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

[2019] NSWSC 1146

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1146
Hearing dates:	30 August 2019
Date of orders:	03 September 2019
Decision date:	03 September 2019
Before:	Slattery J
Decision:	Application dismissed. Proceedings adjourned to the Equity Registrar’s List on Monday, 2 December 2019. The plaintiff ordered to pay the first and second defendants’ costs. Liberty to apply withdrawn.
Catchwords:	FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim care order confirming parental responsibility of the Minister – application by the mother to discharge interim orders made in related care proceedings and for parental responsibility to be restored to her – whether there are exceptional circumstances warranting the Court’s exercise of its parens patriae jurisdiction.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998, s 61
Cases Cited:	CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 G v Family and Community Services [2019] NSWSC 229 GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1073 GR v Secretary, Department of Family and Community Services and Justice (Supreme Court (NSW), Lindsay J, 27 May 2019, unrep) GR v Secretary, Department of Family and Community Services and Justice (Supreme Court (NSW), Lindsay J, 24 June 2019, unrep) GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 Harris, Re (1936) 37 SR (NSW) 17 Re AB [2019] NSWSC 316 Re AB (No. 2) [2019] NSWSC 566 Re Victoria (2002) 29 Fam LR 157
Category:	Procedural and other rulings
Parties:	Plaintiff: The mother First Defendant: Secretary, Department of Family and Community Services and Justice Second Defendant: Minister for Family, Community and Disability Services Third Defendant: The father Fourth Defendant: The boy
Representation:	Counsel: Plaintiff: C. McConaghy First & Second Defendants: M.W.Anderson   Solicitors: Plaintiff: Rennie Lawyers & Notaries First & Second Defendants: Crown Solicitor Third Defendant: in person Fourth Defendant: K Wooi, independent legal representative
File Number(s):	(2019/62836)
Publication restriction:	No

Judgment

1. The young person, the subject of these proceedings, is under the parental responsibility of the Minister for Families, Communities and Disability Services (“the Minister”), the second defendant in these proceedings. The young person’s mother, GR, applies by oral Motion (“Motion”), supported in written proposed Short Minutes of Order, to the Equity Duty List for orders in the Court’s parens patriae jurisdiction against the Minister and against the Secretary, Department of Family and Community Services and Justice (“the Secretary” or “the Department”), the first defendant. The mother has joined the young person’s father as the third defendant. And an independent legal representative on behalf of the young person, Ms Kristina Wooi, also appears.

2. The proceedings have had a detailed history since the young person first came under the attention of officers responsible to the Secretary and the Minister in June 2018. On 4 July 2018, the Secretary made an application for a care order in the Children’s Court under Children and Young Persons (Care and Protection) Act 1998, s 61 (“the Care Act”). Interim orders were made the following day allocating parental responsibility, for medical issues in relation to the young person, to the Minister and placing him under the supervision of the Secretary. At the same time orders were made restraining the plaintiff, who is a medical practitioner, from administering any medication to him.

3. A final hearing of the care proceedings has not taken place. But it is listed for hearing before the President of the Children’s Court over five days commencing on Monday, 11 November 2019. A directions hearing is listed in the care proceedings before the President of the Children’s Court next Monday, 9 September 2019.

4. In substance, the mother’s present application is to invoke the parens patriae jurisdiction of the Court: to set aside interim orders of the Children’s Court made on 27 February 2019 that gave interim parental responsibility to the Minister; to have the Children’s Court proceedings commenced by the Secretary dismissed; and for the young person to be discharged from the hospital, where he is currently an inpatient, into the care of his mother at the family home. Alternative orders are sought that, until such time as the young person is discharged from hospital, he should have two hours daily contact with his mother and other family members until he is placed into the care of his mother.

5. The procedural platform for this application in these proceedings 2019/62836 commenced by Summons (now a Further Amended Summons) is Kunc J’s 16 August 2019 orders, granting liberty to apply on 24 hours’ notice to the Duty Judge through a party’s legal representative.

