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

[2020] NSWSC 259

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

On the papers

Date of orders:

18 March 2020

Decision date:

18 March 2020

Jurisdiction:

Equity - Protective List

Before:

Kunc J

Decision:

Mother and father require leave to bring any application before the Duty Judge

Catchwords:

CIVIL PROCEDURE – Hearings – Duty List – Frequent unmeritorious and informal applications – Whether motions and affidavits to be submitted to Duty Judge for leave to file

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Supreme Court Act 1970 (NSW)
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Wentworth v Graham & Anor [2003] NSWCA 307

Category:

Procedural and other rulings

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:

 

D Brezniak (Plaintiff Mother)

 

M Anderson (First and Second Defendants)
Father (Third Defendant - In person)
K Wooi (Child’s independent solicitor – by phone)

 

Solicitors:

  Crown Solicitor (First and Second Defendants)
K Wooi (Independent solicitor for the child)

File Number(s):

2019/62836

Publication restriction:

No

Judgment

Summary

1. These proceedings have occupied the Duty List on and off for over a year. The circumstances are difficult for all concerned. In short, the mother and father wish to recover legal responsibility for their son, to whom I shall refer as the child. The child’s medical and psychological needs are complex, arising from a diagnosis of Autism Spectrum Disorder Level 3, as a result of which he engages in avoidant restrictive food intake behaviours, which may or may not deserve an additional diagnosis of avoidant restrictive food intake disorder.

2. The child is 15 years old. When he first came to the attention of this Court his medical condition was extremely grave to the point of being life threatening. Fortunately, with skilled medical and psychological care, he is now much improved. For the purposes of this judgment, the most important thing to note is that while the child is currently still in hospital, his treating doctor’s evidence is that while the child’s weight is at the lower end of the safe range, the child is medically stable.

3. Particularly in recent months, including before, during and after a 12 day hearing before the President of the Children’s Court, the mother has been making numerous applications to the Equity Division Duty Judge for these proceedings to be relisted urgently, so that she could apply for the child to be restored to her, or to her and the father. Many of those applications have been made informally, usually by a peremptory email to the Associate to the Duty Judge from time to time. These applications have been a distraction to the other parties and to the Court.

4. When the matter was last before me, I invited submissions from the parties as to why the Court should not put in place orders to the effect that the mother and father could only bring an urgent interlocutory application in the Duty List with the leave of the Duty Judge. It would be for the Duty Judge to determine whether any particular application, on the evidence then presented, appeared arguable and was attended by the requisite degree of urgency. I did not have in mind imposing any order which would prevent either the mother or father from filing any such motion in the Registry to be case managed in the ordinary way by the Equity Division Registrar, instead of being treated as an urgent matter warranting the attention of the Duty Judge.

5. Having considered the written submissions of the parties (it being accepted by them that I could deal with this question on the papers), the Court is satisfied that such an order should be made in the inherent jurisdiction of the Court to control its own process. The frequent, informal attempts by the mother to seek relief in the Duty List are completely inconsistent with the just, cheap and quick resolution of the issues genuinely in dispute, the interests of the other parties to these proceedings, the interests of other litigants who have claims on the Duty Judge, and the proper administration of justice generally. The mother’s repeated approaches to the Duty Judge – which have been supported in Court by the father – warrant some procedural inhibition being imposed on the mother and father.

6. For the purposes of considering this question, Mr D Brezniak of Counsel appeared for the mother and prepared submissions in chief and in reply on her behalf and, on a more limited basis, the father. Mr M Anderson of Counsel appeared for the Minister for Family and Community Services and the Department of Communities and Justice. Mrs K Wooi appeared as the child’s independent legal representative. The father appeared for himself (although, as I have mentioned, some limited submissions were also made on his behalf by Mr Brezniak).

Procedural history

7. In this Court and the Court of Appeal, the litigation in relation to the child has produced at least the following judgments: Re AB [2019] NSWSC 316 (Kunc J); Re AB (No 2) [2019] NSWSC 566 (Kunc J); GR v The Secretary Family and Community Services (unpublished, 27 May 2019) Lindsay J; GR v Family and Community Services (unpublished, 7 June 2019) Rein J; GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177, Court of Appeal; GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1073 (Kunc J); GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1146 (Slattery J); GR v Secretary, Department of Family and Community Services and Justice (Unpublished, 12 September 2019), Robb J; GR v Secretary, Department of Family and Community Services and Justice (Unpublished, 19 September 2019), Robb J; GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277, Court of Appeal; GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1725 (Kunc J); GR v Family and Community Services (Unpublished, 17 January 2020) Robb J, GR v Family and Community Services (Unpublished, 31 January 2020) Henry J.

