, contact record of 19 May 2017.

  3. Arwyn commenced secondary school at Newcastle Grammar School in 2017. However, as at 31 May 2017 he had missed 51 days of school out of 77, and was late on 22 of the 26 days that he did attend. In Term 2, he stopped attending altogether; he said that he disliked moving between classes. [28]

    28. Newcastle Grammar School Period Absences of 24 May 2017; Dr Lee Sturgeon, letter to Dr Colin Kable of 10 July 2017.

  4. Between 5 and 13 June 2017, Justiz Community made daily visits and attempts to get Arwyn to attend school, without success, but were able to engage to some extent with Arwyn. [29] However, on 7 July, the father informed Community Services that GR wanted nothing more to do with Justiz, and their services were no longer required. [30] I have been unable to ascertain from the record whether there is admissible evidence to support GR’s assertion that she was thereafter able to procure his attendance at school – although, as appears below, his attendance appears to have improved in the first half of 2018. However, GR retained Dr Colin Kable, a child and adolescent psychiatrist, who saw Arwyn in June 2017 with the father; GR attended towards the end of the consultation, it seems because Arwyn did not want her to be present and there was concern that he would not participate if she were there at the outset. [31]

    29. Ms Helen Keevers, 13 June 2017.

    30. Lisa Williams, affidavit of 20 July 2018 at [42].

    31. Dr Colin Kable, report of 20 February 2019.

  5. On 18 June 2017, Arwyn was admitted to the Emergency Department of John Hunter Hospital after the father had called police to the home because Arwyn had assaulted him. After he settled at hospital, the father took him home. [32]

    32. John Hunter Hospital, Discharge Referral of 18 June 2017.

  6. According to a psychologist who saw Arwyn with his father on 10 July 2017: [33]

“[The child] has clearly worked out that he can manipulate his father and not so much his mother who also spends much of her weekdays at work ... He will have nothing to do with his mother. He will not enter a room where she is and he will leave a room if she is present…The father stated that he is a prisoner in his own home. He attempts to meet every demand [the child] presents to him and if he does not, he fears for his safety as [the child] will attack him and destroy the house ...

[The child] is one of the most controlling, aggressive and mentally unwell children that I have seen in many years. He is using his intellect, combined with violence and substantial paranoia to control his parents, especially his father ... His school attendance is now non-existent ... he is spending all of his time in his bedroom accessing unknown material without supervision.

…

I strongly support an admission to a service such as Redbank House or Coral Tree, or the family support services at Rivendell.

I do not see that community support for an adolescent who is paranoid, generally suspicious, violent, possibly experiencing auditory hallucinations, barricading himself in his bedroom, losing weight and unable to manage his personal hygiene is going to be effective, especially when he is also noncompliant with medication and appointments ...”

33. Dr Lee Sturgeon, report of 10 July 2017.

  1. On 6 September 2017, Arwyn again attended the Emergency Department of John Hunter Hospital with hip pain, this time in the right hip. He was afebrile. He was discharged on the same day. The parents again attributed this to an infection, but I have seen no independent medical evidence to support this. The father’s view was based on the child’s apparent response to antibiotics prescribed by GR. [34]

    34. John Hunter Hospital, Medical Assessment Report of 1 July 2018; Lisa Williams, affidavit of 20 July 2018 at [62]-[63]; John Hunter Hospital, Discharge Referral of 6 September 2017. Submissions of Third Defendant dated 15 June 2022, Annexure 2.

  2. On 19 October 2017, GR told Community Services that Arwyn needed to be placed in “voluntary care”, as his behaviours were too extreme for her to manage, and she asked the caseworker to “come and get him”. Two caseworkers went to the family home, where GR met them outside. The caseworkers explained the effect of a Temporary Care Agreement, but GR said that Arwyn had calmed down, and that removing him from the home environment would cause him to escalate. She declined the caseworkers’ request to enter and talk to Arwyn. [35]

    35. Lisa Williams, affidavit of 20 July 2018 at [69]-[70].

  3. When caseworkers again visited the home on 24 October 2017, the father was visibly upset, saying he wanted to leave the residence, as he felt there was no more he could do for his son and his controlling and physical behaviours. Arwyn was refusing to eat or drink. GR said that she thought Arwyn was suffering from mental health issues in the nature of psychotic episodes. She attributed Arwyn’s non-compliance to “dad’s mothering since he was a baby.” [36]

    36. Community Services, file note of 24 October 2017.

  4. Subsequent attempts by caseworkers to carry out home visits on 15 November 2017 and 28 November 2017 were unsuccessful. [37] On 1 December 2017, caseworkers attended at the home and observed a work van in the driveway; the father explained that Arwyn had damaged some property. The worker told the caseworkers that he had replaced a glass door upstairs, and that this was the second time he had done so. The father would not allow the caseworkers to enter, saying that it was GR’s house and she did not want them inside. The father also said that he wanted it to be known that he was not the barrier to the child being able to access help; he felt that he had been the one to ask for help for Arwyn, but that it is always stopped by the mother. He believed that the child has separation anxiety from him, and that the mother suffers from separation anxiety from the child. He said that he believed that the child hated his mother, but did not know the reason. [38]

    37. Lisa Williams, affidavit of 20 July 2018 at [75]-[76].

    38. Community Services, file note of 1 December 2017.

  5. On 5 December 2017, the father informed the director of student services at Newcastle Grammar School of further episodes of seriously troubling behaviour by Arwyn, and the school advised that it would need significant support to continue to meet Arwyn’s needs. [39] After seeing the father on his own on 6 December 2017, [40] Dr Kable told Community Services that – based only on the information provided by the parents – he felt there was a possibility that Arwyn may be suffering from a degenerative neurological illness or psychosis, and had made a referral to the NEXUS program, but was concerned whether the parents would follow through with it. [41] He also raised concerns about GR’s mental health. Over the ensuing days, there were discussions with the parents about these recommendations, but nothing appears to have come of them. [42]

    39. Lisa Peterson, email of 5 December 2017.

    40. Dr Colin Kable, report of 20 February 2019.

    41. Community Services, file note of 7 December 2017.

    42. Community Services, file note of 8 December 2017; Community Services, file note of 11 December 2017.

  6. On 20 December 2017, the father informed caseworker Tina Zart that he was the victim of domestic violence from both Arwyn and GR, and asked if Community Services would support him if he went to the police with information about GR’s behaviour: [43]

“[The father] said that he knows he needs to leave however he is afraid that [the mother] will make false allegations against him in relation to him hurting the child. He said that this has happened before.”

Ms Zart told the father that Community Services was “putting this matter before the Children’s Court because our assessment is that it is not okay the way that either parent responds to Arwyn’s needs and in fact perpetuates his behaviours”. [44]

43. Community Services, file note of 20 December 2017.

44. Community Services, file note of 20 December 2017.

2018

  1. On 18 January 2018, GR attended a meeting at Newcastle Grammar School, when it was decided to obtain a further assessment of Arwyn. [45] Arwyn did not return to Newcastle Grammar when school resumed on 6 February 2018. On 26 February 2018, Dr John Waring, clinical psychologist, following a short interview with Arwyn and a longer interview with the parents (GR participating by phone), reported that Arwyn’s presentation was of a selectively mute boy who “could not or would not respond to any of my approaches”. [46] He stated: [47]

“Given the significant deterioration in his presentation over the last twelve months, it was my recommendation to his parents that [the child] requires a more supportive educational environment with a higher staff to student ratio ... [the child] requires a thorough psychiatric evaluation ... this would best be done by returning to see his previous psychiatrist, Dr Colin Kable …”

45. Sarah Hughes, email of 18 January 2018.

46. Dr John Waring, report of 26 February 2017.

47. Dr John Waring, report of 26 February 2017.

  1. In or around March 2018, Arwyn commenced attending Whitebridge High School. [48] On 14 March, Community Services received a report that his self-care, learning and mental health were deteriorating, and that two offers of medical assessments, including by a paediatrician and psychologist, had not been accepted, except on one occasion by the father alone. [49] On 15 March, the school told Community Services that it was inappropriate for Arwyn to be in a mainstream class and that he ought to be in an autism class; that Dr Kable had informed the school that Arwyn was being bribed to go to school; that one or other of the parents was on the phone almost daily, usually GR demanding that the school ensure that Arwyn eats, drinks and interacts with other children (to which she responded that this was not the school’s responsibility); that the father was collecting Arwyn to take him home for lunch because he was concerned about him not eating and being dehydrated, but often did not bring him back after lunch; and that Arwyn had not spoken at school since commencing at Whitebridge. [50] It might fairly be observed that these behaviours of the parents appear to have been directed towards ensuring Arwyn’s wellbeing, however annoying they might have been for the school.

