GR v Secretary, Department of Family and Community Services and Justice

[2019] NSWCA 177

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177
Hearing dates:	10 July 2019
Date of orders:	18 July 2019
Decision date:	18 July 2019
Before:	Basten JA; Leeming JA; White JA
Decision:	(1)   Grant the mother leave to appeal from order (1) made in the Equity Division on 24 June 2019 dismissing the amended summons filed on 17 May 2019. (2)   Treat the draft notice of appeal dated 1 July 2019 as filed in this proceeding. (3)   Allow the appeal and set aside order (1) made on 24 June 2019. (4)   Order that the first and second respondents pay the applicant’s costs in this Court.
Catchwords:	FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim care order conferring parental responsibility on Minister – whether summons seeking to set aside interim care order should have been summarily dismissed   PROCEDURE – appeal against summary dismissal of summons – plaintiff required to show cause why proceedings should not be dismissed – obligations of the Court to self-represented plaintiff – whether plaintiff had arguable case – appropriate orders on appeal
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 44, 73, 76, 77, 79, 175, 233, 247 Constitution Act 1902 (NSW), s 50E Supreme Court Act 1970 (NSW), s 75A
Cases Cited:	G v Family and Community Services [2019] NSWSC 229 Hamod v New South Wales [2011] NSWCA 375 In Re Harris (1936) 37 SR(NSW) 17 Re M (No 4) – BM v Director-General, Department of Family and Community Services [2013] NSWCA 97 Re Victoria [2002] NSWSC 647; 29 Fam LR 157 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218
Category:	Principal judgment
Parties:	GR (Applicant) Secretary, Department of Family and Community Services and Justice (First Respondent) Minister for Family and Community Services (Second Respondent) BB (Third Respondent) AB (Fourth Respondent)
Representation:	Counsel: Ms C McConaghy (Applicant) Mr D Birch (First and Second Respondents) Self-represented (Third Respondent) Ms E Stolier (Fourth Respondent)   Solicitors: Ark Law (Applicant) Crown Solicitor’s Office (First and Second Respondents) Self-represented (Third Respondent)
File Number(s):	2019/117897
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Protective List – Equity Division Date of Decision: 24 June 2019 Before: Lindsay J File Number(s): 2019/062836

Judgment

1. THE COURT: On 24 June 2019 Lindsay J, hearing a matter in the Protective List in the Equity Division, summarily dismissed an amended summons filed on 17 May 2019. He described the matter as a challenge by the mother, in the Court’s parens patriae jurisdiction, to an interim care order made by the Children’s Court on 27 February 2019. The names of the parties have not been included in these reasons and there is a non-publication order with respect to any material likely to disclose the identity of the parties (other than the Secretary), in order to protect the child, in accordance with long-standing practice in this jurisdiction.

2. The boy, whose condition is the subject of these proceedings, is approaching his fifteenth birthday. He has been diagnosed with autism spectrum disorder (level 3) and avoidant restrictive food intake disorders (not eating). He came to the attention of the Department of Family and Community Services because of aggressive behaviour and a refusal to eat, leading to a serious reduction in body weight.

Background

3. The critical procedural steps in the case are as follows. [1] On 28 June 2018 the boy was assessed at John Hunter Hospital, Newcastle, having been brought to the hospital under a warrant issued under s 233 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act). On the same day, the Secretary exercised the alternative power of assuming “care responsibility" for the boy, pursuant to s 44(1) of the Act.

   1.    Unless otherwise indicated, this information is taken from a chronology prepared by the Secretary, but largely based on documents exhibited to an affidavit, the exhibit not being before this Court.

4. On 4 July 2018 the Secretary, Department of Family and Community Services and Justice,[2] made an application for a care order in the Children’s Court, pursuant to s 61 of the Care and Protection Act. An interim order was made the following day, allocating parental responsibility for medical issues to the Minister[3] and placing the boy under the supervision of the Secretary. [4] An order was also made restraining his mother, a registered medical practitioner, from administering medication to him.

   2. As defined in the Care and Protection Act, s 3(1). On 1 July 2019 the Department of Family and Community Services was abolished by Administrative Arrangements (Administrative Changes—Public Service Agencies) Order 2019 (NSW), which amended the name in any “document” (cl 11) a term defined to include an Act (cl 3): see Constitution Act 1902 (NSW), s 50E.

