Re Elizabeth
[2007] NSWSC 729
•21 June 2007
CITATION: Re Elizabeth [2007] NSWSC 729 HEARING DATE(S): 21 June 2007
JUDGMENT DATE :
5 July 2007JURISDICTION: Equity Division JUDGMENT OF: Palmer J EX TEMPORE JUDGMENT DATE: 21 June 2007 DECISION: Court Expert appointed to report on medical treatment; no reason shown for proceedings to be determined by Supreme Court. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – Community Treatment Order made in respect of young person by Mental Health Review Tribunal – Interim Care Order made by Children’s Court – parens patriæ jurisdiction of Supreme Court – what is appropriate forum for determination of all issues. LEGISLATION CITED: - Children and Young Persons (Care and Protection) Act 1998 (NSW) – s.60, s.69, s.70, s.90, s.91, s.247
- Mental Health Act 1990 (NSW) – s.131, s.135CASES CITED: - Barbara, re [2006] NSWSC 536
- Carseldine v Director of the Department of Children’s Services (1974) 133 CLR 345
- Director-General of the Department of Community Services v Priestley [2004] NSWSC 639
- Frances and Benny, re [2005] NSWSC 1207
- Harris, re (1936) 37 SR(NSW) 17
- Victoria, re [2002] NSWSC 647PARTIES: Mr and Mrs A – Plaintiffs
Mental Health Review Tribunal of New South Wales – First Defendant
Director-General of the Department of Community Services – Second Defendant
Children’s Court of New South Wales – Third Defendant
Elizabeth – ChildFILE NUMBER(S): SC 30056/07 COUNSEL: M.W. Anderson – Plaintiffs
C. Mantziaris – Second Defendant
P. Guterres (Sol) - ChildSOLICITORS: Tibby Morgenstern – Plaintiffs
I.V. Knight, Crown Solicitor – Second Defendant
Legal Aid Commission – Child
30056/07 Re Elizabeth
JUDGMENT
5 July, 2007
Introduction
1 A sixteen year old girl has been placed in the care of the Minister for Community Services by an interim order of the Children’s Court. Her parents apply to the Supreme Court in its parens patriæ jurisdiction seeking the Court’s aid in securing her return to their care and custody. In the meantime, they seek an order that a court expert be appointed to report on a number of issues relating to their daughter’s care, the most pressing of which is whether the medication which is being administered to her is appropriate or is, as they contend, actually harming her.
2 There is no dispute that the Court Expert should be appointed but there is a dispute as to whether this Court is the appropriate forum in which to decide all matters affecting the welfare and custody of the Plaintiffs’ daughter.
3 As is usual in proceedings of this nature, I will refer to the Plaintiffs’ daughter by the pseudonym “Elizabeth” and to the Plaintiffs as Mr and Mrs A.
Nature of the proceedings
4 On 3 May 2007, the Mental Health Review Tribunal (“the Tribunal”) made a Community Treatment Order under s.131 Mental Health Act 1990 (NSW) (“MH Act”) in respect of Elizabeth. By Summons filed on 1 June 2007, Mr and Mrs A appealed to this Court against the Community Treatment Order and sought a stay of the order pending determination of the appeal. By s.281 MH Act a person dissatisfied with a decision of the Tribunal has a right of appeal directly to this Court.
5 On 5 June 2007, the Children’s Court, on the application of the Director-General of the Department of Community Services (“DOCS”), made an Interim Care Order under s.69 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the CYP Act”) placing Elizabeth under the parental responsibility of the Minister for Community Services.
6 By reason of the Interim Care Order and the Community Treatment Order, Elizabeth is presently being treated for her condition in a hospital. Mr and Mrs A wish to appeal from the Interim Care Order. They wish to contend that the effect of the Interim Care Order, coupled with the Community Treatment Order, is that Elizabeth is being compulsorily detained and is being given medication which is harmful to her.
7 Section 91 CYP Act gives a right of appeal to the District Court from an order of the Children’s Court, but not in the case of an interim order. Section 90(1) CYP Act empowers the Children’s Court to rescind or vary a care order. By s.60 CYP Act “care order” is defined in such a way as will include an Interim Care Order for the purposes of s.90.
8 Section 90(1) CYP Act provides that an application to the Children’s Court for rescission or variation of a care order – which includes an Interim Care Order – may be made with the leave of that Court. However, s.90(2) provides:
- “The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.”
9 It will be seen that s.90 does not afford a right to apply to the Children’s Court for rescission or variation of a care order on the ground that the order was affected by an error of fact or law made by the Magistrate in the Children’s Court. Rather, the section provides a mechanism to review care orders, whether interim or final, if circumstances have changed so that the original order, even if correctly made at the time, is no longer appropriate.
10 In the present case, it appears that Mr and Mrs A do not wish to contend that the Interim Care Order should be varied or rescinded because circumstances have changed since it was made. Rather, they wish to contend that the Interim Care Order should not have been made at all in the circumstances existing at the time of the hearing before the Magistrate. Because, in such a case, s.91(1) CYP Act precludes them from appealing to the District Court and s.90(2) dictates that leave to apply to the Children’s Court for a rescission order should not be given, Mr and Mrs A come to the Supreme Court seeking that it exercise its inherent parens patriæ jurisdiction.
Consent orders
11 When this matter was called on for hearing, Mr Anderson of Counsel appeared for Mr and Mrs A, Mr Mantziaris of Counsel appeared for DOCS, and Mr Guterres, solicitor, appeared as Elizabeth’s representative. Mr Anderson and Mr Mantziaris informed me that they were in agreement that a Court Expert should be appointed to provide a report as to Elizabeth’s mental health, wellbeing and prognosis, including a report as to the toxicity of her present medication. It was agreed that the matter should be stood over for further directions on 13 August 2007, by which time the report would be available. There was a difference over which of the two highly qualified experts proposed should be appointed, and I resolved that difference. Mr Guterres agreed with the course that was proposed.