    48. Lisa Williams, affidavit of 20 July 2018 at [95]].

    49. Lisa Williams, affidavit of 20 July 2018 at [99].

    50. Lisa Williams, affidavit of 20 July 2018 at [100]; Community Services, file note of 15 March 2018.

  2. On 20 March, Dr Kable advised Community Services that there was no more he could do, but recommended that Arwyn undergo blood tests to determine whether there might be some neurological impact on his behaviours. [51]

    51. Lisa Williams, affidavit of 20 July 2018 at [101]; BB, email of 23 April 2018.

  3. On 23 April 2018, the father sent Community Services a lengthy email in anticipation of a planned home visit the following day, referring not only to GR’s bankruptcy and suspension from medical practice (as mentioned in the judgment below), but also to Arwyn’s controlling and extortive behaviour. [52] On 24 April, GR was at home but did not participate in the home visit by caseworkers, who were unable to speak to Arwyn, as he had barricaded himself inside his room. [53]

    52. Lisa Williams, affidavit of 20 July 2018 at [106].

    53. Lisa Williams, file note of 24 April 2018.

  4. A review at John Hunter Hospital on 22 May 2018, initiated by NSW Health (“Health”), was attended by Arwyn and both his parents, and also by Ms Emma Prowse (psychologist), Dr Nagarsekar (Clinical Director Child and Adolescent Mental Health Service), and Dr Katherine Thomson Bowe (staff specialist paediatrician). While the assessment was limited by reason of Arwyn remaining mute throughout, it was observed that Arwyn weighed 38kg and had "moved from the 50th centile in weight to height, to the 10th centile". The father thought that admission as an in-patient was appropriate, but GR felt that in-patient treatment was not required. [54] In a report dated 13 June 2018, Dr Thomson Bowe stated: [55]

“We recommended that … [the child] needs to have a dietitian review and regular GP review and weight ... We also recommended Behaviour support including but not restricted to ... some rules in the home ... intense family support, speech pathology, occupational pathology and a psychologist.”

54. Dr Katherine Thomson Bowe, report of 13 June 2018.

55. Dr Katherine Thomson Bowe, report of 13 June 2018.

  1. Arwyn was moved to Lambton High School, which was thought better suited to his needs; he commenced there on 25 May 2018. [56] He was upset at the change and demanded $100 per day from his father to attend school. The family’s financial situation was in crisis: GR was bankrupt; she was suspended from medical practice; and the mortgage of the home was in arrears. [57] As at 20 June 2018, Arwyn’s attendance rate at Lambton High was 78%. [58]

    56. Lisa Williams, affidavit of 20 July 2018 at [112].

    57. Lisa Williams, affidavit of 20 July 2018 at [105]-[109].

    58. Lisa Williams, affidavit of 20 July 2018 at [112].

  2. On 22 June 2018, at a meeting at John Hunter Hospital between Community Services caseworkers Lisa Williamson and Kate Fitzgerald and NSW Health staff including Ms Jade Starkey (Acute Team Leader), Dr Nagarsekar, and Dr Thompson Bowe, a Health Plan was formulated, proposing a two-week admission as an in-patient to monitor Arwyn’s food and fluid intake, assess daily functioning and behaviours, review the need for medication, and develop a safety plan. This admission was to be followed by a return of Arwyn to the community, with the family to be supported by NDIS-funded services. A team of health professionals was to be formed, comprising Dr Thomson Bowe, Dr Nagarsekar, Ms Louise Jones from Consultation Liaison Psychiatry, and a nominated paediatric registrar, to provide continuity of care and daily review on weekdays. Community Services were to present the plan to the parents. The possibility of an involuntary admission if Arwyn or the parents were uncooperative was contemplated. [59]

    59. Record of meeting of 22 June 2018.

  3. Caseworkers attended at the family home to discuss the plan. GR would not see them. Caseworkers told BB that they needed to engage because Health felt that the point had been reached when an admission was required. BB conveyed GR’s position that they should send their suggestions to her by email. [60] A summary of the health plan was subsequently emailed to GR. [61]

    60. Community Services, file note of 22 June 2018.

    61. Lisa Williams, affidavit of 20 July 2018 at [116].

The first assumption and admission

  1. Caseworker Lisa Williams deposed that on 27 June 2018, in a meeting at John Hunter Hospital, NSW Health staff (including Dr Nagarsekar, Dr Thomson Bowe, and Dr Murray) told Community Services caseworkers that the parents had been offered three appointments to attend with Arwyn for his assessment, the latest at 9am that same day, but none were attended; that they held significant concerns regarding Arwyn’s health and that he may need to be admitted if his weight had dropped since 22 May. [62] I can find in the record no file note of any such meeting, nor any reference to any such communications in the hospital discharge summary, which records only that Arwyn was brought in by police for s 173 examination on 28 June at 6.42pm, in circumstances where “Arwyn did not present for his outpatient appointment at 9am on 27th June to assess his weight and growth”. Dr Thomson Bowe’s much later report states only: [63]

“FACS requested assistance from Health. An urgent appointment was offered for outpatient review on 27th June 2018 but the family did not attend. Subsequently, FACS took the decision to bring [Arwyn] to the Hospital under section 173 … for medical assessment. Health convened an urgent meeting to plan for this admission, including Child Protection staff, Acute Stream Leader and I.”

62. Lisa Williams, affidavit of 20 July 2018 at [118].

63. Dr Katherine Thomson Bowe, medical report of March 2019.

  1. In reasons for assuming care of Arwyn on 29 June, it is stated: [64]

“[8] On 25th June 2018 FaCS were informed by an employee of John Hunter Hospital that they had spoken with [GR] by telephone and recommended that she present [Arwyn] at the John Hunter Hospital on 26th June 2018 so that his weight could be reviewed and he could be medically assessed. FaCS were informed that [GR] had agreed to present [Arwyn] to the Hospital on 26th June 2018. On 26th June 2018, FaCS were informed that [Arwyn] had not been presented.

[9] On 27th June 2018 FaCS caseworkers served an order for the medical examination of [Arwyn] pursuant to s 173 of the Children and Young Persons (Care and Protection) Act 1998. This was served on [Arwyn]’s father [BB], who took the order to [GR] who was within the home. [GR] did not come out of the home to discuss the order with Caseworkers, but could be heard yelling within the home by Caseworkers. Despite arrangements being made for [Arwyn] to attend an appointment the parents did not present him to John Hunter as request.”

64. Order for assumption of care responsibility of 29 June 2018.

  1. A file note of Ms Williams of 3 July (when, as recounted below, Arwyn was presented for review after he had been discharged on 1 July), records: [65]

“[GR] did not support the need for [Arwyn] to be admitted and said that this experience had traumatised him and made him regress and that she was struggling to understand how all of this happened. I told her that it could have been prevented if she had agreed to take [Arwyn] to the planned appointment at JHH [John Hunter Hospital] initially – the one that Kate Fitzpatrick (cw) and advised her of. She said that she did not agree that the appointment was necessary and that she had received the rationale from FaCS (via Health) for the purpose of the appointment and possible admission however she did not agree with Health’s assessment.”

65. Community services, file note of 3 July 2018.

  1. Thus, while it seems likely that an appointment was offered at some stage and not attended, the extent to which the parents were notified of and failed to attend any appointment is quite unclear. I can find no evidence to support Ms Williams’ contention that the family were informed and failed to attend three appointments – unless that statement is intended to refer to the two appointments offered in March. [66] Nor can I find any evidence to support Ms Williams’ contention that Health staff expressed the view that this was a child protection issue. Nor can I find any evidence that it was ever agreed by either parent that Arwyn would be presented at the hospital on 27 June.

    66. See above at [27].

  2. On 27 June 2018, Community Services prepared and served on the father a notice under s 173 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). [67] I have not been able to find a copy of the notice itself, although there is a letter to John Hunter Hospital which refers to it, from which it may be inferred that it required Arwyn to be forthwith presented to John Hunter Hospital for medical examination to assist Community Services in determining whether he was in need of care and protection, with particular reference to signs of malnutrition and where he was placed on the growth weight scale, and his Body Mass Index (BMI). On 28 June 2018, at 2:45pm, when Arwyn had not been presented at the hospital in compliance with the notice,[68] a warrant pursuant to s 233(1)(b) of the Care Act, authorising location and removal of Arwyn from the parental responsibility of his parents and transport to the Hospital for an immediate medical assessment, was issued, and it was executed later that day. [69] The stated grounds were that the applicant (Ms Williams) had reasonable grounds to believe Arwyn was in need of medical assessment and possible treatment, and a previous s 173 notice had not been complied with.

    67. Lisa Williams, affidavit of 20 July 2018 at [119].

    68. Lisa Williams, affidavit of 20 July 2018 at [120].

    69. Lisa Williams, affidavit of 20 July 2018 at [121].

  3. Upon arrival at the hospital on the evening of 28 June, Arwyn initially would not allow himself to be examined, and refused all foods and fluids for some 43 hours. He refused to sit down or sleep, and stood for the entirety of the first night. In the morning he allowed blood to be taken. [70] His weight was recorded as 38.9kg. The hospital dietitian noted that Arwyn was “severely malnourished and lacking essential macro and micronutrients”. [71]

    70. Lisa Williams, affidavit of 20 July 2018 at [122].

    71. Lisa Williams, affidavit of 20 July 2018 at [124] [129]; John Hunter Hospital, Discharge Referral of 28 June 2016.

  4. On 29 June 2018, Arwyn was assumed into care pursuant to s 44 of the Care Act. [72] The stated reasons included the receipt of four risk of serious harm reports since August 2012, failure to engage with support services since May 2017, exposure to domestic violence in the home (attributed to GR, which does not appear consistent with the reports referred to above), that GR had been prescribing anti-psychotic medication for Arwyn since December 2015 (which at best seems to overstate the position), that Arwyn had disclosed that his mother was trying to poison him with a drug (presumably a reference to the dissolving of Olanzapine in his water), the decline in his BMI from the 50th to the 5th centile and assessed need for assessment as an inpatient, GR’s failure to present him at the hospital as (allegedly) agreed on 26 June 2018, and subsequent non-compliance with the s 173 notice on 27 June 2018.