   3. Care and Protection Act, s 79(2)(e).

   4. Care and Protection Act, s 76(1), with the effects specified in s 77.

5. On 23 August the father sought assistance with emergency accommodation, having been confronted with physical violence when he had refused to provide the boy with money. On 28 August 2018, a care order was made placing the boy under the supervision of the Secretary for a period of 12 months. The primary effects of the supervision order are set out in s 77 of the Care and Protection Act:

77   Supervision of child or young person under a supervision order

(1)   While a child or young person is subject to a supervision order:

(a)   the premises in which the child or young person resides are subject to inspection by the Secretary, and

(b)   the Secretary may meet and talk with the child or young person, and

(c)   the child or young person must:

(i)   accept the supervision of the Secretary, and

(ii)   obey all reasonable directions of the Secretary.

6. The Children’s Court, on 28 August 2018, also accepted undertakings from the parents, pursuant to s 73 of the Care and Protection Act. Those undertakings included accepting a referral to Redbank House, presumably so that the boy could accept some form of assessment or treatment for mental health conditions, willingness to engage with NDIS support services for the boy, and arrangements with respect to the boy attending school. The intention at that stage was that the boy remain in the home environment. The parents were required to use “reasonable endeavours to maintain a household free of domestic violence”. (The source of violence may have been, at least in part, the boy himself.)

7. In November 2018, the mother’s entitlement to practise medicine was suspended indefinitely by the Civil and Administrative Tribunal, affirming a decision of the Medical Council. The order was based partly upon evidence of her administration of a particular drug to the boy, which was not recommended for use in children under 15 years of age and which had the potentiality for significant untreatable side effects.

8. Over the next few months, the father continued to have problems and concerns for his safety and for the boy’s safety, whilst he was at home. On 21 February 2019 a further direction was made by the Secretary under s 44 of the Care and Protection Act, assuming care responsibility for the boy. The reason for the order was said to be the parents’ failure to comply with undertakings to cooperate with NDIS support services and to maintain a home environment free of domestic violence, failings which were said to have placed the boy at the “threshold of serious harm”. On 22 February the boy was admitted to John Hunter Hospital by ambulance after refusing to eat and drink for 24 hours; his weight was 35kg (normal being 51kg). From 23-27 February he was treated by “naso-gastric refeeding supported by sedation and intubation”. [5]

   5.    Dr G Farrow, “Treatment Plan”, 24/03/19, p 1.

9. On 25 February 2019 the mother sought urgent orders in the Supreme Court seeking to have the boy returned to her care. The application was refused and the summons dismissed.

10. The following day, 26 February 2019, the Secretary brought further proceedings in the Children’s Court under the Care and Protection Act seeking to rescind the earlier orders and substitute an order vesting in the Minister sole parental responsibility for the boy until he turned 18 years of age. An interim care order was made the following day allocating all aspects of parental responsibility to the Minister until further order.

11. On 7 March 2019 a further application was made by the mother in the Supreme Court, and heard by Schmidt J. [6] The judge was aware of the proceedings in the Children’s Court and noted the relevant standard of “exceptional circumstances” which must be satisfied before a Supreme Court judge will interfere with orders made by the Children’s Court, exercising its specialist jurisdiction. [7] Schmidt J was not persuaded that the evidence before her, which was limited and unsatisfactory, satisfied that standard. The summons was dismissed.

    6. G v Family and Community Services [2019] NSWSC 229 (Schmidt J).

    7. G at [13], citing Re M (No 4) – BM v Director-General, Department of Family and Community Services [2013] NSWCA 97 at [22] (Ward JA).

12. On 11 March 2019 the mother filed an application in the Children’s Court pursuant to s 90AA of the Care and Protection Act seeking to vary the interim care order, presumably being that made on 27 February 2019. On 14 March, the Court dismissed the application.

13. On Friday 15 March 2019 the boy was transferred from John Hunter Hospital to Sydney Children’s Hospital at Randwick. On the same day the Secretary invoked the parens patriae jurisdiction of the Supreme Court, seeking urgent orders for medical treatment. Interim orders were made ex parte by Pembroke J, for a period of some five days until Wednesday, 20 March 2019. The proceedings in the Supreme Court were adjourned to that day.

14. On 19 March 2019 Kunc J heard an application by the mother, which was also stood over to 20 March 2019. At this stage, the boy was in an induced coma in Sydney Children’s Hospital, in order to permit the ingestion of nutrients through a nasogastric tube. The mother sought to have the medically induced coma lifted, but Kunc J refused to make that order. [8] On 26 March Kunc J continued the order for medical treatment made by Pembroke J.

