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

Supreme Court

New South Wales

Medium Neutral Citation: GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348
Hearing dates: On the papers
Date of orders: 02 April 2020
Decision date: 02 April 2020
Jurisdiction: Equity
Before: Robb J
Decision:
1. Application by the plaintiff for leave to apply for the relief sought in pars 1 to 3 of the draft notice of motion provided by the plaintiff to the Court on 20 March 2020 in the Duty List is refused.

2. Order that the orders made by Kunc J on 18 March 2020 be varied by adding the following sub-order to order (2):
(d) if the application is based on a claim that there is an urgent medical necessity for a hearing in the Duty List, a report by an appropriately qualified medical professional explaining the nature of the change in the medical circumstances of the child the subject of the application, the nature of the orders that should be made in the interests of the child, and the reasons for the urgency.
Catchwords: CIVIL PROCEDURE — Interlocutory applications in the Duty List — Where prior orders of the Court require the applicant to seek leave before filing a notice of motion returnable in the Duty List– Where the applicant has made numerous failed applications for leave and a further application is made based upon the occurrence of the coronavirus pandemic
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
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: [2019] NSWSC 1073
GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146
GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277
GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 259
Category: Consequential orders (other than Costs)
Parties:
The mother (Plaintiff)
Secretary, Department of Communities and Justice (First Defendant)
Minister for Families, Communities and Disability Services (Second Defendant)
The father (Third Defendant)
Representation:
Counsel:
Mother (Plaintiff – In person)

First and Second Defendants – by Crown Solicitor
Father (Third Defendant – In person)
K Wooi (Child’s independent solicitor)
Solicitors:
Crown Solicitor (First and Second Defendants)
K Wooi (Child’s Independent Solicitor)

File Number(s): 2019/62836
Publication restriction: No

Judgment

These reasons deal with the latest in a long series of applications made by the plaintiff in this matter, who for the sake of her anonymity I will simply call the mother, to seek urgent relief in the Duty List.
I propose to deal first with the application that is at hand, but I will then consider the implications of this matter for the proper administration of the Duty List in the Equity Division of the Supreme Court of New South Wales.
The background to the present application is sufficiently set forth in the most recent formal judgment delivered by the Court in these proceedings. That is the judgment of Kunc J, given on 18 March 2020: GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 259. His Honour set out, at [7], a list of the principal formal judgments made by this Court and the Court of Appeal in these proceedings. There are 13 such judgments, excluding that delivered by his Honour on 18 March 2020.
Briefly, there are proceedings on foot in the Children’s Court of New South Wales before the President of that Court, his Honour Judge Johnstone. In essence, the objective of the mother, in her multitude of applications to duty judges in Equity in this Court, has been to obtain orders, in the exercise of the Court’s parens patriae jurisdiction, to stay or interfere with the exercise by the Children’s Court of its jurisdiction in those proceedings. Although the mother has had a measure of success in the Court of Appeal on one occasion, this Court has consistently refused to make any order that prevented the Children’s Court from determining the proceedings before it in due course.
On 27 February 2020, after a hearing lasting 12 days, the President of the Children’s Court delivered a judgment of some 468 paragraphs, in which his Honour found that there was no realistic possibility of restoration of the child to his parents. His Honour also found that the permanency planning had not, to that time, been properly and adequately addressed. The reasons for judgment of the Children’s Court have only been made available to the parties to those proceedings and this Court.
The present position in the Children’s Court proceedings is that the Secretary filed an Amended Care Plan on 20 March 2020. Counsel for the father submitted written submissions dated 27 March 2020, which included some new medical reports from two doctors. The mother sent two emails to the President’s chambers on 27 March 2020, in which she sought to renew a strikeout application filed by her on 13 March 2020, and to obtain an order from the Children’s Court that the child be forthwith returned to his home into the care of the mother.
The parents sought a further oral hearing on 3 April 2020, but the President rejected that application and decided to proceed on the papers. He gave the Secretary leave to file written submissions in response to the parents’ material by close of business on Wednesday 1 April 2020. Upon receipt of those submissions, the President will reserve his decision and deliver a written judgment on the permanency planning in respect of the future care of the child.
The proceedings in the Children’s Court are therefore proceeding in due course. So far as I am aware, nothing seen by any judge of this Court has justified even the slightest concern that the Children’s Court will not determine the proceedings before it in a proper way.
The problem that this Court has faced is that the child suffers from a number of disabilities that make his life and well-being precarious. It cannot, at any time, be ruled out that the child may suffer from a medical complication that justly requires the immediate exercise by this Court of its parens patriae jurisdiction, in circumstances where the Children’s Court may not have time to act. Consequently, the judges of this Court have not sought to make any blanket order precluding the mother from making applications in the Duty List. Various judges have made orders designed to limit the disruption of the Duty List caused by persistent applications made by the mother.
It is sufficient, for the present, to record that the latest orders made by Kunc J on 18 March 2020 were as follows:

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.