    72. Lisa Williams, affidavit of 20 July 2018 at [123].

  5. Arwyn was then admitted to the Paediatric Intensive Care Unit (PICU), in order to manage his rehydration and calorie administration. Attempts were made to feed him, and he was sedated and restrained to enable a nasogastric tube to be inserted, which Arwyn pulled out. [73] No court authority was sought for this. The specialist medical team formed the view that Arwyn was at risk of starving himself, possibly to the point of unconsciousness, if kept in hospital, and recommended that he be discharged to his home, as soon as possible, where he would be more likely to eat with the support of his family. [74] He was accordingly discharged on 1 July 2018, weighing 38.1kg with BMI likely on the 5th percentile, and returned home. Two Community Services staff remained in the home overnight to assist, and they observed Arwyn eat and drink. GR did not stay in the home that night and was accommodated in a hotel, returning to the home on 2 July 2018. [75]

    73. Lisa Williams, affidavit of 20 July 2018 at [124]-[125].

    74. Lisa Williams, affidavit of 20 July 2018 at [127]; Lisa Williams file note of 1 July 2018.

    75. Lisa Williams, affidavit of 20 July 2018 at [129]-[130].

  6. Arwyn returned to John Hunter Hospital on 3 July 2018 for follow up. He was transported from school by Community Services staff, who also transported the parents to the hospital, where it was noted that Arwyn had put on weight since being discharged, though there was a concern that his ketone levels were still low, such that further blood tests would be required. [76] According to GR, he was weighed at over 40kg, and on 6 July at 40.5kg, and although I have not been able to find any corroboratory record, that would be consistent with the record that he had “put on weight since being discharged”. [77]

    76. Community Services, file note of 3 July 2018.

    77. Community Services, file note of 3 July 2018.

  7. Proceedings in the Children's Court were commenced by an initiating Application filed by the Secretary on 4 July 2018. On 5 July 2018, the Children’s Court at Broadmeadow made interim orders allocating parental responsibility for medical issues to the Minister, placing him under the supervision of the Secretary until further order, and prohibiting GR from administering medication to him. [78]

    78. Interim Care Order of 5 July 2018.

  8. Community Services conducted a home visit on 20 July 2018, following which they developed a “Safety Plan” for Arwyn, which identified dangers of GR medicating Arwyn with psychotropic medication, a lack of understanding of his health needs, and potential domestic violence between the parents, and strategies to mitigate them. Attempts to discuss the plan with the parents were unsuccessful, and GR said that she did not agree with the dangers identified in it. [79] On 23 July 2018, GR declined to have the matter referred to an Integrated Service Response team. [80] The father did not permit caseworkers to enter the home on 25 July 2018. [81] Attempts to arrange a home visit on 31 July 2018 were unsuccessful. [82] When a home visit was conducted on 3 August, the father and Arwyn but not GR were present; Arwyn appeared “slim but alert and in good health”. [83] A paediatric appointment was scheduled for Arwyn on 10 August 2018 at John Hunter Hospital; he was not presented for it. [84] Arwyn was refusing to attend school, stating that he wanted to return to Whitebridge High and would not attend Lambton High where he was enrolled. He became increasingly reclusive, with increasing paranoia of outsiders, and demands for cash compensation if anyone attended at the home. [85]

    79. Lisa Williams, affidavit of 17 August 2018 at [13]-[14].

    80. Lisa Williams, affidavit of 26 July 2018 at [37].

    81. Lisa Williams, affidavit of 17 August 2018 at [16].

    82. Lisa Williams, affidavit of 17 August 2018 at [17].

    83. Lisa Williams, affidavit of 17 August 2018 at [30].

    84. Lisa Williams, affidavit of 17 August 2018 at [31]-[32].

    85. Lisa Williams, affidavit of 17 August 2018 at [33]-[34].

  9. On 28 August 2018, pursuant to an agreement reached between Community Services and the parents, the Children’s Court by consent made a finding that Arwyn was in need of care and protection pursuant to s 71(1)(b) of the Care Act, and final care orders placing Arwyn under the supervision of the Minister for a period of 12 months, on the basis of undertakings given by the parents to accept a referral to Redbank House or similar service recommended by the Secretary, and attend the program; engage with NDIS support service providers for Arwyn, including supporting their attendance at the home and ensuring Arwyn attend all scheduled appointments, being a speech pathologist, an occupational therapist, a behavioural specialist and a psychologist; comply with all reasonable requirements of the Department of Education with regards to Arwyn attending school; use reasonable endeavours to maintain a household free of domestic violence; and permit the Secretary or his delegates to attend the home at reasonable times. [86]

    86. Tcpt, 28 August 2018, Broadmeadow Children’s Court; Final Care Order of 28 August 2018.

  10. GR has submitted – not for the first time – that the finding that Arwyn was in need of care and protection was unsupported by the evidence, and thus that jurisdiction under s 72 of the Care Act was not established. Section 72(1) of the Care Act relevantly provides:

(1) A care order in relation to a child or young person may be made only if the Children’s Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection—

(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 39A (Care responsibility on death of guardian or carer with full parental responsibility), section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).

  1. Section 71(1) of the Care Act states that “the Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation” the reasons set out in s 71(1)(a)-(i).

  2. With the benefit of hindsight, it can be said that the admission to hospital in June 2018 was of no benefit to Arwyn, and may well have been detrimental given his subsequent increased reclusiveness, which the parents attribute to his experience of the forced removal and hospitalisation in June. GR’s submission that Arwyn’s weight fell during his admission to hospital and improved after he was discharged and returned home appears to be correct. It is clear from the discussions between hospital staff and Community Services documented in Ms Williams’ handwritten notes of 1 July 2018, that the Health staff believed that Arwyn would eat at home, that keeping him in hospital was placing him at increased risk, and that he should be discharged home as soon as possible. [87] Ms Williams’ note of a discussion on 1 July 2018 at 12.24pm with Paula Giles, who I infer is a superior officer within Community Services, following the meeting with hospital staff, attributes to Ms Giles: [88]

“Going to need a briefing note. Mum will see this as FACS failing because he had gone back home. Doesn’t worry me. Will go back to JHH Exec & say it was really poorly managed.”

However, I can find absolutely no evidence to support GR’s submission that Ms Williams “continued to bully John Hunter Hospital doctors … that they had not tried long and hard enough and should have forced Arwyn into long term induced comas for force feeding” – including in Ms Williams’ affidavits of 20 July and 17 August 2018 on which GR relies for that allegation.

87. Lisa Williams, file note of 1 July 2018.

88. Lisa Williams, file note of 1 July 2018.

  1. Notwithstanding that the admission was unsuccessful, the position when Community Services assumed care of Arwyn on 29 June was that his weight had been (at least in relative terms) in significant decline, to the point that his health was at serious risk; [89] there had been a pattern of violence (at least in large part initiated by him, against his father) in his home; his parents were not successfully addressing these difficult and challenging issues, and were not engaging effectively with support services; and the parents had not co-operated when Community Services had required that Arwyn be presented for medical examination. After his discharge, his situation – wherever he was to reside – remained precarious. He was reclusive and not attending school, and attempts to conduct home visits more often than not were unsuccessful. While the parents’ resistance to home visits must be viewed in the light of Arwyn’s predictable response – including demands for compensation which the father appears to have been unable to resist, and extending to violence – his nutrition remained marginal, and his behaviour unsatisfactory. Without intervention, regardless of whether he was at home or elsewhere, his condition and situation would likely remain unsatisfactory and potentially deteriorate. Quite apart from the agreement of the parties, the conclusion that he was in need of care and protection was not erroneous. Jurisdiction was established. [90]

    89. GR submits that Arwyn’s weight had not fallen below the 5th centile and was therefore never abnormal. In theory, divorced from context, that might be so. However, according to the chart provided by GR, between 21 April 2016 and 1 July 2018 his weight had fallen from above the 50th centile to below the 10th centile. In absolute terms, his weight had remained approximately static at about 39kg from age 11½ to age 13½, when it would have been expected to increase to about 48kg.

    90. As to which see also GR v The Department of Communities & Justice [2020] NSWSC 1901 at [26]-[35]; GR v Secretary, Department of Communities and Justice [2021] NSWCA 99 at [13]-[14].

