JT v Secretary to DHHS
[2019] VSC 783
•29 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05096
Between:
| JT | Plaintiff |
| -and- | |
| THE SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES | Defendant |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2019 | |
DATE OF JUDGMENT: | 29 November 2019 | |
CASE MAY BE CITED AS: | JT v Secretary to DHHS | |
MEDIUM NEUTRAL CITATION: | [2019] VSC 783 | |
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COURTS AND JUDICIAL SYSTEM — Parens patriae jurisdiction of Supreme Court — Application to return child to mother’s care — Based on protective concerns, warrant issued by Children’s Court to search for child (aged six years) and place in emergency care — Warrant executed by Australian Federal Police when child intercepted at Darwin Airport upon return to Australia from Indonesia with mother JL — Local Court of Northern Territory ordered child to be taken to Department of Health and Human Services (“DHHS”) in Victoria — Child returned to Victoria by Child Protection Service (“CPS”) of DHHS — Interim accommodation order (“IAO”) made by Children’s Court placing child in care of maternal grandmother — Mother’s application for rehearing of IAO in Children’s Court adjourned for mention until mid-December 2019 — Full hearing not likely to be until next year — Circumstances inappropriate for invocation of parens patriae jurisdiction when Children’s Court already in throes of hearing relevant matters — Application refused — Comments suggesting Children’s Court nevertheless should have full hearing far more promptly than currently envisaged — Children, Youth and Families Act 2005 (Vic), ss 10, 241, 262 & 271.
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Appearances: | Counsel | Solicitors |
| For the Plaintiff | In person | N.A. |
| For the Defendant | Ms K Evans | Child Protection Litigation Office, Department of Health and Human Services |
HIS HONOUR:
Introduction
On 8 November 2019, a child was taken from his mother by Australian Federal Police (“the AFP”) while at Darwin Airport. The AFP were acting pursuant to a warrant issued by the Children’s Court of Victoria. The child has since been returned to Victoria and placed in the care of his maternal grandmother on an interim accommodation order (“IAO”), at least for the time being.
In substance, this is an application, brought by the child’s mother, in the parens patriae jurisdiction of this Court, for the immediate return of the child to her care.
For reasons that follow, including the fact that the issues raised in this case are still before, but have not yet been heard and determined fully by, the Children’s Court, the application will be dismissed.
That said, as I shall explain later, in my view, this matter should be dealt with in the Children’s Court far more expeditiously than appears to be envisaged at present. While I have seen and heard only a small portion of the evidence, and while there is undoubtedly a good deal more investigation to occur, on the strength of the evidence before me, it is plain that there is a strong argument that the child should be returned to his mother’s care (or at least transferred to his maternal grandfather’s care), and sooner rather than later. That prospect should not be delayed unnecessarily.
Background
AB and his family
AB is six-and-a-half years old, nearly seven. Before being taken to Queensland and Bali by his mother JT recently, the two of them had lived in a country town in Victoria. AB’s father died in September last year after a battle with leukaemia. AB has two older siblings — a 22-year-old brother CD and a seventeen-year-old sister EF — neither of whom has been living with AB or his mother in recent months.
CPS’s protective concerns
At least since 27 June 2019, Child Protection Services (“CPS”) of the Victorian Department of Health and Human Services (“DHHS”) have had protective concerns for AB. For example, CPS considered that AB was at a risk of harm because his brother CD, who was believed to be violent and a methamphetamine user and trafficker, had been living with AB and their mother JT. Other concerns or allegations included the fact that AB was not enrolled in school; that he is significantly developmentally delayed; his lack of basic immunisation; neglect in his care; his mother’s mental health and cannabis use; and her avoidance of and resistance to engaging with CPS and addressing their concerns about her and AB.
Warrant issued
By 1 October 2019, CPS had become particularly concerned, as they were then unaware of AB’s whereabouts. As a result, a CPS representative applied successfully to the Children’s Court, pursuant to s 241 of the Children, Youth and Families Act 2005 (Vic) (“the CYF Act”), for a warrant authorising members of the police force to search any place where AB was suspected to be and to place him in emergency care.
CPS suspected that, upon becoming aware of the warrant, JT fled to Bali with AB.