6. The mother’s application was contested. Dr C. McConaghy of counsel, instructed by Rennie Lawyers & Notaries, appeared for the mother. Mr M.W. Anderson of counsel, instructed by the Crown Solicitors, appeared for the Secretary and the Minister. The father, the third defendant, appeared for himself. Ms K. Wooi appeared on behalf of the young person as his independent legal representative.

7. It is not practical on an urgent application such as this for the Court to reproduce the full welfare history of the young person and the procedural history of various applications that have been brought both by the Secretary and by the mother since July 2018.

8. Suffice it to say that the young person is approaching his 15th birthday. He has been diagnosed with autism spectrum disorder (level 3) and avoidant restrictive food intake disorders (in his case, not eating select foods and sometimes all food). He originally came to the attention of the officers responsible to the Secretary and the Minister because of his aggressive behaviour and refusal to eat, which had led to a serious reduction in his body weight.

9. Since care proceedings were first commenced in July 2018, the Secretary has invoked the parens patriae jurisdiction to seek authorisation for extraordinary medical intervention for the feeding of the young person through a nasogastric tube (“NG tube”), and associated and ancillary medical procedures. The mother has sought to invoke the Court’s parens patriae jurisdiction on previous occasions, seeking relief not dissimilar from the subject of the present application.

10. In accordance with the longstanding practice when this Court exercises its parens patriae jurisdiction, the names of the parties have not been included in these reasons. In addition, any material that might indirectly identify the parties has also been removed, including the names of the medical personnel and the officers of the Secretary involved in the supervision of the young person’s care. Non publication orders have been made with respect to any material likely to disclose the identity of the parties in order to protect the child.

11. Several judgments of this Court provide relevant background to the procedural events concerning the young person in the first half of this year: G v Family and Community Services [2019] NSWSC 229 (Schmidt J); Re AB [2019] NSWSC 316; Re AB (No. 2) [2019] NSWSC 566 (Kunc J). I should also mention two other unpublished judgments of Lindsay J: GR v Secretary, Department of Family and Community Services and Justice (Supreme Court (NSW), Lindsay J, 27 May 2019, unrep); GR v Secretary, Department of Family and Community Services and Justice (Supreme Court (NSW), Lindsay J, 24 June 2019, unrep).

12. In the last of Lindsay J’s judgments, his Honour dismissed an Amended Summons in the proceedings filed by the mother on 17 May 2019. The mother sought leave to appeal from that decision. The Court of Appeal granted leave and set aside Lindsay J’s order dismissing the Amended Summons: GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 (“the CA judgment”). A detailed procedural and relevant medical and welfare background of these various proceedings appears in the CA judgment, between [3] and [26]. It is not necessary to reproduce that summary in this judgment, which I respectfully adopt.

The 16 August Hearing Before Kunc J

13. In the week commencing Monday, 12 August 2019, the plaintiff approached Kunc J who was sitting as Duty Judge for an urgent hearing.

14. The Duty List proceedings before Kunc J were conducted by reference to the mother’s Further Amended Summons dated 9 August 2019, which included the following claims for relief:

“1.   That this application be heard instanter.

2.   That the Court invokes the parens patriaejurisdiction.

3. That the Interim Orders of the Children’s Court of 27 February 2019 for [the boy] (born XX XX 2004) made pursuant to s 69 of the Children and Young Persons (Care and Protection) Act1998 be set aside.

4. That the Children’s Court Proceedings (2018/XXX) commenced by the Department of Family and Community Services pursuant to s 61 of the Children and Young Persons (Care and Protection) Act1998 be dismissed.

