GR v The Department of Communities & Justice

[2021] NSWSC 1081

Supreme Court

New South Wales

Medium Neutral Citation:

GR v The Department of Communities & Justice [2021] NSWSC 1081

Hearing dates:

5, 6, 7, 8, 9, 12, 13, 14, 15, 16 & 23 July, 4, 6 & 11 August 2021

Decision date:

27 August 2021

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See paras [863]-[869]

Catchwords:

CHILD WELFARE — Care proceedings — Care order — Appeal from care order of Children’s Court — Application to set side Final Care Orders — Whether Children’s Court had jurisdiction to make Final Care Orders — Best interests of the child — Whether child should be restored to the mother’s care — Whether factors leading to assumption had been addressed

Legislation Cited:

Acts Interpretation Act 1987 (NSW) s 9

Adoption Act 2000 (NSW) s 126

Children’s Court Act 1987 (NSW) s 22A

Children’s Court Regulation 2019 (NSW) cl 5

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 8, 9, 44, 60, 71, 72, 79, 82, 83, 86, 90, 91, 93, 99C, 233, 247

Evidence Act 1995 (NSW) ss 69, 140

Family Law Act 1975 (Cth) s 69ZK

Supreme Court Act 1970 (NSW) s 23

United Nations Convention on the Rights of the Child 1989

Cases Cited:

A v Secretary, Department of Communities and Justice (No. 4) [2019] NSWSC 1872

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542

Allesch v Maunz (2000) 203 CLR 172

Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19

Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853

Briginshaw v Briginshaw (1938) 60 CLR 337; [1938] HCA 34

Clark v State of New South Wales (No 2) [2006] NSWSC 914

Director-General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217

Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138

Fox v Percy (2003) 214 CLR 118

Galea v Galea (1990) 19 NSWLR 263

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177

GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146

GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198

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

GR v Secretary, Department of Family and Community Services and Justice & Ors [2020] NSWSC 607

GR v The Department of Communities & Justice and Ors [2020] NSWSC 1622

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

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

GR v Secretary, Department of Communities and Justice [2021] NSWCA 51

GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157

Hackett (a pseudonym) v Secretary, Department of Communities and Justice (2020) 379 ALR 248; [2020] NSWCA 83

Hamod v NSW [2011] NSWCA 375

JE v Secretary, Department of Communities and Justice (No 2) [2020] NSWCA 243

Johnson v Page [2007] Fam CA 1235

M v M (1988) 166 CLR 69

MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46

NU v Secretary of Family and Community Services (NSW) (2017) 95 NSWLR 577; [2017] NSWCA 221

Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA

R v Gidley (1984) 3 NSWLR 168

R v Zorad (1991) 19 NSWLR 1

Re AB (No 2) [2019] NSWSC 566

Re Baby A [2008] FamCA 417

Re Georgia and Luke (No 2) (2008) 40 Fam LR 247; [2008] NSWSC 1277

Re M; Application of YA [2014] NSWSC 1736

Secretary of Department of Community Services; Re “Sophie” [2008] NSWCA 250

Secretary, Department of Health and Community Services v JWB and SMH (Marion’s Case) (1992) 175 CLR 218

SL v Secretary, Department of Family and Community Services [2016] NSWCA 124

Texts Cited:

Report of the Special Commission of Inquiry into Child Protection Services in NSW, November 2008

Category:

Principal judgment

Parties:

GR (a pseudonym) (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:
Dr D Kell SC, M Anderson (first & second defendants)
Ms E Stolier (Independent Legal Representative for the child)

Solicitors:
Self represented (plaintiff)
Crown Solicitors of NSW (first & second defendants)
Ms K Wooi (Independent Legal Representative for the child)

File Number(s):

2020/123080

Judgment

1. These proceedings concern AB, a child born in 2004. The plaintiff, GR, is the boy’s Mother and is a litigant-in-person. AB is represented by an Independent Legal Representative (“ILR”). The first defendant is the Secretary, Department of Communities and Justice, and the second defendant is the Minister for Families, Communities and Disability Services. On 10 June 2021, AB’s father (the third defendant) sent an email to the Court and the other parties informing them that he did not wish to seek restoration of AB to his care, but sought contact (TB 29/65 p 12151). In that email, he indicated he would not participate in the appeal. The father also filed an affidavit affirmed 9 June 2021 (TB 28/10 p 11806-11826).

2. AB will turn 17 in October 2021. He has been diagnosed as suffering from Autism Spectrum Disorder. The severity of his autism as observed over time has been difficult to detect (see, e.g., Dr Kable’s 2019 diagnosis of Social Communication Support Level 2, Behaviour Support Level 3 at TB 4/17 p 1385; Associate Professor Madden’s diagnosis of Level 3 in both aspects at T.327/24-25). On some diagnoses, AB has associated Selective Mutism, and Avoidant Restrictive Food Intake Disorder (“ARFID”). AB has, at times, restricted the amount and types of food he will eat, which has resulted in inadequate caloric intake. He has also exhibited deficiencies in his self-care and independent functioning.

3. The proceedings are an appeal against the final orders of the President of the Children’s Court of New South Wales, Judge Johnstone, dated 3 April 2020 (“CCJ2”), made pursuant to s.79 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). The appeal is brought by summons dated 24 April 2020 (TB 15/121 pp 6295-6301).

4. The final orders of the President of the Children’s Court, dated 3 April 2020, are at TB 15/119, pp 6263-6265. By paragraph 2 of the final orders, the President ordered that:

Pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”), all aspects of parental responsibility for [AB] … are allocated to the Minister for Families, Communities and Disability Services, until he attains 18 years of age.

5. Prior to the making of the final order, parental responsibility for AB had been vested in the Minister for Families, Communities and Disability Services (the “Minister”) pursuant to an interim order made by the Children’s Court at Broadmeadow on 27 February 2019 (“CCJ1”) (TB 15/143 p 6393).

6. GR appeals to this Court against the final orders pursuant to s.91 of the Care Act. Because the final orders were made by the Presidential Children’s Court, an appeal is to the Supreme Court (Equity Division), rather than the District Court (s.22A(2) of the Children’s Court Act 1987 (NSW) and cl.5(1)(a) of the Children’s Court Regulation 2019 (NSW)).

7. By her summons, GR seeks an order setting aside the final orders of the President of the Children’s Court and, in its place, an order that the proceedings brought in the Children’s Court by the Secretary of the Department of Communities and Justice (the Secretary) be dismissed. GR also seeks a “[r]ecovery order” for AB to be returned to her care.

8. The Secretary and the Minister (collectively, the “Secretary”) seek to have the orders of the Presidential Children’s Court confirmed, and the appeal dismissed, pursuant to s.91(5) of the Care Act.

9. These proceedings were initially to commence in November 2020. As a result of applications made by GR seeking judicial review of the initial care order and dismissal of the ILR, the hearing could not proceed at that time. In the course of giving judgment on those other issues I appointed a guardian ad litem (see GR v The Department of Communities & Justice and Ors [2020] NSWSC 1622). The Court of Appeal refused GR leave to appeal the issues of judicial review and the ILR, but granted leave to oppose the appointment of the guardian ad litem (GR v Secretary, Department of Communities and Justice [2021] NSWCA 51). My decision to appoint the guardian ad litem was subsequently set aside in GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157.

10. Following the 10-day hearing of these proceedings, GR made numerous additional applications to set aside the Children’s Court orders, purportedly invoking the parens patriae jurisdiction of the Court. On 23 July, I convened an urgent hearing at the request of GR who had made separate application for AB to be returned to her care, prior to the giving of this judgment. On 4 August, the matter again came before me on an urgent basis at GR’s request pursuant to a Notice of Motion filed on 3 August seeking a great deal of relief, including to prevent Associate Professor Madden from treating AB with Prozac and depot Olanzapine (GR v The Department of Communities & Justice [2021] NSWSC 983). On 11 August, GR asked the Court to convene a further urgent hearing on the basis that AB was facing a medical emergency requiring the Court to entertain an application pursuant to the parens patriae jurisdiction (GR v The Department of Communities & Justice [2021] NSWSC 1013). None of these applications was supported by any independent expert evidence and each was rejected.

Preliminary matters

Conduct of the Appeal

11. A great deal of material was before the court in the current proceedings, including a 31-volume tender bundle (“TB”) and further exhibits tendered during the hearing.

12. The trial plan involved the Secretary calling a select number of witnesses and an invitation to GR to nominate those she wished to call. The process adopted was that the person nominating the particular witness conducted an examination of chief, followed by cross-examination.

13. Both parties, especially GR, subpoenaed a large quantity of documents from hospitals. Although GR complained about the volume of material tendered I am satisfied she at all times had access by hard copy and / or USB to all of the evidence, including hospital records as redacted to remove certain names and phone numbers among other sensitive information (see T.505/39-507/2).

14. In addition to the oral testimony and the materials before me during the hearing, I also admitted into evidence a later report from Professor Einfeld dated 13 July (Ex.R9), some later materials from Associate Professor Madden (Ex.R18) and also a subsequent report provided by Dr Saker (Ex.A1).

15. GR requested on several occasions for AB to be called to give evidence or that I meet with him (T.527/33-34; see also Transcript of directions hearing on 18 June 2021 at T.9/41-T.10/1-44; Transcript of directions hearing on 31 May 2021 at T.4/37-39), a sentiment that was shared by one of her witnesses, Dr Lucire (T.368/37). I, however, refused these requests, preferring not to subject AB, given his condition to the obvious stress associated with giving evidence (T.368/38-39) and not regarding myself as competent either to make an assessment of his condition or its severity. In other words, I did not regard myself as being in a position properly to evaluate his responses. In addition, in my view, trial judges should avoid the possibility of becoming a witness in the proceedings they are hearing.

Background Facts

16. The learned President of the Children’s Court made comprehensive and thorough factual findings in his February 2020 judgment, CCJ1, which is an important and relevant backdrop to the orders he made on 3 April and against which the appeal is brought. As far as I can detect, the factual material is in effect largely uncontroversial. To give but one example is that on 23 August 2019, AB was subjected to what is described as a non-compliant feed (CCJ1 at [188]; TB 4/17 p 1317). He was restrained by mechanical restraints and fed by nasogastric tube. This was frequently the centrepiece of numerous statements made by GR. It is not an issue that this occurred, but the characterisation of it is disputed by GR.

17. The learned President made reference in the course of his detailed factual findings to numerous events and, without criticism, without referencing the court book or exhibits. I have, however, gone through each of the paragraphs [13]-[214] in particular of his February 2020 judgment and identified in the tender bundles before me the various records underpinning such findings. I am satisfied these findings were appropriate and open to President Johnstone. The records relied upon by the President are on any view business records and contemporaneous diary and / or clinical records which support the findings he made. I propose therefore to make similar findings partly due to the fact that the material is not nor could be controversial but also provides context for the appeal.

18. What follows rather than a mere repetition of each paragraph in President Johnstone’s chronology are summaries to avoid undue repetition. For ease of reference I will make reference to both the CCJ1 paragraphs and, where relevant, the corresponding paragraphs in the tender bundle.