The second assumption and admission

  1. On 29 August 2018, the father reported increasing difficulty in managing Arwyn’s behaviour, and requested that he be placed into care. On 4 September 2018, a behavioural specialist employed by The Benevolent Society and a caseworker met with the father to discuss how she could work with the parents and Arwyn; she was not permitted to enter the home. She was unsuccessful in developing a behavioural management plan, as the parents could not agree. [91] On 14 September, the parents declined a referral to the Functioning Families Team. On 20 September, the father reported that Arwyn continued to assault him over demands for money, and he wanted to leave the home but was concerned as to who would care for Arwyn if he did. On 4 October, the father reported that Arwyn had taken and destroyed his mother’s mobile phone and laptop. Between 8 and 24 October, Community Services unsuccessfully endeavoured to arrange a home visit. On 25 October 2018, caseworkers attempted a home visit, but the parents informed them that this was not possible due to Arwyn’s likely violent reaction if he learnt of it, as he would, having installed video surveillance of the house which he monitored through his iPad and mobile. [92] GR attributes Arwyn’s elevated vigilance in this respect to a response to having previously been taken from his home pursuant to a warrant, hospitalised, sedated and fed involuntarily by nasogastric tube in June. A home visit was refused again on 13 November 2018. On 14 December, GR agreed to meet with the behavioural specialist but disagreed with Community Services’ assessment that Arwyn’s behaviours were difficult to manage. On 31 December, the father reported that he was convinced that Arwyn needed comprehensive treatment, that he had approached police about obtaining an apprehended violence order to protect himself and Arwyn from GR but the police said they did not have grounds for an application, and that Arwyn’s eating had deteriorated – he had ceased drinking water and would only drink 400ml of carrot juice daily for the past 10 days. On 17 January 2019, the father informed Community Services that he was concerned for his own safety in the home due to Arwyn’s aggression, and on 7 February he stated that he had filed an application for an apprehended violence order against GR in Belmont Local Court. [93]

    91. Community Services, file note of 4 September 2018.

    92. Community Services, file note of 25 October 2019.

    93. Jacqueline Fox, affidavit of 26 February 2019 at [25]-[49].

  2. In early February 2019, Community Services gave further consideration to assuming Arwyn into care. Community Services had notified Health that they planned to assume Arwyn into care before 5 February 2019, when the Hospital team commenced planning. The Health team raised concerns that Arwyn would likely refuse to eat if taken into care, “but it was clear that FACS had decided that assumption of care was necessary”, and Community Services asked Health to prepare a care plan, to be used by residential care staff at Impact Youth Services and also anticipating the potential need for his admission to hospital. “Prior consent for the predicted interventions that would be required, was obtained on 21st February 2018 [sic, 2019]”. [94]

    94. Dr Katherine Thomson Bowe, medical report of March 2019.

  3. On 20 February 2019, Dr Kable, who it will be recalled had been retained by GR in 2017, produced a comprehensive report at the request of Community Services, which included: [95]

    95. Dr Kable, report of 20 February 2019.

“[The child] and his family have a pattern of interactions that has been evolving since he was quite young ... specialist resources were recommended but not followed up.

To date he has not co-operated with services including those that would normally be in place for someone with his disability ...

He is stubborn, controlling and uses threats and physical violence to property and to his father to achieve desired outcomes ...

His behavioural problems are largely confined to his parents and home ...

In spite of intelligence he is psychologically and socially quite impaired ... There is a longstanding pattern of giving him things that he has asked for. However, the demands have increased, and he has used progressively more severe aggression to obtain what he wants. This has been both destructive for his family and to his own development.

It is difficult to see how he will be able to live independently unless there is significant progress over the next few years ...

There is conflict between the parents about how to manage [the child] and both see problems in the other’s parenting ... [the child] has a hostile dependant relationship with his father and he has rejected his mother ...

The [child]’s hygiene has been a long-term problem that has worsened over time and is probably related to sensory issues. Weight loss is another concern that could point to an underlying medical illness but is thought to be due to his poor diet ...

Separation anxiety has been present for a long time. It would have been exacerbated by his father’s repeated threats to leave him ...”

  1. Dr Kable’s recommendations included: [96]

“Any interventions need to include addressing parental factors that may be perpetuating [the child]’s problems …

Medical monitoring of his weight, health and nutrition involving a GP is essential

He may also benefit from being taught anxiety management and self soothing strategies ...

The problems remain outside the scope of individual practitioners…They require an informed and co-ordinated approach, and ideally involve specialist services in Sydney…”

96. Dr Kable, report of 20 February 2019.

  1. On 21 February 2019, Community Services again assumed Arwyn into care, under s 44 of the Care Act, stating as the reasons that the parents had failed to comply with the undertakings of 28 August 2018. [97] Arwyn was collected from Whitebridge High School by caseworkers and placed with an out-of-home care agency, Impact Youth Services. There (as had been predicted by the Hospital and Community Services), he refused to eat (although he later told staff at John Hunter Hospital that he had been fasting since 18 February, some days before he was assumed into care), and early on 23 February 2019 he was found to have low blood sugar levels, and was admitted to John Hunter Hospital. Upon admission he weighed 35kg and had low blood sugars, and his BMI was below the fifth percentile. [98]

    97. Order for assumption of care responsibility of 21 February 2019.

    98. Dr Katherine Thomson Bowe, medical report of March 2019.

  2. GR arrived at the hospital and asked that Arwyn be discharged to her care; police were called to escort her from the hospital. [99] GR contends that Community Services instructed the police that there was in place a court order that she was not permitted to approach Arwyn and that she was repeatedly removed on that basis. I have searched the transcript of Ms Connelly’s cross-examination before the Children’s Court, and GR’s submissions of 8 August 2019 (to which GR referred when asked to identify the evidence that Ms Connelly had given any such instruction), [100] and can find no such evidence, but only GR’s assertion to that effect. The position appears to be that Community Services relied on their care responsibility under s 49 to determine that there should be no parental contact at that time.

    99. Jacqueline Fox, affidavit of 26 February 2019 at [57].

    100. See Tcpt, 16 June 2022, Court of Appeal, pp 108(40) – 109(50).

  3. Arwyn is reported initially to have consented to the insertion of a nasogastric tube with nasal spray anaesthesia, and then nitrous oxide, but both of these were unsuccessful, which presumably means that he removed the tube, which is not indicative of consent. Ultimately, “senior staff” sedated him with intramuscular ketamine and propofol in order to insert the nasogastric tube. It was observed that “Arwyn was refusing to eat in a place he doesn’t want to be”. He was found to be profoundly ketonic, and was transferred to the PICU where he was intubated, ventilated and sedated from 23 to 27 February 2019. (No court approval was sought for this, reliance being placed on the consent of Community Services). Upon discharge from PICU he returned to the ward, where Arwyn repeatedly indicated that he wanted his parents to visit; hospital staff said that his father could visit, for an hour. On 3 March, he weighed 37.5kg. Between 4 and 12 March 2019, sedatives were used to assist with feeds. He not infrequently removed the nasogastric tube and pushed staff away to prevent them inserting it, until sedated. [101]

    101. Dr Katherine Thomson Bowe, medical report of March 2019.

  4. On 26 February 2019, the Secretary filed in the Children's Court an application, pursuant to s 90 of the Care Act, for rescission of the previous care orders of 28 August 2018, upon grounds that, in the intervening seven months: the parents had not engaged in a meaningful way with the NDIS, even refusing to permit NDIS staff to attend the home and assess Arwyn; the parents had failed to maintain a household free of violence, had been unable to manage Arwyn’s outbursts and had failed to ensure that he received adequate nutrition; the parents had prevented Community Services staff from entering the home to sight the boy and observe the home, on some seven occasions; and the father had on a number of occasions asked Community Services to remove the boy from the home, due to his behaviour, including his violence and unreasonable demands for money. It was also noted that GR had been suspended from medical practice by the New South Wales Civil and Administrative Tribunal. [102] (In fact, although her having administered inappropriate psychotropic medications to Arwyn was one of multiple grounds relied on, it was not, as stated in the judgments below, the principal reason). On 27 February 2019, the Children’s Court at Broadmeadow made an interim order allocating all aspects of parental responsibility for Arwyn to the Minister. [103] On 12 April 2019, an order was made under s 90(2) of the Care Act giving leave to the Secretary to proceed in relation to the application to rescind the previous care orders made on 28 August 2018 and to seek other care orders, continuing the interim order in the meantime. [104]

    102. Application for rescission of care order of 26 February 2019.

    103. Interim care order of 27 February 2019.

    104. Tcpt, 12 April 2019, Broadmeadow Children’s Court.

  5. GR submitted that there was no authority for a decision to assume care responsibility or consent to medical treatment, as under the extant Children’s Court orders the Minister did not have parental responsibility. However, the fact that by those orders the Minister did not have parental responsibility does not preclude the exercise by the Secretary of the power under s 44 to assume care of a child if the conditions for its exercise are satisfied, and upon exercise of the power the Secretary has, by s 49, care responsibility for the child, which includes the powers under s 157 to consent to medical treatment.

  6. GR also submitted that the “Consent for medical treatment” was in fact signed by Ms Williams on 18 February 2019, before Arwyn had been assumed into care, and was invalid because it predated the s 44 certificate of 21 February. However, when challenged to produce evidence of this in the Children’s Court, GR was unable to do so, and no such evidence has been identified in the voluminous appeal record. Moreover, even if it were signed pre-emptively before the assumption of care, it is not clear that that would invalidate it once care had been assumed under s 44. GR’s submission that Community Services “ordered” the Hospital to force feed Arwyn by induced comas and restraints if he refused to eat is also not correct. A request to prepare a plan for the eventuality that he might refuse to eat is not an order to administer such treatment.