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 notice of motion specifying the precise relief sought;

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

a copy of this judgment.

Following the making of those orders, the mother made a number of applications to various duty judges by email, starting with an application to me on 20 March 2020, to which the mother attached a draft notice of motion.
In accordance with the regime established by Kunc J, I determined that the Court should decline to give the mother the leave sought. It was explained to the mother in an email from my associate that I took the view that the matter was not suitable for a Duty List application, as there was no degree of urgency above that which the mother had frequently claimed in numerous previous communications with the staff of the duty judge for the time being over many months.
The applications made by the mother culminated, for present purposes, in an email sent to the associate to Lindsay J at 8:59 AM on 26 March 2020. The mother renewed her application for the claims for relief made in pars 1, 2 and 3 of her draft notice of motion dated 20 March 2020.
The relief sought by the mother in these paragraphs of the draft notice of motion were as follows:

This notice of motion is to be returned instanter.

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

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

Lindsay J recorded, in Note 3 of his orders made on 26 March 2020, that, in support of her application for leave, the mother expressed concern that her child may be susceptible to a risk of contracting coronavirus, if kept in hospital rather than released into her care.
In accordance with the view that I understand has generally been adopted by judges sitting in the Duty List, that the Court should be open to permit the mother to make an application if there were a new development that might, as a matter of real possibility, require the Court to consider whether any special order should be made for the protection of the child, his Honour made orders that the Secretary serve on the parents, by no later than 31 March 2020, a short written statement setting forth whether the Secretary opposed the grant of leave sought by the mother, and if so, the grounds for that opposition. His Honour then made an order that the mother’s application for leave be referred to the duty judge for consideration in chambers on 2 April 2020. I am that duty judge.
On 31 March 2020, the Secretary served and delivered to my associate written submissions in opposition to the Court granting the leave sought by the mother.
The Secretary noted that the orders sought in pars 1 and 2 of the mother’s draft notice of motion would, if made, have the effect that the child would be returned to the mother’s care forthwith. The making of the order in par 3 would restrain the Secretary from exercising his statutory duties under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act).
The Secretary relied upon 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. That was because the parents had demonstrated “a total inability to safely care for the child” through, among other things, their persistent denigration of the child’s support team, lack of insight into the child’s needs or medical condition, and the dysfunctional relationship between the parents.
In response to the mother’s concern that the continuation of the present arrangements for the child’s care arranged by the Secretary would put the child at heightened risk of contracting COVID-19, the Secretary relied upon aspects of the Amended Care Plan, which the Children’s Court has permitted the Secretary to provide to this Court. It is not appropriate that this Court disclose the contents of the Amended Care Plan in any detail, or identify any doctor who has been treating the child who has contributed to the preparation of that Plan.
It is sufficient for the Court to record that the Associate Professor who has been the child’s treating doctor since 1 November 2019 had significant input into the section of the Amended Care Plan dealing with the child’s placement. It is clear that the doctor has considered the possible impact of COVID-19, and observed that, at the time of writing the report, there were no known patients with COVID-19 at the hospital to which the child has been admitted, and that the hospital has “strong protocols for managing staff and patient safety to minimise the risks to both groups”.
The child’s independent legal representative provided to the Court a submission in which she endorsed the submissions made by the Secretary.
The mother has provided to this Court a copy of the submissions made by counsel on behalf of the father to the Children’s Court in response to the Amended Care Plan. Paragraphs 5 to 8 and 25 to 27 of the submissions deal with the COVID-19 issue. They include the submission that the treatment of the risk of COVID-19 in the Amended Care Plan is completely inadequate. The submissions refer to the opinion of one of the two doctors that the child is of “considerably higher risk of ill-effects” from COVID-19, because of his “poor nutritional status”. In the latter series of paragraphs, the father submits that the implementation of the Amended Care Plan will involve an “unacceptable risk to the child”.
However, the order sought by the father was that the Children’s Court order a reconsideration of the Amended Care Plan, and that a fresh revised proposal be requested, in light of the submissions made by the father. The father’s submissions do not contain any arguments supporting the immediate return of the child into the care of the mother. They assume that parental responsibility for the child will continue to reside in the Minister. They appear to contemplate that any revised Care Plan should give the father the care of the child, provided the father could be provided with the necessary assistance. They accept the need for continuing monitoring by the Secretary of the care of the child.
The report by one of the doctors in response to the Amended Care Plan, who is an apparently qualified emeritus Professor in Child and Adolescent Psychiatry, contains a trenchant critique of the Amended Care Plan, in measured and considered language. The conclusion reached by the doctor, in par 30 of his report, is that, as I would put it, as the least of all evils, and on an experimental basis, the child should be returned to his home in the care of the parents. Firm rules should be laid down and enforced. It is not clear how the doctor thinks the separation of the parent should be dealt with. If the experiment fails, “then an improved version of a plan like this becomes rational because then there is no other option”.