19. AB was born on 24 October 2004. GR and her husband were married in Melbourne in November 2000. The educational and other biographical background to the parents is to be found in [13] to [23] inclusive in CCJ1.

20. In the proceedings before the learned President the father informed the Court that AB’s disabilities were apparent early in his life. He also informed the Court that he had left his job to become AB’s primary carer whilst the mother ran her general medical practice in Charlestown (CCJ1 [24]-[25]).

21. As a result of a recommendation by the school principal, a formal psychological assessment was obtained from Ms Kerrie Baker, a child development psychologist in Newcastle. AB was assessed as having an Autism Spectrum Disorder and identified a series of issues including social and communication problems, poor hygiene, obsessions and limited diet (CCJ1 [27]-[28]; TB 1/3 p 211).

22. AB completed kindergarten at Charlestown South Primary School in 2010. The assistant principal commented on the difficulties he faced in organising himself in relation to activities and that he regularly did not finish his lunch or recess (CCJ1 [30]-[31]), TB 1/3 p 341).

23. Dr Lee Sturgeon, a consultant clinical psychologist, in his report of 17 January 2011 commented on a number of behavioural difficulties on the part of AB. He made a number of recommendations to assist the parents with AB’s behavioural problems, including dietary issues (CCJI [32]-[33]; TB 9/61 pp 3556-3557)

24. While attending Charlestown South Primary School from 2011 to 2015 the father informed the Court that AB was frequently shunned and bullied in the playground (CCJ1 [34]).

25. In the meantime, GR was experiencing stress at work and consulted a psychologist Mr Constable in relation to “marital difficulties”. The father left the home it seems for a period in 2012 (CCJ1 [35]-[37]).

26. GR also consulted Dr Russel Davies who on 18 May 2012 reported on other problems associated with a lack of sleep and appetite and litigation in relation to an investment property (CCJ1 [38]-[39]; TB 10/84 p 4310).

27. Further difficulties arose in relation to the child’s behaviour which was deteriorating, and it seems manifesting itself with increasing violence towards his father. As a result, the child underwent an Occupational Therapy Assessment with Ms Rhiannon Pilgrim, an occupational therapist in July 2015 CCJ1 [40]-[41], TB 1/3 pp 198-205).

28. In or about 2015, AB moved from Charlestown South Primary School to New Lambton South Public School and to an opportunity class where he was much happier and more willing to attend (CCJ1 [42]-[43]; TB 1/3 p 173).

29. On 3 April 2016, DCJ received a Risk of Serious Harm (ROSH) report in relation to the child, alleging concerns for the mother's mental health in misdiagnosing the child's condition to medical professionals and that the mother discharged the child from hospital against medical advice (CCJ1 [44]; TB 1/3 pp 206-210).

30. On 21 September and 12 October 2016, Ms Kerrie Baker carried out comprehensive diagnostic assessments of the child "to review his developmental progress and ongoing needs, to assist with school planning, particularly to assist with the transition to high school" in 2017. She prepared a detailed Psychological Assessment Report (CCJ1 [45]; TB 1/3 p 211-214).

31. Ms Baker reported (CCJ1 [46]; TB 1/3 p 211, 213):

During an initial appointment with the father, he expressed ongoing concerns regarding the child's behaviour at home related to his ongoing high sensitivity to smell, obsessive interests around computer technology and gaming, poor hygiene and his increasing aggression shown at home ...

... the child had been attending regular psychology intervention due to the difficulties in his behaviour at home ... he experiences difficulty responding to limits and boundaries that are attempted to implement particularly around bedtime, meals and reducing the time spent engaging in obsessive interests...

There has been an escalating level of frustration and aggression as the child responds negative to a range of situations at home, with particular demands on his father, who is the main carer…

Of concern is the child's continuing behavioural disturbance which continues to occur within the home setting, with limited response of the family to be able to implement consistent boundaries and behavioural strategies to manage his quite difficult behaviour.

32. Ms Baker recommended (CCJ1 [47]; TB 1/3 p 214):

1. The child will need support as he transitions and adjusts to a new school and to develop friendships. He will need ongoing monitoring ...

2. The child and his family require intensive family based psychological intervention around the significant behavioural issues that occur at home ...

3. In conjunction with this intensive family therapy intervention, a review by a psychiatrist is highly recommended ...

4. The family need ongoing respite and support ...

5. Occupational therapy intervention in regard to his sensory sensitivity ...

6. The child needs ongoing support and intervention to develop his social communication and social thinking skills ... to enable him to interact with peers ...

7. To develop his understanding of social interaction, reading cues, and in general to develop his social thinking skills ...

8. Ongoing support and funding through the National Disability Insurance Scheme (NDIS) ...

33. In December 2016, the family set out on a cruise to the USA and South America. There were two particular episodes on the cruise when AB became violent and the parents had to call security. These events are set out in detail in CCJ1 at [48]-[49]. They are also elaborated upon in the report of the ship’s doctor Mark Mason MD in his report of 26 December 2016 (CCJ1 [50]; TB 9/61 p 3567). As a result of these events the family had to disembark at the first suitable port.

34. The doctor’s report records the mother had gone ashore in Valparaiso, Chile, and purchased Olanzapine, an anti-psychotic over the counter. This was the subject of a strenuous contest both before the learned President and before me. The account set out in Dr Mason’s report was strenuously contested by GR. I deal with this matter later in the judgment.

35. The balance of events which occurred prior to disembarkation and after the family arrived in the United States is at CCJ1 [51]-[53].

33. Upon return to Australia in early 2017, AB commenced secondary school at Newcastle Grammar School. However, as a result of bullying at school, he refused to attend and stopped attending altogether in Term 2 (CCJ1 [54]; TB 1/3 p 217, Letter from Dr Lee Sturgeon to Dr Colin Kable, dated 10 July 2017).

34. The violence by AB against his father persisted. Further details are provided at CCJ1 [55]-[56]. However, AB was very dependent on his father and often experienced separation anxiety (CCJ1 [57]; see, e.g., TB 4/17 p 1378).

35. On 23 March 2017, DCJ received a ROSH report that in her capacity as a general practitioner, GR was administering the child with Olanzapine, an antipsychotic drug. This was put into his water without his knowledge (CCJ1 [58]; TB 1/2 p 27-31).

36. The evidence before Judge Johnstone established that the mother acted as doctor for her son (CCJ1 [59]):

There are two prescriptions for the child (then aged 12 years) for Olanzapine, on 19 January 2017 (quantity of 28 with 5 repeats) and again on 22 March 2017 (quantity of 28 with 5 repeats). Olanzapine is an antipsychotic agent and the AMH lists its indications as schizophrenia and related psychoses, and bipolar disorder ... ": G v Medical Council of NSW [20 18] NSWCATOD 186 at [118].

40. The ROSH report of 23 March 2017 also alleged that AB had disclosed that GR had beaten him with an open hand (CCJ1 [60]; TB 1/2 p 30).

41. On 2 May 2017, DCJ received a ROSH report raising concerns about hoarding and trip hazards in the home and AB not attending school regularly. It also made allegations about GR belittling the father (CCJ1 [61]; TB 1/2 p 32-37).

42. On 8 May 2017, DCJ received a ROSH report regarding AB’s behaviour, physically harming his father, including giving him a "fat lip" (CCJ1 [62]; TB 1/2 p 38-42).

43. On 15 May 2017, DCJ received a non-ROSH report alleging that GR had disclosed that AB was bashing his father and that they needed immediate respite for the child (CCJ1 [63]; TB 1/3 p 179, 236). On 16 May 2017, DCJ received a non-ROSH report alleging domestic violence perpetrated by GR against the father, (including disclosure by the father that GR had threatened to kill him with a knife in AB’s presence), that AB was not attending school, and that a fireman had attended numerous times to remove AB’s barricades for his own safety (CCJ1 [63]; TB 1/3 p 241).

44. On 18 May 2017, DCJ received a non-ROSH report alleging that AB’s parents’ relationship was becoming violent and AB had not been attending school since 9 May 2017 (CCJ1 [64]; TB 1/3 p 246). On 19 May 2017, DCJ received a non-ROSH report in which the reporter expressed concerns regarding AB’s level of functioning and the fact that he screams, runs away, and barricades himself in his room when GR is home (CCJ1 [64]; TB 1/3 p 251).

45. On 31 May 2017, Newcastle Grammar School prepared an attendance action plan in which it was noted that the child had missed 51 days of school out of 77 (CCJ1 [65]; TB 9/61 p 3610).

46. The child’s matter was allocated a caseworker by DCJ and the family was linked with various services set out in [66]-[67] of CCJ1; TB 1/3 p 180, Affidavit of Lisa Williams, 20 July 2018 at [29])

47. DCJ was unable effectively to engage with GR and she cancelled all the services offered and attempts at home visits failed as well (CCJ1 [68]; TB 3/16 p 3720).

48. Instead, GR consulted Dr Colin Kable, a child and adolescent psychiatrist from Educare. She wrote the referral herself "as the child had a long history of refusing to see a GP". He saw AB in June 2017, with the father, and again in July, with GR. There was a further appointment on 6 December 2017, which the father attended (CCJ1 [69]; TB 4/17 p 1377).

49. Dr Kable provided a long and detailed report which is dated 20 February 2019 (CCJ1 [70]; TB 4/17 pp 1377-1385).

50. In that report, Dr Kable recorded, amongst other things, the following (CCJ1 [71]; TB 4/17 pp 1377-1385):

The child and his family have a pattern of interactions that has been evolving since he was quite young ... specialist resources were recommended but not followed up.

To date he has not co-operated with services including those that would normally be in place for someone with his disability ...

He is stubborn, controlling and uses threats and physical violence to property and to his father to achieve desired outcomes ...

His behavioural problems are largely confined to his parents and home ...

In spite of intelligence he is psychologically and socially quite impaired ...There is a longstanding pattern of giving him things that he has asked for. However, the demands have increased, and he has used progressively more severe aggression to obtain what he wants. This has been both destructive for his family and to his own development.

It is difficult to see how he will be able to live independently unless there is significant progress over the next few years ...

There is conflict between the parents about how to manage the child and both see problems in the other's parenting ... the child has a hostile dependant relationship with his father and he has rejected his mother ...

The child's hygiene has been a long-term problem that has worsened over time and is probably related to sensory issues. Weight loss is another concern that could point to an underlying medical illness but is thought to be due to his poor diet...

Separation anxiety has been present for a long time. It would have been exacerbated by his father's repeated threats to leave him ...

51. Dr Kable made a number of recommendations, including (CCJ1 [72]; TB 4/17 pp 1384-1385):

• "Any interventions need to include addressing parental factors that may be perpetuating the child's problems …

• Medical monitoring of his weight, health and nutrition involving a GP is essential

• He may also benefit from being taught anxiety management and self soothing strategies ...

• The problems remain outside the scope of individual practitioners…They require an informed and co-ordinated approach, and ideally involve specialist services in Sydney…”

52. On 13 June 2017, Ms Helen Keevers, the Managing Director of Justiz Community, advised DCJ that the service had been visiting AB each weekday since 5 June 2017, trying to get him to go to school, unsuccessfully. Soon after, the father advised DCJ that GR did not want to have anything more to do with Justiz, and their service were terminated (CCJ1 [73]; TB 4/17 p 1331).