  7. GR submitted that the assumption of care of Arwyn in February 2019 was unwarranted and ill-conceived, and resulted in Arwyn being subjected to extreme medical treatments over an extensive period, involving risks of serious complications some of which materialised. In my view, the reports of Arwyn’s continuing behaviour and restricted eating, and the parents’ lack of meaningful engagement with support services and refusal of home visits in breach of the undertakings they had earlier given to the Children’s Court, warranted consideration of his resumption into care in February 2019. But there was a countervailing risk – which was anticipated and indeed eventuated – that Arwyn might refuse to eat at all if removed from his home, and as a result require extraordinary interventions. It is clear that Community Services were planning to assume care as early as 5 February 2019, 16 days before it was enacted on 21 February, and were well aware that if they did so, it was a likely consequence that Arwyn would fast and require admission to hospital. As has been noted, the Health team raised concerns that Arwyn would likely refuse to eat if taken into care, “but it was clear that FACS had decided that assumption of care was necessary”. [105] At least with the benefit of hindsight, views might differ as to whether the course of hospitalisation and extreme treatments that would follow Arwyn’s assumption into care in February 2019 was preferable to leaving him with his parents, in a situation which, while plainly unsatisfactory, was perhaps less traumatic than what was to follow.

    105. See above at [51].

The emergency treatment orders and transfer to Sydney Children’s Hospital Randwick

  1. In early March 2019, Dr Thomson Bowe, staff specialist paediatrician at John Hunter Hospital, observed that even in Arwyn’s preferred location (his parents’ home) he had been eating insufficiently, and that if discharged back home it was to be anticipated that he would continue to become more malnourished, and at an increasing risk of complications including death; that if he were discharged to Impact Youth Services – which was not his preferred destination – he would again fast and require readmission; and that achieving regular eating habits would take a prolonged period (implicitly, remaining in hospital). [106] On 10 March 2019, Dr Nagarsekar, Arwyn’s treating psychiatrist at John Hunter Hospital, wrote to Associate Professor Madden, Director of the Eating Disorders Network at Sydney Children’s Hospital (SCH), requesting that he be transferred to SCH “for further assessment and management for severe malnutrition and low weight associated with restricted diet on a background of Autism Spectrum Disorder and Child protection issues”, stating that Arwyn had been admitted “as he completely stopped eating and drinking after being placed by Community Services with Out of Home care agency, Impact”, and continuing: [107]

“We have explored other options like CAMHS in-patient unit Nexus and believe that would not be an appropriate setting due to medical risks. Nexus will often have a number of highly distressed young people on the unit with high risk of suicide and aggression which would have adverse impact on the mental state of an Autistic boy who is used to spend a lot of time in his bedroom by himself.

Overall, the level of combined experience in both the services is inadequate to manage his care. For example, the nursing staff on Paediatric unit are in significant distress and unable to cope with ethical dilemma of force feeding an autistic child who is verbalising that the only way he will eat is if he is given food of his choice and he is in a place of his choice (which means going back to the same situation that led to chronic weight loss).

We are also struggling with the issue of consent and involuntary detention under mental health act in absence of a diagnosable mental illness. At present FACS have consented to all the care that is being provided to [Arwyn].”

106. Dr Katherine Thomson Bowe, medical report of March 2019.

107. Dr Nagarsekar, letter to Associate Professor Madden of 10 March 2019.

  1. Arwyn was transferred to Sydney Children’s Hospital at Randwick (SCH-R). The Secretary was rightly concerned that the powers of the Minister under the order made in the Children's Court may not be sufficient to permit the Secretary to consent to Arwyn being subjected to the restraints and “extraordinary medical treatment” proposed, and invoked the parens patriae jurisdiction of the Court. On 15 March 2019, Pembroke J made ex parte orders (which were subsequently extended by Kunc J)[108] permitting the Secretary to authorise procedures whereby Arwyn would be fed artificially under a high level of sedation in a medically induced coma if, on medical advice, it was thought appropriate to do so. Arwyn was placed into a medically induced coma and transported from Newcastle to SCH-R. He was heavily sedated with multiple agents until 24 March, to enable feeding. [109] According to Associate Professor Madden, the purpose of this course of treatment was to avoid the trauma of being restrained and sedated several times daily for force feeding. [110] In ICU he encountered a number of serious medical complications: refeeding syndrome (including hypokalaemia and hypomagnesaemia), fevers (apparently associated with an infection), gastroparesis, and pericardial effusion. [111] On 29 March he was transferred from the ICU to the Saunders (child psychiatry) Unit, where he was treated as a “voluntary patient” under the consent of Community Services as guardian. [112] There he was observed to have a brief seizure. [113] An x-ray showed his bone age was significantly advanced at 16-17 years (chronological age 14) with the consequence that he was unlikely to grow any further. [114] In the Saunders Unit, given the ability to pick his own foods from a list of preferred foods, and with encouragement, he was “able to eat sustainably”. [115] Dr Spencer reported that Arwyn was not suffering from a major mood or psychotic illness, and as such the role of inpatient admission had been mainly to assist him with his eating behaviours and to gain weight; that the risk of harm to Arwyn was from insufficient dietary intake, and he had not expressed suicidal intent and there were no other forms of deliberate self-harm; and that he had not displayed any aggressive or violent behaviour and was not deemed a risk to others. Dr Spencer expressed the view that Arwyn’s continued meal support might henceforth be undertaken in the community in a less restricted environment than an acute adolescent mental health inpatient unit. [116]

    108. Re AB [2019] NSWSC 316.

    109. SCH-R, Discharge Referral Note of 14 May 2019.

    110. Tcpt, 28 November 2019, Supreme Court, p 28(11-14); Tcpt, 12 July 2021, Supreme Court, p 355(25).

    111. SCH-R, Discharge Referral Note of 14 May 2019.

    112. Dr Spencer, report of 29 April 2019.

    113. SCH-R, Discharge Referral Note of 14 May 2019.

    114. SCH-R, Discharge Referral Note of 14 May 2019.

    115. SCH-R, Discharge Referral Note of 14 May 2019.

    116. Dr Spencer, report of 29 April 2019.

  2. On 15 May 2019, Kunc J discharged, with effect on and from 16 May 2019,  the extraordinary medical treatment orders, ending the curial authority for those procedures. [117] Arwyn was discharged from the Saunders Ward on 15 May 2019, weighing 44.8kg. [118]

    117. Re AB (No 2) [2019] NSWSC 566.

    118. SCH-R, Discharge Referral Note of 14 May 2019.

  3. The treatments to which Arwyn was subjected during this admission carried considerable risks, and as appears from the account set out above, some of those risks materialised. However, GR’s submission that the experts did not support the use of induced comas for involuntary feeding overstates the evidence. It is true that in evidence to the Children’s Court, Dr Spencer – not a specialist in eating disorders, but a child behavioural psychiatrist in whose care Arwyn was when in the Saunders Unit – said she had not come across a child being placed in an induced coma for force feeding on many occasions, and that most doctors would not want to go down that line. When questioned by Johnstone ChCP, she maintained that she would not want to take that course and the majority of doctors would not want to do so, and when pressed as to the position if the child were not eating orally and pulling out the nasogastric tube, she still did not embrace with much enthusiasm the suggestion that an induced coma was appropriate. [119] But Dr Teo said only that Arwyn was the first such case he had encountered in his six and a half years at John Hunter Hospital, although he had managed another such case from Westmead. [120] Dr Numa told Kunc J that while he would not say that such treatment never happens with anorexia patients, it was “very very uncommon”, and in his own ICU he had never had an anorexic patient admitted for such therapy; however, he did not say that it was inappropriate in Arwyn’s circumstances, in which he was indeed supervising it; to the contrary, when asked by Kunc J what would have been his response if asked by one of the parents “Do you think what is happening to my child is the best way for him?”, he answered: [121]

“I would say I think we are in a very difficult situation and there are no easy solutions and whichever path we choose has risks associated with it so there is no way of navigating this particular journey without involving some degree of risk. He is safe at the moment. I am confident that we can keep him safe and we are nourishing him which is important in both the short and the long term. If we get to a position where I am no longer confident that we can keep him safe I will wake him up and extubate him and get him out of the intensive care unit.”