    8. Re AB [2019] NSWSC 316.

15. On 27 March 2019 the mother sought to have the matter relisted; the following day, the appointment of a “medical advocate” was proposed by Kunc J and the matter was stood over until 2 April 2019. On 29 March the boy was transferred from the intensive care unit at the Children’s Hospital to a psychiatric in-patient unit. A report to Kunc J on 2 April 2019 indicated that the boy had gained 9kg as a result of the treatment.

16. During May, further directions were made in the Supreme Court with respect to the continuing treatment of the boy. On 15 May 2019 he was discharged from the psychiatric in-patient unit at the Children’s Hospital and transferred to residential care premises. During transport he attempted to flee. On arrival at the residential care premises he refused to eat or drink. Two days later (17 May) he was readmitted to John Hunter Hospital in Newcastle suffering from hypoglycaemia, as a result of inadequate intake of food and drink. His weight was then 43.9kg.

17. On 17 May 2019 the mother filed an “amended summons” in proceedings 2019/62836. This was done pursuant to leave granted by Kunc J on 15 May 2019. Between 17 and 27 May 2019 the mother sought further orders in the Supreme Court for a “stay” of the interim order made by the Children’s Court on 27 February, which was refused by Lindsay J. The mother’s matter was relisted for directions on 17 June 2019.

18. On 16 May 2019 the mother attempted to file an application under s 90 of the Care and Protection Act seeking rescission of the interim care order of 27 February 2019 and an order that the boy be returned home to the care of his mother. (The application should have been made under s 90AA, but that is of no moment.) The Children’s Court declined to receive the application at that time because the mother’s application to set aside the interim care order was listed before the primary judge on 20 May.

19. The medical staff had continuing problems with providing adequate nutrients. They also expressed concern as to the perceived disruptive effects of contact between the parents and the boy and the parents were informed on 7 June that contact was “suspended” for two weeks. By then his weight had fallen to 39.9kg. On 11 June the boy sought to leave the hospital, running out into traffic. He was recaptured and taken back to hospital.

20. On 13 June, the Children’s Court listed the care proceedings for “final hearing” on 11-15 November 2019 at Parramatta Children’s Court. A readiness hearing was listed for 29 October.

21. On 17 June 2019 Lindsay J stood the proceedings over to 24 June 2019 to allow the mother to show cause why her summons should not be dismissed.

22. On 17 June 2019 the boy was transferred to a non-medical ward for children and adolescents with mental health issues at John Hunter Hospital, having obtained medical stability. His weight had increased to 43.2kg.

23. On 19 June 2019, a caseworker reported that the boy had been almost completely non-verbal for two weeks and did not respond to questions. He appeared to have lost weight, and was picking at his fingers which were bleeding. The following day, the parents were informed that contact was suspended for a month.

Dismissal of the mother’s proceedings in the Equity Division

24. This procedural history indicates that the Supreme Court had been involved over a period of some four months prior to 24 June 2019 and had made orders in relation to the boy’s treatment, but only in proceedings brought by the Secretary. The procedural history was known to Lindsay J when he made orders dismissing the mother’s summons on 24 June 2019.

25. In his reasons for dismissing the proceedings on 24 June, the judge recognised that the Children’s Court was a specialist tribunal and that, in exercising its statutory functions, it applied the same principles as are applied in this Court’s parens patriae jurisdiction, namely the best interests of the child being the paramount consideration. In substance, the judge was satisfied that the interests and welfare of the child were “likely to be best served by him remaining in the care of the Minister, with the professional medical attention available”, pending determination of the proceedings in the Children’s Court. [9]

    9. Judgment at [8].

26. He was not persuaded that there were exceptional circumstances which warranted departure from “the ordinary procedures, including appeal procedures, which govern proceedings in the Children’s Court.”[10] Rather, the judge was satisfied that “the amended summons should in the interests of the child be dismissed leaving to the Children’s Court management of the proceedings affecting him”. [11]

    10. Judgment at [9].

    11. Judgment at [11].

Challenge to dismissal order

27. The amended summons filed on 17 May 2019 sought to set aside the interim care order made in the Children’s Court on 27 February 2019 (order 1). It also sought return of the boy to his mother’s care in his own home (order 2). In the course of the proceedings in this Court, there was consideration as to whether, in the exercise of the parens patriae jurisdiction, the Court could discharge an order made by the Children’s Court. The Court was referred to the judgment of Palmer J in Re Victoria [12] where, after noting that in some circumstances what transpired in the Children’s Court might be “utterly irrelevant to the question before this Court in the exercise of its inherent jurisdiction”, the reasons continued:

“[38]   That this is so is demonstrated by the fact that an order of this Court in its parens patriae jurisdiction does not set aside an earlier order made by a statutory Court such as the Children’s Court; the statutory Court’s order still stands although in a sense it may be said to be superseded where it is inconsistent with this Court’s order, so that an injunction in the nature of prohibition would lie to restrain the statutory Court from enforcing its earlier inconsistent order: see In re Harris 37 SR(NSW) 17, at 28-29 per Jordan CJ and Long Innes J, and at 31-32 per Maughan AJ.”