53. On 18 June 2017 the child was admitted to the Emergency Department of John Hunter Hospital following the father calling police to the home because of AB assaulting him. After the child settled at hospital, the father took him home (CCJ1 [74]; TB 4/17 pp 1332-1334).

54. On 10 July 2017, Psychologist, Lee Sturgeon saw the child and his father. Dr Sturgeon reported (CCJ1 [75]; TB 1/3 pp 217):

The child is one of the most controlling, aggressive and mentally unwell children that I have seen in many years. He is using his intellect, combined with violence and substantial paranoia to control his parents, especially his father ... His school attendance is now non-existent... he is spending all of his time in his bedroom accessing unknown material without supervision.

55. Dr Sturgeon noted (CCJ1 [76]; TB 1/3 p 216):

The child has clearly worked out that he can manipulate his father and not so much his mother who also spends much of her weekdays at work ... He will have nothing to do with his mother. He will not enter a room where she is and he will leave a room if she is present…The father stated that he is a prisoner in his own home. He attempts to meet every demand the child presents to him and if he does not, he fears for his safety as the child will attack him and destroy the house ...

56. Dr Sturgeon had firm views (CCJ1 [77]; TB 1/3 p 217):

I strongly support an admission to a service such as Redbank House or Coral Tree, or the family support services at Rivendell.

I do not see that community support for an adolescent who is paranoid, generally suspicious, violent, possibly experiencing auditory hallucinations, barricading himself in his bedroom, losing weight and unable to manage his personal hygiene is going to be effective, especially when he is also noncompliant with medication and appointments ...

57. On 6 September 2017, AB attended the Emergency Department of John Hunter Hospital with right hip pain (CCJ1 [78]; TB 2/11 p 679).

58. On 19 October 2017, GR told DCJ that AB needed to be put into "voluntary care" as his behaviours were too extreme for her to manage and she asked the caseworker, Ms Marrone, to "come and get him". Ms Marrone and another caseworker, Mr Parker, went to the family home, where GR met them outside. The caseworkers explained the effect of a Temporary Care Agreement (TCA) but GR told them AB had calmed down and that removing him from the home environment would cause him to escalate. GR refused the caseworkers request to go inside and talk to AB (CCJ1 [79]; TB 1/1 p 14, 1/3 p 186).

59. On 24 October 2017 DCJ caseworkers visited the home. On arrival the father was visibly upset saying he wanted to leave the residence as he felt there was no more he could do for his son and his controlling and physical behaviours. AB was refusing to eat or drink. GR thought the child was suffering from mental health issues such as psychosis and psychotic episodes. She blamed the father, "due to dad's mothering since he was a baby." The child was not attending school (CCJ1 [80]; TB 1/3 pp 302-303).

60. The parents resisted subsequent attempts by caseworkers to carry out a home visit on 15 November 2017, and 28 November 2017 (CCJ1 [81]; TB 1/3 p 186 Affidavit of Lisa Williams, 20 July 2018, at [75]-[76]).

61. On 1 December 2017, DCJ caseworkers attended at the home where they observed a work van in the driveway. The father explained that AB had damaged some property. The workman told them he had replaced a glass door upstairs, and that this was the second time he had done this. The father would not allow the caseworkers inside as it was GR’s house and she did not want them inside. The father also told them (CCJ1 [82]; TB 1/3 pp 307-308):

He was not the barrier to the child being able to access help ... He feels that he has been the one to ask for help ... and that this is always stopped by the mother ... He believes that the child has separation anxiety from him and that the mother suffers from separation anxiety from the child ... The father believes that the child hates his mother but does not know the reason why.

62. On 5 December 2017, the director of student services at Newcastle Grammar School informed the father that the teaching staff felt they could not support AB academically without collaboration with external people (CCJ1 [83]; TB 1/3 pp 309-310).

63. The father it seems reported further episodes of concern (CCJ1 [84]; TB 1/3 pp 309-310).

64. Discussions then took place as a result of Dr Kable’s recommendations (CCJ1 [85]–[86]; TB 1/3 pp 313-314, 315-317).

65. On 20 December 2017, the father rang DCJ caseworker Tina Zart complaining about AB’s behaviour and that of GR, saying he was the victim of domestic violence from them both (CCJ1 [87]; TB 1/3 pp 318-319):

The father said that he knows he needs to leave however he is afraid that the mother will make false allegations against him in relation to him hurting the child. He said that this has happened before.

66. Ms Zart told the father that DCJ was considering "putting this matter before the Children’s Court because our assessment is that it is not okay the way that either parent responds to AB’s needs and in fact perpetuates his behaviours” (CCJ1 [88]; TB 1/3 p 318).

67. During January 2018 AB’s uncontrollable misbehaviour continued. He was presented to emergency at John Hunter Hospital on 6 January following another episode of violence (CCJ1 [89]; TB 2/11 p 679).

68. A meeting was held on 18 January 2018 at the Newcastle Grammar School, attended by GR, in which it was decided to have a further assessment of AB (CCJ1 [90]; TB 1/3 p 323-324).

69. On 26 February 2018, Dr John Waring, clinical psychologist had a short interview with AB followed by a long interview with the parents, attending by phone. He reported that the child’s presentation was of a selectively mute boy “could not or would not respond to any of my approaches” (CCJ1 [91], TB 1/3 pp 328-329).

70. In his report he stated (CCJ1 [92]; TB 1/3 p 329):

Given the significant deterioration in his presentation over the last twelve months, it was my recommendation to his parents that the child requires a more supportive educational environment with a higher staff to student ratio ... the child requires a thorough psychiatric evaluation ... this would best be done by returning to see his previous psychiatrist, Dr Colin Kable…

71. Dr Kable, however, declined to become further involved with the family, recommending that he undergo blood tests to determine whether there might be something neurological impacting on his behaviours. CCJ1 [93]; TB 2/5 pp 482-483). Thereafter DCJ attempted, unsuccessfully, to arrange an appointment for AB with the paediatrician and psychologist at John Hunter Hospital (CCJ1 [93]; TB 2/5 p 431 Affidavit of Lisa Williams, 17 August 2018, at [31]-[32]; TB 5/2 p 502).

72. The family situation deteriorated further, the details of which are set out in CCJ1 at [95] (TB 1/3 p 190 Affidavit of Lisa Williams, 2 July 2018, at [105]-[109], TB 1/3 pp 343-348).

73. A decision was then made to remove AB from Whitebridge High School and enrol him at Lambton High School (CCJ1 [96], see, e.g. TB 1/3 p 264]).

74. Further, concerns began to emerge in relation to AB’s physical condition, with his weight having considerably reduced over the previous two years. A review was undertaken at John Hunter Hospital on 22 May 2018 attended by AB and his parents. Also involved were Ms Emma Prowse (psychologist), Dr Nagarsekar (Clinical Director Child and Adolescent Mental Health Service, and Dr Kate Thomson Bowe (staff specialist paediatrician). The assessment was limited by reason of AB remaining mute throughout. It was noted that AB had "moved from the 50th centile in weight to height, to the 10th centile" and he weighed 38 kg. It was considered that he was at risk of complications due to malnutrition, and that he should be admitted as an in-patient to enable his food and fluid intake to be monitored. The father agreed, but GR felt in-patient treatment was not required (CCJ1 at [97]; TB 4/17 p 1347).

75. Dr Thomson Bowe prepared a report dated 13 June 2018 in which she noted (CCJ1 [98]; TB 4/17 p 1341):

We recommended that…the child needs to have a dietitian review and regular GP review and weight... We also recommended Behaviour support including but not restricted to ... some rules in the home ... intense family support, speech pathology, occupational pathology and a psychologist.

76. On 25 May 2018, AB commenced at Lambton High School (CCJ1 [99]; TB 1/3 p 191, Affidavit of Lisa Williams, 20 July 2018, at [112]).

77. On 22 June 2018, a meeting was held at John Hunter Hospital between DCJ Caseworkers Lisa Williamson and Kate Fitzgerald, and NSW Health staff including Ms Jade Starkey, Acute Team Leader, Dr Nagarsekar, and Dr Kate Thompson Bowe, at which a Health Plan was formulated. It proposed a two-week admission as an in-patient to monitor AB’s food and fluid intake, assess daily functioning and behaviours, review the need for medication, and to develop a safety plan. Following this limited admission, the Health Plan proposed a return of AB to the community with the family to be supported by services funded by NDIS (CCJ1 [100] ]; TB 1/3 pp 361-362).

78. It was also determined that a team of health professionals would be formed to provide continuity of care and daily review on weekdays, consisting of Dr Thomson Bowe, Dr Nagarsekar, Ms Louise Jones from Consultation Liaison Psychiatry, and a nominated paediatric registrar (CCJ1 [101]; TB 1/3 pp 361-362).

79. However, when caseworkers attended at the family home, they were denied access and the father then refused to cooperate (CCJ1 [102]-[104]; TB 1/3 pp 363-366).

80. The parents initially agreed with the hospital that AB would be presented for a medical assessment, but this did not eventuate (CCJ1 [106]).

81. On 27 June 2018 DCJ caseworkers attended a meeting at John Hunter Hospital with NSW Health including Dr Nagarsekar, Dr Thomson Bowe, Dr Murray and others. They were advised that the parents had been offered three appointments to attend with AB for his assessment, but none were attended. The medical staff stated that they held significant concerns regarding AB’s health, and said that if his weight had dropped further from the assessment on 22 May 2018, he may need to be admitted to hospital (CCJ1 [107]; TB 1/3 p 192, Affidavit of Lisa Williams, 20 July 2018, at [118]).

82. On 27 June 2018, a notice under s.173 of the Care Act was prepared (CCJ1 [108] sic “s 133”; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [119]). The notice was served but as a result of the parents failing to comply with a warrant pursuant to s.233(1)(b) of the Care Act was issued authorising removal of AB was executed by police at AB’s home (CCJ1 [109]-[111]; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [121]).

83. Upon arrival at the hospital AB was admitted, but he initially would not allow himself to be examined and refused all foods and fluids for some 43 hours. Unfortunately, he refused to sit down or sleep and stood up for the entirety of the first night of his admission. In the morning he allowed blood to be taken (CCJ1 [112]; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [122]).

84. On 29 June 2018, AB was assumed into care by DCJ pursuant to s.44 of the Care Act (CCJ1 [113]; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [123]).

85. The hospital dietitian noted that AB was "severely malnourished and lacking essential macro and micro nutrients". He was admitted to the Paediatric Intensive Care Unit in order to manage his rehydration and calorie administration. Attempts were made to feed him, and he was sedated and a nasogastric tube inserted, which AB pulled out (CCJ1 [114]; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [124]-[125]).

86. The specialist medical team formed the view that AB was at risk of starving himself possibly to the point of unconsciousness, and recommended that he be discharged to his home where he would be more likely to eat, with the support of his family (CCJ1 [115]; TB 1/3 p 193, Affidavit of Lisa Williams, 20 July 2018, at [127]).

