GR v Secretary, Department of Family and Community Services and Justice (No 4)

Case •

[2020] NSWSC 457

•

28 April 2020

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: GR v Secretary, Department of Family and Community Services and Justice & Ors (No 4) [2020] NSWSC 457
Hearing dates: 24 April 2020
Date of orders: 24 April 2020
Decision date: 28 April 2020
Jurisdiction:Equity - Protective List
Before: Kunc J
Decision:

Amended summons dismissed

Catchwords: FAMILY LAW – Children – Parens patriae jurisdiction – Mother’s appeal from decision of Children’s Court now the appropriate vehicle for mother’s attempts to recover child
Cases Cited: GR v Secretary Department of Family and Community Services and Justice and Others (No 2) [2019] NSWSC 1725
GR v Secretary, Department of Family and Community Services and Justice & Ors (No 3) [2020] NSWSC 259
GR v Secretary Department of Family, Families, Disabilities and Community Services [2020] NSWCA 79
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:

 

The Mother (Plaintiff in person)

 

M Anderson (First and Second Defendants)
D Brezniak (The Father)
E Stolier (Child’s independent legal representative)

 

Solicitors:

  Crown Solicitor (First and Second Defendants)
K Wooi (Child’s independent legal representative)
File Number(s): 2019/62836
Publication restriction: No

Judgment

Summary

  1. This judgment may be conveniently read as a continuation of my judgment in GR v Secretary, Department of Family and Community Services and Justice & Ors (No 3) [2020] NSWSC 259 (“No 3”). These reasons should be read in conjunction with that judgment.

  2. After a hearing last Friday, which itself was adjourned briefly while the Court of Appeal delivered its judgment in GR v Secretary Department of Family, Families, Disabilities and Community Services [2020] NSWCA 79 (the “CA Judgment”), the Court determined a notice of motion brought by the first and second defendants (the “Department”) for the dismissal of the mother’s amended summons in these proceedings.

  3. That motion was granted because:

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

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

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

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

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

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

  2. The procedural restraints which have been imposed by the Court in relation to urgent applications by the mother to the Duty Judge.

  1. The orders which I made last Friday, and which are the subject of these reasons, were:

1.   Subject to Orders 3 and 4, dismiss the proceedings including the Amended Summons dated 5 March 2019.

2.   Subject to Orders 3 and 4, vacate all previous orders in the proceedings other than any costs orders.

3.   In relation to [the mother]’s notice of motion dated 3 April 2020:

(1)   Dismiss that notice of motion with the exception of prayers 5, 10 and 11, that dismissal being without prejudice to [the mother’s] right to seek similar relief in her appeal to this Court from the judgment of the Children’s Court;

(2)   The dismissal of the proceedings in Order 1 is not intended, subject to further order, to prevent [the mother] continuing to prosecute prayers 5, 10 and 11 of her notice of motion dated 3 April 2020.

4.   Until further order, order that the Court’s earlier orders in these proceedings concerning urgent applications to the duty judge by any of [the mother] and [the father] are to continue, being:

(1)   Orders of Kunc J made on 18 March 2020, as amended by

(2)   Orders of Robb J made on 2 April 2020.

5.   Confirm that so much as remains of [the mother]’s notice of motion dated 3 April 2020 is listed for directions before the Registrar on 27 April 2020.

6.   List the proceedings for directions before Kunc J on 27 April 2020 at 4:30pm.

  1. On the hearing of the Department’s motion, the mother appeared for herself. Mr M Anderson of Counsel appeared for the Department, Mr D Brezniak of Counsel appeared for the father and Ms E Stolier of Counsel appeared for the child’s independent legal representative.

Procedural history

  1. In paragraph [7] of No 3 I set out a list of the numerous judgments which the litigation in relation to the child has produced. The CA Judgment and these reasons should now be added to that list.

  2. By her amended summons dated 5 March 2019, the Mother seeks these orders:

1.   Set aside interim care order of FACS of [the child], DOB XX/2004.

2.   Urgent child recovery order of [the child], DOB XXX2004, to the care of his mother XXX in his own home at XXXX Avenue XXXX.

