Re Christopher
[2017] NSWSC 318
•18 July 2017
|
New South Wales |
Case Name: | Re Christopher |
Medium Neutral Citation: | [2017] NSWSC 318 |
Hearing Date(s): | 14 July 2017 |
Date of Orders: | 18 July 2017 |
Decision Date: | 18 July 2017 |
Jurisdiction: | Equity |
Before: | Rein J |
Decision: | See [43] |
Catchwords: | MEDIA AND COMMUNICATIONS — Publication — Non-publication order — Children and Young Persons (Care and Protection) Act 1998 (NSW) – These proceedings concern the publication of material concerning a child who was removed from the care of his parents in 2017. The Defendants published material concerning the child (including on Facebook) which identified the child as well as caseworkers and medical practitioners involved in the child’s treatment – the Court considered whether the material published by the Defendants breached s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and breached orders made by the Children’s Court prohibiting publication of information that would identify the child, whether the Defendants failed to remove the material after being requested to do so, and whether this Court has the power to order the Defendants to remove the offending material and if it should exercise that power – Held: this Court has the power to order removal of the material and the Defendants were ordered to remove the offending material and were injuncted from any further publication. |
Legislation Cited: | Children and Young Persons (Care and Protection) Act 1998 (NSW) |
Cases Cited: | Last v Rosenfield [1972] 2 NSWLR 923 |
Texts Cited: | Heydon, Leeming and Turner, Meagher, Gummow, & Lehane’s Equity, (Lexis Asia Pacific) |
Category: | Principal judgment |
Parties: | Secretary, Department of Family and Community Services (Plaintiff) |
Representation: | Mr C McGorey of Counsel (Plaintiff) |
File Number(s): | 2017/00214962 |
Publication Restriction: | Nil |
JUDGMENT
These proceedings are brought by the Secretary of the Department of Family and Community Services (“FACS”) and concern a child whose name has been anonymised for the purpose of these proceedings, and to whom I shall refer to as “Christopher.” The defendants are persons who have published material concerning Christopher, which material I shall describe in more detail below.
Christopher is [Redacted]. He was removed from the care of his parents on [Redacted] pursuant to an order of the Secretary of FACS on the grounds that Christopher was “at immediate risk of serious harm”. [Redacted]
The order was issued pursuant to s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the CYP Act”).
Christopher was taken from his parents on [Redacted]. Present on that occasion, in addition to Christopher, the parents of Christopher (to whom I shall refer as “the parents”), several caseworkers from FACS, and the Police, were Mr Burton, the second defendant (Mr Andrew Katelaris), and [Redacted]. [Redacted] subsequent removal by ambulance of Christopher. The footage was streamed live to Facebook.
Christopher was immediately taken to the [Redacted] Hospital for assessment and treatment.
On [Redacted], care proceedings were initiated in the Children’s Court of NSW with respect to Christopher, pursuant to s 61 of the CYP Act.
On [Redacted], the Children’s Court allocated all aspects of the parental responsibility for Christopher to the Minister for FACS, pursuant to s 69 of the CYP Act.
A hearing concerning Christopher’s future has been fixed before [Redacted] of the NSW Children’s Court in [Redacted] with a directions hearing to occur in [Redacted]. The parents are parties to those proceedings and will both be legally represented, and an independent legal representative has been appointed to act in Christopher’s interests.
The second defendant, Mr Katelaris, calls himself Dr Katelaris. He informed me that he holds a Bachelor of Medicine, Bachelor of Surgery, and a higher degree, which he says entitles him to the title of “Doctor”. He informed me that he was a registered medical practitioner, but that he was deregistered some years ago due to his use of cannabis in the treatment of patients suffering from epilepsy. He informed me that [Redacted] and it is clear from a document that Mr Katelaris tendered (Exhibit 2) that Mr Katelaris has involved himself in steps taken in connection with Christopher’s conditions, and as an advocate for the parents’ treatment of Christopher. Exhibit 2 is a letter, or email, which Mr Katelaris sent to [Redacted]. In that letter Mr Katelaris states:
[Redacted]
That [Redacted] was supplied to a young child by a person who is not a registered medical practitioner is a matter of considerable concern which, presumably, will be brought by FACS to the attention of an appropriate authority, if it has not been already.
