Re Georgia and Luke

[2008] NSWSC 1277

CITATION:	Re Georgia and Luke [2008] NSWSC 1277
HEARING DATE(S):	28 November 2008
JUDGMENT DATE :	2 December 2008
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
DECISION:	The proceedings are dismissed. I make no order as to costs.
CATCHWORDS:	Interim order made by Children's Court placing one child under parental responsibility of the Minister - final order in respect of one child - proceedings commenced by parents seeking their return - parens patriae jurisdiction to be exercised only in exceptional circumstances where Children's Court proceedings have been commenced - claim for certiorari - claim for judicial review of removal decision - application for summary dismissal - proceedings dismissed
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 Infant's Custody and Settlement Act 1899 Uniform Civil Procedure Rules
CATEGORY:	Procedural and other rulings
CASES CITED:	Craig v South Australia (1995) 184 CLR 153 DOCS v Priestley [2004] NSWSC 639 DOCS v Y [1999] NSWSC 644 K v Minister for Youth and Community Services (1982) 1 NSWLR 311 Re Alan [2008] NSWSC 379 Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 Re Barbara [2006] NSWSC 536 Re Elizabeth [2007] NSWSC 729 Re Frances and Benny [2005] NSWSC 1207 Re James [2001] NSWSC 1178 Re Jayden [2006] NSWSC 1428 Re Jayden [2007] NSWCA 35 Re Liam [2005] NSWSC 75 Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 Twist v Randwick Municipal Council (1976) 136 CLR 106
PARTIES:	Mr A & Ms S (1st & 2nd Plaintiffs) Director-General, Department of Community Services NSW (Defendant)
FILE NUMBER(S):	SC 30131/08; 30132/08
COUNSEL:	In Person (1st & 2nd Plaintiffs) R J Bromwich (Defendant) M W Anderson (Amicus Curiae)
SOLICITORS:	I V Knight, Crown Solicitor (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM

2 DECEMBER 2008

30131/08 Re Georgia and Luke
30132/08 Re Georgia and Luke

JUDGMENT

1 HER HONOUR: The children known in these proceedings by the pseudonyms Georgia and Luke are 17 months old and 3 months old respectively. On 12 September 2008, an officer of the Department of Community Services removed them from their parent’s home, exercising the power of emergency removal under s 43(1) of the Children and Young Persons (Care and Protection) Act 1998. The parents commenced these proceedings seeking their return. The Director-General of the Department has moved the Court to have the proceedings summarily dismissed.

Procedural history

2 A number of preliminary procedural issues were raised. The proceedings were commenced by summons against the Department of Community Services and Ms Bronwen Rotherham, the delegate of the Director-General who made the decision to remove the children. The proper defendant is the Director-General of the Department of Community Services. On the application of the Director-General, I made an order substituting her as the only defendant.

3 The summons named the children as the third and fourth plaintiffs. That was inappropriate, having regard to the provisions of UCPR r 7.14. I ordered the removal of the children as plaintiffs. It might have been appropriate, in due course, to consider whether the children ought to have been made defendants (Re Jayden [2006] NSWSC 1428 per Simpson J at [7] to [10] and on appeal [2007] NSWCA 35 at [100] to [103]) and whether they could appear as defendants without a tutor. In light of the view I have reached in respect of the application for summary dismissal, it is not necessary to determine those issues.

4 An application was made by Ms Lovell Jones to be appointed as the children’s legal representative. She is their legal representative in the Children’s Court proceedings commenced following the emergency removal, appointed pursuant to s 99 of the Act. I doubt whether that section confers any power on this Court: see Jayden per Simpson J at [8]. The Court may have inherent power to appoint a legal representative by analogy with cognate provisions: see DOCS v Y [1999] NSWSC 644 per Austin J at [2]; ReJames [2001] NSWSC 1178 per Hamilton J at [3].

5 However, the parents are opposed to Ms Lovell Jones continuing in the role of legal representative in the Children’s Court proceedings, and expressed opposition to her having an active role in these proceedings. I decided that the most expedient course was to grant leave to her to appear by her counsel as amicus curiae.