3.   This summons to be returnable instanter.

4.   Order FACS is to take no further action against [the child] until further order of this Court.

5.   Costs for this application.

  1. On 29 November 2019, after a two day hearing, I made orders (the “Remaining Orders”) which included:

“1.   Orders that until further order of this Court or the Children’s Court of New South Wales the first and second respondents by themselves, their servants or agents, consent to and, to the extent necessary, cooperate in the implementation of the proposed treatment plan for [the child] set out in Annexure A to these orders.

2.   For the avoidance of doubt, Order 1:

(a)   does not prevent the suspension, variation or amendment of that plan by [the child’s] treating doctors if they consider it to be in [the child’s] best interests to do so;

(b)   does not require the first and second respondents to consent to or cooperate in any such suspension of, or variation or amendment to, that plan.

…

8.   Confirms the following orders made on 16 August 2019 by Kunc J:

“2.   Permit any combination of his parents or grandparents not exceeding two persons to visit [the child] not less than twice weekly unless the Minister for Families, Disabilities and Communities (the “Minister”) or his delegate is of the view that any particular visit should not take place.

3.   Promptly notify each of his parents (if possible, not less than 24 hours before) of any proposed or actual hospitalisation of [the child] and the reasons for it.

4.   Permit each of the parents, if they wish, to be trained in the use of the nasogastric tube for [the child] and any other specific training that has been or will be given to [the child’s] carers.

5..   Subject to the ultimate control and decision of the Minister or his delegate in consultation with the relevant health or other professional, permit each of the parents, if they wish, to be present at and, where appropriate, participate in therapeutic sessions or medical or psychiatric examinations of [the child].””

  1. I explained the rationale for those orders in my judgment GR v Secretary Department of Family and Community Services and Justice and Others (No 2) [2019] NSWSC 1725 (“No 2”):

“50   Appropriate behaviour on the part of the child’s parents is in the best interests of the child because it is a step along the way to demonstrating that the child could (not should) be returned to where the law and the community regard any child as properly belonging, namely in the care of his or her parents in the absence of significant circumstances demonstrating that such restoration is not in the best interests of the child. The child’s parents should be left in no doubt by what I said to them during the course of the hearing, and now reiterate in what follows. The Court’s objective in making the orders which I did in August and at the conclusion of this most recent hearing, is to ensure that if the Children’s Court, in the exercise of its specialist jurisdiction, does not ultimately return parental responsibility to the mother or father or both of them, it will not be for want of them having been given every possible opportunity (subject only to the safety and wellbeing of the child) to demonstrate that such a return was in the best interests of the child.”

  1. On 5 March 2020, the Department filed its notice of motion (which is the subject of this judgment) and sought relief which included:

  1. That all previous orders in these proceedings be discharged.

  2. That the amended summons filed on 7 March 2019 in proceedings 2019/62836 be dismissed.

  1. On 6 March 2020 I stood over that notice of motion to the Registrar’s List on 10 August 2020 and granted liberty to the Department to apply to my Associate to restore the motion if “it appears that any amendment is required to any earlier order of this Court as a result of the final orders to be made by the Children’s Court as a consequence of the judgment of the President of that Court delivered on 27 February 2020”. I made that direction because the mother had acceded to my suggestion that her amended summons (see paragraph [7] above) be stood over, in effect, to abide the outcome of her foreshadowed appeal from the Children’s Court. The Department relisted its motion pursuant to the liberty which I had granted once the final orders of the Children’s Court had been made.

  2. On 3 April 2020, by a further judgment published on that date, the President of the Children’s Court accepted the adequacy of an amended care plan in relation to the child and made these final orders:

1.   Any previous orders are hereby rescinded.

2. Pursuant to s. 79(l)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act"), all aspects of parental responsibility for [the child], born XX XXX 2004 “[the child]") are allocated solely to the Minister for Families, Communities and Disability Services, until he attains 18 years of age.

3. Pursuant to s. 82(1) of the Act, the Secretary, Department of Communities and Justice is to file reports with the Court at six (6) months and eleven (11) months from the date of these Orders addressing, amongst other things:

a.   Information in relation to [the child's] medical health, well-being and progress of any treatment he is receiving;

b.   Details relating to [the child’s] placement including any interventions and supports he is receiving; and

c.   An update regarding [the child’s] contact with each of his parents.