12. [2002] NSWSC 647; 29 Fam LR 157.

28. It is true that in In Re Harris [13] language of supersession was used both in the joint reasons (p 30) and in the judgment Maughan AJ (p 31). Nevertheless, both judgments appeared to regard the order of the magistrate, if inconsistent with that of the Supreme Court, as without force and effect once the Supreme Court order commenced to operate. Maughan AJ had no doubt that if the Supreme Court order were brought to the notice of the magistrate, “the magistrate would automatically rescind” an earlier inconsistent order.

    13. (1936) 37 SR(NSW) 17.

29. It would be surprising if this Court, at least in the exercise of its supervisory jurisdiction, did not have power to discharge an inconsistent order of the Children’s Court. There is nothing in the Care and Protection Act or the Children’s Court Act 1987 (NSW) which purports to operate as a privative clause limiting the Court’s supervisory jurisdiction. Indeed, s 247 of the former is in broad terms, expressly stating that nothing in the Care and Protection Act “limits the jurisdiction of the Supreme Court.” In any event, it is not necessary to determine the powers of this Court in that regard in this proceeding. If it were proper for a judge of the Court to intervene on the motion of the mother, in the exercise of its inherent jurisdiction with respect to care and custody of children, the precise form of the order sought by the mother would not stand in its way.

30. The draft notice of appeal in this Court sought, not merely that the orders of the Court below be set aside, but that the interim care order of 27 February 2019 be set aside and other relief sought in the amended summons (and indeed going beyond the relief sought in the amended summons) be made. Up until quite recently, the mother was unrepresented. Counsel who appeared on her behalf in this Court accepted that the only orders which could properly be made if she were successful were as follows:

1. grant the mother leave to appeal from the judgment and orders made in the Equity Division on 24 June 2019;

2. allow the appeal and set aside the order dismissing the amended summons filed on 17 May 2019;

3. dismiss the application to summarily dismiss the amended summons filed on 17 May 2019;

4. costs.

Procedure adopted in Division

31. The first ground of appeal sought to challenge the procedure adopted by the primary judge of inviting the mother to show cause why her amended summons should not be dismissed summarily. To consider that ground, it is necessary to have regard to the steps taken by the primary judge when the matter came before him on 27 May, 17 June and 24 June 2019.

32. The mother’s amended summons and motion for a stay were listed before the primary judge on 27 May 2019. All parties were present on that occasion including the independent child representative; counsel appeared for the Minister and the Secretary. Of some importance, having regard to subsequent events, was a clear, detailed and accurate statement made by the primary judge as to the nature of the jurisdiction of the Court and its relationship with the jurisdiction of the Children’s Court. [14] There was then a lengthy recounting of the history of the proceedings, both in the Children’s Court and in the Supreme Court. All parties participated in that discussion. Towards the end of the hearing, various documents were tendered and marked as exhibits. The final document read by the Secretary was an affidavit of Anne-Marie Connelly affirmed 24 May 2019, together with the exhibit to that affidavit. Although it was not provided to this Court, it is clear that the lengthy exhibit was admitted without objection before the primary judge. The whole document was referred to on more than one occasion as comprising more than 400 pages. The affidavit and its annexures before this Court was less than half that length; it may be inferred that the exhibit to the affidavit was some 200 pages in length. Although, following the tender, the judge said, “I will just take a moment to read it all”, [15] it must be accepted that he did not accomplish that task. Towards the end of the proceedings there was reference to a judgment being delivered, but any reasons given by the primary judge on that occasion are not available to this Court. However, both the transcript and Justicelink record that the amended summons filed on 17 May 2019 was listed before the primary judge on 17 June 2019 at 2pm “for directions”.

    14.    Tcpt, 27/05/19, pp 4-5.

    15.    Tcpt, 27/05/19, p 22(6).

31. When the matter came back before the Court on 17 June, the father appeared, but the mother was not present. When pressed by the primary judge, the father indicated that he sought to appear for the mother. [16] Counsel for the Secretary noted that the final hearing in the Children’s Court had been fixed for 11-15 November. An assessment order had been made and the assessment was being undertaken. Counsel noted, correctly, that the amended summons had been listed for directions. The judge responded: [17]

“I’m just thinking I should in the circumstances quite possibly just dismiss the summons.