6 The parents represented themselves in the proceedings and the summons reflected their lack of legal training. The relief claimed in respect of each child (reproduced from the summons verbatim omitting identifying material) was:

“1. To revoke (vocare) the assumption of care for [Luke]; and restore the child to their parents, and [their address].
2. The Department of Community Services, in the, state of, “NEW SOUTH WALES”, have abused their inherent powers to take care of these children under an assumption of care. This is in excess of their primary concern.
3. The very nature of the intrusive orders, defies the objectives and principles regarding children; that being that the children should be the paramount consideration; that removal should be the last resort and the least intrusive orders into the lives of the children and families be decided.
4. The emotional impact occurring for the children in the absence of their parents is as follows:-
a. It is imperative at this stage that both [Georgia] and [Luke] are returned to their parents care as soon as possible to avoid possible psychological ramifications for them later in life. For [Luke], what is needed is his mother, as he needs to form a bond with his mother in order to successfully complete the oedipal stage, according to Freudian psychoanalytical theory. That this means is that, if he is not given to time to form a close bond now then it may result in an inability to obtain sexual satisfaction or incapacity to form bonds with other women; which could in tern lead to homosexuality of sadistic and violent tendencies, especially towards females later in life. For this reason, [Luke] needs a female figure with whom to form a close and lasting psychological bond at this point; and as his parents will not rest until their children are returned, it is in his best interests to allow him to form this bond with [his mother], now.
b. For [Georgia], what will be affecting her is the ‘lack’ which she is currently experiencing, as she has not previously spent this amount of time away from, especially her mother and father, whom She has a close bond with. If this desire to be home with her parents is not fulfilled almost immediately, then this bond may weaken. This weakening could either cause her to form an even closer bond on return, which would result in a dependency upon her mother, possibly for the rest of her life, or upon other people. Such a co-dependency may result in her entering into destructive relationships, which she would then not be able to easily escape from. Conversely, if this bond is not able to be repaired, [Georgia] would then be left unable to again form close relationships, due to a subconscious psychological fear of a repeat of this situation which causes severe emotional distress. If this were to occur, it may result in poor social skills, a detachment to those within society or even a promiscuous nature. Therefore, this emotional Distressed which [Georgia] has obviously experienced as a result of being away from her parents and unable to fulfil her desire to see them is obviously not within her best interests.
c. Thus in accordance with the psychoanalytical theory of Freud and Lacan, [Georgia] and [Luke] are not currently in the environment which is serving their best interests or those of the community. In order to encourage a stop to the cycle of abusive men, abused women and people with psychological trauma, and so as to give these children the best chance they have to become well adjusted members of society, it is necessary that they be returned to their parents as soon as possible.
5. Leave to file.”

7 The proceedings came before me on 28 November 2008 for hearing of the Director-General’s application for summary dismissal pursuant to r 13.4 of the UCPR. At the outset of the hearing of that application, the parents filed a notice of motion in Court clarifying the relief sought in the proceedings. The motion also sought to have the Director-General’s notice of motion dismissed. I was also provided with a proposed amended summons but that was not filed. It expanded some of the arguments but did not raise any separate claim for relief.

8 The substantive relief sought in the parents’ notice of motion in respect of each child was:

“4. That pursuant to r 25.2 of the Uniform Civil Procedure Rules , for [Luke], it may make any order which the court might make in proceedings on an application for a writ of habeas corpus ad subjciendum, it may make any order for the custody of the minor, [Luke], to return to his natural parents.
5. That pursuant to sec 5 of the INFANT’S CUSTODY AND SETTLEMENTS ACT 1899 , (1) The Supreme Court may, upon the application of the mother of [Luke], make such order as it may think fit regarding the custody of the minor and the right of access thereto of either parent, having regard to the welfare of the minor, and to the conduct of the parents, and to the wishes as well of the mother as of the father, of the minor or depriving such parent thereof if the court is satisfied that the welfare of the minor will best be served by allowing such parent to have such custody.
6. That pursuant to sec 18 of the INFANT’S CUSTODY AND SETTLEMENTS ACT 1899 , Equal right of mother to apply to court. The mother of [Luke] shall have the like powers to apply to any court in respect of any matter affecting the minor as are possessed by the father.”

9 It is convenient to consider the Director-General’s application first, but on the basis of the relief sought by the parents both in the summons and in their motion.

Background

10 The mother has been known to the Department since March 2005 when the Department received a report of a risk of harm to three of her daughters from a previous relationship. Those children were ultimately removed from the mother. A subsequent order of the Children’s Court at Tweed Heads has placed them under the parental responsibility of their natural father, who already had the care of the fourth child of that relationship.

