Harris (pseudonym) v Department of Communities & Justice

[2021] NSWSC 519

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Harris (pseudonym) v Department of Communities & Justice [2021] NSWSC 519

Hearing dates:

15 April 2021

Date of orders:

15 April 2021

Decision date:

12 May 2021

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See paras [32]-[33]

Catchwords:

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae — party seeking restoration of parental responsibility of children pursuant to the parens patriae jurisdiction — no exceptional circumstances arising to invoke jurisdiction

CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process — seeking same potential outcome in multiple courts

Legislation Cited:

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

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

Category:

Procedural rulings

Parties:

Harris (pseudonym) (plaintiff)
Department of Communities & Justice
Mother (third defendant)

Representation:

Counsel:
L Finch (plaintiff on subpoena issue)
D Brezniac (plaintiff on substantive)
A Tembe (Commissioner of Police)
C Dean (Dept of Communities & Justice)

Solicitors:
Crown Solicitors NSW

File Number(s):

2020/365503

Publication restriction:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105, prohibits the publication of the name of, or any information or other material that identifies or is likely to lead to the identification of, a child or young person, who is mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or who is or has been under the parental responsibility of the Minister or in out-of-home care.

Judgment – ex tempore

JUDGMENT - Application by plaintiff to amend summons dated 24/12/20,

1. The plaintiff in these proceedings by summons dated 24 December 2020 seeks relief in a number of respects. First, that the proceedings identified in Children's Court matter number 97591 of 2020 be stayed. Secondly, a declaration that the removal of the fourth, fifth and sixth defendants from the care of the plaintiff on 25 March 2020 was unlawful. In the alternative, that the Court restore to the parental responsibility and care of the plaintiff and third defendant, the mother, the children pursuant to the parens patriae jurisdiction.

2. Leave is also sought to amend that summons in two respects. First, by adding a claim that the commencement and continuation by the Secretary of the Department of Communities and Justice in the Children’s Court is an abuse of process of the Court and that pursuant to s 69 of the Supreme Court Act 1970 (NSW) there be a prohibition of the continuation of proceedings in the Children's Court. Otherwise, the other prayers for relief remain the same as they were in the December summons.

3. These proceedings have been before numerous judges in this court. First before Slattery J in December 2020 and twice in January 2021, Lindsay J in the middle of January, myself on two dates in February and again on 16 March, and then before a Registrar and briefly before Rein J on 9 March as duty judge.

4. In opposition to both leave being granted for the proposed amended summons and more positively by way of notice of motion, the Secretary, moves on a notice of motion dated 23 March 2021 that the plaintiff's summons be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Opposition to my granting leave for the proposed amended summons, as I understand it, is not put forward on any different submission or proposition as has been advanced in favour of the dismissal of the original summons.

5. The evidence which the Secretary relies upon is an extensive affidavit of a Ms Helen Kopsaris of 23 March 2021. It has numerous documents which I have considered, many of which are however redacted. The documents attached by and large go through various factual matters about the history of allegations made in the care proceedings the father, the plaintiff. In his case, in support of the summons and the proposed amended summons and in opposition of course to the notice of motion of the Secretary he has filed an extensive affidavit. It traverses similar but not identical materials to that of the Secretary. His affidavit is dated 13 April 2021.

6. The basis upon which the Secretary’s notice of motion proceeds is essentially twofold. First, that the Court would not in this case entertain or exercise the parens patriae jurisdiction because there are no exceptional circumstances for those proceedings. Secondly, it is further submitted that the process proposed by the father is an abuse of process because it seeks the same potential outcome in two different courts.

7. The rule of court (r 13.4, UCPR), which enables a party to move to strike out or summarily dismiss any proceedings identifies three bases for such an application. First, that the proceedings are frivolous or vexatious or that there is no reasonable cause of action disclosed or that the proceedings are an abuse of the process.

8. Here, it is a combination it seems to me, of an allegation of vexatious conduct or an abuse of process in the sense that the same relief or the same kinds of proceedings are sought to be ventilated both in the Children's Court and in the Supreme Court. In addition, of course, there is the argument that no exceptional circumstances arise such as to enable this Court to permit the parens patriae jurisdiction to be invoked. I shall deal with those matters in turn.

9. So far as the parens patriae jurisdiction is concerned, I have been referred to authority certainly in the High Court and otherwise and I have been referred to a judgment recently given by Rees J. In addition, however, in a decision by Brereton J in Director‑General, Department of Community Services and Another, Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217, his Honour, in typical style, thoroughly canvasses the various aspects of the parens patriae jurisdiction and considered many of the authorities.

