GR v Secretary, Department of Families, Disabilities and Community Services (No 2)

[2020] NSWCA 198

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198

Hearing dates:

26 August 2020

Date of orders:

28 August 2020

Decision date:

28 August 2020

Before:

Basten JA; McCallum JA

Decision:

(1)   Refuse the application for leave to appeal from the interlocutory orders made (i) by Robb J on 2 April 2020; (ii) by Kunc J on 24 April 2020, and (iii) by Slattery J on 22 May 2020.

(2)   Order that the applicant pay the first and second respondents’ costs in this Court, based on common representation.

Catchwords:

APPEALS – leave to appeal – interlocutory orders – procedural orders in Equity Division – constraints on applicant’s access to parens patriae jurisdiction – abuses of process – repeated applications to the Court – disregard of procedural requirements

APPEALS – leave to appeal – interlocutory orders – interlocutory orders refusing relief in parens patriae jurisdiction – final care orders made in Children’s Court – relief sought would reverse orders made by Children’s Court – separate statutory appeal from Children’s Court orders pending in Equity Division

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 44, 83, 91, 247

Children’s Court Act 1987 (NSW), s 22A

Cases Cited:

GR v Secretary, Department of Communities and Justice [2020] NSWSC 739

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

GR v Secretary, Department of Family and Community Services and Justice (No 4) [2020] NSWSC 457

GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 607

In Re Will of FW Gilbert (dec’d) (1946) 46 SR (NSW) 318

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

Publication restriction:

Restriction on publication of anything that might identify the child

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity – Duty List

Citation:

[2020] NSWSC 348; [2020] NSWSC 457; [2020] NSWSC 607

Date of Decision:

2 April 2020, 24 April 2020, 22 May 2020

Before:

Robb J, Kunc J, Slattery J

File Number(s):

2019/62836

Judgment

1. THE COURT: The applicant sought leave to appeal from three interlocutory judgments in the Equity Division with respect to the placement and care of the applicant’s child, known as AB.

2. Due to concerns identified by officers of the Department in June 2018, the Secretary assumed care responsibility for AB pursuant to s 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”). On 5 July 2018 the Children’s Court made an interim order allocating parental responsibility for medical issues to the Minister and placing the child under the supervision of the Secretary. The child had been diagnosed with autism spectrum disorder (level 3) and “avoidant restrictive food intake disorders”. The Secretary considered he required medical attention not being provided at home to ensure he was sufficiently fed and nourished.

3. Between June 2018 and February 2019, attempts were made to allow AB to be cared for in his home, subject to the parents permitting access to the home by officers of the Department, to monitor his health and medical condition. Those arrangements broke down in February 2019 and, on 21 February 2019 the Secretary again assumed care responsibility for the child pursuant to s 44 of the Care and Protection Act. Two days later, concern as to his low weight and refusal to eat and drink resulted in his admission to hospital.

4. On 27 February 2019 the Children’s Court made an interim order allocating parental responsibility to the Minister until AB attained the age of 18 years. The proceedings in relation to final orders of the Children’s Court continued until February 2020 before the President, Judge Johnstone. On 27 February 2020 the President delivered a judgment concluding that there was no realistic possibility of restoring AB to his parents and requiring that the Secretary file an amended care plan addressing permanency issues. Final orders were made in the Children’s Court on 4 April 2020.

5. In the meantime, the applicant, AB’s mother, sought to invoke the parens patriae jurisdiction of the Supreme Court in order to recover care and custody of AB. Despite numerous applications and amended applications seeking orders designed to further that purpose, various Equity Division judges have declined to intervene. Rather, it has been thought necessary to impose express constraints on the power of the applicant to file further motions in order to prevent ongoing abuses of the process of the Court. The need to respond to such applications has not only placed a significant burden on the administration of the business of the Equity Division, but has placed additional burdens on those seeking to care for AB.

6. There is no doubt that this Court retains its jurisdiction and powers with respect to the care of and responsibility for children and young persons. Section 247 of the Care and Protection Act expressly ensures that that Act imposes no limits on the parens patriae jurisdiction. On the other hand, it would be an unusual case in which the Court would seek to exercise that jurisdiction in the face of an interim order sought and obtained by the Secretary and whilst the matter was under the continuing control and consideration by the Children’s Court, except where orders were sought (for example, for medical treatment) which lay outside the jurisdiction of the Children’s Court. The Secretary brought separate proceedings in the Supreme Court for such a purpose, which are not the subject of the present application. [1]

   1. Summons 2019/83327, determined in May 2019.

7. Because of the number of applications made by the applicant in the Equity Division, and her persistent failure to comply with procedural formalities, on 18 March 2020 Kunc J made orders requiring that no further interlocutory application be made to the duty judge by the father or the mother in relation to AB without prior leave of the duty judge. Directions were given as to what was to be included in an application for leave. Those directions are not the subject of the present application for leave to appeal.

