Re AB (No 2)

[2019] NSWSC 566

Supreme Court

New South Wales

Medium Neutral Citation:

Re AB (No 2) [2019] NSWSC 566

Hearing dates:

15 May 2019

Date of orders:

15 May 2019

Decision date:

15 May 2019

Jurisdiction:

Equity - Protective List

Before:

Kunc J

Decision:

Orders discharged

Catchwords:

FAMILY LAW - Children – Parens patriae jurisdiction – No further need for extraordinary medical intervention

Cases Cited:

Re AB [2019] NSWSC 316

Category:

Procedural and other rulings

Parties:

Secretary, Department of Family and Community Services (Plaintiff)

  The Mother (First Defendant)
The Father (Second Defendant)
AB (Third Defendant)
The Hospital (Fourth Defendant)

Representation:

Counsel:

 

C McGorey (Plaintiff)
A. Moutasallem (First Defendant)
K. Wooi (Solicitor) (Third Defendant)
B Lyons (Solicitor) (Fourth Defendant)

  Solicitors:
Acting Crown Solicitor for NSW (Plaintiff)
K Wooi (independent solicitor for the Third Defendant)
Principal Legal Officer New South Wales Ministry of Health (Fourth Defendant)

File Number(s):

2019/83327 and 2019/62836

Publication restriction:

No

EX TEMPORE JUDGMENT (REVISED)

Summary

1. HIS HONOUR: The background to this matter is set out in my judgment in Re AB [2019] NSWSC 316.

2. The proceedings were listed before me today in the expectation of an application to be made by AB's mother in relation to AB's ongoing care and management. However, a motion was only provided to the Court this morning once the hearing had commenced. That motion sought a stay of the interim care order that had been made in favour of the Secretary by the Children’s Court. AB's mother's previous application to that effect was made in proceedings 2019/62836, which, on an earlier occasion, I transferred to the Protective List of this Division. That matter had not progressed while the urgent medical issues that had arisen in relation to AB were dealt with in these proceedings, which the parties and I have been referring to as the "parens patriae proceedings".

3. In reviewing the evidence in preparation for this morning's hearing, I noted that AB's condition has improved considerably since the time of my earlier judgment. This raised in my mind the question whether it was necessary for the Secretary to continue to invoke the parens patriae jurisdiction for orders in relation to AB over and above the powers conferred on the Secretary by reason of the interim care order that was made in the Children's Court.

4. When the matter was called on, the Secretary, in effect, had anticipated my concerns and sought leave, which I granted, to file in Court a motion that all previous orders in these proceedings should be discharged.

5. It quickly emerged that the position of all of the parties, being the Secretary, AB's mother, the hospital and AB by his independent solicitor, was that there was no further utility in the parens patriae proceedings. The only party not present today is AB's father, who had sent a message to the Court that he would be unable to attend.

6. Quite apart from the agreement of the parties present in Court today, it does seem to me appropriate for the parens patriae proceedings to be brought to an end. They are of their nature extraordinary proceedings. The mortally serious health crisis affecting AB which caused these proceedings to be commenced has, happily, now been resolved by the skilled treatment he has received in the hospital. While that is a most pleasing development, it is also clear from the evidence that AB has a long way to go in terms of his ongoing mental and physical health. However, that does not require the extreme measures which occasioned the involvement of the Court in its parens patriae jurisdiction.

7. AB is to be discharged from the hospital where he has been for several weeks and returned to out-of-home care under the supervision of the Secretary in arrangements which I am satisfied are appropriate, given his mental and physical needs.

8. The only issue which was debated before me today was whether there should be some ongoing contact regime for AB's parents with AB, pending the care aspect of the matter coming back before the Children's Court on 24 May 2019. The Secretary, supported by AB's independent solicitor, proposed a minimum of two specified visits over the next few days and once he had been relocated to the out-of-home care. AB's mother wished to continue, what I was informed from the Bar table, had been virtually daily contact.

9. It seemed to me that this aspect of the matter had to be dealt with in a common sense way. I did not have formal evidence as to the likely impact on AB of his being returned to out-of-home care and the cessation of the regular contact that has apparently been taking place with at least his mother.

10. AB is clearly a young person with very special needs. As a matter of common sense, there is likely to be some degree of disturbance to him by reason of his forthcoming move. Whether that disturbance will be ameliorated or exacerbated by further contact with his parents is hard to tell. Experience suggests that at least some minimal contact should be maintained because a complete cessation, when combined with his forthcoming move, may just be too much of a change for him.

11. As I have said before, it is AB’s best interests which are the sole yardstick of any decision which the Court must make. The Secretary has proposed a minimum of two visits at specified times, and subject to AB being well enough at those times. The expression "a minimum" has been used advisedly. I am of the view that it is in AB's best interests that there be the possibility of at least those two visits before the care proceedings are next before the Children's Court.

12. However, in making orders to that effect, I am not to be taken as foreclosing the possibility of more frequent visits if the Secretary forms the view that it is in AB's interests. It is clear that this will be a matter of day to day assessment by those intimately and immediately concerned with AB's care and best interests, rather than something with which the Court should interfere by attempting to impose a strict regime. The orders that I make will be premised upon an undertaking, which has been proffered by the Secretary through his Counsel, to facilitate at least a minimum of two visits by each of AB's parents on specified dates before the care proceedings are next mentioned in the Children’s Court.

13. Insofar as ongoing contact and other matters relating to AB's legal status are concerned, I wish to emphasise that, at least as presently advised, the Court's clear view is that these matters are best left to the specialist jurisdiction of the Children's Court. If AB's parents wish to formalise contact arrangements beyond those which are part of the orders which I will make today, I urge them to make application promptly to the Children's Court for such orders. Whether the Children's Court will be able to deal with any such application on 24 May 2019 will be a matter for that Court.

14. Finally, I have been informed by Counsel appearing today for AB's mother, that she wishes to press her challenge in this Court to the care orders that have been made by the Children's Court in relation to AB. As I said at the outset of these reasons, that aspect of the litigation brought by AB's mother has been dormant while AB's urgent medical needs have been resolved. I will make orders that will enable AB's mother's challenge to the care orders to be regularised and brought back before the Protective List judge for directions.

15. The formal orders of the Court in these proceedings are as follows:

Upon the undertaking to the Court by the Secretary by his counsel that, during the period 15 May to 24 May 2019 and subject to the Proviso, AB's parents will each be afforded the opportunity to have separate contact with AB, at a minimum, on 20 and 23 May 2019 for one hour, the Court:

1. Extends nunc pro tunc order 9 made by Pembroke J on 15 March 2019 up to and including today.

2. Discharges, with effect on and from 16 May 2019, all orders made in these proceedings other than orders relating to the use of pseudonyms and non-publication and suppression.

3. Orders that the publication of the name of "AB", his parents, his treating doctors or the hospital in which he has been treated in Sydney since March, be prohibited until further order.

4. Orders that in these orders the "Proviso" means that in the sole opinion of the Secretary, AB is sufficiently well, in all the circumstances, both mentally and physically for any visit to occur.

1. In proceedings 62836 of 2019, being GR v The Secretary, Department of Family Community Services, I make the following directions:

1. Grant leave to the plaintiff to file and serve an amended summons on or before 17 May 2019.

2. Direct that the amended summons be listed for directions before Lindsay J on 20 May 2019 at 3pm.

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Decision last updated: 15 May 2019