  1. The President’s further judgment explaining those orders included:

“94   The Amended Care Plan, which incorporates the Proposed Treatment Plan ordered by Justice Kunc, is not inconsistent with any orders of the Supreme Court. I am satisfied that the permanency planning, having regard to those documents, has now been appropriately and adequately addressed. …

97   The new Minute proposes a Prohibition Order against the mother pursuant to s 90A of the Care Act, which is designed to prevent her from speaking to the child about any court proceedings, or about him returning home.

98   Whilst such an order might have the appearance of desirability, it was not raised in the substantive hearing as an option, nor has the mother had a proper opportunity to address the proposal or make submissions about it.

99   In any event, such an order would in my view be futile, as this Court would not trust the mother to comply with it.

100   A better course would be to restrict the mother’s capacity to interact with the child so as to disable her ability to continue to damage the treatment of the child in this way. I am not able to do that, by reason of the orders of the Supreme Court.”

  1. The amended care plan which the learned President took into account in making the final orders provided that each of the mother and father would have contact with the child for a minimum of once a month for a period of two hours, with the contact being dependent on the child’s wishes (my emphasis).

  2. On the same day (3 April 2020), the mother filed a notice of motion in these proceedings which sought:

1   This notice of motion is to be returnable instanter and heard by Kunc J, as a contempt of his Honour’s orders.

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

3   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.

4   Stay the Final Care Order of Children’s Court Case 2018 / XXXX.

5   Summary Charge of Contempt of Court against the 1st to 12th defendants as servants and agents of the 1st and 2nd defendants as in the Statement of Charge attached to this Notice of Motion

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

7   Order that expert witness Professor Stewart Einfeld and up to two other expert witnesses be given access to [the child], his carers, and his entire medical records at one hour’s notice.

8   Order unrestricted unsupervised daily visits for both parents 7 days a week anytime, including on weekends and public holidays until [the child] is discharged to his parents.

9   Order that the 1st and 2nd' defendants pay all of the applicant and 3rd defendant’s ongoing costs and costs to date of transport, accommodation, meals and incidentals since 15 March 2019 within 2 days, due to their moving [the child] and the Children’s Court application to Sydney.

10   Costs for this application and moiety.

11   Any other orders the Court sees fit.

  1. On 9 April 2020, the mother filed a notice of motion in the Court of Appeal which sought:

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

2   Order that the first and second respondents are not to remove [the child] from his home or any other place in his mother’s care without leave of Kunc J of the Supreme Court or of the Court of Appeal

3   Order that the NDIS funding for [the child] be returned to his mother, [XXX] control forthwith

4   Costs against the first and second respondents

5   This Notice of Motion is to be returnable instanter.

  1. That notice of motion was dismissed by the CA Judgment delivered on 24 April 2020.

  2. On 24 April 2020, the mother filed her summons commencing her appeal from the decision of the Children’s Court. Because that appeal is from a decision of the President of that Court, the appeal lies to a single judge of this Division.

The child’s current circumstances

  1. On 15 April 2020, acting in accordance with the advice of the child’s treating doctors, the child was discharged from hospital to live in out of home accommodation under the 24 hour supervision of care workers. This occurred after what was described by the hospital as “successful establishment of two regular meals a day, with weight stability at ~ 42kg”. According to the evidence, from 17 April 2020 the child ate some meals, albeit intermittently and irregularly. On 21 and 22 April he refused food and was readmitted to hospital.

  2. A report from one of the child’s treating paediatricians made on 23 April 2020 recorded:

“At breakfast, he asked “What do I need to get out?”. We reiterated to [the child] that to be safely discharged, and to remain at home, he needed to eat two main meals and 600ml of water a day. With his [carer’s] support, he was able to eat a sufficient quantity of carbohydrate and protein for breakfast. He has had 600ml of water.”

  1. At the hearing before me on 24 April 2020, I was informed by Mr Anderson that his instructions were that it was hoped that the child would be discharged from hospital on that day, but that had not yet occurred.

The parties’ submissions

  1. With no disrespect intended to the careful way in which they were put, the submissions made on behalf of the Department and the independent legal representative may be summarised as:

  1. The child’s condition was such that there were no longer exceptional circumstances warranting any current intervention by this Court in its parens patriae jurisdiction.

  2. To the extent they still apply, the Remaining Orders are inconsistent with a regime that has been put in place pursuant to the final orders of the Children’s Court, including in relation to contact between the child and his parents.