10. It goes without saying that the parens patriae jurisdiction is essentially protective. The breadth of the jurisdiction has often been emphasised and it has been said that it is without limitation, although it must be exercised with caution, and it is a power more extensive than that of parents’.

11. Justice Brereton at paragraph 34 of his judgment makes it clear that that jurisdiction is founded on the need to act for the protection of those who cannot care for themselves. Although it has been most frequently invoked in the context of medical treatment, parens patriae jurisdiction is not limited as such however to therapeutic treatment. Further, the judge makes the point at paragraph 35 that there must be some clear justification for the court's intervention to alter the primary parental responsibility of attending to the welfare of the child.

12. There are proceedings extant before the Children's Court. The history of the proceedings in that court are set out in the affidavit of Ms Kopsaris at paragraphs 55 and following. There have been numerous hearings before the Court before an interim care order, the one that currently is in existence, was made. That interim order will be the subject of contest before the Children's Court between 17 and 21 May and 7 and 11 June 2021. Some ten days therefore has been allocated for the hearing of the matter in that Court.

13. Essentially what has been put this morning by Mr Finch, for the plaintiff both in written outline and orally, is that there are important issues of principle which arise here. There are allegations of impropriety and misconduct on the part of the police officers and/or employees of the Secretary. There have been allegations made about the plaintiff which have been withdrawn and which had no substance, it is submitted, in effect in the first place but have nonetheless caused the Secretary and the Department to act in a particular way and which had derailed the appropriate procedure in relation to the care proceedings.

14. It is said that a warrant which was obtained was obtained unlawfully and there are, it is submitted, a number of consequences which flow from materials perhaps obtained pursuant to the warrant. It is also submitted that the parents were subjected to pressure by virtue of the unlawful removal of the children which amounted to illegitimate pressure and that the first defendant acquired illegitimate leverage over the parents to consent to certain orders on 1 April 2020.

15. Mr Dean, who appears for the Secretary, indicated this morning that indeed one respect the allegations which had previously been sustained against the plaintiff will no longer be pressed. However, he has pointed out that all other allegations will be pressed in the Children's Court. The particular allegation, which he informed me is no longer being pressed is one related to alleged sexual abuse on the part of the plaintiff. Otherwise, other matters outlined in paragraphs 1, 2 and 3 of the grounds of the application will continue to be maintained in the Children’s Court.

16. The question that arises though is what is vexatious or indeed an abuse about the plaintiff's attempts to agitate matters in this court. There is no doubt, as Mr Finch has candidly acknowledged, that whether the argument would be placed on the basis of unlawful warrant or illegitimate pressure or illegitimate leverage ultimately, the relief that is going to be sought in this court is for the interim care order to be quashed or set aside. That, of course, leaves open the question of whether this Court in all of the circumstances would feel able to make order of the sort that the proposed amended summons suggests.

17. It is suggested for example in the proposed summons as was also in the original summons that this Court exercising the parens patriae jurisdiction should immediately restore parental responsibility of the children to the plaintiff and the third defendant. It goes without saying that a hearing which would require the Court to consider those matters may not be short, and would require clearly an examination of the respective parents, and it would also require the potential for psychological evidence. There is no doubt in my mind that those materials, at least in very large measure if not in their entirety, are the very same materials which the Children’s Court will look at in relation to the ten day hearing which is imminent.

18. Mr Dean indicates that no objection would be taken to all such arguments, that the plaintiff wishes to put, can be put to the Children’s Court which would seek to examine the appropriateness of the applications made from time to time, by the Secretary, the bases upon which those applications were made, the reasonableness of the secretary’s conduct and decision‑making from time to time. In other words, all of those matters will be, if the plaintiff seeks to do so, agitated before the Children’s Court.

19. The Children’s Court, as I have indicated, is ready to hear this case in May. If these proceedings even remained on foot in this Court, I personally could not hear the matter if it were to take some days, and I cannot see how it would be a short matter, before July, August or September this year.

20. What is principally at stake I presume, and this is the plaintiff’s concern, is the welfare of his children. Ultimately both here and in the Children’s Court, their interests will be of paramount concern as indeed they should be. If care arrangements, different from those which are currently in place, are to be made a specialist court in my view is the best vehicle or the best venue in which those matters can be debated and decided, especially given the fact that an appeal would be open to the plaintiff to the District Court from Magistrate Devine or if Magistrate Devine for some reason feels unable to hear the matter, another magistrate in that court. The appeal pursuant to s 91(2) would be by way of a new hearing and fresh evidence, or any additional evidence could be called if that was thought relevant.