119. Tcpt, 15 November 2019, Surry Hills Children’s Court, pp 498-501.

120. Tcpt, 26 November 2019, Surry Hills Children’s Court, p 744(30-46).

121. Tcpt, 20 March 2019, Supreme Court, pp 18(10) – 20(45).

  1. Dr Kohn, a Court appointed independent medical advocate, reported that there was an established behaviour pattern of food refusal by Arwyn in situations of conflict within family relationships, and that his treatment at the Saunders Unit was adequate and appropriate: “[He] is receiving effective treatment … to rehabilitate his physical health and eating behaviours. The robustness of his progress will be tested when he is challenged by arrangements for discharge”. [122]

    122. Associate Professor Michael Kohn, report of 30 April 2019.

  2. Accordingly I cannot accept that the weight of medical opinion was that these extreme treatments were not, in the extreme circumstances, appropriate. And in light of this consistent body of medical evidence, I do not regard the unique views of Dr Lucire, which Sackar J appears to have rejected, as commanding acceptance. Nor can I accept GR’s submission that SCH-R was in effect compelled to treat Arwyn by higher authority over ethical objection. When regard is had to the whole of Dr Numa’s evidence, as distinct from the selective extracts contained in GR’s submissions, it is clear that, while he said that there was a discussion about ethics, his initial refusal to admit Arwyn was because he was a patient of John Hunter and he thought the situation was better managed closer to home than dislocating the family to Sydney. He understood the justification for the transfer to SCH-R partly to be resources (John Hunter’s PICU had only four beds whereas SCH-R had 17), and partly that John Hunter felt that the eating problem would be better dealt with at SCH; they had exhausted their therapeutic options without success, and wanted to engage further expertise.

Prospects of a different order: current arrangements v the alternative?

  1. If error were established, this Court would then have to consider for itself, upon rehearing, what order should be made. Typically, cases involving the care of children require evaluation of competing proposed arrangements for their placement and care. If this Court were to find error in the judgment below, it would then be required to undertake that exercise. In this case, the competing alternatives are that he remain in his current placement, or that he be restored to his mother’s care.

  2. Although GR submitted that there was no status quo, that is not correct; Arwyn is living in arrangements which have been in place since April 2020, and in the context of which planning for his transition to adulthood is taking place. GR has filed an application in the Children’s Court for leave to apply to rescind the care orders. Those proceedings were listed for hearing on 9 June 2022, but on GR’s application were adjourned pending the outcome of this appeal.

  3. The significant issues concerning Arwyn during the next four months appear to be the treatment of Arwyn’s arthritis, and his transition to adulthood.

The current arrangements

  1. Arwyn remains in his long term placement. He is attending school in person and is said to be performing well academically but struggling with social interaction. He engages with a mentor and an occupational therapist, and is enjoying equine therapy. He appears to be developing some socialisation through this therapy and connection with farm animals. He has twice weekly video calls with his father, and last saw him face-to-face in April 2022. His casework manager says that he continues to express that he does not want to have contact with his mother, and when asked about having contact with her says that he would like his computers and his Bitcoin which he believes are in her house. Written communications and gifts from his mother are provided to him, and photos of him viewing them are sent back to her.

  2. His eating continues to be overseen by Associate Professor Madden. On 2 June 2022 he weighed 47.95kg. His medications are prescribed by medical professionals. He has not had Olanzapine since 25 June 2020. He has a diagnosis of polyarticular arthritis, which appeared in or about August 2021 and for which he is receiving treatment, to which further reference is made below.

The alternative

  1. Before Sackar J, GR’s case was that Arwyn would live in the home at Charlestown in her fulltime care with support from an NDIS “in home care package”. For medical care, he would continue to attend the General Practice at Charlestown, and receive specialist care from Educare at Charlestown (Dr Kable’s practice), which had a number of child and adult psychiatrists, psychologists, physicians, neurologists and other medical and allied health care specialists. GR proposed that Arwyn required urgent assessment by a neurologist for extreme difficulty walking and talking and loss of fine motor control since the Olanzapine injections; urgent assessment by an ophthalmologist for impaired vision following a “forced induced coma of 1-3 September 2019 for refusal to eat hospital food”; cardiology assessment “for follow up of a punctured heart from incompetent central arterial and venous lines insertion … on 15 March 2019, and from cardiac arrest in the 1-3 September 2019 induced coma”; psychiatrist assessment and treatment “for his post-traumatic stress disorder since assumption by [Community Services]”; and by a dietician to assess “the extremely restricted protein/calorie deficient vegan diet he has been fed …”. As to schooling, GR proposed that Arwyn be home-schooled by distance education with reintegration into a normal school, which he would attend in person once he has recovered from his PTSD. She proposed to renew and encourage contact with family members including his father and grandmother; his friends Marco and Jack. [205]

    205. GR, Care Plan for Arwyn, affidavit of 29 June 2021.

  2. In this Court, GR referred to an affidavit which had been read on an interlocutory application before Simpson AJA for a stay, to which was annexed a letter from Hunter Primary Care, of which she said: [206]

“APPLICANT: Yes, in particular the annexures of Hunter Primary Group, which is an NDIS support agency who provides a level 3 in home supporter and they guaranteed my son’s safety in my care in his own home. They guaranteed they would coordinate NDIS funded or Allied Health and compliance with medical treatments.”

206. Tcpt, 14 June 2022, Court of Appeal, p 8(30-34).

  1. Thus the alternative proposal was that Arwyn would reside with GR in her home, with support funded by NDIS and coordinated by Hunter Primary Care. In fact, the letter from Hunter Primary Care falls short of any such guarantee as the applicant asserted. It states:

“We can assist in providing the necessary support and supervision of all services for [Arwyn] to keep him safe and in the full-time care of his Mother ([GR]), in his own home at XX Patricia Ave Charlestown NSW 2290 or wherever he chooses to live with his Mother.”

  1. What these proposals conspicuously fail to address is how the situation will be managed if Arwyn were to barricade himself in his room, refuse to attend school, demand money, threaten or inflict violence, or restrict his food intake. Given his history, the aspiration that he would not revert to such behaviour if returned to the environment of his home, or that if he did GR would be able to manage the situation, would be a triumph of hope over experience. It is clear from GR’s statements and communications that she harbours deep reservations about his attendances at a farm for equine therapy, as she complains that he is being used for slave labour shovelling manure, and it must be anticipated that she would not be supportive of this therapy, which at last appears to be providing Arwyn with an outdoor activity and interest in which he is willing to participate.

Arwyn’s wishes

  1. Before this Court was tendered a “Statement of Views and Wishes of [Arwyn]” prepared on 13 May 2022 by the Independent Legal Representative for the purposes of GR’s rescission application in the Children’s Court proceedings, which includes: [207]

    207. Exhibit 1 in the Appeal.

“2. [Arwyn] knows that his mother has asked the Children’s Court for permission to start a new case about him. If she is given permission, the case will then be about who has parental responsibility for him and can make decisions about things like where he lives, where he goes to school, and what medical care he receives. He knows that his mother has also asked the Court for permission to start a case about contact.

…

6. [Arwyn] knows that discussions are taking place about where he will live once he turns 18. [Arwyn] is feeling a bit worried that, in the future, he may no longer be the only young person in a placement. He really doesn’t want to live in a share house. He would like to live by himself, in an apartment, with carers coming in to look after him.

7. [Arwyn] does not currently like the suburb he is residing in. He would like to live in Canberra or Goulburn (near the farm he recently visited) or Newcastle (so that he could attend Lambton High School) or Parramatta (where there is a good burger place).

8. [Arwyn] is currently attending school. If he was given a choice, [Arwyn] would prefer to finish Year 11 at Lambton High School in Newcastle. This is because his laptop is also in Newcastle.

9. [Arwyn] would really like to have some of his belongings returned to him. He would like, most of all, to have his MacBook returned to him. … Most of the things he would like back are in a red box in his room at his mother’s house. The red box is locked with a capacitive fingerprint lock. For this reason, [Arwyn] would like to be able to visit his mother’s home, open the red box himself and collect his things. Alternatively, he would like to have the red box itself returned to him.

10. [Arwyn] has been asking about his laptop for a long time now and wishes this could happen soon.

11. [Arwyn] would also like to see “Kookie” again. Kookie is his mother’s black Labrador.

12. [Arwyn] understands that there are lots of different ways that contact with his mum could be arranged, for example, telephone calls, video calls or seeing her in person.

13. [Arwyn] does not want to express any views about contact, or where he should live, other than those views expressed in the preceding paragraphs.

14. [Arwyn] understands though, that if he visited his mother’s home to pack his things, or if arrangements were made to see Kookie, it is likely his mother would be present.”

  1. After the hearing, GR provided additional material which, generally, it is inappropriate to take into account, because there has been no opportunity to test it or to answer it. However, among that material was a more recent statement of Arwyn’s wishes prepared by the ILR, for new proceedings in the Equity Division. While GR submits that Arwyn states that his first preference is to live at home, in fact the statement is relevantly:

“9. [Arwyn] knows that discussions are continuing to take place about where he will live once he turns 18. He still feels worried about this.

10. [Arwyn] really wants to live alone, with or without the help of carers. [Arwyn] has also said that he wants to live at home because his computers are there. If he can’t live at home with his computers, he would like to go to the house and get his computers. [Arwyn] has been thinking about other places where he could live alone and has suggested his parents’ holiday home on the Gold Coast as another option. [Arwyn] is trying hard to understand why he can’t make his own decisions about where he will live in the future.

…

14. [Arwyn] understands that his mum is currently trying to get an order to compel him to have contact with her, in three different courts. Although he knows that his views are important, he still doesn’t want to express any views about this.”