5.   That [the boy] be discharged from XXX to the care of his mother where he will reside at XXX.

6.   In the alternative, that until such time as [the boy] is discharged from XXX he is able to have two hours daily contact with his mother and other family members and upon discharge [the boy] be placed in the care of his mother…”

15. Kunc J set aside a day in the Duty List to hear the application on 16 August 2019; travelling to Newcastle to see the young person in hospital. His Honour determined the application the same day, giving reasons shortly afterwards: GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1073. In his 16 August 2019 decision, Kunc J did not accede to the plaintiff’s primary application to discharge the February 2019 care orders, but instead made detailed orders to improve family visitation to the young person, to improve communication with the young person’s parents about his hospitalisation and to assist the parents to be trained in the use of the young person’s NG tube, and to be present, and where appropriate participate, in the therapeutic sessions or medical and psychiatric examinations of the young person.

16. Kunc J observed, (at [22]), that: “barring any unforeseen developments, the boy’s status will be dealt with finally and in a considered way by the Children’s Court in November”. In the circumstances, his Honour did not regard it as appropriate to set out the evidence in detail, or to comment upon it, but he made clear that: “the Court did not accede to the mother’s application to set aside the Children’s Court’s orders”, (at [22]). The orders his Honour made would have assisted the mother to prepare for the Children’s Court proceedings.

17. Kunc J took a highly accommodating approach to hearing this matter in the Duty List, convening a hearing that enabled the mother to be cross-examined at length, a medical expert to give evidence in the mother’s case and to be cross-examined by telephone, and for the young person’s primary treating doctors to give concurrent evidence and be cross-examined. And the young person’s Manager Casework employed by the Department gave evidence and was cross-examined.

18. The Duty List is ordinarily accessed by litigants who can commit to the Court that their hearings will take no more than 3 hours. Longer urgent matters are referred to the Expedition List or made special fixtures before Judges who have available Court time in the short term.

The 30 August Hearing

19. My chambers were notified on 28 August 2019 that the plaintiff requested the re-listing of these proceedings pursuant to the liberty to apply. The Court accommodated the plaintiff and the other parties by listing the matter for hearing in the Duty List on Friday, 30 August 2019.

20. The principal focus of the re-listed proceedings on 30 August 2019 was events occurring since Kunc J’s judgment on 16 August 2019. These events were thoroughly recounted in affidavits of a Manager Client Services employed by the Department and on the plaintiff’s side by her affidavit of 29 August 2019. The father also provided an affidavit. The Court had available to it all of the evidentiary material before Kunc J and the Court of Appeal.

21. The Court indicated it was disinclined to allow cross-examination in a Duty List which had other demands upon it. In any event, the parties were able to agree, partly because of the unavailability of witnesses at such short notice, not to cross-examine on either side. The matter proceeded straight to final submissions.

22. The Court was much assisted by detailed legal submissions prepared by counsel and solicitors for the plaintiff, and counsel and solicitors for the Minister and the Secretary. The Court heard oral submissions from the father and from the independent legal representative.

23. The Court indicated, at the conclusion of the hearing on 30 August 2019, that it would give a decision on 3 September 2019. In the event, the Court has resolved to dismiss the present application and to adjourn the proceedings for mention to Monday, 2 December 2019.

24. It should be mentioned however that, between the conclusion of these proceedings at 4.10pm on 30 August 2019 and the giving of judgment today, my chambers has received much email correspondence from the plaintiff and the father. This correspondence has been read, but only to see what it communicated.

25. The plaintiff has not been authorised to send correspondence to the Court. She has capable legal representatives who have appropriately advanced her interests before the Court. This kind of communication directly between the plaintiff and my chambers is impermissible and should not continue.

Applicable Legal Principles

26. The applicable legal principles may be shortly stated. Care Act, s 247 states that nothing in the Care Act “limits the jurisdiction of the Supreme Court”. In the CA judgment, the Court of Appeal considered whether, in the exercise of the parens patriae jurisdiction, the Court could discharge an order made by the Children’s Court: CA judgment, (at [27]); CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855, (at [4] and [90]). After considering Re Victoria (2002) 29 Fam LR 157; [2002] NSWSC 647 and Harris, Re (1936) 37 SR (NSW) 17, (at 28-29); (1936) 54 WN (NSW) 8, the Court of Appeal observed: “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”: CA judgment, (at [29]). The present application is considered on the basis that the Court does have the power to grant the relief that the plaintiff seeks.