Mr Burton referred to Christopher as his ‘client’ (see: Exhibit 3) and, as mentioned previously, Mr Katelaris told me that he was a consultant to the parents. It is clear from Exhibit 2, the documents in Exhibit 3, and from what Mr Burton and Mr Katelaris have said in Court that they regard themselves as ardent supporters of Christopher’s parents and are vehemently opposed to the removal of Christopher from the parents’ care, which they describe as a kidnapping. They also express their love and affection for Christopher and they believe that the treatment which was being given to Christopher before his removal into care was assisting him and not detrimental to his welfare.
The matters to which I have referred provide a background and some explanation for what has later transpired. The defendants view the FACS’ conduct as wrong and unlawful, and as a form of harassment of the parents, and are extremely critical of the Secretary and his Department (and the [Redacted] Child Protection Services). They appear to see themselves as crusaders for a cause which centres on ensuring that Christopher is returned to his parents, but includes an attack on FACS and other agencies Australia wide for interfering in the lives of parents in cases including, but not limited to, Christopher’s.
Mr Katelaris sought to persuade me that the medical evidence does not support the Secretary’s claim that Christopher was [Redacted], and that this Court should refuse the relief sought by the Secretary and perhaps even intervene and return Christopher to his parents. Mr Katelaris described himself and Mr Burton as “community activists.”
It is important to recognize that:
(a)The Children’s Court has already ordered Christopher to be placed in the care of the Minister, no doubt after due consideration of the material placed before it.
(b)The question of whether that decision should be overturned will, if agitated by the parents or Christopher’s legal representative, be duly considered by the Children’s Court in [Redacted] this year.
(c)That a hearing before the Children’s Court is the due process by which issues of the kind raised by Mr Katelaris and Mr Burton are determined, and this Court will normally not intervene in that process: see Re Victoria; Director-General, Dept Of Community Services V Children's Court(NSW) [2002] NSWSC 647; (2002) 29 Fam LR 157 per Palmer J. Re Alan (2008) 71 NSWLR 573 per Gzell J, even where it is a parent who seeks such intervention: see Re M v Department of Community Services (No 3) [2013] NSWSC 552 and Re Alan (supra).
It is also pertinent to note that should the parents, or their legal representatives, or Christopher’s legal representative, wish to rely on the evidence of Mr Katelaris or even the themes of his evidence, to put it more broadly, they are free to seek that assistance and Mr Katelaris is free to provide that assistance. When I pointed this out to Mr Katelaris he, or Mr Burton, said that the parents were prohibited from contacting them and had not contacted them. The parents may not have contacted them, but counsel for the Secretary denied that any order has been made preventing the parents from contacting the defendants and he produced to the defendants a copy of the orders made by the Children’s Court (which apparently preclude the parents from giving any information to anyone concerning the current whereabouts of Christopher). I do not accept that there is any prohibition of the kind asserted by the defendants and, as counsel for the Secretary pointed out, there is, in any event, no assertion that the legal representatives of the parents (or the independent legal representative for Christopher) have been barred from contacting the defendants.
I return to the issues with which the proceedings in this Court are concerned. The Secretary asserts that there is, contained on the Facebook page of the defendants, material which:
(1)Identifies Christopher as the subject of action by FACS and of proceedings brought in connection with Christopher.
(2)Contains images and details of Christopher and his parents, and his medical history.
(3)Contains details concerning the identity of the FACS caseworkers and medical practitioners involved in the assessment and treatment of Christopher.
An officer of FACS wrote, by email, to both defendants on 6 July 2017 pointing out to them the terms of s 105 of the CYP Act and the orders made by the Children’s Court on [Redacted] and [Redacted], requesting that material posted online by them be removed: see tab 5 of Exhibit A. On 7 July 2017, the Director of Child Protection of FACS legal wrote in similar terms to the defendants.
Mr Burton did take steps to pixelate the faces of FACS caseworkers who appeared in the footage of the removal. Counsel for the Secretary accepted that, with that pixilation, the FACS caseworkers cannot be identified in the footage. Beyond that, however, it is unclear to what degree Mr Burton has complied with the requests. On 11 July 2017 Mr Katelaris published the letter of 7 July 2017 that he had received from FACS and his reply: see pp 67 – 68 of Exhibit A. Mr Burton published on his website his response to FACS’ letter of 7 July 2017.