AB removed from his mother and returned to Victoria
Early on the morning of Friday 8 November 2019, in the company of his mother, AB returned to Australia on a flight from Bali to Darwin. There is evidence before me that JT was planning to move to Queensland, near her father GH, and enrol AB in school there. While at the airport, at about 6:13 a.m., AB was taken from JT by AFP officers acting pursuant to the warrant issued by the Children’s Court. Later that day, the Local Court in Darwin ordered that AB “be taken to Human Services [in a Victorian country town]”.
AB was flown back to Victoria accompanied by workers from CPS. They arrived in Melbourne on the evening of the Saturday, 9 November. In what I regard as an unfortunate turn of events, it seems that JT had no choice but to travel back to Melbourne on a flight separate from her son.
Hearing before bail justice
After a hearing conducted at a police station, a bail justice made an interim accommodation order (“IAO”), placing AB with his maternal grandmother KL and her husband MN.
At around midnight, CPS served JT with a protection application, which was listed for hearing in the Children’s Court on Monday 11 November.
Ex parte application before Justice Garde
On the Sunday, 10 November, JT brought an urgent ex parte application in this Court’s parens patriae jurisdiction before Justice Garde.
No notice was given to CPS, who were not represented at the hearing.
JT was not represented by a lawyer. She represented herself, and his Honour allowed a witness OP to speak for her at one point.
Sworn evidence viva voce was given by three witnesses. First, there was JT herself. Next, there was OP, who is a former secondary school teacher who had examined JT’s home-schooling programme for AB and found it to be satisfactory. Finally, there was QR, a former fitter and turner and teacher’s aide, at whose home JT and AB had been living in country Victoria immediately before they left for Queensland and Bali. It is unnecessary to summarise their evidence any further in this judgment. Suffice it to say that, among many other things, JT denied CPS’s allegations in the main. She also explained that, after the allegations concerning her adult son CD were raised, she moved with AB to live with QR at his home.
Justice Garde considered that he should permit the application in the Children’s Court listed for hearing the next day, Monday 11 November, to continue. His Honour adjourned JT’s application in this Court until 2:15 p.m. on Tuesday 12 November to a judge siting in the Practice Court, and made various other orders as to the filing and service of documents. He also referred JT to the officer of the Court who assists litigants in person so that he may assist her with preparation of the documents necessary to continue her application.
Hearing before Children’s Court
On Monday 11 November, CPS made their protection application to the Children’s Court. CPS were represented by a solicitor. As it turns out, JT did not appear at that hearing. There is a conflict as to how that came about, the rights and wrongs of which I shall not determine on this application.
The solicitor for CPS made submissions in support of an IAO. In the result, the Children’s Court made an IAO, placing AB in the care of his maternal grandmother and her husband, and with the following 17 conditions:
1) Mother must accept visits from and co-operate with DHHS.
2) Mother must accept support services as directed by DHHS.
3) Mother must go to a psychologist and/or psychiatrist as directed by DHHS for assessment and treatment and must allow reports to be given to DHHS.
4) Mother must allow the child to be taken to a paediatrician for assessment, must allow any recommended treatment to be carried out and must allow reports to be given to DHHS.
5) Mother must submit to random supervised alcohol and drug testing [once] per week or otherwise as directed by DHHS and must allow the results to be given to DHHS.
6) Mother must participate in assessment and/or treatment for alcohol and/or drug dependence as directed by DHHS and must allow reports to be given to DHHS.
7) Mother must not drink alcohol or use illegal drugs when with the child and must not be affected by alcohol or illegal drugs when with the child.
8) The child may have respite as assessed as appropriate by DHHS.
9) Mother must tell DHHS at least 24 hours before changing address or phone number.
10) Mother must not live or have contact with the child other than court ordered contact.
11) Mother must not threaten or assault DHHS staff.
12) Mother must allow the child to be taken to the doctor for regular check-ups as required by DHHS or the doctor and must allow reports to be given to DHHS.
13) Mother may have contact with the child at times and places as agreed between DHHS and mother. DHHS or its nominee will supervise contact unless DHHS assesses that supervision is not necessary.