27. An applicant seeking to invoke the Court’s parens patriae jurisdiction must satisfy the relevant standard of “exceptional circumstances” before the Court will interfere with orders made by the Children’s Court exercising its specialist jurisdiction: CA judgment, (at [11]). The relevant existing interim order of the Children’s Court here is the Order of 27 February 2019 granting interim parental responsibility to the Minister. The reasons why exceptional circumstances are required is explained in Palmer J’s decision in Re Victoria (2002) 29 Fam LR 157; [2002] NSWSC 647, (at [36] – [37]), as follows:

“36   In my opinion, I must have primary regard to the fact that the 1998 Act provides for the operation of a specialist jurisdiction within the Court system of this State. Matters concerning the welfare of children are to be dealt with by a Children’s Court consisting of Magistrates highly experienced in the determination of such issues. The 1998 Act also specifically provides that appeals from the Children’s Court lie to the District Court; s.91 provides a machinery for the conduct of those appeals and vests the District Court with the appropriate jurisdiction to make all such orders as the Children’s Court might make for the welfare of the child.

37   I do not think that there should be encouraged a procedure whereby persons who have fully contested a matter in the Children’s Court and wish to appeal can by-pass the appeal provisions of the 1998 Act and come straight to this Court seeking to invoke its inherent wardship jurisdiction. Quite apart from the fact that to do so would sanction a departure from the appeal procedure laid down by the legislature in the 1998 Act, such an application would involve a quite different question from that which is normally raised on an appeal. In an application to this Court in its wardship jurisdiction, the question is not whether the decision of the Children’s Court, or of the District Court on appeal from the Children’s Court, was right or wrong or whether the wide powers conferred on a Court under the 1997 or 1998 Acts were rightly or wrongly exercised or could have been better exercised. The question before this Court will be: what is in the best interests of the child as matters stand at the date of this Court’s judgment. It may be that the circumstances revealed in, or flowing from, the decisions of the lower Courts have a great part to play in the consideration of that question, but they will not necessarily be conclusive. Indeed, in certain circumstances what transpired in the lower Courts might be utterly irrelevant to the question before this Court in the exercise of its inherent jurisdiction.”

From 16 August to 30 August 2019

28. The Court will now consider the evidence about the events that occurred between Kunc J’s judgment on Friday, 16 August 2019, and the further hearing held on Friday, 30 August 2019. Evidence from the Department and the plaintiff is considered. But this is not a final hearing. The Court is merely evaluating this evidence with a view to seeing if its parens patriae jurisdiction should be invoked.

29. As Kunc J observed in his judgment of 16 August 2019, (at [24]): “given the broad and beneficial nature of the parens patriae jurisdiction, what constitutes ‘exceptional circumstances’ will necessarily be very specific to the facts of the particular case”. In the application before his Honour, he was satisfied the mother had demonstrated exceptional circumstances to warrant the Court at least considering the application. On 16 August 2019, those circumstances were that a very important point was about to be reached in the young person’s treatment – his discharge from hospital to out of home care; it being common ground that the Children’s Court would not be able to consider the boy’s situation before the impending date of his discharge.

30. Although Kunc J was satisfied there were exceptional circumstances allowing the mother’s application to be considered, those circumstances still did not warrant his Honour acceding to the mother’s application. In light of such a recent decision from another Judge of this Court on the same kind of application by the plaintiff, the question of “exceptional circumstances” will need to be considered with close focus upon events occurring since 16 August 2019.

31. After Kunc J’s decision on 16 August 2019, the Department’s evidence is that the case worker charged with management responsibility for the young person communicated with the young person about Kunc J’s orders. At the time of those orders, the young person was still in hospital and it was planned for him to be discharged on Monday, 19 August 2019. But over the weekend of 17 and 18 August 2019, he removed his NG tube and resisted replacement of it on the morning of Monday, 19 August 2019.