The Crown Solicitor’s Office wrote to the defendants on 13 July 2017 advising that if the offending material was not removed, proceedings would be commenced in this Court seeking orders to the same effect. The defendants failed to remove all of the material and the Crown Solicitor approached the Court on Friday 14 July 2017. The Secretary relies on an affidavit of a solicitor from the Crown Solicitor’s Office of 14 July 2017, together with an exhibit to that affidavit, which was marked as “Exhibit A”. The Secretary was represented by counsel and the defendants represented themselves.
Mr Burton’s willingness to adhere to the requirements of the orders and the CYP Act are unclear. He has, in an email to the Director of Child Protection at FACS, said:
I completely and unquestionably refuse to remove any of my Facebook posts, social media posts and other publications associated with this case. I will also continue to say and do what I wish on all media platforms (see: Exhibit 3).
However, in an email of 29 May 2017 to Magistrate Skinner (whom I assume to be a member of the Children’s Court), he apologised and wrote that he had “removed all posts” and “I have now realised I have been deeply traumatised by recent events and I have ceased all activity around this case” (also part of Exhibit 3). I asked Mr Burton and Mr Katelaris whether they were willing to remove the offending material at T10.21 – T10.35 Mr Burton said:
My struggle, your Honour, is this. I am deeply concerned about that child's welfare and the lack of contact with the mother, he has [Redacted]. He is an amazing intelligent child and the mother has an incredible bond with him. I am torn between my love of that child and wanting resolution there, equitable resolution, that family being reunited. All I ever asked was that the parents be reunited with the child in hospital until this matter was determined and they could make a fair decision.
It is heart breaking for me but I am torn into the situation where I have to actually make a decision of whether or not I am prepared to go to gaol, and I love that child so much that I am genuinely concerned with the events that happened. I am most probably going to do that, your Honour, take that assertion of going to gaol and take all the risks, no matter what they are, to my own welfare, selfless love for this child. That is my struggle.
At T14.16 – T14.20 Mr Katelaris said:
We see this action [semble: the removal of Christopher] as a crime otherwise we would not place ourselves in very real risk because the Court takes its contempt powers very seriously, I am aware of that, but we take our moral imperatives very seriously as well. If it is to clash, that is unfortunate.
I set out the terms of s 105 of the CYP Act:
105 Publication of names and identifying information
(1) The name of a child or young person:
(a) who appears, or is reasonably likely to appear, as a witness before the Children’s Court in any proceedings, or
(a1) who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or
(b) with respect to whom proceedings before the Children’s Court are brought or who is reasonably likely to be the subject of proceedings before the Children’s Court, or
(c) who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or
(d) who is the subject of a report under section 24, 25, 27, 120, 121 or 122,
must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of.
(1A) The prohibition in subsection (1) applies to the publication or broadcast of the name of the child or young person concerned until:
(a) the child or young person attains the age of 25 years, or
(b) the child or young person dies,
whichever occurs first.
(1B) This section applies to the publication or broadcast of a child or young person’s name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the internet, or by any other means of dissemination.
(1C) The publication of information to a website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section.
(2) A person who publishes or broadcasts the name of a child or young person in contravention of subsection (1) is guilty of an offence.
Maximum penalty: 200 penalty units or imprisonment for a period not exceeding 2 years, or both, in the case of an individual or 2,000 penalty units in the case of a corporation.
Note. An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 258.
(3) Subsection (1) does not prohibit:
(a) the publication or broadcasting of an official report of the proceedings of the Children’s Court that includes the name of a child or young person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or
(b) the publication or broadcasting of the name of a child or young person:
(i) in the case of a child—with the consent of the Children’s Court, or
(ii) in the case of a young person—with the consent of the young person, or
(iii) in the case of a child or young person who is under the parental responsibility of the Minister—with the consent of the Secretary if the Secretary is of the opinion that the publication or broadcasting may be seen to be to the benefit of the child or young person, or
(iv) in any case—if the child or young person has died.
(4) For the purposes of this section, a reference to the name of a child or young person includes a reference to any information, picture or other material:
(a) that identifies the child or young person, or
(b) that is likely to lead to the identification of the child or young person.
(5) The offence created by this section is an offence of strict liability.
(6) This section does not apply in relation to criminal proceedings.