  3. It would be wrong to characterise the child’s readmission as a “failure” of the treatment plans that had been made for the child. The complex nature of the child’s needs meant that the process of transitioning him into the long-time care of his carers was likely to be “two steps forward, one step back” which could, from time to time, necessitate hospitalisation.

  1. Mr Brezniak, on behalf of the father, submitted that, with limited practical exceptions (for example there probably being no need for the parents now to be educated in nasogastric feeding), the Remaining Orders should continue. He drew attention to these matters:

  1. The child’s latest hospitalisation was the fourth or fifth failed attempt to transition the child from hospital. The approach which the Department had taken to the child’s care was a “failed approach”. There should not be another repeat.

  2. The child was now being subjected to another group of carers. There was no consistency in the identity of his carers.

  3. While everyone accepted the expertise of the Associate Professor in charge of the child’s care and his team at the hospital, the fact remained that the father and mother had tendered the evidence of two other experts who disagreed with the child’s treatment.

  4. The time had come for “someone to have the courage” to concede that the Department’s approach to the care of the child had not worked and that the child was now on a hunger strike to achieve the child’s oft stated objective of being returned to the care of his mother at home. He submitted that the approach of one of the parent’s experts should be followed:

“A person of authority whom [the child] still trusts, should say to him “I’m going to send you home tomorrow …, but only if you agree to two things. First, that you will eat enough to maintain a satisfactory weight and, second, that you will allow yourself to be weighed twice weekly. If you do not do this, you will be returned to hospital.” And I would get him to write this out, so that we are sure he knows the plan. Subsequently, that person should say to the parents, “I will send [the child] home tomorrow on one condition, and that is that you allow him to be weighed by the visiting community nurse twice weekly at a time to be specified. If you do not, [the child] will be returned to hospital.”

  1. It was essential for the child that he see that his parents have not abandoned him. It will be very traumatic for the child if his parents gave him the message that they were giving up. That is the message that would be transmitted to the child if the current orders were vacated so that, under the arrangements authorised by the Children’s Court, the parents would now be reduced to seeing the child for only two hours a month. It was essential, in the best interests of the child, for the more liberal contact arrangements under the Remaining Orders to continue.

  1. The mother adopted the submissions made by Mr Brezniak on behalf of the father. She also emphasised, in the strongest terms, her fear that the child would die if he were not restored to her care.

Consideration

  1. I accept the Department’s submission that, notwithstanding his rehospitalisation, the evidence is clear that the child’s medical circumstances are not so serious as to constitute exceptional circumstances warranting the continuing intervention by this Court in its parens patriae jurisdiction. When that fact is combined with the Children’s Court having now made final orders, including on the basis of a contact plan inconsistent with that provided for in the Remaining Orders, the outcome in the Children’s Court should prevail (unless and until altered on appeal). Applications in the parens patriae jurisdiction are not to be made in a way which circumvents the prescribed appellate process from courts of specialist jurisdiction.

  2. The conclusions in the preceding paragraph are sufficient to warrant the Remaining Orders being vacated. As the learned President noted (see paragraph [13] above), not everything in the Remaining Orders was inconsistent with the final outcome in the Children’s Court. On the other hand, the existence of those orders meant that at least one course which the President wished to have followed in relation to the mother was not open to him (see paragraph [100] of the President’s judgment quoted in paragraph [13] above).

  3. Turning to the terms of the Remaining Orders themselves, Remaining Orders 1 and 2 have, in any event, expired in accordance with their terms. Order 1 was made until further order of the Children’s Court. Such an order was, on any view, made on 3 April 2020 when that Court’s final orders were made. Furthermore, the proposed treatment plan referred to in Order 1 (the terms of which appear in the Annexure to No 2) related to a process up the point at which the child might leave the hospital. Events have now moved on.

  4. Insofar as the orders referred to in Remaining Order 8, they were made in very different circumstances. The purpose of those orders as explained in No 2 is reproduced in paragraph [9] above. At the time those orders were made, the child was still in hospital. There had been no determination by the Children’s Court about his future care arrangements or in whom parental responsibility would be vested. The purpose of the regime which I ordered was to give the parents an opportunity to demonstrate their suitability to care for the child in a way that might be able to be taken into account at the hearing in the Children’s Court. Given the Children’s Court proceedings have now concluded, the purpose of those orders has now been completely spent.