8. On 2 April 2020 Robb J varied the directions given by Kunc J by adding a specific direction with respect to a claim based on urgent medical necessity, namely the provision of a report by an appropriately qualified medical professional explaining the change in medical circumstances, the nature of the orders required and the reasons for urgency. This was the first judgment under appeal. It addressed relief sought in a draft notice of motion dated 20 March 2020, relevantly seeking the following orders:

“(2)   Order that [AB] be placed in his own home forthwith in his mother’s care.

(3)   Order that [AB] is not to be removed from his home or any other place in his mother’s care without leave of this Court.”[2]

Robb J noted the submission of the Secretary that order (2) would have the effect that the child would be returned to the mother’s care forthwith, in contradiction of the finding of the President of the Children’s Court that there was “no realistic possibility of restoring the child to either of his parents now, or in the foreseeable future”, and that order (3) would have the effect of restraining the Secretary from exercising statutory duties under the Care and Protection Act. [3] Robb J declined to make these orders.

2. GR v Secretary, Department of Family and Community Services [2020] NSWSC 348 at [13]-[14].

3. Ibid at [18]-[19].

9. On 9 April 2020 the applicant filed a summons seeking leave to appeal from the interlocutory judgment of Robb J. It is that summons which is currently before the Court, subject to amendments which have been made to incorporate challenges to subsequent interlocutory judgments in the Equity Division. However, it may be noted that the judgment of the President of the Children’s Court making final orders was delivered on 3 April 2020, the day after the interlocutory judgment of Robb J. The President dealt with the medical reports upon which the applicant had relied before Robb J. The final orders would have been contradicted by the applicant’s proposed order (2).

10. On 24 April 2020 Kunc J ordered that the applicant’s proceedings in the Equity Division, be dismissed, subject to an exception for a contempt charge included in the amended summons, 2019/62836. [4] That was the second judgment sought to be challenged on the proposed appeal. The orders dismissed the applicant’s amended summons in matter 2019/62836, on application by the Secretary and the Minister. The substantive orders sought in the amended summons were:[5]

“(1)   Set aside interim care order of FACS of [AB], ….

(2)   Urgent child recovery order of [AB] to the care of his mother … in his home….

…

(4)   Order FACS is to take no further action against [AB] until further order of this Court.

4. GR v Secretary, Department of Family and Community Services and Justice (No 4) [2020] NSWSC 457.

5. GR (No 4) at [7].

11. The applicant submitted that the order was erroneous because the amended summons had in fact been dismissed by Schmidt J on 7 March 2019. If there were no originating process on foot, it would be strange for the judge to dismiss it, but also strange (and futile) for the applicant to seek to appeal from such an order. However, it is clear from the judgment that both the applicant, the respondents and the judge understood there to be an extant “amended summons”. [6] The judge also made orders with respect to the applicant’s notice of motion dated 3 April 2020, but the orders followed from the dismissal of the amended summons subject to the exceptions noted in [3(5)] below. Kunc J summarised his reasons for acceding to the respondents’ application:

    6. GR (No 4) at [12].

“[3]   That motion was granted because:

(1)   The child’s circumstances, primarily his medical condition, are not exceptional circumstances that warrant the continuing application of the parens patriae jurisdiction.

(2)   After a 12 day hearing, the President of the Children’s Court has now made final orders for the care of the child. In a 128 page judgment, his Honour found there was no realistic possibility of restoration of the child to his parents and ordered the second defendant (the Minister) to have parental responsibility for the child until the child was 18. In doing so, his Honour accepted the adequacy of a care plan for the child prepared by the Department.

(3)   Such of this Court’s orders as remained extant (and which the Department sought to have set aside as part of the dismissal of the mother’s proceedings) had been put into place in the lead up to the hearing in the Children’s Court as an interlocutory regime to give the parents an opportunity to demonstrate, if they could, their fitness to care for the child. There was no proper basis for those orders to continue now that the Children’s Court had made final orders.

(4)   The mother has filed an appeal against the orders of the Children’s Court. The appeal seeks restoration of the child to the mother. That relief is the same primary relief which the mother sought in the current proceedings. The proper vehicle for any further applications by the mother is in her appeal to this Court from the decision of the Children’s Court. The continuation of these proceedings, which essentially duplicate what the mother seeks in her appeal from the Children’s Court, would be an abuse of process.

(5)   Notwithstanding the dismissal of these proceedings, two matters will continue:

(a)   The mother’s motion for contempt against certain persons (that motion currently being case managed by the Registrar); and

(b)   The procedural restraints which have been imposed by the Court in relation to urgent applications by the mother to the Duty Judge.”

12. Following the final orders made by the Children’s Court, on 24 April 2020 the applicant filed a summons seeking leave to appeal from that judgment and orders. Because the President was a member of the District Court, the appeal, pursuant to s 91 of the Care and Protection Act, was required to be made in the Equity Division of this Court, rather than in the District Court, pursuant to s 22A(2) of the Children’s Court Act 1987 (NSW).

13. On 27 April 2020 she filed a further notice of motion in the appeal proceedings from the Children’s Court seeking a stay of the final orders of that Court and substantive relief inconsistent with the orders of the Children’s Court, namely that the AB be returned to her care. That application was heard by Slattery J who made orders dismissing the application on 22 May 2020. [7] That constituted the third of the judgments the subject of the present application for leave to appeal.

