GR v The Department of Communities and Justice

[2021] NSWSC 1013

Supreme Court

New South Wales

Medium Neutral Citation:

GR v The Department of Communities & Justice [2021] NSWSC 1013

Hearing dates:

11 August 2021

Decision date:

11 August 2021

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

Application refused and Dismissed

Catchwords:

CHILD WELFARE — Care proceedings — Care order — Appeal from care order of Children’s Court — Application to stay or set side care order

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae

Category:

Procedural rulings

Parties:

GR (plaintiff)
Department of Communities & Justice (first defendant)
Minister for Families, Communities & Disability Services (second defendant)
The Father (third defendant)
Independent Legal Representative for the child

Representation:

Counsel:
M Anderson (first & second defendants)

Solicitors:
Self represented (plaintiff)
Crown Solicitors of NSW (first & second defendants)
Father (self represented)
K Wooi (independent legal representative for the child)

File Number(s):

2020/123080

Judgment – ex tempore

1. This morning I was asked to convene an urgent hearing by GR on the basis that her son, AB, was facing a medical emergency which required the Court to entertain an application pursuant to the parens patriae jurisdiction.

2. Her email to the Court is dated today and it was sent at 12.26pm. She indicated in other emails that in relation to her appeal she was providing written submissions on the medical evidence and other materials.

3. Not for the first time since I have heard the evidence over ten days very recently, she again requests that the parens patriae jurisdiction be invoked so that AB is placed immediately back in her care and in her home. Today it is said that as result of left hip pain which has occurred this week, and which she submits is suggestive of a reoccurrence of septic arthritis of his hip as a blood‑borne infection from inadequately treated chronic toe infection for months and severe malnutrition in the care of FACS.

4. She then goes on to state in the email that it is a medical emergency which is not being treated, and then further makes some other submissions about the Delta COVID in the western suburbs of Sydney, his weight and other matters which she asserts are also life‑threatening.

5. It is clear that for the parens patriae jurisdiction to be invoked there must obviously exist, exceptional circumstance. That is explained in many judgments of the Court and I do not propose to refer to them this afternoon.

6. The background to the application appears to be an email sent at 3.32pm yesterday afternoon from Ms Amy Eldridge to the father and to GR. The email, which is part of a twice weekly update, indicated that AB had been experiencing some pain in the left side of his hip.

7. It appears that Dr Moussad, the general practitioner, visited AB last week, encouraged him to move around more and advised the care team that AB should take some Panadol.

8. Another appointment had been scheduled with Dr Moussad and apparently that has taken place, and the parents were told they would be updated. They were given other material about his care; about what he had been doing. Attached to the email are three photographs. Two show him sitting on a lounge and one shows him on his feet, mobile, standing over a side cupboard in the living room, I presume, in the house where he lives.

9. Because of the urgency of the application, neither GR nor Mr Anderson who appears for the Secretary nor Ms Wooi the ILR have provided any affidavit materials. I simply have the emails referred to.

10. GR has made some oral submissions based upon what she asserts was a conversation she had with Dr Moussad when she seemingly rang him at his surgery. Dr Moussad is the general practitioner who was familiar with AB and has seen him on a number of occasions.

11. Mr Anderson has informed me that the issue concerning AB’s hip was first noticed by Dr Madden some little time ago and has been looked at by Dr Moussad. It is proposed that scans will be done in the near future.

12. As far as I am concerned at the moment, based upon what I am told AB has been eating well and from the photographs I have seen and the other information which I have received from Mr Anderson, I do not regard the current situation as giving rise to the so‑called medical emergency such that it is appropriate to invoke the parens patriae jurisdiction.

13. More to the point, this is not the first time GR has made application that AB be returned home to her care. That is the very matter that I have spent ten days listening to evidence about and two subsequent applications by her on 23 July and 4 August, also said to be on the basis of different medical emergencies, one in relation to blood tests and one in relation to the possible administration of Olanzapine or Prozac. I was not satisfied on those occasions that AB is either in danger or in peril from a medical point of view.

14. If some difficulty does arise, where he currently is, it seems to me, is the best place for him to be. He is near a major teaching hospital and if an emergency were to arise - probably against the odds - as I currently understand his present situation he is in the best possible position to be cared for should the need arise.

15. On the evidence before me this afternoon I am not satisfied that there are any exception circumstances and I do therefore refuse the application to intervene pursuant to the parens patriae jurisdiction.

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Decision last updated: 12 August 2021