87. He was therefore discharged on 1 July 2018, weighing 38.9 kg, and returned home. Two DCJ staff remained in the home overnight to assist, and they observed AB eat and drink. GR did not stay in the house and was accommodated by DCJ in a hotel, returning to the home on 2 July 2018. Blood was taken for tests (CCJ1 [116]; TB 1/3 p 194, Affidavit of Lisa Williams, 20 July 2018, at [129]).

88. AB returned to John Hunter Hospital on 3 July 2018 for follow up. He was transported from school by DCJ staff, who also transported the parents to the hospital, where it was noted that his weight had improved but his Ketone levels were still low, such that further blood tests would be required (CCJ1 [117]; TB 1/3 p 194, Affidavit of Lisa Williams, 20 July 2018, at [135]).

89. Proceedings in the Children's Court were commenced by an initiating Application filed by the Secretary on 4 July 2018 (CCJ1 [118]; TB 1/1 pp 1-16).

90. The Application came before the Children's Court at Broadmeadow on 5 July 2018, when interim orders were made allocating parental responsibility of AB to the Minister for medical issues and placing him under the supervision of the Secretary until further order (CCJ1 [119]; TB 22/1 p 9034). Mrs Wooi, an experienced children’s lawyer, was appointed Direct Legal Representative (DLR) to represent the child but her status was subsequently changed to that of Independent Children's Lawyer (ILR) on the basis that AB, notwithstanding his age, was not capable of giving proper instructions: s.99C of the Care Act (CCJ1 [119]; TB 22/4 p 9048-9049).

76. On 5 July 2018, the Children's Court of NSW at Broadmeadow made the following interim Orders (CCJ1 [120]; TB 22/1 p 9034):

1. That parental responsibility for medical issues in relation to the child be allocated to the Minister pursuant to s 69 of the Act;

2. That the child be placed under the supervision of the Secretary pursuant to s 70 of the Act; and

3. That the mother be restrained from administering medication to the child, by consent, on a without admissions basis, pursuant to s 90A of the Act.

92. On 28 August 2018, a Dispute Resolution Conference (DRC) was held at the Children's Court at Broadmeadow, during which an agreement was reached between the parties (CCJ1 [121]); TB 2/7 pp 526-528).

93. The Court found that AB was in need of care and protection pursuant to s.71(1)(b) of the Care Act, and made agreed final care orders which placed the child under the supervision of the Minister for a period of 12 months, on the basis of undertakings given by the parents which the Court accepted. Those undertakings included, in summary (CCJ1 [122]; TB 2/8 pp 531-534):

1. Accepting a referral to Redbank House or similar service recommended by the Secretary, and attending the program.

2. Engaging with NDIS support service providers for AB, including supporting their attendance at the home and ensuring AB attend all scheduled appointments, being a speech pathologist, an occupational therapist, a behavioural specialist and a psychologist

3. Complying with all reasonable requirements of the Department of Education with regards to AB attending school.

4. Using reasonable endeavours to maintain a household free of domestic violence.

5. Permitting the Secretary or his delegates to attend the home at reasonable times.

94. On 4 September 2018, Ms Deborah Lloyd, a behavioural specialist employed by The Benevolent Society, met with the father to discuss how she could work with the parents and AB. The father was quite negative about any of Ms Lloyd’s proposals and it was impossible for her to visit the home (CCJ1 [125]; TB 2/10 pp 573-574).

95. On 25 October 2018, Ms Zart, Manager Caseworker DCJ and Ms Fox, Caseworker DCJ, attempted a home visit. The parents informed the caseworkers that a home visit was not possible due to AB’s behaviour (CCJ1 [126]; TB 2/10 p 595).

96. Eventually, AB’s physical condition and behaviour deteriorated to such an extent that DCJ again assumed him into care, on 21 February 2019 (CCJ1 [128]; TB 2/10 p 554-555). AB was collected from Whitebridge High School by three DCJ caseworkers, and on 22 February 2019 he was re-admitted to John Hunter Hospital after he refused to eat and was suffering from low blood sugar (CCJ1 [128] sic “22 February 2018”; TB 2/10 p 548, Affidavit of Jacqueline Fox, 26 February 2019, at [53]-[54])

97. He was weighed at 35 kilograms and found to be in severe ketosis due to a combination of starving and high levels of carotene. AB was transferred to the intensive care unit (ICU) for feeding (CCJ1 [129]; TB 2/10 p 548, Affidavit of Jacqueline Fox, 26 February 2019, at [55]).

98. AB initially consented to the insertion of the nasogastric tube with nasal spray anaesthesia, then nitrous oxide, but both of these were unsuccessful (CCJ1 [130]; TB 2/11 p 666, Medical report of Dr Kate Thomson Bowe).

99. Ultimately, senior staff sedated the child with intramuscular ketamine and propofol in order to insert the nasogastric tube. The child was intubated, ventilated and sedated from 23 to 27 February 2019 (CCJ1 [131]; TB 2/11 p 666, Medical report of Dr Kate Thomson Bowe).

100. GR unsuccessfully demanded that the child be returned into her care, then on 25 February 2019 applied to the Supreme Court of NSW seeking urgent orders to overturn the orders of the Children's Court and to have AB returned to her care (CCJ1 [132]; TB 5/19 pp 1806-1814). Justice Button refused the application and the Summons was dismissed (CCJ1 [132]).

101. On 26 February 2019, the Secretary filed an Application in the Children's Court for rescission of the previous care orders of 28 August 2018, pursuant to s.90 of the Care Act. The Application alleged, in summary, that in the intervening seven months (CCJ1 [133]; TB 2/9 p 535-538):

1. The parents had not engaged in a meaningful way with the National Disability Support Service (NDIS), even refusing to permit the NDIS service to attend the home and assess the child;

2. The parents had failed to maintain a household free of violence, and · had been unable to manage the child's outbursts and had failed to ensure he received adequate nutrition;

3. The parents had prevented DCJ staff from entering the home to sight the boy and observe the home, on some seven occasions;

4. The father had on a number of occasions asked DCJ to remove the boy from the home, due to his behaviour, including his violence and unreasonable demands for money.

102. It was also noted that GR had been suspended from medical practice by the New South Wales Civil and Administrative Tribunal (NCAT) principally due to her administering inappropriate psychotropic medications to the child (CCJ1 [134]; TB 2/9 p 537).

103. On 27 February 2019, the matter returned to the Children’s Court at Broadmeadow where an interim order was made allocating all aspects of parental responsibility to the Minister (CCJ1 [135]; TB 15/143 p 6393).

104. Between 7 March 2019 and 26 March 2019, numerous proceedings initiated by GR and / or the Secretary were commenced in various courts, the details of which are set out at CCJ1 [136]-[148]).

105. Meanwhile the matter before the Children's Court at Broadmeadow continued and on 12 April 2019 an order was made under s.90(2) of the Care Act giving leave to the Secretary to proceed in relation to the Application to rescind the previous care orders made on 28 August 2018, and to seek other, new care orders for the child (CCJ1 [149]; TB 8/55 pp 3417-3461).

106. Treatment of AB in the Saunders Unit continued. Reports from the treating team noted that AB was not suffering from a major mood or psychotic illness and as such the role of inpatient admission had been mainly to assist him with his eating behaviours and gain weight (CCJ1 [150]; TB 2/13 p 769).

107. It was further noted that the risk of harm to AB was insufficient dietary intake, and he had not expressed suicidal intent and there were no other forms of deliberate self-harm. He had not displayed any aggressive or violent behaviour and was not deemed a risk to others (CCJ1 at [151]; TB 2/13 p 769).

108. It was Dr Spencer's view that AB’s continued meal support might henceforth be done in the community in a less restricted environment than an acute adolescent mental health inpatient unit (CCJ1 at [152]; TB 2/13 p 769).

109. The independent report of the Court appointed medical advocate, Dr Kohn, was produced on 30 April 2019 which contained a number of opinions and various recommendations, including (CCJ1 [153]; TB 2/13 pp 773-774):

• There is an established behaviour pattern of food refusal by the child in situations of conflict within family relationships.

• His treatment at the Saunders Unit is adequate and appropriate. He is receiving effective treatment to rehabilitate his physical health and eating behaviours. The robustness of his progress will be tested when he is challenged by arrangements for discharge.

• Limit and supervise contact from all family members.

110. A decision was taken to discharge AB into a residential setting (CCJ1 [154]; TB 2/13 p 787).

111. The proceedings came back before Kunc J on 15 May 2019, when he discharged the "Pembroke J" orders in relation to extraordinary medical intervention, which effectively terminated the parens patriae intervention invoked by the Secretary's Application (CCJ1 [155]; Re AB (No 2) [2019] NSWSC 566).

112. There were, however, concurrent proceedings that GR had commenced by Summons in the Common Law Division of the Supreme Court, which had been stood over pending completion of the parens patriae intervention. Justice Kunc also made procedural orders in relation to those proceedings, granting leave to GR to file and serve an Amended Summons (CCJ1 [156]; Re AB (No 2) [2019] NSWSC 566 at [16]).

113. Meanwhile, following the discharge of the medical treatment orders, AB was discharged from the Saunders Ward at the Sydney Children's Hospital at Randwick on 15 May 2019. His discharge weight was 44.7kg (CCJ1 [157]; TB 16/151 pp 6704-6713).

114. It was proposed that AB be transferred to residential care premises at Medowie House, however, in the course of the transfer an episode occurred when he attempted to flee. AB became agitated, undid his seatbelt, and assaulted a caseworker in the car. He then exited the car and ran away. It took some 4 hours before AB could be returned to the car and the journey completed (CCJ1 [158]); TB 2/13 p 745, Affidavit of Anne-Marie Connelly, affirmed 23 May 2019, at [17]).

115. Upon arrival at Medowie House AB refused to eat. Following persistent fasting, AB was brought to the John Hunter Hospital Emergency Department on 17 May 2019, suffering from hypoglycemia. His weight on admission to the John Hunter Hospital was 43.9kg. GR visited him daily, on a supervised basis (CCJ1 [159]; TB 2/13 p 745, Affidavit of Anne-Marie Connelly, 23 May 2019, at [20]).

116. GR filed an Amended Summons in the Supreme Court which was listed for directions before Lindsay J on 20 May 2019. GR sought a stay of the Children's Court orders or, in the alternative, orders regarding her contact with AB. Justice Lindsay made directions for the filing of evidence in relation to GR’s Application and adjourned the matter for hearing (CCJ1 [160]; TB 2/13 pp 804-805).

117. AB’s condition deteriorated in the Emergency Department and he was transferred to the Nexus (Child and Adolescent) Psychiatry ward (CCJ1 [161]; TB 3/15 p 1102, Medical update from Dr Kate Thomson Bowe, 17 June 2019).

118. On 21 May 2019, a teleconference was held between Impact Youth Services Manager Brant McKenna, the Clinical Director of Quovus, Dr Lisa Fahey, and DCJ staff to discuss AB’s needs in relation to the development of a Behavioural Support Plan for Impact staff (CCJ1 [162]; TB 3/16 p 1263-1273, Meeting notes).