It is notable that the doctor deals with COVID-19 in par 15, in the context that the proposal in the Amended Care Plan for the child to be cared for in “community housing” will subject the child to an unacceptably high risk of infection, given his poor nutritional status, because “a large number of people attending the house greatly increases the risk of infection”. The doctor does not express any opinion to the effect that there is a risk the child will contract COVID-19 in the hospital, where he is presently cared for, so that it is necessary that the child be immediately returned to the care of his parents. The risk that concerns the doctor will only become manifest if the Children’s Court approves the Amended Care Plan, and the implementation of that Plan leads to the child being accommodated in “community housing”.
The second medical report has been prepared by a Child and Adolescent Psychiatrist. The doctor also opposes the aspect of the Amended Care Plan that would lead to the child living in “supported accommodation”. The report does not deal specifically with the risk of COVID-19 infection, whether in the hospital or in “supported accommodation”. The conclusion reached by the doctor was one of compromise. It recognised that the parents were not capable of properly caring for the child, but concluded that the alternative proposed in the Amended Care Plan was not acceptable. The doctor proposed a “shared-care arrangement, in which [the child] is based at his parents’ home but has regular respite for 2 or 3 days per week, in supported accommodation…”
The result is that the reports of neither doctor support the making by the Court of the orders that the mother seeks leave to apply for in the Duty List, as set out in pars 1 to 3 of the draft notice of motion received by the Court on 20 March 2020.
What they do support is that the determination of the most appropriate plan for the future care of the child is fraught with difficulty, because no available arrangement is suitable by itself. That includes the return of the child to the parents on a full-time basis. The evidence provided by the mother does not leave open the possibility that the Court would, at a hearing in the Duty List opposed by the Secretary, order the immediate return of the child to the mother to avoid the risk that he will contract COVID-19, or for any other reason. The evidence does establish that the Children’s Court is properly seized of this immensely difficult issue, and that the Children’s Court is the appropriate forum for the issue to be determined. That is not only because of the expertise of that Court, and particularly its President, but it is also because the President has heard 12 days of evidence, including the expert evidence that was tendered at the hearing. It is entirely unrealistic to think that this Court, in an urgent Duty List hearing, could do justice to the issue of the further care of the child, in a manner that would remotely equal the proper consideration of that issue by the President of the Children’s Court in due course.
The mother was given leave to provide written submissions in response to those made by the Secretary. She did so in the form of some 19 pages of submissions. It is not practicable for the Court to respond in detail to all of the submissions made by the mother.
The mother understandably referred to the current coronavirus pandemic and described that circumstance as “extraordinary” and “unprecedented”.
However, the mother then asserted that the Secretary and the Minister were in contempt of mandatory urgent social distancing requirements, and that they had incarcerated the child in a bed-ridden state in hospital, and continually used force feeding treatments on the child. The mother made hearsay assertions concerning expressions of opinion by the child’s treating doctor, which I infer are inconsistent with his involvement in the preparation of the Amended Care Plan. The mother asserted that there was no viable Permanency Plan within the time prescribed by the Care Act. She then made a number of complex submissions based upon asserted extracts from medical evidence and the transcript of the Children’s Court proceedings. In essence, the mother made submissions directed at establishing that the arrangements made by the Secretary for the hospital care of the child, and the attempts to discharge him from hospital, had been unsuccessful. The mother then submitted that the interim care order made by the Children’s Court was no longer valid, and that no care or guardianship order could now be made by the Children’s Court under the Care Act. The mother alleged that the Secretary’s staff had engaged in child abuse, that the Secretary’s conduct involved a deprivation of the Child’s liberty, as well as contempt of court on a basis that is most obscure. The mother submitted that the findings in the Children’s Court judgment of 27 February 2020 “were wholly lacking in any evidence, and unsupported by any reasons, in a Court that allegedly ‘rubberstamps’ over 99% of applications by FACS…” Finally, the mother asserted that it followed from the judgment of the Court of Appeal given on 7 November 2019 that it is “time ‘to give the alternative a go’ and return [the child] home”.
The child’s father also provided written submissions to the Court. The father supported the application made by the mother. It is difficult to distil the arguments put by the father. He asserted that the child’s treating doctor should not be accepted as an infectious diseases expert. He submitted that the Secretary could not be “trusted to manage a child with severely compromised immune system, in a Public Hospital under” the COVID-19 threat. The primary reason given was the alleged “blunder” of a different Department of this State’s public service in relation to the Ruby Princess cruise ship. The father made assertions about the disruption caused by the COVID-19 threat to “the inner workings and rostering of staff” of the agencies retained by the Secretary to provide special services to the child. The father then made an elaborate complaint about the inadequacy of the care provided by the Secretary for the child over the period in which the child has been in care. The father made submissions about the significance of the additional two medical reports. The father did not explain why a specialist hospital would not provide the best level of protection that is available against the risk of the child contracting COVID-19. The father did not base his submissions on any identifiable admissible evidence.