[COUNSEL FOR SECRETARY]: That would be open to your Honour and certainly it would appear that the relief sought in the summons is in the nature of duplicated proceedings that are currently occurring in the Children’s Court.”

16.    Tcpt, 17/06/19, pp 4(45)-5(5).

17.    Tcpt, 17/06/19, p 3(37).

34. After making a notation in accordance with the procedural history outlined by counsel for the Secretary, the judge then continued:

“In the absence of the plaintiff I am reluctant to dismiss the proceedings but I propose effectively to order that the plaintiff show cause why the proceedings should not be dismissed and stand the proceedings over until next Monday. It seems to me that there is a substantial case that can be made out in the present circumstances, having regard to the history of the proceedings, why the Court should dismiss these proceedings, leaving the Children’s Court to remain in charge of the proceedings ….

…

So what I am minded to do is to make an order that the proceedings be stood over until say 3pm next week and that on that occasion the plaintiff be required to show cause why the proceedings should be not be dismissed.

Is there anything that anyone wants to say about that?”

Counsel for the Secretary then referred to an authority (Re Victoria) and the orders were then formalised in the following terms:

“4.   Order that the proceedings be listed before Lindsay J on 24 June 2019 at 3pm.

5.   Order, that the plaintiff appear before the court on that occasion (in person or by a legal representative) to show cause as to why her Summons should not be dismissed, if it be the case that she seeks to maintain the Summons.

6.   Order that the solicitor for the first and second defendants serve a copy of these orders on the plaintiff [by email] no later than 6pm today….”

35. On Monday, 24 June 2019 at 3pm, the matter was recommenced, with both father and mother appearing in person. The primary judge identified order 5 made on 17 June and asked the mother if she opposed an order dismissing the summons. She (and the father) did oppose the order, she stating “we have not been served with any show cause notice, so we find it irregular that they are trying to get the summons dismissed.” She agreed, however, that she had been served with the orders made on 17 June.

36. Counsel for the Secretary then handed up a chronology which was filed in the Court that morning (at 11.19am) which set out over some 10 pages the history of the matter, with references to the evidence, including the lengthy exhibit to Ms Connelly’s 24 May affidavit. There were administrative arrangements made because the mother’s submissions were not before the Court and needed to be printed from a USB stick. That was done. An affidavit of the father was read without objection. The judge then stated: [18]

“I notice in the written submissions of the Crown that there is a submission made that the Court should dismiss the proceedings in light of what is happening in the Children’s Court, is that an application that is made?

[COUNSEL FOR SECRETARY]: Yes, your Honour. The evidentiary basis for that is in the affidavit of 21 June at paragraph 11 where a magistrate set the matter down for hearing on 11-15 November, with a possibility of a further two days.”

18.    Tcpt, 24/06/19, p 5(22).

37. The judge then ascertained that the Secretary was relying upon the affidavits of Ms Connelly of 24 May 2019 and a further affidavit of 21 June 2019.

38. After some discussion as to the distinction between submissions and affidavits, the mother indicated that she relied upon specialists’ reports from Dr Jessica Poon and Dr Penny Spencer at Sydney Children’s Hospital. Those reports were annexed to Ms Connelly’s affidavit of 24 May 2019. Although there was no explanation given for the procedure being adopted, the primary judge required that the Secretary read his evidence, which included the affidavit of Ms Connelly of 24 May 2019, counsel noting that two corrections had been made when he had read the affidavit at the previous hearing. [19]

    19.    Tcpt, p 9(10).

39. The mother and father took objection to reliance on the second affidavit of Ms Connelly of 21 June, which had been served by email on Friday, 21 June at 6.14pm. That affidavit, with annexures, comprised 88 pages. The judge then appears to have gone through the affidavit, identifying three broad topics covered, and, when asked if anything else was contained in the affidavit was told by counsel for the Secretary: [20]

“No. It is by way of update, your Honour, rather than anything else.”

The judge then said:

“I think, given the nature of these proceedings, and the fact that the affidavit was provided last Friday, and the plaintiff and the third defendant have had sufficient time to respond to it, in the sense of putting on written submissions and affidavits, it is appropriate that that affidavit be received.”

20.    Tcpt, p 10(30).

40. Two affidavits of the father were read without objection and a group of emails provided by the mother was marked as an exhibit. Counsel for the Secretary was invited to speak to his submissions, which he did, referring to the chronology and relying upon his written submissions. He sought to hand up authorities, and when asked if he had “a copy for [the mother and the father]” said “We can send them some copies.”