11 The mother came to the attention of the Department again in April last year, before Georgia was born. The Department received a report of a pre-natal risk of harm, following the mother’s attendance at a hospital in Brisbane when she had entered premature labour. The mother had on that occasion discharged herself from hospital with a cannula still in her arm. She arrived at the hospital by ambulance the following day and was reported to have disclosed domestic violence at the hands of the father over the preceding twelve months. However, she again discharged herself from the hospital, before being seen by a doctor.

12 Georgia was born in early June 2007. The Department received a risk of harm report the following day which stated that Georgia had a low birth weight. I note that the mother herself is extremely thin. The report also stated that the mother had disclosed domestic violence between herself and the father. The mother denied those disclosures when later questioned by departmental caseworkers.

13 Georgia was assumed into the care of the Director-General whilst at hospital but the mother absconded with her and was located by police and departmental caseworkers a week later.

14 In August 2007, Georgia was returned to her parents’ care under a care plan which specified minimum outcomes to be achieved by the parents, including a requirement that they attend counselling for anger management and to address issues in their relationship; that they remain drug free and submit to random urine analysis and that they work with the Department and external services and attend appointments with departmental officers.

15 Luke was born in early August 2008. On 1 September 2008 the caseworker developed concerns about the parents’ failure to meet the minimum outcomes and commenced further proceedings in the Children’s Court.

16 On 2 September 2008, final orders were made in the Children’s Court at Tweed Heads placing Georgia under the parental responsibility of the Minister for a further period of six months, that is, until 1 March 2009.

17 The parents were represented by a solicitor on that occasion. The Director-General says that, during discussions with the solicitor, the Department stated that they expected the parents to attend a case meeting with the departmental officer within two weeks, and thereafter every two months, to discuss the case plan and minimum outcomes expected. It appears that the father was present at court on that occasion, but not the mother.

18 The caseworker attempted, unsuccessfully, to contact the parents by telephone to schedule a meeting. On 9 September the Department sent a letter requesting the parents to attend a meeting on 12 September but that appears to have crossed in the post with a letter from the parents advising a range of dates when they would be available to meet with the Department two weeks later (over three weeks from the date of the final orders). The father’s submissions in Court suggested that those dates were chosen to coincide with the presence of the mother’s other children so that the caseworker would see the whole family together.

19 On 12 September, as foreshadowed in their letter, the parents did not attend the caseworker’s office. She decided to make an unscheduled visit to the home. It did not go well. It began with the following exchange (I have not included the mother’s name):

“Caseworker: Hi [S], how are you?
Mother: (mimicking) Hi [S], how are you?
Caseworker: [to S] you look like you have lost a lot of weight. Are you okay?
Mother: You look like you’ve put on weight.”

20 Although the conversation did proceed to more constructive dialogue, it culminated with some remarks by the mother which suggested that she was unprepared to accept the supervision contemplated in the orders of 2 September. When told there was a need to have a meeting soon, the mother said:

“No. I won’t be coming to the office. I don’t even know why you’re involved. You just make things up and you have no right to extend the order.”

21 The mother stated that she would not be doing any of the tasks required as minimum outcomes, because her children aren’t at risk. In the end, the caseworker reminded the mother of the risk of removal if the minimum outcomes were not achieved. The meeting then deteriorated and the mother swore and screamed at the caseworkers, repeating that she would not co-operate. She also turned to the father and shouted at him, saying “You signed us up for this.”

22 The mother also refused to submit to urine analysis that day. The caseworkers left and returned later, in the company of three police officers, who effected the removal.

23 The Director-General commenced proceedings in the Children’s Court the following Monday, 15 September 2008, as required by s 45(1) of the Act. On 16 September 2008, the Children’s Court made an interim order under s 69 of the Act placing Luke under the parental responsibility of the Minister.

24 On 8 October, after two days’ hearing, the Children’s Court made a finding by consent and without admissions that Luke is a child in need of care and protection. The proceedings in respect of both children are next in Court on 9 December 2008, when it is anticipated that an assessment of the Children’s Court Clinic will be available.

Relief sought by the parents

25 Although the language of the relief sought in these proceedings is obscure, it may be discerned that the parent’s intention is, by whatever legal avenue is open to them, to have the children restored to their care as soon as possible.