I appreciate that these submissions were provided in support of what is merely an application for leave to file the mother’s 20 March 2020 draft notice of motion, and to order that it be returnable in the Duty List, after being served on the other parties and the independent legal representative. However, I consider that the mother has not established that there is proper reason for the Court to entertain her application in the Duty List as a matter of urgency. The evidence that has been provided by the mother in support of her application is almost entirely inadmissible, even on an interlocutory application. The proper course is for the Children’s Court to be permitted to complete the hearing before it, by making the final orders that the President considers to be appropriate. The Duty List of this Court is an entirely inappropriate forum for dealing with the complex issues that the mother wishes to raise. When the Children’s Court makes its final orders, the mother will have an avenue of appeal. There is no medical evidence before the Court that would justify the Court entertaining an application in the Duty List, the objective of which is an order for the immediate return of the child to the care of the mother, and the prevention of the Secretary from performing his statutory duties in relation to the care of the child.
For these reasons, I refuse the leave sought by the mother to list the draft notice of motion for the hearing of the relief sought in pars 1 to 3 in the Duty List.
I return now to the issue of what can properly and justly be done to prevent the mother abusing the right accorded by the Court to all members of the public to apply in the Duty List for urgent relief, if necessary, on an ex parte basis. The obvious difficulty that arises from the Court making an order that prohibits any particular person making such applications is that it can never be known in advance whether the prohibition, made after a history of abuse of the right, will have the effect of preventing the making of the next application, which is in fact proper and desperately justifiable. The problem is an example of what happens when a person cries “Wolf” too often.
Yet the distraction and waste of judicial time that has flowed from the mother’s conduct should not be underestimated. There are the applications that have led to what is now the 15 judgments delivered by this Court and the Court of Appeal. These proceedings have been before a judge or registrar of this Court on about 33 occasions since 25 February 2019. On 27 May 2019, a judge of this Court made an order dismissing an application made by the mother on 17 May 2019 for an order, in the exercise of the Court’s parens patriae jurisdiction, setting aside an interim order made by the Children’s Court giving parental responsibility for the child to the Minister. On 18 July 2019, the Court of Appeal set aside the order made on 27 May 2019: GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177. Kunc J dealt with the mother’s application on the merits on 16 August 2019 and declined to grant the relief sought by the mother to set aside the Children’s Court orders: GR v Secretary, Department of Family and Community Services and Justice: [2019] NSWSC 1073. Slattery J, on 3 September 2019, dismissed an application by the mother for orders setting aside the interim orders of the Children’s Court that gave interim parental responsibility to the Minister, to have the Children’s Court proceedings dismissed, and to have the child discharged into the care of the mother: GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146. On 7 November 2019, the Court of Appeal refused leave to the mother to appeal from the orders made by their Honours, as well as orders that I made in an unpublished judgment: GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277.
Of the applications made by the mother to the Court, about 16 applications have been dealt with by the making of formal orders or notes since Kunc J made the orders on 16 August 2019. Those applications have all, to a greater or lesser extent, involved claims for the same relief, being one or all of orders setting aside the interim order granting parental responsibility of the child to the Minister, staying the Children’s Court proceedings, and forthwith returning the child to the care of the mother, or the parents.
A mere count of the number of applications does not paint an adequate picture of the extent of the communications from the mother to the staff of the duty judge for the time being that have had to be dealt with. In what turned out to be an overly optimistic attempt to bring order to the communications between the mother and associates of judges of the Court, at the beginning of this year I arranged for the associates to compile and send to me copies of all of those communications. My aspiration was to personally compile a single chronological file of the communications. That aspiration was not feasible, as I received printed out communications and related material from the associates that I have measured to be about 13 cm thick in total. Mere bulk is not, of course, a reliable indicator of the nature of the communications between the staff of the Court and a litigant. However, a large part of the communications consists of emails sent to the associates of duty judges, with attachments, often on a daily basis if not more frequently. Duty judges frequently have to waste considerable time in dealing with these communications from the mother.
I have not given consideration to the question of whether a single judge of the Court, on his or her own motion, may make an order that uniformly prohibits a particular applicant from making applications in the Duty List, in order to protect the operation of that aspect of the Court’s process. No party has asked the Court to make such an order. The Court has not received any submissions, or given the mother an opportunity to resist the making of such an order.
However, I consider it to be proper and appropriate for the Court to seek to protect the proper functioning of the Duty List, which is a facility available to all members of the public in relation to appropriate and urgent matters, to make an order varying the orders made by Kunc J on 18 March 2020. The reason is that the mother habitually includes, in her draft affidavits in support of her applications for leave to commence proceedings in the Duty List, generally worded hearsay evidence of statements allegedly made to her by doctors, concerning the need for the child to be urgently returned to the care of the mother. I take the view that, if the mother wishes to make an application for leave based upon the advice of any doctor that an urgent application in the Duty List is warranted, the mother must provide to the Court a report in writing from the doctor, which clearly expresses the basis for the doctor’s medical opinion, and explicitly states that the doctor believes that there is an urgent need for this Court to make an order that cannot in due course be made by the Children’s Court with sufficient urgency.
I therefore order that the orders made by Kunc J on 18 March 2020 be varied by adding the following sub-order to order (2):