41. The judge then noted: [21]

“The real core reason for any dismissal of these proceedings is that the proceedings are proceeding in an orderly fashion in the Children’s Court which has allocated a date for final hearing?

[COUNSEL FOR THE SECRETARY]: Yes.”

21.    Tcpt, p 13(22).

42. Counsel then referred to a number of authorities and the judge handed down loose copies to the mother.

43. The mother and father then addressed the Court. Although copies of cases were handed to the mother, there is no record of any opportunity being given to her to read the cases, nor did the judge explain what significance they might have for her proceedings, beyond the brief submissions made by counsel for the Secretary. The substance of the mother’s submissions were in the following terms: [22]

“… the Broadmeadow Children’s Court has refused to file or hear repeatedly any application for relief for [the boy], so [the boy] is stuck in as prisoner in a mental ward in John Hunter Hospital for more than four months now. He has been, without any court order and without any schedule under the Mental Health Act, every night, all night he has been subjected to physical, mechanical and chemical restraints…. So it is an illegal criminal assault by FACS upon a disabled child who has no means of getting relief except in the parens patriae jurisdiction of this Court because of the Children’s Court repeated refusal to hear any application for relief or even hear any application for contact orders except they are rubber stamping any oral or email application by FACS….

It is clear in the four months this court has heard applications both on behalf of FACS as well as myself that FACS is totally incapable of looking after [the boy]. On 15 March they invoked the parens patriae jurisdiction in the absence of all parties. They had my phone number. They had [the independent child representative’s] phone number. They had [the father’s] phone number. They deliberately did not call anyone. They run away and sought treatment orders from Justice Pembroke.”

22.    Tcpt, pp 14(40)-15(20).

44. At that point, the judge interrupted to ask for a copy of his own reasons. Counsel for the Secretary apparently knew which reasons he was referring to and handed up a judgment. The mother was asked if she had a copy and said no but she would like a copy. The judge then said he had looked at them and would copy them. After further submissions, he handed down a copy of reasons delivered orally on 27 May 2019. The mother asked for a copy of the reasons of Justice Pembroke of 15 March which she had not received. The judge said he was not dealing with that and was not to be deflected. [23]

    23.    Tcpt, p 16(34).

45. The thrust of the father’s submissions was that the staff at John Hunter Hospital had struggled to assist the boy and had had him airlifted to Sydney Children’s Hospital. He continued: [24]

“After four months they are still doing all this assault and forcing mechanical restraint and feeding.

ICU is not designed for rapid refeeding because [the boy] was considered severely malnourished. I was horrified on the first hearing we had at Sydney Children’s Hospital in front of Justice Kunc when Dr Sloane Madden, the renowned nutritionist/paediatrician/child psychiatrist from Westmead Children’s Hospital, suggested that they may take up to 12 months and use ICU as a backup to keep feeding [the boy] and gain his optimal weight which currently probably is much more than around 45 kilos.”

He concluded: [25]

“If your Honour is inclined to dismiss the summons today I request that the, a further order that the Children’s Court proceedings be transferred to the Parramatta Children’s Court forthwith because the Broadmeadow Children’s Court is refusing to even list any application for relief of [the boy] by either parent.

HIS HONOUR: Well I don’t see how I can really do that. That is a matter for the internal management of the Children’s Court.

[FATHER]: I requested it of the magistrate of the Children’s Court and she refused which means until November, until November [the boy] is being assaulted daily, given an overdose of antipsychotics that could kill him and the Supreme Court has failed to protect him from this even under the parens patriae jurisdiction.”

24.    Tcpt, p 17(1).

25.    Tcpt, p 18(23).

46. Following a further brief exchange between counsel for the Secretary and the mother, the judge gave brief reasons, noted above, and dismissed the amended summons.

Consideration of procedure

47. There is no doubt that applications which invoke the parens patriae jurisdiction of the Supreme Court whilst proceedings are on foot in a Children’s Court pursuant to the Care and Protection Act may readily constitute, or become, an abuse of process. Even if not an abuse of process, the maintenance of concurrent proceedings may well, as the primary judge concluded in this case, not be in the best interests of the child. It is entirely proper that a trial judge faced with such proceedings should be alert to these possibilities. It is also entirely proper that the judge be allowed to raise, effectively on his or her own motion, the possibility that the proceedings in the Supreme Court should be terminated. However, in circumstances where the Minister, having full parental responsibility for the child, and the Secretary, having powers under a supervision order, do not initiate steps to have the proceedings dismissed, the judge should proceed with caution. Particularly is that so where the parens patriae jurisdiction has for a particular purpose already been engaged on the application of the Secretary, and in circumstances about which something more will be said shortly.

