GR v The Department of Communities and Justice

[2021] NSWSC 983

Supreme Court

New South Wales

Medium Neutral Citation:

GR v The Department of Communities & Justice [2021] NSWSC 983

Hearing dates:

4 August 2021

Decision date:

04 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 — Care proceedings — Care order — Order to prevent giving of certain medical treatment to child in care without leave of the Court or written consent of the mother

CHILD WELFARE — Care proceedings — Contact 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)
Ms Stolier (Independent Legal representative for the child)

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

File Number(s):

2020/123080

Judgment – ex tempore

1. This matter came on urgently at GR’s request pursuant to a notice of motion which she filed on 3 August 2021, seeking a great deal of relief, 12 paragraphs in all.

2. She indicated, in an email of 3 August 2021 at 2.21pm, that she was seeking Orders  5 and 6 be made before 5 August as DCJ is “presenting to Dr Madden on 5 August for administration of Prozac and depot olanzapine for side effects of artificial weight gain I will send an affidavit by tomorrow”.

3. Paragraph 5 of the notice of motion seeks an order that the first and second defendants are to comply with public health and stay‑at‑home orders for AB, her son. Paragraph 6 seeks an order in the nature of an injunction, that the first and second defendants are not to administer any medications, medical treatments, vaccines or hospital admissions for AB without the leave of the Court or the plaintiff’s written consent, except treatment of his vitamin and iron deficiencies.

4. I have convened this hearing at short notice in order to accommodate GR. I have also heard this afternoon, with my leave, from AB’s father, who made submissions. I have just concluded a lengthy hearing which concerns an appeal from a decision of the Children’s Court concerning AB. The father, although originally a party, chose not to participate in the hearing. I, however, did not wish to prevent him from saying whatever he might wish to say this afternoon, presumably in support of the notice of motion. For that limited purpose I gave my leave for him to appear and make submissions.

5. During the course of her submissions, and indeed the father’s submissions. very little, if anything, has been said about the pretext upon which I was asked to convene an urgent hearing. Much of what has been said today about AB’s weight loss and the approach to be adopted in relation to his weight loss, has been a dominant theme not only in the written outline that has been filed in support of the notice of motion, but in GR’s affidavit of 4 August 2021.

6. Indeed, much of the material in her affidavit of 4 August, but for para 12, as best I can read it, is devoted to matters which are the subject of the appeal before me and which I will reserve upon after I hear her on Friday in final submissions. Much of what GR has said this afternoon, and much of what the father has said, is repetitive of matters said on many occasions during the course of the appeal hearing.

7. The appeal hearing took place before me between 5 and 16 July. The last day of the hearing was required for the completion of oral testimony. I had arranged that the parties were to provide written materials to me. GR has done that, as have the other parties. For more abundance of caution, I inquired of each of the parties whether they wished to be heard orally. GR has indicated that she does wish to be heard orally, and that is to take place at 2 o’clock this Friday, 6 August.

8. Those proceedings before me have involved some 31 volumes of court books, additional exhibits, and, of course, oral testimony from many witnesses, medical specialists, case workers, psychologists, and the like. After Friday, I will reserve my decision and one of the topics which undoubtedly I will deal with in the course of the judgment is the weight loss issue to which some prominence was given in the latter course of the hearing.

9. Dr Sloane Madden, a treating doctor at Westmead has seen AB and apparently will see him tomorrow. I say “apparently”, but that will turn upon the current lockdown arrangements, and I have had no indication one way or the other whether that appointment can or will take place. It may or may not. I simply do not know. However, if it does take place, I will make an assumption that all relevant safety orders and lockdown procedures will be followed, especially given the fact that it is at a public hospital.

10. I will not say any more about the weight gain issue now because it is not the focus of what I understand this notice of motion was about this afternoon. However, I will hear from GR on Friday about that issue and the significance that it has in terms of her parenting capacity and the terms of any orders I should make about AB remaining in his current care. I cannot see any relevance of that situation to the proceedings this afternoon.

11. The motion this afternoon - which, as I say, GR has really not addressed at all except only in passing - proceeds upon a basis that there is an assertion that AB, according to her email of 3 August, was, it seems to me, to be administered Prozac and depot olanzapine. There is no evidence before me of either of those events occurring. They have not occurred as yet, as far as the evidence goes.

12. The prospect of any administration of “fluoxetine”, otherwise known as Prozac, comes out of an email sent to GR and the father on 23 July 2021 at 1.25pm from Ms Amy Eldridge. Ms Eldridge says in the email:

Since his appointment at Westmead Children’s Hospital last week, [AB] has expressed some interest in the medication mentioned by Dr Madden, fluoxetine. [AB] is putting a lot of thought into making the decision about whether or not he wants to take this medication and put together a list of questions. These questions have been sent off and are awaiting a response.

13. That email indicates to me, first, that no medication of that kind has yet been administered. It also indicates to me that, on its face a process of informed consent is potentially underway.

14. AB may or may not, as indeed Dr Madden explained in the course of his evidence in the transcript before me at T.357, when discussing vitamin supplements with AB, decide he does not wish to take any medication. It is a matter, it seems to me, given his capacity to give informed consent, for him to consider one way or the other whether or not he wishes to take any medication. He has, as far as there is evidence before me, not been on any medication since his discharge from Westmead sometime in the middle of last year and certainly has not had olanzapine administered.

15. I am of the view that there is simply no evidence upon which any Court acting pursuant to the parens patriae jurisdiction could possibly intervene on the basis of the injunction relief sought. There is simply no suggestion that the first and second defendants are, or have, failed, or are likely to fail, in any public health or stay‑at‑home orders in relation to AB.

16. In addition there is simply no evidence at the moment that any medication has been administered or is likely to be administered without AB’s informed consent. There is simply no basis in the evidence before me which would suggest that an urgent hearing of this sort should lead to any injunctive relief and therefore I do not propose to grant it.

17. So far as the weight gain is concerned, that is an issue which is before me on Friday. The father has had his say this afternoon about that as well. My judgment on the appeal will be given as promptly as I am able to do so. The application is therefore dismissed.