  1. While these statements have their limitations, it is relevant to observe that whereas at earlier times Arwyn had expressed a firm wish to return home (where his computer and bitcoin remained), it now appears that Arwyn does not wish to express a view about contact with his mother, and wishes to reside on his own (with or without the help of carers). It is difficult to know what to make of that; it may mean no more than that he does not wish to share a house with another young adult, as has been proposed. It seems to me that his attitude to his mother is somewhat ambivalent; but beyond that no conclusion as to his attitude to residing with her can safely be drawn, given his preference to return to the home, where he knows that GR lives.

The arthritis issue

  1. It appears that in or about August 2021, Arwyn was diagnosed with “juvenile idiopathic arthritis – polyarticular course”, affecting the cervical spine, right shoulder, both hips and both knees, for which he was at first prescribed Prednisolone, and later Methotrexate. Some improvement was reported on 12 November 2021, but the condition had deteriorated by 14 January 2022, when he had developed “worsening pain in both his shoulders, hips and knees”, following which his dosage of Methotrexate was increased to 20mg weekly.

  2. By May 2022, Arwyn had been receiving this dose for more than three months. In a report of 11 May 2022, Dr Singh-Grewal states that he probably fulfilled the diagnosis of “Enthesitis-related Arthritis”, and that an MRI scan showed extensive enthesitis around his pelvis, and arthritis of both hips and sacroiliac joints, consistent with clinical examination. He wrote that Arwyn has been on Methotrexate for over 3 months “with inadequate response”, and recommends that he be commenced on a biologic drug, Adaluminab, which he considers is likely to be effective for this type of disease, and also intra-articular steroid injections of his hips, knees and sacroiliac joints under general anaesthetic. [208] This has been discussed with Arwyn, who is said to have “nodded his head” in response to the information provided. [209]

    208. Dr Singh-Grewal, report of 11 May 2022; in Amy Eldridge, affidavit of 10 June 2022.

    209. Amy Eldridge, affidavit of 10 June 2022 at [5].

  3. GR says that on 8 September 2021 she spoke to Dr Walker of Hunter Imaging (who is said to have diagnosed septic arthritis in 2016), and that he said that Arwyn’s symptoms of left hip pain since August 2021 was a recurrence of that septic arthritis until proven otherwise. GR also says that she has consulted other specialists, most particularly Dr Pickles of John Hunter Hospital, who have confirmed her view that the presumptive diagnosis is septic arthritis, or “chronic multifocal osteomyelitis”.

  4. However, no admissible evidence to support such a diagnosis has been produced, partly because medical practitioners who might have done so have been advised not to provide reports at GR’s request other than pursuant to subpoena. [210]

    210. See below at [139].

  5. Dr McCaskill, the Medical Superintendent of SCH-W, says that it appears from the clinical records that on 13 August 2021 Arwyn presented to the Emergency Department at SCH-W with a history of discomfort on walking, with pain in his left hip and knee over the preceding week; that the potential for septic arthritis was flagged because of a history of that diagnosis; that on examination he was still walking, had a good range of passive movement of his hip and knees, and that his joints were not hot; that he was observed to look well, he had only a low grade temperature, and his symptoms had not changed significantly during the week he had been experiencing them. Dr McCaskill states that this is not consistent with septic arthritis, which is an acute condition with symptoms which rapidly deteriorate and there is no passive movement of the infected joint. [211] Dr McCaskill says that she has discussed the concerns raised by GR with the orthopaedic and rheumatology teams to ensure they are aware of those concerns. [212] Dr McCaskill also deposed that as Arwyn was under the parental responsibility of the Minister, GR was not provided with information about his medical treatment, which was subject to privacy controls preventing the sharing of information with persons who do not have parental responsibility. [213]

    211. Dr McCaskill, affidavit of 25 March 2022 at [12].

    212. Dr McCaskill, affidavit of 25 March 2022 at [14].

    213. Dr McCaskill, affidavit of 25 March 2022 at [19]-[20].

  6. In a report of 23 March 2022, Dr Singh-Grewal states that following his presentation in August 2021, an x-ray showed reduced joint space in the hips suggesting that he had already experienced some irreversible joint damage; an ultrasound showed no effusion, but a bone scan showed extensive polyarticular arthritis including both shoulders and hips and one knee and ankle; that he had other symptoms typical of inflammatory arthritis, and fulfilled the criteria for the diagnosis of polyarticular juvenile arthritis. He continued:

“I am aware of a past history of [Arwyn] being treated for septic arthritis some years ago and that [GR] alleges that his symptoms in late 2021 had been due to a recurrence of acute septic arthritis in [Arwyn]’s left hip. As I was not the treating physician at that time of the diagnosis of septic arthritis I am not in any position to make a comment about the diagnosis or treatment at that time. But his presentation in 2021 was typical of polyarticular juvenile arthritis.

I note that [GR]’s submission suggests that the bone scan pattern observed supported a diagnosis of “chronic multifocal osteomyelitis” or multifocal septic arthritis due to a bacterial infection which is false as [Arwyn] was constitutionally well despite having arthritis when I met him and did not have highly elevated inflammatory markers. High fevers and raised inflammatory markers are typical of bacterial bone or joint infection. The suggestion of “chronic multifocal osteomyelitis” is also unlikely as the scan showed joint and not bone involvement. More importantly his examination was most consistent with chronic inflammatory arthritis rather than any other disease.”

  1. Dr Singh-Grewal then proceeds to express the view that Arwyn’s treatment with Prednisolone (a strong anti-inflammatory corticosteroid, at a moderately high dose, to give immediate relief from stiffness and pain) and Methotrexate (a disease modifying anti-rheumatic drug commonly used worldwide for the long-term treatment management of arthritis in children and young people) was universally accepted as standard therapy for polyarticular juvenile idiopathic arthritis; and that his arthritis responded very well to this therapy with an improvement in his symptoms being reported. He then proceeds to answer, plausibly, various concerns expressed by GR concerning risks and side-effects associated with Methotrexate.

  2. Ms Eldridge has deposed (emphasis added):[214]

“I have not “ordered treating doctors” and SCH-W not to communicate with the mother. Due to the mother’s repeated attempts to gather information from [Arwyn]’s treating doctors about his medical treatment, and her requests that [Arwyn]’s medical treatment be altered and/or stopped, I have informed senior members of SCH-W to refrain from providing information to the mother.”

She also deposed to contact she had had with Hunter Imaging Group on 10 February 2022, and although not explicitly to having directed them not to provide information to GR, recorded: “Dr Voutnis has issued a directive to his staff not to give any information to [GR]”. [215] Evidence adduced by GR reasonably satisfies me that Dr Pickles was also advised not to engage further with her. [216] This is regrettable, as it has had the practical effect of depriving GR, and the Court, of potentially relevant evidence. That she has repeatedly requested information and criticised the treatment does not appear to me good reason to deny her information and thus impede her ability to conduct her case. On the other hand, despite clear indications that an appropriately narrow subpoena would be permitted, GR persisted in submitting excessively wide subpoenas.

214. Amy Eldridge, affidavit of 15 March 2022 at [10].

215. Amy Eldridge, affidavit of 15 March 2022 at [19], p 41-2.

216. GR, affidavit of 17 February 2022 at [27], annex J.

  1. Although I was troubled by the combination of the opinion attributed to Professor Pickles, the assertion that Arwyn had previously had septic arthritis in the same joint which had responded to antibiotics, and the circumstance that his present condition has not responded to the medication which ought to have treated it, and concerned that a differential diagnosis of septic arthritis might have been subconsciously downplayed by those responsible for Arwyn’s care because it was suggested by GR, there is no admissible medical opinion that Arwyn has bacterial arthritis. The statements attributed by GR to Professor Pickles are hearsay and must be treated with great caution in the light of GR’s propensity to misinterpretation and overstatement. Moreover, it now seems highly questionable that Arwyn has ever had a septic arthritis. Further, it tells against the suggested diagnosis of recurrent septic arthritis of the left hip that Arwyn’s current symptoms are not limited to the left hip: an MRI scan in April 2022 showed extensive enthesitis around his pelvis, and arthritis of both hips and sacroiliac joints; further, on examination in the SCH-W Rheumatology clinic on 15 May 2022, he had arthritis of the knees, hips and sacroiliac joints. GR incorrectly states that “both times Arwyn had the same problem in the same hip before, he recovered quickly with antibiotics”: the 2017 episode involved the right hip.

  2. I am unpersuaded that Arwyn’s arthritis would be better managed if he were in GR’s care than if he were to remain in the care of the Minister.

Transition to adulthood

  1. Transition planning by Community Services for Arwyn’s leaving care upon attaining 18 years at this stage contemplates that he will move to a supported independent living arrangement with one other young adult, in a large house in which each resident will have their own space. Arwyn is nervous about this change. He has met the other proposed resident on three occasions. It is said that the meetings went well, but Arwyn remains apprehensive. I suspect that it is this concern which informs his expressed wish to live on his own.

  2. Application has been made, by Community Services, to NCAT for guardianship and financial management orders for Arwyn. The application was listed for hearing on 20 July 2022, after judgment in this application was reserved.

  3. Independent living, with or without a co-resident, will pose considerable challenges for Arwyn. The issues for the Tribunal will include whether placing him in a home with another resident, when he has clearly indicated that is not his preference, risks the type of response which has occurred in the past whenever he has been moved somewhere he does not want to be. The aspiration that he will respond differently on this occasion involves hoping that what has always happened in similar circumstances in the past will not do so in the future.