  5. What I have written thus far explains why, to the extent they had not already expired according to their terms, the Remaining Orders were vacated. The reason why the proceedings themselves should be terminated by the peremptory dismissal of the amended summons is slightly different. As is apparent from the amended summons set out in paragraph [7] above, the purpose of these proceedings brought by the mother is to recover the child. The mother has now filed her appeal from the decision of the Children’s Court. That appeal seeks to overturn the decision of the Children’s Court and for her to recover parental responsibility for the child. It is an abuse of process for there to be two sets of proceedings extant which, in effect, seek the same relief. Subject to the two reservations which I set out below, there is now no proper purpose for the continuation of the present proceedings. I therefore dismissed the amended summons .

  6. As a matter of procedure, the appeal is now the appropriate vehicle for any interlocutory regime that the mother may wish to seek from the Court. So much was also apparent from Mr Brezniak’s submissions which I have set out in paragraph [23] above. As I put to him during the course of argument, what those submissions were really directed to was putting into place a regime that was inconsistent with the final orders of the Children’s Court pending the determination of the mother’s appeal.

  7. Such an application, and arguments to that end, are not to be entertained in these proceedings. If the mother chooses to make an application to like effect in the appeal proceedings, that is her right. The juridical basis for that application will be different to the present case, because it will not involve the parens patriae jurisdiction. Any such application will have to be determined by reference to the principles which govern what relief the Court might grant pending an appeal.

  8. The amended summons was dismissed subject to two reservations.

  9. First, in her motion dated 3 April 2020 (see paragraph [15] above) the mother included prayers for relief in relation to alleged contempts of the Court’s orders. Whatever the merits of that application, the Court has not been specifically asked to dismiss it summarily. So much of that motion as relates to the claim for contempt should be allowed to survive the dismissal of the balance of the proceedings, so that the claim can continue to be case managed in the ordinary course by the Registrar.

  10. Second, in No 3 I made orders intended to put some restraint on the mother’s frequent applications to the Duty Judge. My orders were themselves further refined by subsequent orders made by Robb J. The history of this matter suggests that the mother, and perhaps the father, will continue to make urgent applications in relation to the child pending the determination of the mother’s appeal. As I acknowledged in No 3, the child’s circumstances are such that a future requirement for urgent intervention in the parens patriae jurisdiction cannot be excluded.

  11. It follows that my and Robb J’s orders in relation to how the parents can approach the Duty Judge should also survive the substantive termination of these proceedings, until further order. Those orders will therefore apply to any urgent application which the mother may make to the Duty Judge within her appeal proceedings.

  12. In that context, I should record my acceptance – on the basis of the Department’s evidence as it was before me – that the description of the child’s future treatment as “two steps forward, one step back” is likely to be accurate. I respectfully repeat and add my agreement to this observation made by Basten JA in the CA judgment:

“11.   None of this is to deny that the parents, both of whom participated in the hearing before me, have deep concerns as to the ongoing health and wellbeing of their son, and hold fears for his future which appears to be out of their control. They were clear and articulate in the expression of these concerns. What is troubling, however, is their apparent belief that those who are caring for their son, or are responsible for caring for their son, do not share their concerns for his health and wellbeing. There is more than one view as to the treatment he should be receiving and the place where he should reside. Those differences of opinion have been addressed at length in the Children’s Court which is the proper primary jurisdiction in such matters. …”

  1. It is to be hoped that, in particular, the mother will come to understand that not every set back or vicissitude which the child may experience during the course of the implementation of the outcome in the Children’s Court will justify the urgent intervention of this Court in its parens patriae jurisdiction. It is very much to be hoped that such a circumstance does not arise. If it does arise, and the mother is able to provide medical evidence in support, then the Court will deal with that application. In the meantime, I urge the parents (as I have on previous occasions) to co-operate fully and respectfully in the implementation of the current arrangements for the child under the parental responsibility of the second defendant. For them to do so is in the child’s best interests and by no means inconsistent with their diligent and expeditious preparation for the hearing of the mother’s appeal.

  2. Finally, while these reasons were being prepared, the Court was informed that the Department did not seek any costs orders in relation to the proceedings, over and above those that may have already been made in the past. It was therefore not necessary for me to make any costs order to complete the orders which were made at the conclusion of last Friday’s hearing.

**********

Decision last updated: 28 April 2020

Actions
Download as PDF Download as Word Document