GR v Secretary, Department of Families, Disabilities and Community Services

[2020] NSWCA 79

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	GR v Secretary, Department of Families, Disabilities and Community Services [2020] NSWCA 79
Hearing dates:	20 April 2020
Date of orders:	24 April 2020
Decision date:	24 April 2020
Before:	Basten JA
Decision:	(1)   Dismiss the applicant’s notice of motion filed 9 April 2020.  (2)   Refuse the further relief sought orally on the hearing of the motion.
Catchwords:	PRACTICE AND PROCEDURE – appeal – application for leave to appeal – interlocutory orders – parens patriae jurisdiction – repeated applications by parent – conditions of listing of further applications in Equity Division – further listing refused – interlocutory relief sought in nature of final relief
Cases Cited:	GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 259
Category:	Procedural and other rulings
Parties:	GR (Applicant) Secretary, Families, Disabilities and Community Services (First Respondent) The Minister, Families, Disabilities and Community Services (Second Respondent) BB (Third Respondent) AB (Fourth Respondent)
Representation:	Counsel: Applicant self-represented Mr D Kell SC / Mr M Anderson (First and Second Respondents) Ms E Stolier (Fourth Respondent)   Solicitors: Crown Solicitor’s Office (First and Second Respondents) Kristina Wooi (Fourth Respondent)
File Number(s):	2020/108351
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity – Duty List Citation: [2020] NSWSC 348 Date of Decision: 2 April 2020 Before: Robb J File Number(s): 2019/62836

Judgment

1. BASTEN JA: The applicant’s child, referred to in the numerous proceedings in the Court as AB, has, since 5 July 2018, been the subject of an interim order of the Children’s Court allocating parental responsibility for medical issues to the Minister for Families, Disabilities and Community Services and placing him under the supervision of the Secretary of that Department. At that stage, the child had been diagnosed with Autism Spectrum Disorder (Level 3), and “avoidant restrictive food intake disorders”, meaning that he was not eating.

2. The proceedings in the Children’s Court have been continuing for more than 18 months. A judgment was handed down by the President on 27 February 2020, but a conclusion as to a final care plan was not then achieved.

3. In the meantime, the mother has sought to engage the parens patriae jurisdiction of this Court seeking to set aside the orders made by the Children’s Court and have AB returned to the care of his parents, or at least of his mother. The present proceeding in this Court involves an application for leave to appeal from a judgment given by Robb J sitting in the Duty List in the Equity Division on 2 April 2020. [1] The judge refused to consider an application by the mother, GR, to list a further motion before that Court. Relevantly for present purposes, the history of the proceedings in the Equity Division are sufficiently set out in the judgment of Robb J. Apart from noting that there have been prolific applications, none of which have resulted in intervention by the Court, it is not necessary to repeat the procedural history.

   1. GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348.

4. In a judgment delivered by this Court on 18 July 2019, the availability of the parens patriae jurisdiction was affirmed, and the matter remitted to the Equity Division so that appropriate consideration could be given to an application seeking to invoke that jurisdiction. [2]

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

5. An unfortunate consequence has been that the mother has made a plethora of applications, with varying degrees of compliance with procedural formalities, which have been dealt with in the Duty List. It has proved necessary to impose some discipline upon how the applications are to be addressed. On 18 March 2020 Kunc J made the following orders:[3]

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

(2)   Any application for such leave is to be made by email to the associate to the duty judge for the time being, copied to the other parties, and must include:

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

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

(c)   a copy of this judgment.”

3. GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 259.

6. On 2 April 2020, Robb J varied order (2) by the addition of the following paragraph:

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

7. Robb J was not satisfied on the basis of the medical evidence before him that any of the three conditions identified in the order (2) made on 18 March 2020 was satisfied. He therefore rejected the application for the relief sought in the draft notice of motion, subsequently filed on 3 April 2020.

8. On 9 April 2020 the applicant filed a summons seeking leave to appeal from the interlocutory judgment of Robb J. Her notice of motion of the same date sought orders that (i) AB “be placed in his own home forthwith in his mother’s care”; (ii) the Minister and the Secretary “are not to remove [AB] from his home or any other place in his mother’s care without leave of Kunc J of the Supreme Court” and (iii) “NDIS funding for [AB] be returned to his mother, [GR’s], control forthwith.” Orders to similar effect were sought, presumably as final orders, in the summons and the draft notice of appeal. There is no significant evidential material in support of the motion, other than that which was before Robb J.

9. The orders sought in the notice of motion could have been made in the Division, if leave had been granted to file a new application, and if justified. It is possible, though unlikely, that they could be made (if leave to appeal were granted) on the favourable determination of the appeal. The orders cannot be made by way of interlocutory relief on a leave application. The orders sought are not in the nature of a stay designed to maintain the status quo whilst proceedings in this Court are unresolved. Rather, they are an attempt to obtain the final relief varying the status quo, being orders which had been sought, but not obtained, in the Court below. While there may be cases in which such relief should be considered on an interlocutory application, they will be unusual. This is not a case in which such relief should be contemplated by this Court.

10. Despite assertions to the contrary by the applicant, Robb J did consider the medical evidence presented before him to see if it provided a basis warranting the intervention of the Court. He was not satisfied that it did. In these circumstances, the notice of motion of 9 April 2020 should be dismissed.

11. None of this is to deny that the parents, both of whom participated in the hearing before me, have deep concerns as to the ongoing health and wellbeing of their son, and hold fears for his future which appears to be out of their control. They were clear and articulate in the expression of these concerns. What is troubling, however, is their apparent belief that those who are caring for their son, or are responsible for caring for their son, do not share their concerns for his health and wellbeing. There is more than one view as to the treatment he should be receiving and the place where he should reside. Those differences of opinion have been addressed at length in the Children’s Court which is the proper primary jurisdiction in such matters. The orders made by the President do not resolve the issues from the point of view of the parents. Nevertheless, this Court was informed that no appeal has been lodged from the decision of the President. (That may be, in part, because a final care plan has not been approved.) In any event, the possibility that this Court could intervene at this stage to make the orders sought by the appellant involves a misconception as to the proper role and function of the Court as presently constituted.

12. It is appropriate to add that the applicant sought, orally, an order that the address of the child be revealed and published. However, that further order appears to have been sought in order to permit recovery of the child and return to his home.

13. Finally, the applicant sought, again orally, a stay of the final care order made by the Children’s Court. There being no proceeding in this Court in support of such a stay, that order should not be made.

14. The orders of Court are:

1. Dismiss the applicant’s notice of motion filed 9 April 2020.

2. Refuse the further relief sought orally on the hearing of the motion.

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Endnotes

Decision last updated: 24 April 2020