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

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

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

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

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

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

54. That conclusion would warrant a grant of leave to appeal. Two questions remain, namely (i) whether an order setting aside the judgment summarily dismissing the mother’s proceedings invoking the parens patriae jurisdiction of the Court should be refused because the outcome would inevitably be the same, and (ii) what consequential orders, if any, should be made by this Court.

Appropriate orders

55. The first question is whether there was error leading to a miscarriage of justice and, if so, whether this Court can and should reconsider the substantive issue as to dismissal of the proceedings, or should direct a further hearing of the application to dismiss the mother’s proceedings summarily.

56. If in truth the mother has not had a proper consideration of her attempt to resist dismissal of the proceedings, that can only be remedied by a further hearing, unless her attempt was hopeless. There is a difficulty raised by the informality of the procedure adopted below. Thus, the first intimation that the Secretary sought to have the mother’s proceedings dismissed came as part of an exchange, in the course of proceedings on 17 June, when the plaintiff was absent, that the judge was “just thinking I should in the circumstances quite possibly just dismiss the summons”, to which counsel for the Secretary agreed “[t]hat would be open to your Honour”. [26] Following the judge’s conclusion that he should call on the plaintiff to show cause why the proceedings should not be dismissed, counsel for the Secretary provided written submissions on the day on which the order was made dismissing the proceedings, with no indication to the Court as to the time at which they were provided to the plaintiff. In the course of identifying the issues, those submissions stated:

“It is submitted that the proceedings in the Supreme Court should be dismissed and the proceedings in the Children’s Court continue in order to determine the care arrangements for [the boy] in the specialist jurisdiction of the Children’s Court.” [27]

26.    Tcpt, 17/06/19, p 3(37)-(42).

27.    Secretary’s and Minister’s written submissions, 24 June 2019, par 5.

57. The submissions provided little by way of factual analysis of the circumstances, most of the reasoning being directed to propositions of law which are not currently in dispute. They did not identify or address the test to be applied in summarily dismissing proceedings. In effect the process had cast the burden of proof on the plaintiff to demonstrate an arguable case in favour of some relief in the parens patriae jurisdiction, without her being given any clear indication as to what was required of her in the circumstances. [28] As a result, this Court cannot be satisfied that there was no arguable case for intervention. On the other hand, it cannot be confident that an arguable case does exist in circumstances where the best that can be pointed to is certain areas where explanation is absent. These should be identified.

    28. See Hamod v New South Wales [2011] NSWCA 375 at [311]-[313] (Beazley JA, Giles and Whealy JJA agreeing).

58. First, the exhibits in the proceedings were numbered in sequence, commencing with documents tendered on 20 May 2019. However, apart from references in the chronology handed up on 24 June, there was no further reference to the extensive exhibit to the affidavit of Ms Connelly affirmed on 24 May 2019. It may be assumed that, being numbered in a continuous sequence and in relation to a hearing which clearly commenced on 20 May 2019, it was available to and before the primary judge. It would be wrong to assume that it was only when the show cause notice was given that the proceedings for summary dismissal commenced; if that were the case, it would have been unfair to the plaintiff to adopt that approach without clear advice that that was happening. The better view is that the hearing was continuing over three days but that a significant part of the material before the primary judge is not before this Court.

59. Secondly, it is appropriate to have regard to the nature of the application made by the Secretary on 15 March 2019. The Secretary’s summons, which was marked for identification in the proceedings in this Court and should be admitted as Ex 1, sought an order in final form, with no application for interim relief although the relief was sought ex parte, empowering the “Secretary and/or the Secretary’s delegates” to “authorise the carrying out of such medical procedures and treatment on [the boy] as the Secretary or the Secretary’s delegate may, on medical advice consider proper or desirable in the interests of the child for the treatment of his current medical conditions and related conditions even if [the boy] objects to the treatment”: order (1). The summons was no doubt filed because there was doubt whether the Minister’s parental responsibility for the child provided sufficient authority for forced medical intervention without the boy’s consent and contrary to his wishes. [29] Order (1) did not in terms require the Secretary or the delegate to comply with medical advice, although it may be read as requiring the delegate to obtain medical advice. The order was sought at a time when the Minister had parental responsibility in relation to medical matters and the Secretary acted under a supervision order. The treatment envisaged in order (1) included the giving of consent to all medications clinically indicated including psychotropic medication, sedation and the administration of a drug of addiction, being a form of “special medical treatment” which can only be administered by a medical practitioner in certain circumstances, which do not include approval of the Children’s Court. [30] The treatment also included, more generally, chemical restraint, physical restraint and general anaesthesia (possibly prolonged for days or weeks). It also included resuscitation in the event of cardiac arrest.