26 Order 1 in the summons seeks, in effect, an order that custody and care of the children be granted to the parents, invoking the Court’s inherent parens patriae or wardship jurisdiction. That jurisdiction is not confined to wardship. It permits the Court to make orders relating to the welfare of children without first declaring them to be wards of the court: K v Minister for Youth and Community Services (1982) 1 NSWLR 311 at 325G per Helsham CJ in Eq. That decision suggests that it would be open to this Court, in an appropriate case, to grant relief concerning the welfare of a child who has been placed under the parental responsibility of the Minister under s 79 of the Act without disturbing that order.

27 Proceedings invoking the Court’s wardship jurisdiction should ordinarily be assigned to the Equity Division of the Court. I assume these proceedings were assigned to the Common Law Division because they had the appearance of an administrative challenge to the decision of the Director-General. In any event, for expedience, the proceedings having been listed for hearing before me, the parties asked me to proceed to hear the matter.

28 Order 2 appears to seek to challenge the original decision under s 43(1) of the Act to effect an emergency removal. Orders 3 and 4 do not identify any separate relief, but rather are in the nature of submissions on the merits in support of the custody issue. The notice of motion is effectively procedural. It does not raise any separate substantial claim for relief.

The Director-General’s application

29 The issue raised by the Director-General’s application is whether the proceedings disclose no reasonable cause of action or are an abuse of the process of the Court: r 13.4 UCPR .

30 The basis for the application is that the appropriate forum for the resolution of issues concerning the care and protection of the children is the Children’s Court. Mr Bromwich, who appeared for the Director-General, acknowledged that the existence of the Children’s Court proceedings does not, in itself, preclude the jurisdiction of this Court. Section 247 of the Children and Young Persons (Care and Protection) Act 1998 expressly provides that the Act does not limit any jurisdiction this Court otherwise has.

31 There is, however, a substantial body of authority for the proposition that this Court should not exercise its wardship jurisdiction so as to affect the decision of a Magistrate in the Children’s Court except in the most extraordinary circumstances. In Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157, Palmer J expressed the view at [31] that it would be “highly inappropriate for appeals from decisions of Magistrates in the Children’s Court to be made as a matter of course to this Court under the guise of invoking the wardship jurisdiction”. His Honour stated that a party dissatisfied with a decision of the Children’s Court after a contest should appeal to the District Court under s 91 of the Act; see also at [36] to [40].

32 In the present case, the Children’s Court made final orders in respect of Georgia on 2 September 2008. Those orders placed Georgia under the parental responsibility of the Minister until 1 March 2009. Accordingly, in respect of Georgia, there is a right of appeal under s 91 of the Act against that order. It appears, however, that the parents’ primary grievance is not with the decision placing Georgia under the parental responsibility of the Minister, since Georgia remained in their care after that order was made, but with the subsequent removal decision following the alleged failure of the parents to meet the Department’s requirements under the care plan.

33 In respect of Luke, no final order has been made and accordingly there is no right of appeal under s 91. However, the remarks of Palmer J apply with equal (perhaps greater) force to the circumstance where final orders have not yet been made. In my view, this Court should not exercise its wardship jurisdiction in such a way as to interfere with interim orders of the Children’s Court unless there are extraordinary circumstances.

34 Re Victoria was cited with approval in Re Liam [2005] NSWSC 75 where McDougall J at [27] emphasised the need to establish some justification for interfering with a discretionary decision made within jurisdiction by another judicial officer, citing the remarks of Hodgson CJ in Eq in Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 at [20-22].

35 Re Victoria has also been followed in DOCS v Priestley [2004] NSWSC 639 per Young CJ in Eq at [5]; Re Frances and Benny [2005] NSWSC 1207 per Young CJ in Eq at [18]; Re Barbara [2006] NSWSC 536 per White J at [17]; Re Elizabeth [2007] NSWSC 729 per Palmer J at [17] and most recently in Re Alan [2008] NSWSC 379 per Gzell J at [13].

36 The parents submitted that there were extraordinary circumstances in the present case because they are unable to appeal the decisions of the Children’s Court, since they are interim orders. They submitted that the length of time during which they will have to be without their children before final orders are made, and a right of appeal to the District Court accrues, is too long.

37 Regrettably, those are circumstances that exist in every removal case. I can well understand the pain and frustration that is suffered by parents separated from their children against their wishes. It is because the care of children raises such complex and heart-wrenching issues that Parliament has seen fit to create the specialised jurisdiction exercised by the Children’s Court under the Children and Young Persons (Care and Protection) Act. The absence in the legislation of a right of appeal in respect of an interim order reflects the undesirability of interrupting the interlocutory processes of that specialised jurisdiction. The ability of the District Court on an appeal, and indeed this Court, to assess the issues raised without the benefit of the material currently being prepared to assist the Children’s Court may be doubted. Further, the final orders may restore the children to the parents’ care.