  4. Nonetheless, my impression is that Arwyn will be better prepared for adulthood under the current arrangements than if he were to return to his mother’s home – not least because the last thing he needs while adapting to the impending changes is another short-term change and disruption in the meantime, and also because he will continue to benefit from his equine therapy in the meantime.

Conclusion

  1. Whatever might have been the difficulties and risks associated with Arwyn’s care by Community Services in the past, the current arrangements are safe and offer stability. The alternative of returning to his mother’s care is full of risk, despite the best of intentions. It would involve a radical change, disrupting his current residential, educational and therapeutic arrangements, for the sake of a period of less than four months. In particular, I do not regard it as in his long-term interests that he be returned to an environment in which there is a risk that he could resume the manipulative and controlling behaviours of the past, and withdraw from the social engagement which his equine therapy is supporting. This conclusion is also informed by the parents’ historical difficulties in engaging with support services, and Arwyn’s historically ambivalent relationship with both parents. I am unpersuaded that he would receive better medical care – either in respect of his arthritis, or more generally – in his mother’s care, and indeed I am concerned that in his mother’s care he might be subjected to a regime of medical reviews and examinations of doubtful necessity.

  2. The guardianship proceedings in NCAT are the forum which can now significantly affect Arwyn’s future arrangements. In the meantime, continuation of the current arrangements rather than a radical change provides the surer platform to prepare him for transition to adulthood. In my view, it is inconceivable that, even if error were established, this Court would disturb the current arrangements, for a period of less than four months.

Disposition

  1. In the context of a second appeal, where there are concurrent findings in the Children’s Court and on appeal in the Equity Division, there are insufficient prospects of this Court making an order disturbing the current arrangements for the less than four months that it would be in force to justify a grant of leave to appeal. As, for that reason, an appeal in my opinion has no prospects of ultimate success, leave to appeal should be refused.

  2. I propose the following orders:

  1. Dismiss the applicant’s motion filed on 9 February 2022, with costs;

  2. Dismiss the summons for leave to appeal, with costs.

  1. MITCHELMORE JA: This is an application for leave to appeal from a decision of Sackar J dated 27 August 2021, dismissing an appeal from orders of the former President of the Children’s Court, Johnstone ChCP, allocating parental responsibility for Arwyn to the Minister until he attains 18 years of age: GR v The Department of Communities & Justice [2021] NSWSC 1081. I have had the significant advantage of reading the draft reasons of Brereton JA which address the background to the decision of the primary judge, which his Honour describes as the “Judgment below”. I agree with Brereton JA that the summons for leave to appeal from the Judgment below should be dismissed.

  2. The Judgment below related to an appeal that the applicant brought pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). Section 91(2) of the Care Act provides that such an appeal “is to be by way of a new hearing”, as opposed to a rehearing: SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [41]. The primary judge accepted as correct and adopted Johnstone ChCP’s discussion of the relevant principles, which his Honour summarised at [189]-[199]. Relevantly for present purposes, his Honour considered at [199] that the matters in s 90(6) of the Care Act, which a court is required to take into account in deciding whether to vary or rescind a care order, provided some guidance as to the relevant considerations on the appeal before him, either directly or by analogy. Those matters are:

(a) the age of the child or young person,

(b) the views of the child or young person and the weight to be given to those views,

(c) the length of time the child or young person has been in the care of the present caregivers and the stability of the present care arrangements,

(d) the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,

(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f) the risk to the child or young person of psychological harm if present care arrangements are rescinded.

  1. The primary judge described the question of “where it is best for [Arwyn] to receive the care he needs” as being “at the forefront at every turn in this case”: at [799]. His Honour approached that question having made a number of anterior findings, including:

  1. Arwyn needed “a great deal of care from various professionals”, which was likely to be the case for some time to come, perhaps years: at [783].

  2. Arwyn was being “well cared for in all relevant respects”, including monitoring in relation to medical issues “appropriately when and as needed”: at [788]. Among the matters his Honour noted in this context was that Arwyn had “of late” been increasing his physical activities gradually and was at that time, and on the evidence before his Honour, not on any medication: at [786]-[787].

  3. In relation to Arwyn’s wishes, which his Honour described as an “important issue”, there had been a change from his stated wish “certainly in 2020 to go home”, to a wish (expressed to Associate Professor Madden) to live independently: [789]-[780]. His Honour also accepted the evidence of Dr Fairley that, on a (then recent) visit he made to Arwyn in the company of Professor Einfeld, when he and Professor Einfeld repeatedly asked Arwyn what he wanted, Arwyn said that “he wanted to return to a place but not a person”: [791].

  4. Neither Dr Fairley nor Professor Einfeld had detected a wish on Arwyn’s part to return to his mother: [792]. Their evidence in this regard was consistent with that of Ms Eldridge, a caseworker at the Department of Communities and Justice, whose evidence was that she and others had encouraged Arwyn to have contact with his mother but he had resisted: [793].

  5. Although Arwyn wished to live independently, and his wishes should be respected, Arwyn could not live independently as a matter of practical reality: [796].

  1. The primary judge described Arwyn as living in a stable environment, where he had been living for some time. He had daily contact with his mentor and was completing his schoolwork online with assistance from his carers and, from time to time, teachers who attended the home: [797]-[798]. With the exception of experts who had not seen Arwyn or met the applicant in person, the experts were of the view that Arwyn’s best chances of further progression were to stay where he was “for the foreseeable future”: [800]-[803].

  2. His Honour returned to this subject at [849] in concluding that he was unable to be satisfied that the applicant was capable of having responsibility for Arwyn at home. Brereton JA extracts the entirety of [849] at [118] above, and I respectfully agree with his Honour that it is very difficult to dispute that evaluative judgment. I would add that what is of particular significance on the application for leave to appeal is the extent to which the benefits that Arwyn was deriving from his present placement were integral to the primary judge’s assessment. Specifically in this regard, the primary judge stated:

“At the moment [Arwyn] is developing his confidence in a conflict-free, no pressure setting. He has it seems a trusting constructive relationship with his carers especially Mupo, Gary and his psychologist (s.90(6)(d)). That should not be disturbed or interfered with as I consider it would be very much to his detriment and contrary to his best interests.”

  1. The applicant’s submissions in support of the application for leave were primarily focused on matters of history regarding Arwyn’s care and treatment. Although Brereton JA has addressed those matters in comprehensive and careful detail, I do not consider it necessary to express a view on them, for two reasons. First, I consider that the matters with which the applicant was preoccupied did not relevantly impugn the correctness of the primary judge’s conclusion as to where it was best for Arwyn to receive the care he needed, central to which was an evaluative assessment of Arwyn’s circumstances at the time. Second, and in any event, having regard to what the evidence before this Court disclosed about Arwyn’s current circumstances and his wishes, and the alternative arrangements for which the applicant contended (summarised by Brereton JA at [123] to [141]), I agree with Brereton JA’s conclusion at [148] that there are insufficient prospects of this Court making an order disturbing the current arrangements in the limited period that remains before Arwyn turns 18. The orders that the applicant sought in the Further Amended Notice of Appeal in this regard, assuming that leave were granted and the appeal allowed, variously involved setting aside the arrangements in their entirety and returning Arwyn to her care, in the home in which she resides.

  2. Accordingly, the summons should be dismissed. The applicant’s notice of motion filed on 9 February 2022, by which she sought to challenge the costs order made by Simpson AJA, should also be dismissed for the reasons given by Brereton JA.

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Endnotes

Details
AGLC
GR v Secretary, Department of Communities and Justice [2022] NSWCA 153
Case
[2022] NSWCA 153
Decision Date

CaseChat Overview and Summary

The applicant, GR, sought leave to appeal from a decision of the Equity Division of the Supreme Court of New South Wales, which had upheld a Final Care Order made by the Children’s Court concerning her child. The dispute centred on whether the child should be restored to GR's care, following a period where the child had undergone significant medical treatment with the consent of the Department of Communities and Justice, and with limited contact with the parents. The child was approaching adulthood, and permanency planning was in progress.

The primary legal issue before the Court of Appeal was whether there were sufficient prospects of success on a second appeal to justify granting leave. This required the court to consider the merits of the proposed appeal against the Final Care Order, particularly in light of the child's best interests, the child's approaching majority, and the progress of permanency planning.

The Court of Appeal reasoned that the threshold for granting leave to appeal in such circumstances was high. It considered the history of the proceedings and the nature of the orders made by the Children’s Court. The court concluded that there were insufficient prospects that an alternative order would be made on appeal to justify granting leave. The court applied the principles governing appeals in care proceedings, emphasizing the paramountcy of the child's best interests and the need for finality in such matters, especially when permanency planning was advanced and the child was nearing adulthood.

Consequently, the Court of Appeal dismissed the applicant’s motion and the summons for leave to appeal, ordering that the applicant pay the costs of the proceedings.

Orders

Orders of the court

(1) Dismiss the applicant’s motion filed on 9 February 2022, with costs;

(2) Dismiss the summons for leave to appeal, with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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