21. It seems to me that the thrust of the argument sought to be made here, whether it is unlawfulness in relation to the warrant, illegitimate pressure in relation to the parents or illegitimate leverage in relation to consent orders which were allegedly induced on 1 April, would inevitably go to the question of whether the interim order should remain in place - a matter that the Children’s Court is going no doubt to consider. This Court, even if the parens patriae jurisdiction is invoked, would have to give careful consideration to the same issue. In other words, it would be duplicating precisely what the Children’s Court will be doing in May and June. Other arguments may well arise but the plaintiff wants to say the current care order should not have been made and should not continue.

22. Whether proceedings are vexatious or abuse of process does not go necessarily to the motive of the person who is seeking to bring the proceedings. Merely the duplication of proceedings, which are concurrent, is enough where the same causes of action are sought to be agitated in two places at once. There is no reason why, if impropriety is going to be asserted that it cannot be asserted in the Children’s Court and reviewed, if needs be, by an experience District Court judge in due course on fresh evidence for example, if appropriate.

23. The Children’s Court is going to be told by the Secretary candidly that certain allegations are no longer to be pressed. Certain orders will still however be pressed perhaps to similar effect by the Secretary.

24. That however may mean the plaintiff will be successful. If the other allegations of physical abuse, which are yet to be tried and ventilated are sustained then it may or may not be the case that any final order remains similar to that which is currently in existence.

25. The same evidence it seems relied on in the Children’s Court would be relied on here. Mr Finch candidly makes the point that he would want to challenge the foundations for the Secretary having made various decisions along the way which were adverse to the plaintiff’s interests. I see no reason why Magistrate Devine, or if he feels unable to do so some another magistrate, could not entertain any such allegations.

26. So the vexatious conduct and or the abuse of process is in fact the duplication of arguments, the duplication of substantially similar cases in the two jurisdictions. True it is that s 69 may be called in aid or not, but the ultimate case that is going to be put to this Court is that which will be put to the Children’s Court namely that the interim order was made on a flawed basis.

27. The plaintiff has a hearing date. I presently cannot give one. The hearing date is in May and June. Whether or not he has yet filed evidence in those proceedings is not to the point. He has prepared, for the purposes of a procedural argument here, a very detailed affidavit, which runs to 136 paragraphs. He deals, as one would expect he would, with each of the allegations which are made against him. He annexes many documents.

28. In turn, he makes commentary upon documents which clearly are in his possession, and he disputes when appropriate by evidence of having conversations - an example of which is at paragraph 98 - and he otherwise expresses his views about various factual matters, which are outlined in the underlying documents which he annexes. He is clearly in a position to file that affidavit today in the Children’s Court and if he were to do so I dare say the Secretary could not object to that occurring.

29. He also had prepared in advance, so it seems, a report by a Mr Danny McCatty of 8 September 2020, which was prepared, so it seems from Mr McCatty’s materials, for a hearing in September of last year. Mr McCatty’s letter of instructions from Kings Law Group was sent to him on 10 August and his report or the body of his report was signed by him, it seems, in September of 2020. In any event, it is now readily available, insofar as it is relevant and admissible, to be deployed insofar as it goes to issues of impropriety or failed processes on the part of the police.

30. In both jurisdictions, there is going to be an attack by the plaintiff on the interim care order. Here it is going to be said that I should not only quash the interim order, but I should make other orders for the care of the children. On that basis, it seems to me, that these proceedings fall squarely within r 13.4 UCPR, either because they are vexatious in the sense they give rise to duplicate arguments which are already fixed to be heard before a specialist court, or alternatively they are an abuse of process for the same reason.

31. So far as the matter not giving rise to exceptional circumstances such as to invoke the parens patriae jurisdiction, I do not propose to say anything in addition to what I have already said. If the plaintiff was able to mount the case of the sort that he wishes to mount, no doubt, in opposing any continuation of an interim care order, it may well be that the parens patriae jurisdiction could be invoked. It is very wide jurisdiction.

32. However, I will say this. That as far as I am concerned, because all of the arguments that he would seek to agitate insofar as the parens patriae jurisdiction are identical to those that he would otherwise seek to agitate, it seems to me that as a matter of discretion there would be no point in granting relief under the parens patriae jurisdiction if indeed he is able to get the same outcome before the Children’s Court on similar if not identical factual and legal issues.

33. For the above reasons I would refuse leave to file the proposed amended summons and dismiss the plaintiff’s current summons.

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Amendments

10 June 2022 - anonymised plaintiff's name

Decision last updated: 10 June 2022