In which Court should proceedings continue
12 There is disagreement as to how this matter should proceed after 13 August. Mr and Mrs A see the primary issues between the parties as being whether the medication prescribed for Elizabeth is appropriate and whether she should be allowed to return home rather than being kept as a patient in hospital. DOCS and Mr Guterres see the issues as wider than that: they say that the overall welfare and best interests of Elizabeth are in issue because DOCS has concerns that, if Elizabeth returns home, Mr and Mrs A will not ensure that she takes whatever medication is found appropriate. If reports by Elizabeth’s treating psychiatrist, which are in evidence, are ultimately accepted as accurate, there is a real basis for that concern.
13 Further, an allegation of sexual abuse of Elizabeth, or inappropriately sexual behaviour towards her, has been made against Mr A. Mr Anderson says that a proper investigation of those allegations has already found that there is no substance to them. However, DOCS and Mr Guterres do not presently accept that proposition.
14 Mr Mantziaris says that this Court’s parens patriæ jurisdiction should not have been invoked: all issues concerning the welfare and custody of Elizabeth can and should be decided by the Children’s Court. Although an Interim Care Order is currently in place enabling the Director-General to keep Elizabeth in hospital to receive treatment, that interim order will be reviewed and may be dissolved, if appropriate, when the care application is determined on a final basis in the Children’s Court. The care application is being case managed in the Children’s Court and will doubtless be listed for final hearing as soon as possible when the parties’ evidence is complete.
15 Mr Anderson says that because Mr and Mrs A have no right of appeal to any Court from the Interim Care Order made by the Children’s Court, but do have a right of appeal to this Court from the Community Treatment Order made by the Tribunal, it is more appropriate that this Court deal with all issues affecting the welfare of Elizabeth, including her medical treatment.
16 It is well established that the Supreme Court’s parens patriæ jurisdiction is not extinguished or curtailed by the CYP Act: s.247 CYP Act and see, e.g., Carseldine v Director of the Department of Children’s Services (1974) 133 CLR 345. Further, the fact that a proceeding has been commenced in the Children’s Court does not necessarily prevent the Supreme Court from entertaining a proceeding concerning the same issues. If the Supreme Court in such a case were to embark upon a hearing to finality of all issues pending before the Children’s Court, it would be improper for the Children’s Court to purport to dispose of those issues even in the exercise of a statutory jurisdiction: see Re Harris (1936) 37 SR(NSW) 17, at 26-28.
17 There are, however, strong reasons of policy why the Supreme Court’s parens patriæ jurisdiction should not be invoked where proceedings in the Children’s Court are apt and will meet the requirements of justice: see, e.g. Re Victoria [2002] NSWSC 647, at paras 36-40; Director-General of the Department of Community Services v Priestley [2004] NSWSC 639, at para 5; Re Frances and Benny [2005] NSWSC 1207, at para 18; Re Barbara [2006] NSWSC 536. The Supreme Court will leave questions concerning care, custody and welfare of children and young people to the specialist Courts; it will not exercise the parens patriæ jurisdiction unless exceptional circumstances show that to do so is in the best interests of the child, such as where some form of protective order is urgently required and there is no other curial process available to provide it.
18 In my opinion, the fact that there is no appeal from an Interim Care Order of the Children’s Court does not, in itself, justify resort to the parens patriæ jurisdiction of this Court by a person dissatisfied with the interim order. Section 90 CYP Act provides for rescission or variation of an interim order by the Children’s Court itself if there has been a significant change of circumstances. A party aggrieved by an Interim Care Order on grounds other than change of circumstances may agitate all of the issues fully on a final hearing of the care order application. Interim Care Orders are interlocutory in character and are intended only to protect the child pending a final hearing. It would be entirely destructive of the orderly, efficient and expeditious conduct of care proceedings in the Children’s Court if appeals from Interim Care Orders were to be made routinely to this Court in its parens patriæ jurisdiction. The parties in the Children’s Court proceedings should be focussed on bringing those proceedings to a final hearing at the earliest opportunity; the institution of parallel proceedings in the Supreme Court will almost inevitably involve additional delay in the Children’s Court proceedings, not to mention additional expense.
19 There may, of course, be cases in which exceptional circumstances relating to the urgent need to protect the child will justify an application to the Supreme Court to set aside or vary an Interim Care Order made in the Children’s Court. However, those exceptional cases will be rare.
20 In the present case, if the Court Expert is of the opinion that the medication specified in the Community Treatment Order made by the Tribunal is inappropriate and DOCS and its advisers accept that opinion, the Children’s Court could be asked to approve alternative agreed medication and could give that approval in the form of an interim order under s.70 CYP Act. Pursuant to that interim order, DOCS would apply to the Tribunal under s.135(3) MH Act to vary the medication specified in the current Community Treatment Order so as to conform to the agreed alternative medication.
21 If there is a dispute as to acceptance of the Court Expert’s opinion on appropriate medication, that dispute can be determined by the Children’s Court in the context of an application under s.70 CYP Act for an Interim Care Order relating to Elizabeth’s medical treatment. It is better that all disputed issues concerning Elizabeth’s care, custody and medical treatment be determined together by one Court. The Children’s Court has ample jurisdiction to determine those issues.
22 For these reasons, as matters presently stand, I do not see any reason for any part of the remaining contest between Mr and Mrs A and DOCS to return to this Court for determination.
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