119. AB’s eating in the Nexus ward was noted as sporadic and well below the goal of 2500 calories per day, despite encouragement. On 25 May 2019, he became medically unstable with low blood sugar levels and mild dehydration. He allowed insertion of a nasogastric tube, but pulled it out before fluid could be administered. He was transferred to the J2 Medical Ward. Initially AB ate and drank in preference to insertion of an intravenous cannula and intravenous fluids on that day, but his eating continued to be sporadic and insufficient (CCJ1 [163]; TB 3/14 p 1069, Affidavit of Tina Zart, 7 June 2019, at [9]).

120. On 27 May 2019, Lindsay J heard and dismissed GR’s application for a stay of the interim order of the Children's Court, and stood the proceedings in the Supreme Court over to 17 June 2019 (CCJ1 [164]).

121. Over the weekend of 1 June and 2 June 2019, AB completely stopped eating, drinking only a few hundred millilitres of fluid each day. He became more withdrawn and refused to respond to the Impact and health staff members. He was treated for dehydration and borderline low blood sugar levels with insertion of an intravenous cannula and intravenous fluids on 3 June and 5 June. AB’s weight continued to drop from his admission on 17 May 2019 (43.9kg) to 7 June 2019 (39.9kg). On 6 June, he refused oral intake. AB did allow nasogastric insertion, but proceeded to remove it before a full feed could be completed (CCJ1 [165]; TB 3/14 pp 1069-1070, Affidavit of Tina Zart, 7 June 2019, at [12]-[15])

122. On 6 June 2019, Dr Nagarsekar and Dr Thomson Bowe sent a letter to Ms Fox and Ms Zart and recommended interim cessation of parental visits as GR’s behaviours and speech were felt to be undermining the therapeutic relationship between AB and the Health and Impact teams. AB’s relationship with his father was also noted to be unhelpful to AB’s treatment (CCJ1 [166]; TB 3/14 pp 1094-1096).

123. On 7 June 2019, AB again refused oral intake. He did allow nasogastric insertion, but proceeded to remove it before a full feed could be completed. Given his dehydration, one litre of intravenous fluid was administered (CCJ1 [167]; TB 3/15 p 1103, Medical update from Dr Kate Thomson Bowe dated 17 June 2019).

124. On 7 June 2019 a teleconference was held between treating clinicians, Dr Jessica Poon, Paediatrician, Sydney Children's Hospital Saunders Ward and Associate Professor Sloane Madden and several staff of the Westmead SCH Eating Disorders team. Options for AB’s treatment were discussed, including escalation of care locally and whether AB might be able to be transferred back to Sydney (CCJ1 [168]; TB 3/15 p 1100, Letter from Dr Thomson Bowe and Dr Nagasekar, 7 June 2019).

125. On 8 June 2019, GR arrived at John Hunter Hospital and attempted to attend AB’s bedroom by concealing herself with a blanket and walking past the nursing staff. GR was noticed by the nursing staff and escorted out of the ward (CCJ1 [169]; TB 3/16 p 1287, Impact incident log dated 8 July 2019).

126. On 11 June 2019, AB absconded from the hospital during a handover between Impact staff. He proceeded 100 metres up Lookout Road from John Hunter Hospital and was stopped by Impact staff from running onto the road. An ambulance and police attended the location, and AB was escorted back to the hospital by ambulance (CCJ1 [170]; TB 3/15 p 1167, Impact incident report dated 11 June 2019).

127. On 12 June 2019, AB quickly jumped out of his bed and walked in the direction of the exit. When AB arrived at the exit, he ran to GR, who, at the time, was being requested to leave the hospital. GR was noted to have kissed, hugged, and gifted AB some children's books. When GR was again asked to leave, she stated to Mr Bevan, "you are a child abusing molester, step away or I will call the police and have you charged with battery and assault." GR was asked again to leave, to which she proceeded to run out the emergency doors and down the stairs (CCJ1 [171]; TB 3/16 p 1289, Impact incident report dated 12 June 2019).

128. AB continued refusing to eat. Night-time nasogastric tube feeds were commenced. AB complied with night-time nasogastric feeds (CCJ1 [172]; TB 3/16 p 1104, Medical update by Dr Kate Thomson Bowe, dated 17 June 2019).

129. On 13 June 2019, GR again attended John Hunter Hospital in an attempt to see AB on an unscheduled basis, and was asked to leave (CCJ1 [173]; TB 3/16 p 1292, Impact incident report, dated 13 June 2019).

130. On 15 June 2019, GR arrived at the door of the AB’s bedroom, stating she had brought him books and bananas. GR was immediately requested to leave. She ignored these requests, and was noted to have stated to AB the words to the effect of "mum goes to court this week and she will have you back ... the court will give you back." Security was contacted and the mother was requested to leave the ward. Impact staff then proceeded to shut the door on the mother, to which she attempted to push open. Impact staff were able to shut the door just as nursing staff arrived (CCJ1 [174]; TB 3/16 p 1294, Impact incident report, dated 15 June 2019).

131. On 17 June 2019, AB was transferred from the J2 Ward back to the Nexus Unit at John Hunter Hospital (CCJ1 [175]; TB 3/16 p 1298, Letter to Family and Community Services (“FaCS”) Case managers from Dr Nagarsekar and Dr Thomson Bowe, dated 20 June 2019). AB was attended to by Impact Youth Services staff that remained with him during the day and through the night (CCJ1 [175]; TB 3/16 p 1173, Affidavit of Anne-Marie Connelly, 21 June 2019, at [20]).

132. The proceedings were transferred to the Parramatta Children’s Court for hearing before the President in November 2019 (CCJ1 [176]).

133. On 24 June 2019, Lindsay J sitting in the Protective List in the Equity Division of the Supreme Court, summarily dismissed GR’s Amended Summons. The mother appealed against that decision (CCJ1 [177]; TB 4/17 p 1530, GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073 at [10]).

134. Her appeal against the decision of Justice Lindsay was upheld in the Court of Appeal on 18 July 2019 and the matter was returned to the Supreme Court for further consideration, and came before Kunc J (CCJ1 [178]; GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177, GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073).

135. On 15 August 2019, Dr Thomson Bowe and others at the hospital prepared a Therapeutic Recommendations letter to assist with AB’s treatment following his proposed discharge from John Hunter Hospital (CCJ1 [179]; TB 4/17 pp 1542-1550).

136. This included a Nasogastric Tube Management Plan and a Department of Emergency Medicine Patient Management Plan to assist in his medical treatment if he needed to be presented at the Emergency Department following his discharge (CCJ1 [180]; TB 4/17 pp 1542-1550).

137. On 16 August 2019, the Supreme Court proceedings were listed for hearing before Kunc J. An extended hearing was conducted at Newcastle. His Honour found there were exceptional circumstances to warrant the hearing of GR’s application, those circumstances being that an important point was about to be reached in AB’s treatment, namely, his pending discharge on 19 August 2019. His Honour also took the opportunity to speak face to face with AB at the hospital before the hearing. AB told the judge that (CCJ1 [181]; [2019] NSWSC 1073 at [19]):

1. He wanted to go home.

2. He wanted to be cared for by his mother.

3. He was happy to have the carers and other professionals who had been involved in his care to date continue to be involved in looking after him once he went home.

4. He understood the importance of continuing to eat normally and said that he would do his best to do so.

138. In the hearing GR asked Kunc J, exercising parens patriae jurisdiction, to revoke the orders of the Children's Court, and for AB to be restored forthwith into her care upon discharge from hospital, to reside at home. His Honour, however, refused GR’s application for three reasons it seems, because serious questions remained as to her capacity to care for the boy, in particular her ability to ensure he ate adequately, maintained minimum standards of hygiene, and attended school and that she would cooperate with medical and other professionals involved in his care (CCJ1 [182]; [2019] NSWSC 1073 at [46]-[47]).

139. On 30 August 2019, Dr Thomson Bowe prepared a letter providing an update on AB since his re-admission to the John Hunter Hospital on 21 August 2019. In her letter, Dr Thomson Bowe noted that it was not safe to discharge the child from hospital at that time (CCJ1 [189]; TB 4/17 p 1559).

140. In her affidavit of 2 September 2019, the Manager Client Services from DCJ with primary responsibility for the child, Ms Anne-Marie Connelly, discussed the medium to long term aim for AB: see paragraphs [106] -[113], and her views as to the viability of any restoration to the parents: see paragraphs [114] -[120] (CCJ1 [190]; TB 4/17 pp 1322-1324).

141. In particular, Ms Connelly stated (CCJ1 [191]; TB 4/17 pp 1323, Affidavit of Anne-Marie Connelly, 2 September 2019, at [114], [116], [117], [118]):

DCJ is concerned that should the child return to his home he may revert to using strategies he has previously engaged in to exercise control over his environment. He may isolate, lock and barricade himself in his room, engage in destructive behaviours in the home such as causing property damage throw large items over the balcony, withdraw from interacting with others, refuse to attend school and required appointments, demand money in exchange for compliance and restrict his eating to the point of becoming seriously medically unwell.

Due to the rapid decline in health in very short periods of time the child has experienced previously, DCJ would be very concerned that spending short periods of time with the child, should he return to his mother's care would not be sufficient to ensure all his needs are being met.

DCJ has previously experienced difficulty in accessing the inside of the family home and, on the occasions this was possible, the child would retreat to his bedroom and lock the door. He would not communicate verbally either.

DCJ's experience is that neither parent has been able to assist in ensuring the child is available to engage with DCJ staff and community workers. This means that the only information that would be available to assess the child's state of health and wellbeing would be information provided by his mother. To date, the mother has not been able to accept that his health and development issues were present prior to him entering care or that he was in a serious state of malnourishment whilst residing with her and his father.

142. On 30 August 2019, a further application by GR to the Supreme Court was heard by Slattery J in the Equity Division. GR again sought to invoke the parens patriae jurisdiction to have the orders of the Children's Court set aside so as to restore AB forthwith to the care of the parents. The application was said to be based on events since the judgment of Kunc J on 16 August 2019 as outlined above (CCJ1 [192]; GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146).

143. Justice Slattery delivered a written judgment on 3 September 2019: GR v The Secretary of Family and Community Services [2019] NSWSC 1146. The Court determined, for various reasons, that there were no exceptional circumstances for the exercise of the parens patriae jurisdiction. His Honour made the following observation (CCJ1 [193]; [2019] NSWSC 1146 at [66]):

But despite the inability of the Court in the Duty List to test the mother's allegations of mistreatment of the young person in 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.

144. GR made a further application to the Supreme Court seeking an order setting aside the orders of Slattery J made on 3 September 2019. The matter came before Robb J in the Duty List on 12 September 2019. His Honour refused the application, essentially on the basis that GR had not demonstrated any exceptional circumstances to justify interference in the proceedings in the Children's Court (CCJ1 [194]; TB 4/18 p 1767).

145. GR filed another Notice of Motion in the Supreme Court on 17 September 2019. Justice Robb declined to entertain the application on 19 September 2019, causing GR to be informed that her supporting affidavit did not disclose any relevant new facts (CCJ1 [195]; TB 4/18 p 1790-1792, Transcript of proceedings before Robb J, dated 19 September 2019).