14) Mother must allow the child to be assessed by the Victorian Forensic Paediatric Medical Service and allow the report to be provided to DHHS.
15) Mother must allow child to be immunised.
16) Mother must allow the child to be enrolled at school.
17) Mother must participate in a neuropsychological assessment and allow the report to be given to DHHS.
The matter was adjourned for a mention on 13 December 2019. There is an express note on the IAO declaring that “[t]his case is not listed as a contest on the next date”. I shall return to that fact later in these reasons.
Application before Justice Cavanough
The next day, Tuesday 12 November, JT appeared in this Court before Justice Cavanough.
Again, JT was unrepresented. While she sought leave to rely on the assistance of a McKenzie friend of sorts, his Honour refused leave to do so.
Counsel appeared for the Secretary to the DHHS.
In summary, in her originating motion, JT sought the following orders:
1) an order that her son AB be returned to her custody;
2) an injunction restraining the CPS worker WX and the DHHS from “continuing action against” her;
3) an injunction restraining WX and the DHHS from taking action in relation to assessments of AB;
4) a declaration that AB is not at risk in her care;
5) costs; and
6) any other orders, including damages, that the Court sees fit to make in addition to the other orders sought.
In her submissions to the Court, JT appeared to apply for an injunction “to stop the Children’s Court proceedings”. As his Honour and counsel for the Secretary explained during the course of the hearing, JT was free either to go back to the Children’s Court and make an application to vary or set aside the IAO, to make a fresh application for an IAO, or to appeal to this Court against the making of the IAO.
At one point, perhaps consistently with her originating motion and the conditions of the IAO, JT appeared to seek an injunction restraining the authorities from having AB vaccinated, which his Honour declined to entertain.
The Secretary submitted that the application should be dismissed.
It is apparent that Justice Cavanough was on the verge of dismissing the application until JT applied for an adjournment to allow her to seek the assistance of a lawyer and prepare more material. Thus, ultimately, upon JT’s application, which was unopposed by the Secretary, the matter was adjourned to Tuesday 26 November, in the Practice Court, to allow those things to occur.
His Honour also made directions as to the filing and service of documents and amendments to the names of the parties. In particular, the mother’s name was anonymised to JT, a CPS worker’s name as a defendant was removed and the Secretary to the DHHS was substituted for the DHHS as the only defendant.
As will be apparent from these reasons thus far and in the paragraphs that follow, I have anonymised all individuals connected with this case.[1]
[1]See s 534 of the Children, Youth and Families Act 2005 (Vic) on restrictions on publication of matters concerning children, parties and witnesses and matters connected with proceedings in the Children’s Court.
JT’s application to the Children’s Court
On Wednesday 13 November, JT filed with the Children’s Court an application to vary the IAO. The grounds stated in the application were that “[t]he [m]other was not present, she was either lied to or misled by DHHS as to the time and place of the hearing” and that “[t]he [m]other appeared at Court as instructed and staff knew nothing about the matter”.
On Thursday 21 November, JT appeared in person in the Children’s Court on that application. The Secretary was represented. The magistrate adjourned the matter for mention on 13 December 2019.
Preparation for contested hearing
In furtherance of conditions 17 and 3 of the existing IAO, CPS have scheduled an appointment for JT to undergo a neuropsychological assessment on 6 December and a mental health assessment on 16 December 2019 (the latter being after the date of the next hearing in the Children’s Court).
Present hearing of application
JT’s adjourned application to this Court came before me in the Practice Court on Wednesday 26 November.
Representation, or lack of it
Counsel appeared for the Secretary.
JT was unrepresented. Unfortunately, despite the opportunity afforded her, it appears that JT declined to apply for assistance from Victoria Legal Aid. Instead, she appeared in person.
Application to have a McKenzie friend or similar
JT applied to have a McKenzie friend (or the like) to assist her, but I declined that application. Prior to the hearing, I had read the would-be McKenzie friend UV’s written application “to appear as a lay advocate”. Based on that document, all other documents I had read and the transcript of JT’s hearings before Justice Garde and Justice Cavanough, I was unpersuaded that UV could provide any useful assistance to JT or the Court.