Note. See section 15A of the Children (Criminal Proceedings) Act 1987.
The order made by the Children’s Court on [Redacted] prohibited publication of information that “would identify or tend to identify individuals within the following groups of persons connected with proceedings, except for the purpose of the proper conduct of the proceedings”:
(a)Any caseworker or manager caseworker employed by FACS involved in casework services in relation to Christopher;
(b)Medical practitioners involved in the treatment of Christopher;
(c)Any legal representative for the Secretary or legal representative for the child appearing in these proceedings (see: tab 3 of Exhibit A).
The order made by the Children’s Court on [Redacted] prohibited the publication of “information that comprises evidence or information about evidence, given in proceedings before the Court, except for the purpose of the proper conduct of the proceedings” which included photographs and electronic recordings relating to the medical condition or treatment of Christopher by medical professionals employed at [Redacted] Hospital, and any information relating to the treatment of Christopher with [Redacted] by other persons.
There are four issues which need to be dealt with:
(1)Do the Facebook pages of the defendants contain material that:
(a)Breach s 105 of the CYP Act;
(b)Breach the order made by the Children’s Court on [Redacted] 2017.
(2)Have the defendants failed to remove the material identified after being requested to do so.
(3)Does this Court have power to order the defendants to remove the offending material.
(4)If so, should it exercise that power.
[Redacted]
In evidence at tab 7 of Exhibit A is a USB which contains footage from Mr Burton’s Facebook page. It includes an interview by Mr Burton with Mr Katelaris in which Mr Katelaris refers to the details of Christopher’s condition and his treatment. It includes footage of the removal of Christopher and interaction between the parents, police, Mr Burton and Mr Katelaris and Mr Burton reporting on his having been pepper sprayed by police during a confrontation.
The defendants do not dispute that their Facebook pages includes material about which the Secretary complains (although, as I have noted, Mr Burton points out that he has now pixelated the caseworkers’ faces) and do not dispute that they have not removed all of the material when requested to do so.
This leads to the question of whether this Court has power to order removal.
Section 105 prohibits the publication of the name of a child (or young person). Section 105(2) makes the infringement an offence, imposing a penalty of 200 penalty units or imprisonment for a period not exceeding 2 years or both. Subsection (1C) makes it clear that publication to a website is publication for the purposes of s 105, and subsection (5) makes the offence one of strict liability.
The Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Suppression Act”), pursuant to which the Children’s Court made orders on 25 and 31 May 2017, permits a Court to prohibit the publication of information on various grounds, set out in s 8 as follows:
8 Grounds for making an order
(1) A court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice,
(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,
(c) the order is necessary to protect the safety of any person,
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),
(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
Section 16, which deals with contravention is in the following terms:
16 Contravention of order
(1) A person commits an offence if the person engages in conduct that constitutes a contravention of a suppression order or non-publication order and is reckless as to whether the conduct constitutes a contravention of a suppression order or non-publication order.
Maximum penalty: 1,000 penalty units or imprisonment for 12 months, or both, for an individual or 5,000 penalty units for a body corporate.
(2) Conduct that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence.
(3) Conduct that constitutes an offence under this section may be punished as an offence even though it could be punished as a contempt of court.
(4) If conduct constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice.
Counsel for the Secretary accepted that, generally speaking, this Court will not grant an injunction to prohibit the commission of a crime, and that normally where a crime has been committed the criminal law follows its own course. He submits that the parens patriae (the parental responsibility jurisdiction) is not constricted in this way. In Secretary, Department of FACS v Smith [2016] NSWSC 1384 and [2017] NSWSC 6, a judgment not readily available because it was suppressed, but to which my attention was drawn, Brereton J rejected the contention that s 105 of the CYP Act of itself permitted the Court to grant an injunction, but based on the parens patriae jurisdiction did grant an interim injunction, although his Honour later refused to grant a permanent injunction on grounds that are not relevant to the present matter.
The breadth of the parens patriae jurisdiction is very wide: see Secretary, Department of Health and Community Services v JWB and SMB (1991) 175 CLR 218 p 258 per Mason CJ, Dawson, Toohey, and Gaudron JJ. Also see Young, Croft and Smith, On Equity, (Thomson Reuters/Lawbook Company 2009) at [4.210].