32. The discharge proceeded on 19 August 2019, because the young person weighed 49.8 kilograms and was regarded as sufficiently robust to proceed with the discharge plan. Accordingly, he was discharged on the basis that he would be trialled without the NG tube for up to 72 hours and, if he consumed 2,700 calories each day orally, the NG tube would not be reinserted. But if he did not consume the required intake, the medical staff informed the Department to bring him back to hospital for reinsertion of the NG tube.

28. Discharge proceeded with the young person being transported to a serviced apartment, not to his home, as planned. According to the Manager Casework’s reports, transportation went well and the young person and maternal grandparents visited the apartment where he was housed and had dinner with him. It is understood from the Department’s evidence that the young person ate a “fast food” meal at the encouragement of the maternal grandparents on this occasion.

29. The young person has accessed the NDIS and has funding to support his accommodation in a serviced apartment. Contact took place between the case worker and the mother on 20 August 2019, with a view to organising a schedule of the mother’s future contact with the young person, to allow the young person to settle into his new environment, and to spread out visits between him and various members of the family.

30. But on Tuesday, 20 August 2019, the young person refused all invitations and encouragement to eat during the day from the selection of foods identified on his food chart prepared by the hospital. The Department’s evidence suggests the young person assisted the case worker in preparing his meal, but was unable to bring himself to eat it.

31. However, later that evening, the other care workers were successful in engaging the young person to select a meal for himself that was not on the food chart, in the nature of what will be described as again “fast food”. The meeting did take place on 20 August 2019 between the case worker, the Manager Casework, and the mother at 4pm. A meeting which, on the Departmental officer’s side, appeared to proceed well.

32. As the young person was, according to the Department, not meeting the 2,700 calories per day intake over the course of Monday evening, 19 August 2019, to the morning of Wednesday, 21 August 2019, he was returned to hospital. The plan was for him there to have a four hour feed that evening with his NG tube replaced and then he would return to his placement at the apartment.

33. But by later on 21 August 2019, the young person had refused to be transported to the hospital and an ambulance was called. He was admitted to the hospital’s medical ward for assessment.

34. Between 21 August 2019 and the hearing on 30 August 2019, the young person remained at the hospital. There, according to the Manager Client Services, who was reporting information from the medical staff: “since his readmission staff have continued to work with [the young person] around his eating and the recommendation remains that he should have 2,700 calories per day via NG tube until the amount of calories he eats each day improves”.

35. According to the Department’s evidence, the young person had visits from his school teacher in hospital during this period, but he declined to be involved in school work and refused to go to the school room with other adolescent patients in the same ward of the hospital.

36. On 22 August 2019, both the case worker and the Manager Casework visited the young person in hospital, and, due to his refusal to communicate verbally, they communicated with him in writing about his reluctance to eat, his readmission to hospital, and his views about returning home. The young person’s mother visited him the same day, but was supervised by the case worker and the Manager Casework. According to the case worker and the Manager Casework, this was regarded as a successful visit. The mother engaged in encouraging the young person to return to the serviced apartment.

37. On 23 August 2019, the father spent an hour and a half with the young person supervised by case workers. The father encouraged the young person to eat, but he refused. The father visited over the weekend on Saturday, 24 and Sunday, 25 August 2019, encouraging the young person to eat and drink, although he refused. The young person did continually ask the father to take him home. The father explained that he (the father) was no longer living at home and that, in any event, he could not take the young person home until he ate and drank as requested.

38. Since the young person’s readmission on 21 August 2019 and up until Monday, 26 August 2019, two attempts were made to proceed with non-compliant feeding using the NG tube. The young person was held down and mechanical restraints applied to his wrists, and the NG tube was inserted on these occasions. But the young person managed to pull the NG tube out, despite the mechanical restraints. On the second occasion, sedation was used but it was insufficient to stop the young person from removing the NG tube. Following these attempts on Monday, 26 August 2019, a medical decision was taken not to attempt to insert the NG tube with or without sedation, unless the young person’s medical condition deteriorated to the point of him requiring emergency intervention for re-feeding. According to the Department’s evidence, that issue was kept under observation.