As it happened, I ended up ejecting UV from the courtroom because of his repeated disruptive behaviour in defiance of my directions. Showing more front that Myer, UV strode back into the Court without even a hint of a request for permission. He was ejected again. Only later in the day did I allow him to return.
Subsequently, I read a more detailed document, apparently authored by UV, that was among those that I allowed JT to hand up at the end of the hearing. While I considered the observations of fact in that document, many of which were completely irrelevant and presented in an unsuitably melodramatic manner, again, I found nothing in that document that persuaded me that I should allow UV to be a McKenzie friend or similar in this case. On the contrary, while I do not doubt UV’s good intentions to assist JT, I am satisfied that she, and this Court, were better served without him.
Additional material and written submissions
Pursuant to Justice Cavanough’s directions, both parties filed additional material in the interim, including affidavits and written submissions.
As indicated a moment ago, I also allowed JT to file additional material at the hearing. None of that was in affidavit form but, rather, was a series of five documents (the fifth of which consisted mostly of a series of photographs).[2]
[2]These were marked collectively as Exhibit 1 on the application before me.
Viva voce evidence from JT’s father
In the course of JT’s submissions, her father GH (ever so politely) asked if he might be heard. GH had come down from Queensland to support his daughter. Given matters that JT had raised, I considered it appropriate to allow JT to lead sworn viva voce evidence from her father to assist in determining whether it was appropriate to proceed to hear this matter fully in the parens patriae jurisdiction of this Court.
GH said that he and JT had arranged that he was to collect JT and AB from Brisbane Airport on 10 November. JT had organised an appointment for AB to enrol at a school that was about fifteen minutes’ walk from GH’s home in Queensland.
GH explained that he and WX, the CPS worker handling JT and AB’s case, had had discussions about AB being placed into his and his wife’s care. Both have previously been disability support workers and have had overseas students live with them. GH said that WX was happy for AB to live with him and his wife, provided the background checks were clear. He was hopeful that AB could come to his place at least to attend the last couple of weeks of school. JT could live with them too with a view to getting a place of her own nearby, eventually.
When AB’s father died, JT and AB lived with GH and his wife for about two to three months. GH observed a stable and loving relationship between mother and son. JT had AB mixing with other children as well.
GH acknowledged that JT had a stance against vaccinations of children. He explained that JT had a young child who, over 20 years ago, died only a short while after being vaccinated, which, along with literature on the subject, has caused her to hold the belief that AB should not be vaccinated.
GH explained that he considered it would be in AB’s best interests to move to Queensland (with him and his wife) because his current carers under the IAO — AB’s maternal grandmother KL and her husband MN — have health issues that make the task difficult for them. Indeed, MN has had to attend intensive care at hospital only recently.
While he did not think it was necessary, GH accepted that, if he had the care of AB, he would have to abide by any court-imposed conditions, such as a requirement that JT’s access to AB be supervised. In that regard, he pointed out that he is so strict that he “dobbed [JT] in to police” when she was young for driving without a licence.
GH offered the opinion that the current arrangements were not in the best interest of AB.
In cross-examination, GH said that he had had contact with the DHHS in the last few days and that he was meeting them again after court to complete some forms.
In re-examination, GH confirmed that WX had said that she would be happy for AB to come and live with him and his wife provided the background checks were clear.
I found GH to be an impressive witness.
Submissions
JT maintained her submission that this Court should order the return of AB to her forthwith. She pointed to material that, in her submission, demonstrated that the allegations against her are unfounded, that she has evidence to the contrary of some, and that, in any event, the IAO should not be in place. She submitted that AB’s separation from her would have lifelong negative effects on him. In her submission, the circumstances were exceptional and extraordinary such as to warrant this Court hearing the matter in its parens patriae jurisdiction, and to make the orders sought.
Counsel for the Secretary explained that, if a decision is made that AB should be transferred into JT’s father’s care, the Secretary would make an application for a different IAO, which could be heard quickly.
The Secretary maintained the submissions that the Children’s Court was the appropriate forum to continue hearing the issues in dispute; that the circumstances were not exceptional or extraordinary so as to warrant this Court exercising its parens patriae jurisdiction to hear and determine the matter; and that the application therefore should be dismissed.