8. The extant originating process for these proceedings is an amended summons. It is on the return dates for directions of that summons or by separate notices of motion or less formally by email in these proceedings that the mother has, from time to time, sought urgent interlocutory relief in the parens patriae jurisdiction of this Court.

9. The primary proceedings concerning the child are in the Children’s Court of New South Wales. It is that court which made the original care orders in respect of the child under the Children and Young Persons (Care and Protection) Act 1998 (NSW). Over a period of 12 days between November 2019 and January 2020 Judge Johnstone, sitting as President of the Children’s Court, presided over a fully contested hearing in relation to the future of the child. By a 129 page judgment delivered on 27 February 2020, his Honour concluded that there was no realistic possibility of the child being restored to the mother and father. His Honour made directions for the making of final orders, including a permanency plan.

10. The proceedings were again before Judge Johnstone on 13 March 2020. On that occasion his Honour heard and dismissed yet another application brought by the mother, that time being to strike out the Children’s Court proceedings. His Honour made directions intended to enable the making of final orders on 3 April 2020.

11. As anyone familiar with the litigious history of this matter over the past year would have expected, the mother informed me when the matter was last in the Duty List on 2 March 2020 that once the Children’s Court proceedings were finalised, she intended to appeal against whatever orders Judge Johnstone might make. It was common ground that because it would be an appeal from his Honour sitting as President of the Children’s Court, the appeal would be by way of rehearing before a judge of the Equity Division of this Court.

12. The intent of the mother’s amended summons is to have the care orders set aside and for the child to be restored to her. In circumstances where the appeal would be by way of rehearing before a judge of this Division, the mother accepted my suggestion that her amended summons should be stood over to be heard with her appeal. That was because the issues that each process would raise would be, in substance, identical. This left a question of what to do about the mother’s frequent applications to the Duty Judge.

13. When the matter was next before me on 6 March 2020, Mr Anderson filed in Court, on behalf of the Secretary of the Department, a notice of motion seeking to have the earlier orders of this Court set aside and the mother’s amended summons struck out. I declined to deal with that motion and, consistently with the approach I had adopted of everything being dealt with at the time of the mother’s appeal, stood over the motion to be mentioned with the amended summons (subject to limited liberty to apply to relist the motion in circumstances not presently relevant).

The parties’ submissions

14. The submissions made for the mother may be summarised as:

1. The father had not at any time made applications to the Court of a kind or with such frequency as to give rise to any apprehension that he would make unnecessary or unmeritorious applications in the future. Accordingly, no proposed inhibition should be imposed on the father. The Court could always later place an inhibition on the father if the father’s conduct warranted it.

2. A threshold requirement for leave to be granted by the Court meant that there necessarily would be some additional delay in having matters heard which could call for the urgent attention of the Court in its parens patriae jurisdiction. The possibility of the need for urgency meant that informal approaches to the Court could be necessary.

3. The Court’s jurisdiction to protect a person such as the child extended to protection against prospective as well as present harm. The availability of a swift application to this Court would operate as a significant disincentive to careless, neglectful or otherwise inappropriate conduct in relation to the child’s care.

15. The father’s submissions to the Court (subsequently amplified by a short further submission, for which leave is hereby granted, from the mother on behalf of the father) focused on the risks to the child of remaining in hospital during the current COVID19 pandemic. The father expressed his concerns, which I accept to be entirely genuine and not unreasonable, that the course of the pandemic might mean changes in relation to the child’s care needed to be done urgently, including his removal from the hospital into the care of his parents or otherwise. The father submitted that he should not be inhibited from making applications to this Court under the parens patriae jurisdiction.

16. The Secretary’s submissions were:

1. The Court had undoubted jurisdiction to control its own process pursuant to s 23 of the Supreme Court Act 1970 (NSW). This included the power to protect its process from abuse by persons making unwarranted and vexatious interlocutory applications: Wentworth v Graham & Anor [2003] NSWCA 307, a case in which the Court of Appeal restrained a litigant from bringing any interlocutory application in the proceedings without having first obtained the leave of a judge.

