In re the Child “AS”

[2023] NSWSC 951

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

In re the Child “AS” [2023] NSWSC 951

Hearing dates:

14 August 2023

Date of orders:

14 August 2023

Decision date:

14 August 2023

Jurisdiction:

Equity

Before:

Hammerschlag CJ in Eq

Decision:

The proceedings are dismissed.

Catchwords:

CHILDREN AND YOUNG PERSONS – Claim by Summons for writ of habeas corpus in relation to a child the subject of proceedings in the Children’s Court – assertions of vexatious proceedings and malicious prosecution by the Department of Communities and Justice and Children’s Court – habeas corpus not available – claims of serious misconduct not pleaded – absence of any material justifying allegations – HELD – the proceedings have no foundation and are an abuse of process and should be dismissed

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Constitution

Magna Carta

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Principal judgment

Parties:

TS (First Plaintiff)
VS (Second Plaintiff)
Secretary, Department of Communities and Justice (First Defendant)
Department of Communities and Justice (Second Defendant)
Children’s Court of New South Wales (Third and Fourth Defendants, submitting appearance)

Representation:

Counsel:
First Plaintiff (self-represented)
Second Plaintiff (self-represented)
M W Anderson (First Defendant)

Solicitors:
NSW Crown Solicitor’s Office (First Defendant)

File Number(s):

2022/00244800

Publication restriction:

Pursuant to an order made on 25 November 2022, there is to be no publication of the name of, or any information that would identify or tend to identify, the child the subject of these proceedings until 12 July 2043. This order operates throughout the Commonwealth of Australia.

EX TEMPORE JUDGMENT (REVISED)

1. The child the subject of these proceedings was born on 12 July 2018 and removed from the care of her mother (the mother) on 25 October 2020.

2. On 19 November 2020, the Children’s Court of New South Wales, acting pursuant to provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW), allocated all aspects of parental responsibility for the child to the Minister for Families, Communities and Disability Services until further order. Final orders were made on 9 May 2023.

3. Under the final orders, all aspects of parental responsibility were allocated to the Minister for 12 months. After 12 months, responsibility is to be allocated jointly to the Minister and the mother for a further 12 months. Thereafter, responsibility is allocated to the mother, to the exclusion of the father, until the child reaches 18 years.

4. The child’s father (the father) did not appeal the final orders and the deadline for doing so has passed. I was informed from the bar table that an application by the paternal grandmother (the grandmother) for leave to be joined to the Children’s Court proceedings was refused and also not appealed.

5. It is not necessary to recount in any detail material pertinent to the Children’s Court proceedings (which included a report dated 4 July 2022 prepared by the Children’s Court Clinic—which is in evidence), suffice to say that there is nothing on the face of any of the material placed before this Court to indicate anything other than that the Children’s Court acted properly and appropriately in making the orders it made.

6. The father, as first plaintiff, and the grandmother, as the second plaintiff, initiated these proceedings by Summons filed in the Common Law Division on 18 August 2022.

7. The Summons claims “[a]n order of the great writ habeas corpus of the child”, a “Claim of a vexatious proceedings Conducted by Child services NSW, children’s secretary, and Surry hills children’s court on reasonable grounds listed as shown…” (there follows a number of generalised, unparticularised assertions) and a “claim of malicious prosecution Conducted by DHHS Child services NSW, children’s secretary, Surry hills children’s court and all the judges involved with [the child’s] case…at Surry hills Children’s court”.

8. The proceedings were transferred to this Division on 25 November 2022 by Parker J presumably because the assignment of business to this Division under rr 1.19(a)-(b) of the Uniform Civil Procedure Rules 2005 (NSW) includes proceedings on an application for a writ of habeas corpus ad subjiciendum in respect of a minor and proceedings for orders for the custody of and access to minors.

9. Although the grandmother is cited as the second plaintiff, she made it clear that she does not wish to have anything to do with these proceedings (which I took to mean anything formal, because she was given the opportunity to be heard and she took it up). She had earlier apparently attempted to discontinue by Notice of Discontinuance signed on 21 November 2022.

10. The father served a Notice to Produce dated 20 September 2022, which was plainly objectionable and correctly set aside by the Registrar in Equity on 15 March 2023. Previous applications by the father for leave to issue subpoenas were refused by the Senior Deputy Registrar on 16 September, 26 September and 5 October 2022, respectively.

11. The Summons, as filed, cited the “Children’s secretary” as the first defendant, “DHHS Child services NSW” as the second defendant, “Surry hills children’s court” as the third defendant and “All judges involved in [the child’s] case at Surry hills children’s court” as the fourth defendant. On 26 October 2022, by order of the Senior Deputy Registrar, the first defendant was renamed in the Summons as the “Secretary, Department of Communities and Justice” (the Secretary) and second defendant was renamed as the “Department of Communities and Justice”.

12. Mr Anderson of counsel appeared for the Secretary. Written submissions were provided by the Secretary and were filed on 9 August 2023. The father and grandmother appeared by audio-visual link, having been given leave to do so by Lindsay J. The plaintiffs led no evidence. The Secretary relied on two affidavits from one caseworker and one affidavit from another.

13. The Children’s Court (third and fourth defendants) filed a submitting appearance.

14. I conducted the proceedings effectively on a stopwatch basis. I gave each participant half an hour. None of them used up their full allocation. The first utterance from the father was that he was not my slave and was a sovereign man. He made a lengthy statement in which, in relation to the Children’s Court and this Court, he used words and phrases including “tainted beyond repair by the act of treason committed by this Court”, “conspiracy”, “thick corruption”, “colluded”, “dishonesty”, “lied” and “abuse of taxpayer money” for which he had, and has, no basis.

15. The grandmother followed the same line. In addition, she invoked the Constitution and Magna Carta.

16. A writ of habeas corpus is one of the most celebrated writs in common law. It is available to secure the liberty of a subject by affording an effective means of immediate release from unlawful or unjustifiable detention. If there is a detention for which there is no legal justification, the Court will order the detained person to be released. It may not be used as a means of appeal. Here, there is no detention let alone an unlawful one. Rights of appeal from the orders of the Children’s Court were available but not availed of. The writ is not available.

17. Grave allegations such as conspiracy and malicious prosecution referred to in the Summons are not pleaded at all let alone adequately. But more importantly, there is not a skerrick of material to justify any of them.

18. I consider these proceedings to be an abuse of process and I propose to dismiss them.

19. It is worthy of observation that the grant of leave to unrepresented persons to appear remotely may in some circumstances cause difficulty by virtue of the Court’s lack of control of persons without the ethical obligations upon practitioners with regard to the making of serious allegations including ones of dishonesty.

20. The Court orders that the proceedings be dismissed.

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Amendments

17 August 2023 - Correction to the title of "Children and Young Persons (Care and Protection) Act 1998 (NSW)" in coversheet and paragraph [2].

Decision last updated: 17 August 2023