Discussion
In my view, all aspects of the application must be dismissed.
At least in the first instance, the Children’s Court is the appropriate court to hear and determine the matters in issue, including what is in the best interests of the child AB.[3] It is a specialist court with unique experience and expertise in dealing with matters of this type. But the Children’s Court has not yet fully heard the evidence and arguments that might be presented on a contested hearing.
[3]See s 10 of the Children, Youth and Families Act 2005 (Vic).
If, after such a hearing, JT were aggrieved by the decision, then, pursuant to s 271 of the CYF Act, she could appeal to this Court against the making of an IAO.
In addition, pursuant to s 270, JT could return to the Children’s Court and apply for a new IAO, on the basis that she was not legally represented at the hearing of the original application (as she has already sought to do) or on the basis of new facts and circumstances, such as the evidence of her father.
In Georgia and Luke (No 2),[4] Palmer J, sitting in the Supreme Court of New South Wales, referred to:[5]
a well-established line of authority in this Court, enunciated in Re Victoria [2002] NSWSC 647 ((2002) 29 Fam LR 157), that this Court will not, save in extraordinary circumstances, exercise its parens patriae jurisdiction in respect of the care and custody of children where there are currently proceedings relating to those children in the Children’s Court, or where avenues of appeal from Children’s Court proceedings are still open.
[4]Georgia and Luke (No 2) [2008] NSWSC 1387.
[5]Georgia and Luke (No 2) [2008] NSWSC 1387 at [6].
There is no reason to doubt the applicability of the same principle in this State.
In those circumstances, and given the evidence before me, I am not satisfied that the circumstances are relevantly exceptional or extraordinary such as to warrant the exercise of this Court’s parens patriae jurisdiction, whether with a view possibly to ordering the return of the child to his mother or to granting any of the other forms of relief sought in the originating motion.
Order
Accordingly, the application is dismissed.
Postscript
That said, and as I foreshadowed at the outset of these reasons and at the hearing on Wednesday, I have seen and heard enough to cause me to make the following remarks.
This is not a case where there are allegations of physical or sexual abuse or a risk that any similarly dire consequences are about to befall the child. Instead, this is a case, in the main, of alleged neglect, poor parenting skills, some challenging behaviours of the mother and a fundamental disagreement between the mother and CPS about matters such as immunisation and schooling.
And yet some of those disputes have already fallen away. The physical or other threat allegedly posed by AB’s adult brother CD has been removed. There is evidence before me that, immediately upon her return to Australia, JT was going to enrol AB in school in Queensland, near her father’s home, and that, in any event, those arrangements could still be put in place immediately. Further, AB could live under the care of his maternal grandfather, his wife and JT, until the latter arranged her own place nearby.
None of that resolves the impasse about immunisation, but there must be ways around that difficulty short of the drastic step of removing the child from his mother’s care. Further, while it is understandable that other concerns about JT’s abilities as a parent and her own behaviours must be addressed in one way or another, surely those matters can be dealt with satisfactorily more quickly than is proposed.
Overall, this strikes me as the type of case that is capable of sensible resolution, and very quickly. But AB has now been separated from his mother for three weeks. He has lived with her the entirety of his six-and-three-quarter years. He has just lost his father only last year. It would be reasonable to expect that he would be distressed at the drastic separation from his mother. Time is of the essence.
Yet I am told that the matter is listed only for a mention in the Children’s Court on 13 December and that a contested hearing would not be listed until next year sometime. While I appreciate that time is required to investigate matters thoroughly and assemble material in order that the Court is better placed to make the right decision, in my view, such a delay in this particular case is unsatisfactory, and could not be in the best interests of AB, which is the paramount consideration in matters of this type.
Instead, as I opined at the outset of these reasons, this matter should be dealt with in the Children’s Court far more expeditiously than appears to be envisaged at present. While I have seen and heard only a small portion of the evidence, and while there is undoubtedly a good deal more to come, on the strength of the evidence before me, it is plain that there is a strong argument that AB should be returned to his mother’s care (or at least transferred to his maternal grandfather’s care), and sooner rather than later. That prospect should not be delayed unnecessarily.
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