    29. Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 237; [1992] HCA 15.

    30. Care and Protection Act, s 175(2).

57. Order (2) sought to provide the Secretary or his delegate with authority to consent to any other treatment as is deemed necessary to prepare him for, and assist in his recovery from, the treatment identified in order (1). There was no temporal or other limit identified in order (2). Order (3) sought authority to qualified medical practitioners at “the Hospital” (undefined) to carry out treatment believed to be necessary to prevent serious damage to the health of the boy. Order (4) was in the same terms as order (1), except that it was not limited to treatment of current medical conditions and related conditions; nor did it include reference to the specific matters identified in order (1).

58. Because an order was made in the terms of order (1) only, though limited to a period of four days, it must be assumed that there was affidavit evidence before the judge (Pembroke J) warranting such steps to be undertaken as a matter of urgency and in circumstances where ex parte orders were warranted. The potential seriousness of the risk and the need to invoke the parens patriae jurisdiction for that purpose was not a distraction or a matter which should properly have been ignored in dismissing the mother’s proceedings. It is possible that the Secretary or the Minister may need to invoke the parens patriae jurisdiction again. Further, as Kunc J noted in discharging the limited order made (as extended following an inter partes hearing), although the immediate concern as to inadequate intake of food and water appeared to have diminished, the underlying conditions were not resolved. So much was clear from the report of Dr Poon, a staff specialist at Sydney Children’s Hospital, Randwick, prepared on 24 April 2019, after the boy had been discharged from the intensive care unit as medically stable but with a recommendation that rehabilitation and recovery should continue in an outpatient setting. This report, expressly relied on by the mother was not addressed in the reasons dismissing the proceedings.

59. There was evidence to support the view that medical staff viewed the boy’s residential situation as important to his ongoing compliance with food and drink regimes. For example, Dr Spencer, providing a psychiatric report as at 29 April 2019 on behalf of the Children’s Hospital, noted that staff “were careful to talk about discharge from hospital as opposed to going home to parents as we were concerned that [the boy] had been under the impression he was going home to his mother [and] [t]he treating team were also concerned that he was not clearly informed of his discharge destination and not accepting this situation he may go on food strike again.”

60. In short, there may well have been an arguable case on the material before the primary judge on 24 June 2019 warranting the intervention of this Court in the exercise of its parens patriae jurisdiction. There may have been (and may be) no realistic alternative to the arrangements presently in place, but that was not the question; there appears to have been an arguable case that (i) the hospitalisation was valuable in averting an emergency, but was not succeeding in resolving the on-going situation, and (ii) medical treatment and location were interrelated.

61. A further factor, which is not able to be assessed in this Court, is the capacity of the Children’s Court to hold a further hearing into the issues sought to be raised by the parents before November 2019, on the assumption that all relevant issues can be finally disposed of by the Children’s Court. The possibility (perhaps a theoretical possibility) that the boy’s condition will not stabilise in his current hospitalised environment should not be allowed to remain unexplored for a further period of four months if the courts are able to provide a more expeditious forum for resolution of the outstanding issues. One factor to be considered might the comparative availability of a judge of this Court in exercising the parens patriae jurisdiction.

Conclusions

65. If the order made by the primary judge is set aside, the mother’s amended summons will remain on foot. In the absence of any motion by a party seeking to have it summarily dismissed, and in the circumstances set out above, it is neither necessary nor appropriate for this Court to form a final view on the facts as to whether such an order should be made, were it sought by a party to the proceedings. Suffice it to say that the case is not so clear that this Court would, of its own motion and on the available evidence, dismiss the proceedings. Furthermore, as the mother now has the benefit of legal representation, which was of significant value in this Court, it may be hoped that, to the extent that the proceedings are maintained in the Equity Division, greater procedural regularity may be achieved than that which was available to the primary judge.

66. The Court makes the following orders:

1. Grant the mother leave to appeal from order (1) made in the Equity Division on 24 June 2019 dismissing the amended summons filed on 17 May 2019.

2. Treat the draft notice of appeal dated 1 July 2019 as filed in this proceeding.

3. Allow the appeal and set aside order (1) made on 24 June 2019.

4. Order that the first and second respondents pay the applicant’s costs in this Court.

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Endnotes

Decision last updated: 18 July 2019