Counsel for the Secretary also relied on s 66 of the Supreme Court Act 1970 (NSW). It provides that the Court may grant an injunction at any stage of the proceedings to restrain any threatened or apprehended breach of contract “or other injury” and may at any stage of proceedings grant an interlocutory injunction “in any case in which it appears to the Court to be just or convenient so to do.”
Given that the injunction which is sought is not sought in aid of any other proceedings in this Court, I have some doubt as to whether s 66 can be availed of here and I prefer to base myself on the power of this Court to act on behalf of, and in the interests of, children. In relation to that power, the overriding concern is the protection of the interests and welfare of the child or children.
I turn now to the question of whether the Court should make the orders sought by the Secretary. In saying what I do about the matter I do not wish to pre-empt the full consideration of matters in the context of any criminal prosecution which might ensue, but I, nevertheless, find, for the purposes of these proceedings, that the defendants have breached s 105 of the CYP Act by publishing the material they have published. Lack of knowledge of the statute is not a defence and the Act provides that liability is strict. They have also breached the non-publication orders of the Children’s Court. If s 105 of the CYP is designed to protect the welfare of children, which I accept it is, and if the orders made by the Children’s Court were made to protect the interests of the child, and I accept they were, then anything which this Court can do to ensure compliance with those orders of the Children’s Court, and with that Act, is, in my view, justified as an exercise of power.
I shall endeavour to summarise the defendants’ arguments against making an order requiring the removal of the offending material:
(1)Matters going to the question of whether the Secretary and FACS were justified in taking the action they did. As I have explained, the defendants hold strong views about these matters, but the Children’s Court has acted to place Christopher in the care of the Minister, and I do not see it as part of this Court’s role to assess the correctness of the Children’s Court’s decision (or the Secretary’s decision).
(2)That a Court of Equity requires a party who seeks relief to have clean hands. Mr Burton identified this maxim of equity and relied upon it. There are two problems with the contention that the maximum is relevant. The first is that his assertion that FACS does not have clean hands relies on his characterisation of the removal of Christopher as wrongful. Secondly, neither the CYP Act, nor the orders made in the Children’s Court, are dependent on the outcome of whether or not the original removal of Christopher was wrongful.
(3)That equity will not allow a statute to be used as a cloak for fraud. Mr Burton identified this principle of equity and relies upon it. The principle is often applied in the context of a statute that requires a contract to be in writing to be enforceable, but there are other applications: see Heydon, Leeming and Turner, Meagher, Gummow, & Lehane’s Equity, (Lexis Asia Pacific) paragraph [12-100] – [12-115] and see Last v Rosenfield [1972] 2 NSWLR 923 at 927 – 934 per Hope J (as his Honour then was), but the principle has no application here.
(4)That this Court should refuse to accede to any demand of the Secretary because the department has acted “criminally” and this Court should act in accordance with morality. The submissions suffer from the dual problem that it is Mr Katelaris’ assertion that the Department has acted criminally and that FACS was not acting in the best interests of Christopher, based upon assertions of fact that Mr Katelaris makes, for which no admissible evidence has been provided and, secondly, that those assertions involve questions which, if they do need to be decided, will be determined in the proceedings before the Children’s Court. I do not know if arguments of the kind which Mr Katelaris advances will be advanced by the parents, but that is the forum in which, if they are to be advanced, they will need to be considered.
(5)Mr Burton propounded a similar argument by asserting that the Crimes Act 1900 (NSW) trumps any other legislation and crimes can be publicised. That argument is flawed, not only for similar reasons to the argument discussed in (4), but also because there is no conflict between the Crimes Act, on the one hand, and the CYP or the Suppression Act, on the other.
(6)That others, including an established media outlet, have breached s 105 of the CYP Act. The fact that others may have breached the CYP Act, if it be the case, is not relevant in determining whether the defendants have breached the Act and, more importantly, whether they continue to breach the Act by their refusal to remove material. Breaches by others, if established, could be relevant in support of the argument that it is now too late for any effective action to be taken because the publicity already given to Christopher’s case is so widespread.