39. On 26 August 2019, contact took place between the mother and the case worker about the mother having contact visits on 29 and 30 August 2019, the visits being planned to take place over lunch time so the mother could assist the young person to eat. But by 28 August 2019, the mother had contacted my chambers with a view to the matter being re-listed. She sought the rescheduling of her contact visits to lunchtime on Wednesday, 28 August 2019, and in the evening on 29 August 2019.

40. Prior to the hearing on 30 August 2019, some observations of the case worker were available about these two meetings (of 28 and 29 August) which took place in the presence of the case worker. On the available evidence, all that can be said is that contradictory evidence is available about these meetings. The case worker presents a picture of tension between the case worker and the mother about what food the young person will eat: the case worker pressing upon the young person that healthy food choices were required; the mother apparently seeking to provide “fast food” that the young person was demanding.

41. In the absence of cross-examination, and in an interlocutory matter in the Duty List, the Court is not well equipped to make findings of fact. All that this survey of the evidence can do is to indicate the nature of the evidence that is available to support an application to engage the Court’s parens patriae jurisdiction.

42. The mother’s evidence presented a picture that coincided with that presented by the Manager Client Services in many respects. But in other respects, her evidence was in tension with the Department’s. These reasons will only mention some areas of difference. The mother squarely blamed the “total inability of FACS to care for or even feed [the young person]”, as a reason for his readmission to hospital. She is critical of the conditions in which the young person is held in the adolescent ward of the hospital. She says the young person only eats “food I take in for him and only talks to family members”. She observes that the young person continues to be subjected to force feeding by NG tube on a daily basis. But she claims that he will eat food from her. Although some of what she describes he will eat is in the nature of “fast food”. She records his current preference for being discharged home rather than to “the apartment”. She says that he becomes non-verbal during interactions with hospital staff, but is always happy to speak to her.

43. Finally, the mother gives an account of her meeting with the young person on 29 August 2019. She agrees that she took “fast food” to him but complains that he appeared “overly medicated and stuporous”. She expressed the view in her affidavit: “I feel that [the young person] is being deliberately starved or denied food that he wants to eat”. At the conclusion of her affidavit, the mother seeks the young person’s return to her care as soon as possible. She complains this has been a “terrible ordeal for me and my family” and states that the young person’s “family needs support”. But she says that she feels that “FACS has punished me and my family”.

44. In his 16 August 2019 judgment, Kunc J (at [38]) expressed the view that “there was a real question in relation to [the mother’s] parenting capacity which the mother would have to address”. His Honour indicated that it should be addressed “in an orderly and well prepared hearing in the Children’s Court rather than in the necessarily exigent circumstances of a hearing in the Duty List”.

45. Since the hearing on 16 August 2019, the mother has submitted to examination by a consultant psychiatrist who has reported, in substance, that she appears mildly eccentric but has no clear major psychiatric illness, does not require medication or psychological treatment, and is capable of caring for the young person. The mother asks for this additional evidence to be taken into account.

46. Finally, at the request of the Crown Solicitors’ Office, the treating paediatrician of the young person provided a report on 30 August 2019, as to his up to date medical condition. That report expresses the following consensus of opinion between the paediatrician, the health team associated with the young person’s care and officers of the Department, as follows:

“Discussion between FACS and Health team continue at last weekly.

We agree:

*   Discharge is not considered safe at this time.

*   [The young person] is not demonstrating good decision-making.

*   We do not think [the young person] will co-operate with carers if returned to his family home.

*   We do not believe that returning him to his family home is in his best interests.”

52. The evidence from the paediatrician in charge of the young person is that an acceptable weight for him is 45 kilograms; the weight that he achieved before he was discharged from the Sydney Children’s Hospital earlier in the year. But, the day before the hearing, on 29 August 2019, his weight had reached 46.9 kilograms.

The Submissions

53. The plaintiff submitted that: the current cycle of hospital admissions and readmissions are not in the young person’s best interests; he had failed to thrive under the care of the Department and he wants to be at home with his mother; and, therefore in his best interests, he needs to be at home with his mother.