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

I record that, on 31 January 2020, on the occasion of her Honour dismissing an application made by the mother in the vacation for orders similar to those that are now sought, Henry J said:

23   [The mother] has previously been advised of the need to make applications in the proper form. I am aware that [the mother] has also been advised of the risk that a repeated application by her of this nature may also be subject to a claim that it might constitute an abuse of process.
24   If [the mother] wishes to make an application in future, she should make it in the usual way by filing a notice of motion with the registry with any affidavit material affirmed in the proper way so that the Court can then review the papers and determine how the application should be listed.
25   [the mother] should also ensure that she provides proper notice to the other parties in the usual way.

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Decision last updated: 02 April 2020

Medium Neutral Citation:	GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348
Hearing dates:	On the papers
Date of orders:	02 April 2020
Decision date:	02 April 2020
Jurisdiction:	Equity
Before:	Robb J
Decision:	1. Application by the plaintiff for leave to apply for the relief sought in pars 1 to 3 of the draft notice of motion provided by the plaintiff to the Court on 20 March 2020 in the Duty List is refused. 2. Order that the orders made by Kunc J on 18 March 2020 be varied by adding the following sub-order to order (2): (d) if the application is based on a claim that there is an urgent medical necessity for a hearing in the Duty List, a report by an appropriately qualified medical professional explaining the nature of the change in the medical circumstances of the child the subject of the application, the nature of the orders that should be made in the interests of the child, and the reasons for the urgency.
Catchwords:	CIVIL PROCEDURE — Interlocutory applications in the Duty List — Where prior orders of the Court require the applicant to seek leave before filing a notice of motion returnable in the Duty List– Where the applicant has made numerous failed applications for leave and a further application is made based upon the occurrence of the coronavirus pandemic
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW)
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: [2019] NSWSC 1073 GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146 GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 259
Category:	Consequential orders (other than Costs)
Parties:	The mother (Plaintiff) Secretary, Department of Communities and Justice (First Defendant) Minister for Families, Communities and Disability Services (Second Defendant) The father (Third Defendant)
Representation:	Counsel: Mother (Plaintiff – In person) First and Second Defendants – by Crown Solicitor Father (Third Defendant – In person) K Wooi (Child’s independent solicitor) Solicitors: Crown Solicitor (First and Second Defendants) K Wooi (Child’s Independent Solicitor)
File Number(s):	2019/62836
Publication restriction:	No