38 In Re Elizabeth, Palmer J expressed the view at [18] that the fact that there is no appeal from an interim order does not, in itself, justify resort to the parens patriae jurisdiction of the Court: see also Re Alan where Gzell J held that delay in the hearing in the Children’s Court and an allegation that the children had been damaged by the separation was held not to amount to exceptional circumstances. Neither of those cases involved an application for summary dismissal. Nonetheless, in my view, the absence of any extraordinary circumstances in the present case points to the conclusion that there is no reasonable basis for invoking the Court’s jurisdiction. Indeed, there is no criticism of any of the Magistrate’s decisions, beyond the assertion, based on the theories of Sigmund Freud and Jacques Lacan, that separation of a child from a mother can cause psychological problems in later life. Those contentions can be put with equal force in the Children’s Court.

39 Apart from the parens patriae jurisdiction, the Court has jurisdiction to grant relief under the common law remedy of certiorari to quash an order of the Children’s Court in an appropriate case: s 69 of the Supreme Court Act 1970. That power was recently exercised in respect of an interim order of the Children’s Court under the Children and Young Persons (Care and Protection) Act: see Re Jayden [2007] NSWCA 35, where the Court of Appeal held that the order in question was an abuse of process. The grounds on which such relief may be granted are limited: Craig v South Australia (1995) 184 CLR 153 at 163 to 176. No error of the relevant kind has been asserted in the present case. The parents’ complaints are directed not at the Magistrate but at the Director-General in respect of the removal decision.

Judicial review of the removal decision

40 The parents also appear to complain that the original decision under s 43(1) to remove the children was erroneous. There is no claim for relief properly articulated in respect of that decision. Paragraph 2 under the heading “Relief Claimed” in the summons purports to identify what was wrong with the decision but does not identify the remedy sought. Nonetheless, it is appropriate to proceed on the assumption that the proceedings are intended to include a claim for relief in respect of that decision.

41 The gist of the complaint appears to be that the decision was an abuse of power because removal should be the last resort and, in the circumstances that obtained on 12 September 2008, alternative courses were available to the decision maker, Bronwen Rotherham. In particular, the mother noted that the orders made on 2 September 2008 granted liberty to restore the proceedings on any Tuesday in the event of non-compliance with the agreed minimum outcomes. The mother submitted that the events of 12 September 2008 amounted, in substance, to a disagreement between the mother and the two caseworkers which did not concern the children. She submitted that, if the parents were not compliant on Friday 12 September 2008, Ms Rotherham had the authority to have the proceedings re-listed so as to take the matter up with the Children’s Court the following Tuesday, and should have taken that course rather than taking the drastic step of a removal.

42 There is no doubt that the exchange between the mother and the two caseworkers, as it is recounted in the affidavit of Ms Rotherham, discloses a level of acrimony between those women. I am unable to judge the extent, if any, to which those obvious tensions had a bearing on the removal decision. In any event, there are at least two hurdles to the parents’ claiming relief in respect of the removal decision.

43 The first is that the parents have not identified any error in the decision such as to warrant judicial review. The mere existence of alternative measures does not demonstrate error in the decision made. Section 43 conveys a broad discretionary power that arises when a delegate of the Director-General is satisfied in the terms of the section. Accepting for present purposes that the section requires the delegate to consider the availability of alternative, less drastic measures, there is nothing to indicate that was not done in the present case.

44 It could hardly be thought that there is an obligation to afford procedural fairness in respect of an emergency removal decision, having regard to the nature of the decision and the obligation under s 45 to bring the matter promptly before the Children’s Court: cf Twist v Randwick MunicipalCouncil (1976) 136 CLR 106. No other basis for judicial review of the decision has been suggested.

45 The second difficulty the parents face is that, having regard to the subsequent orders of the Children’s Court, a challenge to the original decision would be of no utility. Even if that decision were quashed, the orders of the Children’s Court would continue to operate. It is pursuant to those orders that the children do not presently reside with their natural parents.

46 Accordingly, I am satisfied that no reasonable cause of action is disclosed in respect of the relief claimed. The proceedings should be dismissed.

47 I do not think that it is in the best interests of the children to saddle their parents with the burden of a costs order. I note that Gzell J was of the same view in Re Alan. I make no order as to costs.

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