54. The plaintiff submits the Court should find that: the Department has been very heavy handed in its approach to the young person and his family; the Department had been overly critical of the parents, who have done their best with a very high needs young person, suffering from a complex condition; and, the parents’ difficulties should be measured against the failure of the Department’s authorised care, which has not been able to meet the young person’s needs outside the hospital.

55. The plaintiff submits that the evidence of the consultant psychiatrist shows that she has resolved any doubts about her capacity to care for the young person and that he should be discharged into her care.

56. The plaintiff submits, through Dr McConaghy, that, were the young person to be discharged again into the care of the Departmental officers in the apartment, it can be expected that the young person will go through a period of refusal to eat and to cooperate, and will end up back in hospital; the only way to break the cycle is for him to go home with family support. The urgent need for this, she says, is to be inferred from the severity of the physical restraints placed upon the young person, for force feeding and over medication and sedation.

57. Finally, the mother submits that she has now demonstrated through the consultant psychologist that she is psychologically able to receive the young person back into her care.

58. The Court has not set out the submissions of Mr Anderson put on behalf of the Department. Those submissions are considered in the course of the Court’s analysis below of the plaintiff’s submissions.

59. The third defendant, the father, made written and oral submissions supporting the discharge of the young person from hospital into the mother’s care. Although his submissions came from an independent perspective, the father’s submissions strongly emphasised the anguish to the young person and to his family of merely keeping him alive at a subsistence level, and emphasised that the young person’s own views about returning home are not being taken into account. The independent representative of the young person supported the position taken by the Department, but put separate argument in support.

Analysis of the Plaintiff’s Submissions and Consideration

60. The Court does not discern exceptional circumstances to warrant any intervention at this time of the kind sought by the plaintiff in the Court’s parens patriae jurisdiction. The application will be dismissed and the Further Amended Summons will be adjourned to a date after the hearing in the Children’s Court, commencing on 11 November 2019. The Court has reached that conclusion for the following reasons.

61. First, exceptional circumstances must be judged at this time. The young person is in hospital. There is no indication he is going to be discharged in the course of the next week, before the matter returns to the Children’s Court on 9 September 2019. There is no basis for the Court, in its parens patriae jurisdiction, to order the discharge of the young person from the hospital contrary to current medical advice. The plaintiff certainly did not put any such submissions.

62. That means that any orders that the Court might make now about the discharge of the young person into the care of the mother, with full parental responsibility – discharging the 27 February 2019 interim care orders – would only become operative when the young person left hospital. Early discharge is presently contraindicated. The Court cannot see that there is any call for the exercise of parens patriae jurisdiction in circumstances where interim orders could be sought under Care Act, s 90AA next Monday, 9 September 2019, before the President of the Children’s Court in the ordinary and regular conduct of the care proceedings.

63. Secondly, for all the reasons of principle explained by Palmer J in Re Victoria (2002) 29 Fam LR 157, the Court is cautious about interfering in the Children’s Court’s jurisdiction, particularly when the Children’s Court is seized of the matter and is planning towards an already listed hearing with allocated time for a proper contest on the important issues to be considered.

64. The difference between the Duty List and the Children’s Court is most important in the present circumstances. I have held a Duty List hearing in three hours, without cross-examination, surveying the evidence at a reasonably high level to see whether parens patriae jurisdiction should be engaged. The Children’s Court has pre-set a seven day hearing in two months’ time. The important questions about the plaintiff’s mental health and capacity to parent the young person if he is discharged into her care, the nature of the young person’s response to different regimes of in-home care and care in an apartment under the parental responsibly of the Minister, and proper expression of the young person’s wishes cannot take place in the Duty List. The pre-existing hearing in the Children’s Court is far better adapted for the proper testing and consideration of those issues. This is a strong case for leaving the matter in the Children’s Court on those grounds alone.