146. On 30 September 2019, GR filed a Notice of Intention to Appeal in the Court of Appeal against the decisions of Slattery J and Robb J (CCJ1 [196]).

147. On 16 October 2019, a directions hearing was heard before the President of the Children’s Court at which GR made an oral application without notice for the court to revoke the interim order allocating parental responsibility to the Minister. The President refused to deal with that application at that hearing (CCJ1 [197]).

148. On 24 October 2019, the Secretary filed a Care Plan in the Children's Court, in which the Secretary made the assessment that there is no realistic possibility of restoration of AB to the parents or either of the parents (CCJ1 [198]; TB 8/53 pp 3373-3393).

149. On 28 October 2019, following a prolonged period of not eating while in the J2 ward at John Hunter Hospital, his treating doctors, Dr Thomson Bowe and Dr Nagarsekar (Dr Baja) met with AB and indicated the need for nasogastric feeds. They were concerned that hypoglycemia gave rise to the risk of seizures, coma, brain damage and death (CCJ1 [200]; TB 11/91 p 4395, Affidavit of Anne-Marie Connelly, 8 November 2019, at [24]).

150. On 30 October 2019, in consultation with the Paediatric Intensive Care Unit, AB was administered procedural sedation and IV fluids and dextrose, and a second dose of Zuclopenthixol, on the recommendation of the Sydney Children's Hospital. AB, however, removed the IVC from his left arm and the following day the IVC in his right arm was removed (CCJ1 [201]; TB 11/91 p 4402, John Hunter Hospital Discharge Referral, dated 31 October 2019).

151. Due to the child's deteriorating condition, NSW Health made the decision to transfer him to the Eating Disorders Unit at Sydney Children's Hospital, Westmead (SCH). He was transported to Westmead SCH on 1 November 2019, where a treatment plan was prepared and provided to DCJ, involving hourly observations, BSL monitoring, food, and provisions for escalation of care if required (CCJ1 [202]; TB 11/91 p 4397, Affidavit of Anne-Marie Connelly, 8 November 2019, at [29]).

152. The parents were then notified but were informed that contact could not occur until assessments had been undertaken (CCJ1 [203]; TB 11/91 p 4410, Email to the parents from Lee Duffield of FaCS, dated 1 November 2019).

153. On 7 November 2019, the Court of Appeal heard GR’s application for leave to appeal from the decisions of Justice Slattery and Justice Robb. Leave to appeal was refused and the application was dismissed, principally by reason of the imminence of the Children's Court hearing due to commence the following week: GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 (CCJ1 [204]).

154. The principal judgment was delivered by Brereton JA who said (CCJ1 [205]; [2019] NSWCA 277 at [21]):

Despite the attraction of the submission that it is now time to "give the alternative a go" and return the child immediately to the parents, I am – not without a little regret but nonetheless firmly - of the view that it would be quite irresponsible and incorrect for this Court to derail the imminent proceedings in the Children's Court, or to pre-empt them by making a decision on what is, after all, a very short hearing, without cross-examination of lay or expert witnesses, on issues that are difficult and controversial.

155. On the evening of 7 November 2019, GR presented unannounced in AB’s room. She was asked to leave as this was not an approved contact. GR replied that she had come directly from the Supreme Court, which was a higher authority than FaCS (CCJ1 [207]; TB 11/91 pp 4417-4419, Impact incident log, dated 7 November 2019).

156. GR refused to leave and produced 5 sandwiches and 2 large packets of chips which she placed on AB’s bed. The nurse told GR that Security would be called if she did not leave, and she then left. AB was distressed by the episode (CCJ1 [208]; TB 11/91 pp 4417-4419, Impact incident log, dated 7 November 2019).

157. By 8 November 2019, being the Friday before the commencement of the hearing, AB’s weight had dropped to 41.1kg. A meeting was held by teleconference to discuss AB’s progress and treatment plan, involving DCJ, including Ms Connelly, Impact Youth Services staff, Dr Lisa Fahey, Clinical Director of QUOVAS, and Westmead SCH medical personnel, Associate Professor Sloane Madden and Joanne Titterton, Clinical Nurse Consultant (CCJ1 [209]; TB 11/91 pp 4414-4416).

158. It was noted that AB was not consuming enough food, and Associate Professor Madden had discussed this with AB explaining the importance of eating sufficient food and how this will impact negatively on his health (CCJ1 [210]; TB 11/91 p 4414).

159. It was agreed that parental visits should resume, and that AB required physiotherapy, occupational therapy, and psychological assessment. It was also planned that he be involved in schooling (CCJ1 [211]; TB 11/91 p 4415).

160. On 10 November 2019, GR visited AB as Westmead SCH. The visit was supervised by DCJ caseworker Ms Sasha Kellehear (CCJ1 [212]; TB 11/92 pp 4442-4448, Family Contact File note of Sasha Kellehear, dated 10 November 2019 at 4.00pm).

161. Some unfortunate incidents occurred during the visit, which Ms Kellehear recorded in her Family Contact file note CCJ1 [213]; TB 11/92 pp 4442, Family Contact File note of Sasha Kellehear, dated 10 November 2019 at 4.00pm):

Visit supervised and notes written by DCJ CW Sasha Kellehear. The mother was on time for her visit... she did not bring any food ... as had been outlined in the details and expectations for today's visit. ... Initially the mother was appropriate and asking lots of questions about the child's current medical status ... The child then asked about the court reports and why no one wanted him to go home. The mother said, "Everyone is against you .. . " I asked the mother not to say that as it implies the child is solely responsible for the current situation. I asked the mother to enjoy her time with the child. The mother started speaking to the child about the requirements for returning home. She focused all elements of her conversation on things the child needed to do: eat, tell the hospital he would "eat everything when he gets home" and to tell the doctors he "always ate everything when he was at home". The mother continued by saying the child is not eating now because he is being "tied up and held prisoner in a hospital bed" and this is the reason he won't eat. I could see the child was becoming upset by his facial expression and I asked the mother to consider what she was saying ... The mother then stated, "I'm sick of you Sasha and your gobby Cessnock mouth firing off at me ... you're nothing but a trashy single mother from Cessnock". The mother further stated, "You are being charged with contempt of court" ... The mother encouraged the child to write about "everything that has happened to you since you've been in hospital" and "that you will do everything when you eat at home ... "

162. The learned President of the Children’s Court then set out the history of the matter before him and the hearing before Kunc J at CCJ1 [214] and following.

163. Based on these findings, on 27 February 2020, the President delivered a written judgment in which his Honour found there was no realistic restoration of AB to his parents (TB 14/109 pp 5896-6036). President Johnstone also directed the Secretary to file an Amended Care Plan addressing permanency planning.

164. The matter returned before President Johnstone for directions on 13 March 2020, principally to provide for the filing of an Amended Care Plan and subsequent submissions (CCJ2 [22], [27]).

165. GR, however, filed an Application dated 12 March 2020 in which she sought a series of orders, including dismissal of the Children’s Court proceedings, or alternatively an order placing AB “in his own home forthwith in his mother’s care” (CCJ2 [28]).

166. Based on a report of Associate Professor Madden dated 4 March 2020 (TB 14/111 pp 6046-6047) which recommended that the ongoing hearings be expedited due to their negative impact on AB, the President dealt with GR’s application by an ex tempore oral decision, dismissing it (CCJ2 [30]-[31]).

167. Due to developments, including the onset of the COVID-19 pandemic and altered operating procedures in the Children’s Court, the President decided that a hearing in such circumstances (which would have been limited to 45 minutes) was futile and that the matter would be finalised on the papers (CCJ2 [33]).

168. In the meantime, Kunc J delivered a further judgment on 19 March 2020 in which his Honour made some observations relevant to the finalisation of the proceedings in the Children’s Court (CCJ2 [34]). Justice Kunc in GR v Secretary, Department of Community and Justice (No 3) [2020] NSWSC 259 said at [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.

169. The President gave reasons supporting final orders on 3 April 2020 (TB 15/119 pp 6263-6265 (Orders) and TB 15/120 pp 6266-6294 (Reasons)). His decision was based on the written submissions of the parties and subsequent emails commenting on the various proposals (CCJ2 [34]-[60]), as well as new medical reports that had not been before the President in the substantive hearing (CCJ2 [61]-[75]). The learned President found (at CCJ2 [84]) that:

[f]undamentally, nothing has changed since I delivered my reasons in the substantive Judgment on 27 February 2020, except perhaps for the onset of the COVID-19 pandemic. But even that circumstance does not persuade me to re-open and prolong these Children's Court proceedings.

170. In the final orders of 3 April, the President approved the Amended Care Plan and made an order, pursuant to s.79(1)(b) of the Act, allocating all aspects of parental responsibility for AB to the Minister until AB attains 18 years of age.

171. Following the delivery of judgment and final orders of the Children’s Court, AB remained a patient of Westmead SCH under the care of Associate Professor Sloane Madden.

172. On 15 April 2020, AB was discharged from Westmead SCH to his long-term placement, as described in the Amended Care Plan approved by the Children’s Court. AB’s house is approximately 20 minutes’ drive from Westmead SCH, he is the only child in the house, and has a carer in the house 24 hours a day.

173. Following his discharge, AB was an outpatient of SCH-W under the care of Associate Professor Madden. AB’s health was regularly monitored by video link assessments with Westmead SCH (TB 15/143 p 6377, Affidavit of Amy Eldridge, 4 May 2020, at [12]).

174. On 22 April 2020, AB was re-admitted to Westmead SCH. The decision to re-admit him to hospital was made by Dr Jack Luxford (who reports to Associate Professor Madden) on 22 April 2020 after Dr Luxford assessed AB via video link and consulted with AB’s carers (TB 15/143 p 6377, Affidavit of Amy Eldridge, 4 May 2020, at [13]); TB 18/177 p 7458, Affidavit of Amy Eldridge, 29 July 2020, at [10]).

175. On 13 May 2020, AB was first administered Olanzapine long–acting depot medication by injection by his treating team at SCH-W (TB 18/177 p 7459 [15]; and report by Associate Professor Madden dated 15 May 2020 at TB 18/177 p 7497).

176. On 25 May 2020, AB was discharged to his long-term placement after a further injection of Olanzapine and re-admitted to Westmead SCH on 26 May 2020 (TB 18/177 p 7460 at [19]-[20]).

177. AB was discharged from Westmead SCH on 1 June 2020 (TB 18/177 pp 7460-7461 at [20]-[22]).

178. On 25 June 2020, AB was administered a 210mg dose of Olanzapine via IM injection and did not experience any negative outcomes as a result of the injection, although he was observed to be tired and sleepy on the following days. On 23 July 2020, AB was scheduled to receive a fourth dose of Olanzapine by depot injection but this did not occur. On 28 July 2020, Associate Professor Madden prepared a report indicating that AB’s eating had improved, and he had continued to progress and experienced significant functional improvement as an outpatient with improving quality of life (TB 18/177 pp 7461-7462 at [25]-[29]).