In relation to [36(6)], I should note that Exhibit A contains an example of an article appearing in a mainstream media outlet (not the one identified by Mr Katelaris or Mr Burton in his letter to FACS of 7 July 2017, see Exhibit 3), but that article does not name Christopher or his parents. I do hold some concern that the offending material has been in place for quite some time and hence removal will have a limited impact. However, the Department has been trying since 27 June 2017 to have the defendants remove the material and I do not think that the delay in bringing these proceedings is sufficient to preclude the grant of relief sought. It is a factor which needs to be taken into account in determining the utility of an order, and I take it into account.
I enquired of counsel for the Secretary as to whether FACS has attempted to utilise assistance of a third party to deal with the material on the defendants’ Facebook pages. He informed me that, in addition to contacting the Police and Director of Public Prosecutions with a view to the initiation of criminal proceedings, the Crown Solicitor has written to Facebook, but has not received any confirmation of a willingness to assist, and he informed me that Facebook has no presence in the jurisdiction. The absence of a presence in the jurisdiction is a matter of potentially wide ranging importance which deserves consideration by the legislature.
In my view this Court cannot permit persons to continue to breach s 105 of the CYP Act when they have been clearly put on notice of the terms of the Act and of their infringement of the Act. The legislature clearly intended that children who are the subject of FACS investigations or actions and Children’s Court proceedings should not be identified. There are reasons personal to the child and his parents and their privacy for that prohibition. Similar considerations are no doubt behind the legislature’s enactment of the Suppression Act. The Children’s Court obviously held the view that it was inimical to the continued welfare of the child that doctors (and caseworkers) involved in his care be identified and hence be discouraged from participating in these steps out of a fear of abuse or worse by those supporters of the parents of Christopher, even if unlikely. That these supporters hold strong views is demonstrated not only by what Mr Burton and Mr Katelaris have said in the course of the hearing on Friday and on their website but also because persons expressing concern in respect of the removal of Christopher on Facebook have described the FACS caseworkers as being involved in the “traffic” of children “for the State”, “stealing children” and being part of a “State sponsored child abuse ring”: see pp 6-9 and pp 10 – 17 of Exhibit A, which contains photographs of several caseworkers or managers with FACS. Similar sentiments are contained in Mr Burton’s email to FACS of 7 July 2017 (see: Exhibit 3), which includes his warning that if FACS:
Ever lay one finger on any child in our community again, without truthful and fair legal justification, that is genuine reason and explanation…then they will have to kill me first.
What I have said in [39] links to an additional point, which is that one of the reasons for suppression or non-publication orders in s 8 (and one of the matters identified in the orders made by the Children’s Court) is:
(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
In my view it is very much in the public interest that officers of FACS (and similar agencies) and medical staff be able to do what they need to do, in relation to the removal of children at risk, and who come into their care, without incurring the risk of verbal abuse and vilification and even physical attack and confrontation or threats of such. Decisions relating to children believed to be at risk are often fraught with highly charged emotions by parents and relatives who do not share the concerns that are held by the child welfare agencies. There may be occasions when the concerns held by the welfare agencies turn out to be erroneous or misplaced, but that will be demonstrated through the Court system and the relevant legislation established and enacted to that end, and it is inimical to the orderly management of this difficult problem, and hence the welfare of a child who is, or may be, at risk and needs the benefit of intervention by a state instrumentality, that officers of the agencies, and those medical experts whom they engage to assess and treat the child, are dissuaded or intimidated from involving themselves in such work. I think that considerations of this sort are likely to have been in the mind of the learned Magistrate who made the orders on [Redacted].
The maintenance of offending material on the website provides no benefit to Christopher or his parents since Christopher’s future will not be determined by anyone other than the courts of this state, acting impartially and on the basis of evidence and arguments presented.
In my view this Court is required to take into account matters of the sort to which I have referred in deciding whether to lend its aid to ensuring that the orders of the Children’s Court and the requirements of s 105 are adhered to, and adhered to strictly. The welfare of a child is imperilled if legislation designed to enhance the welfare of the child is contumaciously ignored, as the defendants appear to believe they are free to do.
Accordingly, I conclude that the defendants should be required to remove the offending material and be injuncted from any further publication.
Counsel for the Secretary has provided proposed orders that are sought. Attention will need to be given to the precise orders to be made, which, in my view, need to include a specific time by which the material be removed from the defendants’ Facebook sites, and a notice to the defendants of the consequences of the failure to comply with the orders.
I will hear the parties on the issue of costs.
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