65. Thirdly, there are risks in the Court’s intervention. Were the Court to intervene now in exercise of parens patriae jurisdiction and to restore the young person to the mother, and the weight loss which had occurred that required his hospitalisation last year were to reoccur, the circumstances would potentially become very different. If he were to be re-hospitalised on that ground, the fluidity of the situation may well mean that the Children’s Court hearing in November might have to be adjourned. This would not be in the best interests of a young person, who would have already lost close to a year of schooling at a critical part of his life.

66. Fourthly, the Court is mindful of the obvious physical consequences of overcoming the young person’s resistance on occasions to being fed by NG tube. But despite the inability of the Court in the Duty List to test the mother’s allegations of mistreatment of the young person in the hospital, the quality and the detail of the Departmental and the medical evidence suggest there is a very strong case to support the conclusion that the medical interventions in this case are proportionate, appropriate and centred entirely on the welfare of the young person. Indeed, the detailed chronology which the Court has set out above, of the events in the last two weeks involving Departmental officers and medical personnel, shows an active and close support that gives the Court confidence that a sound case can be made at a final hearing to counter what the mother says about the treatment of the young person. The Court is not deciding this question, but is dealing with it the only way that it can without testing.

67. These reasons have already recorded serious allegations of what would amount to professional misconduct made by the mother in her affidavit and in her submissions against treating medical staff at the hospital. It must be said that many of these allegations seem either inherently improbable or unlikely to be substantiated at a final hearing in their most severe form. This causes the Court to doubt how strong the mother’s case of mistreatment against the medical staff will be at final hearing. This observation considerably undermines the perceived urgency of the mother’s present application.

68. Fifthly, the issue of the mother’s mental health is not resolved by her production of the consultant psychiatrist’s report. The psychiatrist has not been tested under cross-examination, as no doubt he will if, and when, the matter appropriately comes before the Children’s Court. It is too simplistic in a hearing such as this for the mother to say that the psychiatric report has cleared her as fit to accept the young person into her care and reverse the orders of the Children’s Court. The best way for that assessment to be made is for her consultant psychiatrist to be cross-examined, for her to be cross-examined and for the tribunal of fact, the Children’s Court, to decide her fitness to undertake parental responsibility on that primary evidence and any other relevant evidence.

69. The plaintiff should return to the Children’s Court. If so advised, she can seek interim relief next Monday, under Care Act, s 90AA. This Court will not engage it’s parens patriae jurisdiction at this time. The plaintiff’s application will be dismissed.

70. The Further Amended Summons remains on foot. To clear the way for the Children’s Court to proceed to case manage its care proceedings, the Further Amended Summons will be adjourned to Monday, 2 December 2019 to await the outcome of the Children’s Court proceedings.

71. The first and second defendants ask for costs in the event that this application was dismissed. The Court will order that the plaintiff pay the first and second defendants’ costs of this application. The first and second defendants warned the plaintiff that an application for costs would be made if she was unsuccessful. As the plaintiff so recently brought another unsuccessful application before Kunc J, another discretionary reason exists to make an order for costs.

Conclusion and Orders

72. For these reasons, the Court makes the following orders and directions:

1. Dismiss the plaintiff’s application for relief brought by oral motion on 30 August 2019.

2. Order the plaintiff to pay the first and second defendant’s costs of the application on 30 August 2019.

3. Adjourn the Further Amended Summons to the Registrar’s List on Monday, 2 December 2019.

4. Withdraw the liberty to apply granted by Kunc J on 16 August 2019.

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Amendments

03 September 2019 - [2] delete "registered" before medical practitioner.

References to the interim orders of the Children’s Court made on 20 February 2019 changed to 27 February 2019.

[4] "in-patient" changed to "inpatient"

[6] "Ms K. Wooi appeared on behalf of the young person’s independent legal representative" changed to Ms K. Wooi appeared on behalf of the young person as his independent legal representative."

[9] “The mother has invoked" changed to “The mother has sought to invoke".

[64] “ pre-set a five day hearing….” to "seven day hearing".

Decision last updated: 03 September 2019