    7. GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 607.

14. The proposed orders refused by Slattery J were as follows:

“[3]   The mother moved on 14 May 2020 upon prayers for relief 3 to 7 of her Notice of Motion filed on 27 April 2020 (‘the Stay Motion’), which seek the following relief:

‘3.   Stay the Final Care Orders of 3 April 2020 in Children’s Court Proceedings 2018/203310 forthwith, pending determination of this Appeal.

4.   In the alternative to 3, Order that [the child] be placed in his own home forthwith in his mother’s care.

5.   Order that [the child] is not to be removed from his home or any other place in his mother’s care without leave of Justice Kunc of this Court after a contested hearing only, with a minimum of 5 working days’ notice to the mother by email and phone.

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

7.   A Recovery Order for [the child] to his home in his mother’s care, with the first and second defendants to inform the Court of the address and phone number of [child’s] placement’.”

15. Prayers 3-7 of the applicant’s motion of 27 April 2020 were dismissed; other orders made by Slattery J involved directions in relation to procedural matters relevant to the appeal from the orders of the Children’s Court. [8] They were not adverse to any interest of the applicant. As to proposed orders 4-7, each was in the form of final relief and would have been inconsistent with the orders of the Children’s Court. Proposed order 3 alone would not have achieved the applicant’s purpose, because it would have left the interim regime, expressed to operate “until further order”, in place. The applicant sought to resist that conclusion on the basis that the interim orders of the Children’s Court had expired after 12 months by operation of s 83(5)(b) of the Care and Protection Act. That section provides for the preparation of a “permanency plan” for a child the subject of a care order. Section 83(1) requires that “the Secretary must assess whether there is a realistic possibility of the child or young person being restored to his or her parents within a reasonable period”. Section 83(5) relevantly requires that “the Children’s Court is to decide whether to accept the Secretary’s assessment … within 12 months after the Children’s Court makes the interim order.” It appears that the Court did so in handing down its findings precisely 12 months after making the interim order. However, there is no reason to imply that an interim order is automatically discharged if the Court fails to comply with the time period prescribed.

    8. Ibid at [59].

16. It is apparent that the orders sought in each of the matters the subject of the present application (and in the proposed draft notice of appeal) fell into two categories. First, there was an order seeking to stay the orders of the Children’s Court, whether interim or final. However, the interim orders have been superseded and a stay of the final orders of the Children’s Court would be futile because they merely continued the status quo as it existed on an interim basis. (And indeed the status quo prior to the interim orders, which was created by the Secretary’s assumption of care responsibility under the Care and Protection Act.) To stay those orders would be to achieve no substantial change in the parents’ involvement in the care of AB. The second category sought orders inconsistent with the orders of the Children’s Court, which were, in substance, the final orders sought in the appeal from that judgment, which is yet to be heard. Those orders, which would not maintain the status quo but reverse it, could not have been made on an interlocutory basis. Any challenge to the judgments of Kunc J and Slattery J was therefore misconceived.

17. A further interlocutory motion (though also in effect seeking final orders) was heard by Ward CJ in Eq on 5 June 2020. (The notice of motion was dated 22 May 2020.) In a judgment delivered on 16 June 2020 the Chief Judge refused leave on the basis that no case for relief had been made out in accordance with the procedural directions designed to prevent abuse of the process of the court. [9] The Chief Judge concluded:

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

9. GR v Secretary, Department of Communities and Justice [2020] NSWSC 739.

18. The Chief Judge also dealt with an application by the respondents to dismiss the motion as an abuse of process. Having concluded that she would not grant leave for the filing of the motion, the Chief Judge also stated that, if she had been disposed to grant leave, she would have dismissed the motion as an abuse of process: at [229]. In the course of reaching that conclusion the Chief Judge said:

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

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

Determination of leave application

19. This Court will not grant leave to appeal from an interlocutory judgment unless it is established that there has been an error of principle on the part of the judge in the court below, and that an appeal would have a material effect on the manner in which the proceedings below would be conducted in the future. The importance of not interfering with the discretion of judges dealing with interlocutory steps in proceedings as a matter of practice and procedure has been consistently applied over the years, in accordance with the statement to that effect by Jordan CJ in In Re Will of FW Gilbert (dec’d). [10]

    10. (1946) 46 SR (NSW) 318 at 323.

20. There was no basis upon which the orders sought in the Equity Division could properly have been made. There is a repetitive quality to those orders as sought in numerous applications in the Equity Division and from judges of this Court in relation to pending appeals. As noted above, they are either in the form of a request for final relief, or seek orders which are inconsistent with the status quo. The final orders made in the Children’s Court must stand until they are varied on appeal, or on further application to the Children’s Court based on a material change in circumstances.

21. Accordingly, the Court makes the following orders:

1. Refuse the application for leave to appeal from the interlocutory orders made (i) by Robb J on 2 April 2020; (ii) by Kunc J on 24 April 2020, and (iii) by Slattery J on 22 May 2020.

2. Order that the applicant pay the first and second respondents’ costs in this Court, based on common representation.

**********

Endnotes

Decision last updated: 28 August 2020