179. Updating evidence in late 2020 indicated that AB was then in a medically stable condition (see, e.g., TB 18/177 p 7462 at [29]). In her affidavit of 27 May 2021, Ms Eldridge reported that:

1. AB remains in a medically stable condition;

2. AB has not required any extraordinary medical treatment, or sedation combined with intubation for the purposes of re-feeding, since his transfer to SCH-W on 1 November 2019;

3. AB has not required any intravenous fluids or nasogastric feeding since 14 February 2020;

4. Since 25 June 2020, when AB was administered his final dose of IM Olanzapine, AB has not had any medication (with the exception of antibiotics for an ingrown toenail on 9 April 2021) (TB 25/5, p 1016, Affidavit of Amy Eldridge, 27 May 2021, at [18]-[19])

180. This was the position at the beginning of the proceedings. Additional and more recent (and often contested) evidence in relation to AB’s condition is explored throughout the remainder of this judgment.

181. In addition to the Children’s Court proceedings, in the course of 2019 through to 2021, GR has commenced and/or sought to commence a multitude of applications and proceedings (and appeals, or applications for leave to appeal, therefrom) in the Supreme Court involving or seeking the exercise of the parens patriae jurisdiction in connection with AB, commencing with an application brought on 25 February 2019 (see See GR v Secretary, Department of Family and Community Services and Justice & Ors [2020] NSWSC 607 at [29], [31]-[33], [35]-[55], [57]-[61], [66]-[80], [82]-[91], [96], [99]-[103], [105]-[115] per Ward CJ in Eq). Thereafter there were further applications in the Equity Division and in this Court as explained in the reasons of Basten and McCallum JJA in GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198 at [17]-[18]).

Legal Principles

Nature of the Appeal

182. The current proceedings are an appeal pursuant to s.91 of the Care Act which provides as follows:

91 Appeals

(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

(3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.

(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.

(6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly.

(7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.

(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.

183. Notably, s.91(2) “states that the appeal ‘is to be [by] way of a new hearing” as opposed to a rehearing (SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 (“SL”) at [41]). Because the appeal is by way of a new hearing, “[a]n appeal under s 91 of the Care Act does not require an appellant to demonstrate error in the reasoning of the decision maker whose decision is under challenge or in processes leading to the decision under challenge” (Re M; Application of YA [2014] NSWSC 1736 (“Re M") at [4]).

184. In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ commented on the nature of various types of appeals at 125 [20]:

Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word “rehearing''. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term “appeal'', or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.

797. Currently the parents are separated and are involved it seems in acrimonious litigation in at least the Family Court. The father now resides in Queensland and GR lives on her own in the former matrimonial home in Newcastle.

798. GR is also currently suspended from medical practice and her fate is the subject of a reserved decision of the Health Care Complaints Commission. She is also a bankrupt. The house she lives in is owned by a superannuation fund but is unencumbered according to GR.

799. She accuses the father of having stolen property of hers and / or her family who she asserts had no gainful employment for years and he lived off charity from her family (see, e.g. T.582/36-45; T.583/3-6). She also asserts the father is mentally ill (and in any event was an absent father because he would often abandon the family from time to time and go to India), and should he have access to AB if AB is in her care, the father would as a result of his mental illness require supervision (see, e.g., T.583/29-45; T.594/40-46; T.595/6-17). There are also many documented occasions of her being disparaging about the father in conversations with AB (see Secretary’s Note and Aide Memoire No. 1 at [8]; Secretary’s Note and Aide Memoire No. 2 at [28]-[29]).

800. I should note the father has twice weekly video contact with AB and although for some time was an active party in this and other pieces of litigation withdrew from these proceedings and has played no active role (TB 29/65 p 12151).

801. Professor Einfeld‘s suggestion about the appointment of an independent advocate for GR, although a positive one, is in my view almost entirely impractical and rather puts his disproportionate expenditure concerns in question. Selecting such a person would be in my view unenviable from everyone’s point of view. I can neither see GR agreeing to the process either of the candidate or what may follow especially if she perceived the person as siding one way or another with FaCS.

802. Professor Einfeld is of the opinion that AB’s best chance of recovery is to stay where he is. GR has been told by many, Professor Einfeld again being one, that family therapy with her son and ideally her estranged husband is what is called for. That of course would require constructive collaboration with caseworkers and the like. Instead GR has embarked on serial litigation in a most obsessive and aggressive manner.

803. GR is in my view extremely rigid and inflexible in her thinking notwithstanding her medical qualifications. She appears again in my view incapable of any form of objective analysis. She sees herself as in an adversarial contest with certain persons from FaCS and other medical professionals with whom she does not agree (see, e.g., T.574/18-22).

804. It was noticeable that on many occasions during the hearing before me, GR denigrated and traduced caseworkers, doctors, and the lawyers for the Secretary in a totally disrespectful way (for further examples of threats in communication made against DCJ caseworkers and hospital staff see Secretary’s Note and Aide Memoire No. 2 at [15]-[20], [22]; see, e.g, disparagement of Ms Eldridge at T.210/35-50-T.211/1-3; T.226/39, disparagement of Ms Kellehear and Ms Connelly at T.574/18-22; disparagement of Ms Mooney at T.586/25-29, disparagement of Mr Anderson at T.580/11; T.580/18-19).

805. Regularly during the hearing, GR alleged any number of named individuals as fabricating evidence, falsifying their records, wrongfully procuring medical reports from compliant medical practitioners and from time to time even courts were accused of merely rubber stamping the wishes of FaCS (see, e.g., accusation of rubber stamping at T.538/43-46, accusations regarding false evidence or testimonies at T.586/25-29; T.574/41-47; T.428/44-50-T.429/1-6). In a hearing of a subsequent related Notice of Motion on 4 August, GR accused Mr Anderson of counsel of being in contempt of court, presenting false statements and alleging he was “being managed by mostly single and uneducated women who are abusive to an extent they cannot sustain any relationships in their own lives” (Transcript of hearing of 4 August 2021 at T.8/1-12). Her constant accusations of dishonesty on the part of any number of people including caseworkers, health professionals, lawyers without any rational basis for doing so whilst conducting the hearing is nothing short of disgraceful.

806. Over the 10 days of hearing and the considerable number of other hearings GR has been involved in over the many months I have managed this and allied cases I have formed the very firm view that she is unwilling or unable of detecting the distinction between fact and fiction. To describe any witness or party as deliberately making false assertions or submissions is extremely serious but in GR’s case there are some blatant examples detailed below of what in a most generous light could only be best described as monumental mishandlings of the truth.

807. GR not only lacks objectivity; she also lacks judgement. Sadly, having listened to her for a considerable amount of time during the hearing and subsequent various applications, she also in my view lacks candour.

808. While GR is a litigant-in-person and appropriate concessions have to be made, had she been responsibly represented no competent practitioner would have dared make some of the statements and / or submissions of fact she made.

809. As opposed to her evidence to which I will return, I wish to record that from my having heard the various witnesses and having carefully reviewed the relevant underlying documents I accept as truthful the evidence of Associate Professor Madden and Ms Eldridge in particular.

810. So far as any of the various treatments which were administered at any time in any institution I regard such as appropriate, proportionate and entirely motivated by the singular motive of either attempting to keep AB alive and / or to get him better. To suggest otherwise is in my view simply perverse.

811. There is no doubt that some of the treatments were extreme but so was his condition. There is also no doubt AB found some of the treatments distressful but again I regard them as necessary in all the circumstances.

812. GR is, as I currently perceive it, in no mood to be inclusive or conciliatory or collaborative so far as FaCS is concerned, notwithstanding her protestations to the contrary. I do not accept her evidence that she would be prepared to be supervised by FaCS officers especially persons such as Ms Eldridge who is the senior caseworker. She showed no respect for Ms Eldridge or for that matter, Associate Professor Madden who is quite frankly a crucial lifeline for AB. GR cannot in my view be placed in any position where she gets to choose which caseworker or medical practitioner cares for AB.

813. The starting proposition, which I suspect GR will never accept, is namely that AB was in a very serious state and desperately needed treatment which was provided to him. He had arrived at that point as a result of his severe autism in the context of a dysfunctional family simply unable to cope. He was not tortured nor mistreated in the way GR insists (some examples of which are to be found at T.39/8-10; T.450/41-43; Transcript of hearing on 4 August 2021 at T.2/4; Transcript of hearing on 6 August 2021 at T.25/11-18). Had he not been taken into care he may not be alive today.

814. GR’s main objective as I perceived it in the conduct of the hearing before me was to find fault and blame in others without the slightest recognition of the part she herself has played in the process. She cannot obviously entertain any measure of introspection. Instead, she sees litigation as the answer, the object of which is to find FaCS and the relevant health professionals guilty of all manner of wrongdoing. For that reason, I do not see an end in sight which does not involve some adversarial process, short of GR’s status as a litigant being altered.

815. For completeness I should say I am satisfied that the events outlined in the aides memoire, to which I have already referred, are accurate reflections of GR’s behaviour at various points. The first contained a schedule of evidence references pertaining to examples of AB as an observer of domestic violence and abuse. The second, annexed to the Secretary’s closing written submissions of 22 July 2021 was a schedule of examples of problematic behaviour by GR. The third was a schedule of evidence referenced for associated positions, including why restoration to GR is not in the best interests of the safety, welfare and wellbeing of AB “notwithstanding” (or in light of) progress achieved since discharge from hospital in June 2020. The aides memoire paint a realistic and accurate portrait and I am satisfied that the underlying documents referred to support factually the underlying assertions made in them.

816. Judge Johnstone described GR as being dishonest. In discussing her contrary account of the cruise at the end of 2016, Judge Johnstone found that her evidence was untrue and commented that she was “adept at distorting the truth, but this was an outright untruth.” Further that he was also “reluctant to accept anything that fell from her unless clearly documented or independently corroborated” (CCJ1 [430]). That is a serious assertion. I should say that some of the matters GR advanced in the course of the hearing before me were so palpably inaccurate as to raise the question, not only about her competence but her integrity. The following are but some examples.

817. While GR was asking questions of Dr Spencer she asserted that Dr Spencer had said at the Children’s Court hearing she had not experienced “any” clinical occasion where a child had been in an induced coma and force fed (T.129/16-18).

818. Objection was taken on the basis that the transcript did not state the word “any” but “many” (T.130/31-36). GR insisted that her transcript had the word “any” (T.130/41-43). The distinction between the two was of some considerable significance.

819. The copy Mr Kell SC, Mrs Stolier and I all had clearly had the witness saying “many”.

820. I was concerned if there was another version of transcript as the difference was material. I stopped the hearing to permit GR to send through her copy of the transcript. That occurred. What was disclosed was that GR did not have and never did have a basis for suggesting the word used by the witness was “any” (T.134/20-29).

821. I am satisfied the excuse given by GR was implausible, being that she was mistaking Dr Teo’s statement for Dr Spencer’s (T.135/6-7). She never so much as produced the document she alleges confused her into thinking that Dr Spencer had given the answer she insisted she had.

822. GR was cross examined about some emails it was alleged she had sent to her husband that came out of subpoenaed records of Queensland police (see, e.g. TB 31/75 p 12664). The emails were the subject of a claim for privilege by GR. She objected to me hearing the claim and it was determined by Justice Ward. GR’s claim for privilege was not upheld.