2. Because the father had supported prior applications made by the mother, it was appropriate that any limitation also apply to the father.

3. Having regard to the litigious history of these proceedings and the mother’s “numerous applications which have overlapped with the proceedings that were being heard in the Children’s Court and has sought orders inconsistent with the interim orders made by the Children’s Court and with the final determination of the President in his extensive judgment delivered 27 February 2020”, the Court could be satisfied the Court that the mother had brought applications which were unwarranted and vexatious.

4. If the Court was not minded to dismiss the mother’s amended summons, a restriction upon the mother and the father bringing interlocutory applications in the Duty List would be an appropriate exercise of the Court’s jurisdiction to protect its process from abuse.

Consideration

17. The Court has proposed of its own motion a limitation on the mother’s and father’s access to the Duty List in these circumstances:

1. The parens patriae jurisdiction is an extraordinary jurisdiction, being one not to be exercised lightly. This is all the more so where the jurisdiction is being invoked in circumstances which will have the effect of circumventing or interfering with matters that are being dealt with in a specialist jurisdiction such as the Children’s Court.

2. The mother, generally supported by the father, has developed a pattern of making frequent, informal and obviously unmeritorious applications to the Duty Judge for the time being, generally by email to the Duty Judge’s Associate, including immediately before or during weekends.

3. The most recent, unequivocal medical evidence before the Court is that the child is medically stable. While the child’s medical condition is not the only basis that could justify the urgent intervention of the Court, it is the most obvious and likely one. There is no evidence before the Court which suggests that there is any extant basis for the urgent intervention of the Court in the parens patriae jurisdiction.

4. Notwithstanding the observations in the immediately preceding sub-paragraph, the Court accepts that given the child’s complex health issues and the history of these proceedings, there remains a realistic prospect that some proper basis (medical or otherwise) could arise warranting the urgent intervention of this Court.

18. The Court will make an order that the mother and father require leave to file any urgent motions in the Duty List for the following reasons.

19. First, I am satisfied that the mother’s pattern of frequent email applications to the Associate to the Duty Judge have reached the point of being vexatious and an abuse of process. The Court’s jurisdiction to protect its own process and ensure against abuse is engaged.

20. Second, I am not satisfied that the imposition of this requirement will cause any material delay, even in the case of a legitimate, urgent application. The mother has repeatedly demonstrated that she is perfectly capable of preparing notices of motion and affidavits herself on very short notice. I have no doubt that will be the case in future, all the more so if she retains lawyers. I am certain that the Duty Judge from time to time will have no difficulty in making a rapid assessment of the merits of any proposed application by the mother or father. In a case of critical urgency, the Duty Judge could simultaneously grant leave to file the application and ex parte relief.

21. In reaching this conclusion, I should record that I had given thought to whether proceedings should be taken against the mother under the Vexatious Proceedings Act 2008 (NSW). If this were ordinary civil litigation, I would not have had any hesitation to do so. However, I accept that the possibility of future urgent applications is sufficiently real such that the requirement for leave under s 16 of that Act is too cumbersome for this case.

22. Third, insofar as the father is concerned, the Court is satisfied that the order should extend to him for at least two reasons. First, he has generally supported the mother’s applications. Second, having case managed and heard various aspects of this matter for the last 12 months, I have no doubt that if the order I propose to make were limited to the mother, she would, in fact or otherwise, cause applications to be made by (or purportedly by) the father.

23. Finally, I confirm, for the avoidance of doubt, that the operation of the orders I will make is confined to urgent, interlocutory applications to the Duty Judge. Both the mother and the father will, absent further order of the Court, be free to file such motions as they may be advised in the Registry to be returnable before the Registrar in the ordinary course, and to be managed by the Registrar in the usual way before being fixed for hearing in the Applications List or as the Registrar may otherwise determine.

Conclusion

24. The orders of the Court are:

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

2. Any application for such leave is to be made by email to the Associate to the Duty Judge for the time being, copied to the other parties, and must include:

1. a notice of motion specifying the precise relief sought;

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

3. a copy of this judgment.

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Amendments

18 March 2020 - Date of orders and Date of Decision changed from 19 March 2020 to 18 March 2020

Decision last updated: 18 March 2020