823. During the course of her evidence GR asserted that police had investigated the issue and determined that the emails were in fact generated by her former husband so as to make it appear they in fact came from GR (T.584/3-12). She said she would be able to produce evidence from the police files to prove that they had concluded accordingly (T.584/21-27).

824. The materials she ultimately produced prove nothing remotely of the kind. Attached to an email to the Court dated 19 July 2021 (Ex.A2), GR sent NSW Police Subpoena records containing an incident report dated 29 December 2020. GR directed the Court to page 13 of the document in which the report stated that the phone number listed in the respondent section of the AVO application appeared to belong to the aggrieved. When I asked GR in a subsequent hearing on 23 July how this evidence related to the relevant emails she simply stated that she did not send them in those terms (Transcript of hearing of 23 July 2021 at T.3/30-34).

825. I am satisfied she simply made up the story and indeed is the person who sent the emails and that she knew that all along.

826. The question of GR’s alleged administration of Olanzapine while on the family cruise in South America featured before the Children’s Court and again before me.

827. Before the Children’s Court and before me, the account given by the ship’s doctor that she told him she had purchased Olanzapine over the counter while onshore, was denied by GR (see CCJ1 [401], T.560/16-19). Before me the evidence proceeded by way of MS teams, GR held up to the screen something in a small box asserting it was a herbal product she bought and administered to AB. She gave a similar account to the Children’s Court. Before me she produced no receipt for the purchase nor any chemical analysis of the substance in the bottle. Her husband nor anyone else provided any corroboration for the purchase of herbal medication.

828. The report made by the doctor is in evidence (TB 9/61 p 3567). He was not called to give evidence and therefore was not available for cross examination. As against that the account is clear and unequivocal. There is no reason why the ship’s doctor would fabricate the story whereas GR would, given the history of this matter, be keen to distance herself from the administration of the drug.

829. In all the circumstances I, like the President of the Children’s Court, cannot accept GR’s denials.

830. Also during the course of the hearing and on many occasions GR asserted that AB had no internet and accused persons of having stolen gifts she had sent AB but in particular a computer she had sent him (see, e.g., T.53/18-23; T.38/23-24; T.53/2-4; T.589/33-38). She must have known these allegations were false, because she knew or believed AB was developing his Japanese language app. She had no basis for such an accusation but that did not stop her from making the accusation. The evidence clearly establishes that AB got the computer but does not want it. He wants to trade it in and buy something else. Furthermore, the evidence is that AB wants to use a computer in his bedroom and is encouraged not to do so. He has internet outside his bedroom but uses his phone for privacy. I am satisfied although she had no basis for making the allegation she had so little regard for the truth she was quite prepared to make the allegation not caring about its accuracy one way or the other.

831. She also constantly made allegations about AB’s condition and eating habits and how in effect he was being starved (see, e.g., T.339/22-27; T.373/37-40; T.543/45-50-T.544/1). She has been receiving, along with her former husband, twice weekly updates as to AB’s progress which has included reference to his voluntarily choosing to become vegan. GR continues to assert that his diet is restricted, whereas I am satisfied on the evidence that AB has voluntarily chosen a vegan diet. She apparently cannot accept that fact and has no rational basis for suggesting the contrary.

832. GR made assertions that these updates were merely “copy and paste” repetitions (T.587/35-40). They are clearly not. To state as she did that she was denied contact is simply not true. She has sent AB messages and has received messages back. The simple truth at the moment is that AB it seems does not want to have contact with GR.

833. These examples not only satisfy me that she is incapable of objectivity but that she is also quite irrational.

834. She is totally convinced she can handle all of AB’s conditions at home with she seems to accept some support. Even her own expert in particular Dr Lucire in effect rebuked her for her abject lack of insight into how difficult the caring exercise would be (T.472/36-50, T.473/5-7).

835. At the risk of repetition, she has refused to accept directions from time to time as to how best to deal with AB’s autism and in particular his diet. She is not respectful of any person to my observation who does not agree with the way she sees things. Her level of confrontation with caseworkers in particular is regrettable and she is unable to understand contrary to AB’s interests. She has not been able to take directions and guidance.

836. In short for any number of the above reasons she is quite ill suited to have AB in her care (s.90(60(e)). It would be a different matter had she successfully undertaken some family therapy with AB but that simply has not occurred. GR’s failure to cooperate in this regard is credibly amplified in the Secretary’s Note and Aide Memoire No. 3 at [13] iv-vii.

837. In all of the circumstances I am unable to be satisfied that GR is capable in any sense in having the responsibility of AB at home with or without assistance. I am not satisfied GR has the capacity rationally or objectively of giving his condition and the necessary therapy required by it the priority it needs. I do not consider even assuming best intentions, AB would be in a safe, calm, and respectful environment if he was with GR in her care. At the moment AB is developing his confidence in a conflict-free, no pressure setting. He has it seems a trusting constructive relationship with his carers especially Mupo, Gary and his psychologist (s.90(6)(d)). That should not be disturbed or interfered with as I consider it would be very much to his detriment and contrary to his best interests.

838. On the evidence I am not satisfied GR would listen to and / or co-operate with, as would be vital, the medical and other professionals who will have to play a long term role in managing AB’s complex presentation (s.90(6)(e). AB’s wellbeing cannot be left to GR’s prejudices or whims if for some reason she were to disagree with some recommended course. She did not exhibit before me, as far as I could detect, any sincere willingness to take direction or guidance from those she disagreed with. It would be risky in the extreme in my view to change the current arrangements even though the progress which is undoubtedly occurring is slow. It would be contrary as I have said to AB’s interests to interfere with the stability and relative calm which currently exists in AB’s present care and I do not propose to do so. Examples of his ongoing treatment and the need for stability are amply and credibly identified in the Secretary’s Note and Aide Memoire No. 3 at [7]-[9].

839. While AB cannot be forced to have contact with his mother, he should obviously be and is currently being encouraged to do just that. If at all possible, it obviously should extend beyond e-cards and presents and the twice weekly reports from Ms Eldridge and others.

840. It is probably hoping for too much to try and persuade GR that endless litigation is not the answer and is not only counterproductive but likely to cause she and AB much greater stress in the end.

841. Contact should obviously continue with AB’s father and be expanded in terms of time and content if at all possible.

842. There are two miscellaneous matters I should deal with. Much was said before me about Olanzapine in at least two respects. I leave to one side entirely, GR’s own administration of that drug to AB.

843. The first is the views of Professors Jureidini and Einfeld about the administration of Olanzapine. That was a treatment devised by Associate Professor Madden with the consent of both the Secretary and the independent Drug Committee at Westmead. I also accept Associate Professor Madden’s evidence that he had the informed consent of AB. I accept that it was treatment that worked and the proof is that AB is free of medication and doing well albeit slowly. It was a treatment that although off-label was approved by all relevant interests. It follows that I do not accept the criticism of either Professor Jureidini or Professor Einfeld partly because they did not have all of the relevant facts.

844. The second aspect is whether AB has brain damage because of the administration of the drug. Dr Lucire is the only clinician to express that view and it is in the absence of having seen or examined AB. Dr Milch does not believe he has any brain damage and for what it is worth Professor Jureidini said he found no evidence of any brain damage. He has no obvious neurological problem but for his facial tic which has been observed but no-one most importantly the team at Westmead has observed any symptoms to alert them.

797. Dr Lucire claimed, based upon AB’s involuntary facial movements, that he has developed NIDS, neuroleptic induced deficit syndrome, or drug induced dementia (Ex.R10 p 4). I would reject Dr Lucire’s views about AB having organic brain injury as a result of the administration of Olanzapine. No other clinician says so. Dr Lucire has never seen AB. There is no objective support for such a diagnosis. There is no psychometric test results, MRI or CT scans.

798. I accept Dr Milch’s view as to the reason and cause of AB’s facial tic (T.261/18-27). In his view it is connected to his autism, a view which I accept.

799. GR also called evidence from her psychiatrist, a Dr Stuart Saker. Dr Saker, at the time he gave his evidence, had not seen GR since September 2019. He had expressed the view that GR did not have a “major” diagnosable psychiatric condition. After he gave evidence, a further report was procured from Dr Saker by GR which I admitted into evidence.

800. As far as Dr Saker is concerned the question of whether or not AB needs care or GR could parent appropriately in one sense does not turn on the basis of whether or not GR has a “major” psychiatric illness or none. I note that he appeared to emphasise “major”.

801. Leaving Dr Saker to one side I am entitled and have formed an impression of GR and her capacities against AB’s needs now and for the foreseeable future. But I will say I find Dr Saker’s reports superficial in the extreme. He was prepared to accept all manner of assertions from GR without question, including that she simply denied psychotic symptoms.

802. He applied some sort of scale and apart from a glossary provided no explanation as to how it was administered or how he arrived at his result. I have put his views to one side entirely as being of no assistance.

Conclusion

863. Taking into consideration the findings of the President of the Children’s Court which I endorse, the recommendations of the experts, medical and care professionals before me during the hearing, I do not believe that there is anything in the evidence that warrants a departure from the orders of the Children’s Court. It is, in my view, in the best interests of AB that he remain in his current placement until he turns 18. He should be encouraged to maintain contact with his parents at the level deemed appropriate by his caseworkers. The next period before AB reaches 18 is crucial in his development and continued recovery, and he will be best accommodated in his current placement.

864. I would reject GR’s submission that AB should be returned to her care with the support of NDIS and private carers and given supervised contact with his father. I do not believe, based on the animosity shown towards the father by GR throughout the hearing and in the evidence that she would be capable of allowing contact or fostering a better relationship between AB and his father.

865. Further, for the reasons above, I do not believe that that there is a realistic possibility of restoration (Care Act s.83). GR is incapable of cooperating with DCJ or carers and has not accepted nor addressed the issues that gave rise to AB’s initial assumption to care (Care Act s.90(6)(e)). There is an ongoing “unacceptable risk of harm” (s.9(1) of the Care Act; M v M). I also reject her narrative of the torture that AB is said to have been subjected to and of the lies that the Secretary was to have fabricated. Furthermore, and importantly, none of the experts supported AB’s return to GR’s care.

866. I have considered AB’s wishes (as per ss.9(2)(a) and 90(6)(b) of the Care Act) which are complicated and seemingly changing. He does not, however, express a consistent desire to be returned to his mother’s care, rather his interest in being where he has privacy and access to privacy and the internet (see Care Act s.90(6)(d))

867. I would also reject GR’s assertion that the final care orders were out of time, preferring the Secretary’s submission that the reference to “24 months” in s.83(8A) of the Care Act being a reference of the forecast period within which “realistic possibility of restoration” is to be gauged, and not a reference to the time by which a particular action is to be taken in connection with s.83(3).

868. Furthermore, I reiterate my finding in GR v The Department of Communities & Justice and Ors [2020] NSWSC 1901 at [26]-[35] and note the Court of Appeal’s decision in GR v Secretary, Department of Communities and Justice [2021] NSWCA 99 at [13] that establishment had occurred, contrary to GR’s assertions.

869. The appeal is therefore dismissed. All aspects of parental responsibility for AB should remain allocated to the Minister until he attains 18 years of age.

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