Re Julia
[2010] NSWSC 1373
•19 November 2010
CITATION: Re Julia [2010] NSWSC 1373 HEARING DATE(S): 19 November 2010
JUDGMENT DATE :
19 November 2010JURISDICTION: Equity JUDGMENT OF: White J EX TEMPORE JUDGMENT DATE: 19 November 2010 DECISION: Refer to paras 30 and 31 of judgment. CATCHWORDS: CHILD WELFARE – application to strike out proceedings brought by father of child – – whether court’s parens patriae jurisdiction invoked – where final care orders made in respect of allocation of parental responsibility for child – where father seeks sole parental responsibility or contact orders – where significant change in relevant circumstances since final care orders made – where remedies available in Children’s Court for father to rescind or vary care orders LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 CATEGORY: Principal judgment CASES CITED: Re Elizabeth [2007] NSWSC 729 PARTIES: Plaintiff: Father of "Julia"
Defendant: Community Services Department of Human ServicesFILE NUMBER(S): SC 2010/315631 COUNSEL: Plaintiff: in person
Defendant: G MahonySOLICITORS: Plaintiff: n/a
Defendant: I V Knight, Crown Solicitor
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE’S LIST
WHITE J
Friday, 19 November 2010
2010/315631 Re Julia
JUDGMENT
1 HIS HONOUR: I direct that the child the subject of these proceedings be known by the pseudonym "Julia" and these proceedings be known as Re Julia. I order that publication of any information that will tend to reveal the identity of the child be prohibited. In the reasons which follow, I will refer to the child by the pseudonym “Julia”.
2 By notice of motion filed on 29 October 2010 the defendant, being the Director-General of the Department of Human Services (formerly the Department of Community Services), seeks orders in substance that these proceedings be summarily dismissed. The proceedings are brought by the father of the child known as Julia.
3 Julia was born in September 2005. Hence she is presently five years old. When Julia was nine days old the Director-General assumed the care responsibility for her pursuant to an order signed by the Director-General under s 44 of the Children and Young Persons (Care and Protection) Act 1998. The Director-General did so on the ground of suspicion that the child was at risk of serious harm.
4 On 5 October 2005 the Director-General filed a care application in the Children's Court. An interim order was made allocating parental responsibility for the child to the Minister for Community Services. Julia was placed in the care of authorised foster carers.
5 On 26 April 2006 final care orders were made in the Children's Court allocating parental responsibility for Julia. Order 1 provided that pursuant to s 79(1)(b) of the Act parental responsibility for Julia was allocated to the Minister until she attains the age of 18 years. Orders 2 provided that parental responsibility in relation to contact with Julia's mother be exercised jointly between Julia's paternal aunt and paternal uncle and the Minister until she attains the age of 18. An order in the same terms was made in respect of parental responsibility for Julia's contact with her father, but limited for a period of 12 months (order 3).
6 Order 4 provides, in effect, that after 12 months, that is, from 26 April 2007, parental responsibility in relation to contact with the father became the sole responsibility of Julia's paternal aunt and uncle until she attains the age of 18. Order 5 provided for the joint exercise of parental responsibility between Julia’s father and Julia's paternal aunt and uncle in responsibility to religion or culture until she attains the age of 18.
7 Order 6 was purportedly made under s 81(1)(a) and provided that:
“ all other aspects of parental responsibility, including residence, day-to-day care, medical treatment and education is to be the sole responsibility of [Julia's paternal aunt and uncle] until [Julia] attains the age of 18 years. "
8 It appears to me that there is a direct inconsistency between order 1 and order 6. However, the undoubted effect of the orders is that Julia's paternal uncle and aunt have day-to-day parental responsibility for her, including responsibility in relation to contact with her father.
9 In these proceedings Julia's father challenges the evidence upon which the orders of the Children's Court allocating interim parental responsibility were made. I assume he contends that the same affidavits with which he takes issue were used for the purpose of the final care orders made on 26 April 2006.
10 On 27 March 2007 the plaintiff apparently purportedly commenced an appeal from the Children's Court orders of 26 April 2006 to the District Court pursuant to s 91 of the Act. That section provides that an appeal to the District Court in respect of an order of the Children's Court is to be by way of a new hearing and fresh evidence may be given on the appeal. The appeal was brought out of time. On 3 August 2007 the District Court refused the plaintiff leave to appeal out of time and dismissed the appeal. Evidence of a case worker employed by the Department of Human Services is that in dismissing the plaintiff's appeal, his Honour Judge Sorby advised the plaintiff that he could seek leave to rescind or vary the orders given in the Children's Court pursuant to s 90 of the Act, and if dissatisfied with the outcome of that application, could appeal to the District Court.
11 On about 3 April 2008 the plaintiff filed an application under s 90 with the Children's Court at Bidura seeking to vary or rescind the orders of 26 April 2006. On 5 May 2008 the Children's Court dismissed that application. There was no appeal from the order dismissing that application.
12 Section 90 provides that an application for rescission or variation of a care order may be made with the leave of the Children's Court. Before the court can grant leave for the making of the application it must be satisfied that there has been a significant change in any relevant circumstances since the care order was made or last varied. The court’s being satisfied of those matters is not in itself necessarily sufficient grounds for the grant of leave. If leave is granted, s 90 provides for matters to be taken into account in deciding whether to rescind or vary the care order.
13 Julia's carers are the plaintiff's brother and his wife.
14 The plaintiff by his summons seeks the following orders:
- “ 1. Order to review the Department of Community Services importune application with its supporting affidavit to the N.S.W. St. James Childrens [sic] Court on 5 th October 2005 and also my reply affidavit to same, dated 27 October 2005.
- 2. Order to withhold from the hearing all further D.O.C.S document/reports following the two abovementioned until order 3 below, can first be proven to the contrary and definitely not otherwise.
- 3. Order to determine D.O.C.S above in 1 importunity based on a false premise and directly resulting in the following:
a. Kidnapping
b. Perjury and/or importunity
c. Suffering depraviation [sic] of parenthood.
d. Trespassing on our home and privacy.
- e. Robbing us of our self confidence and damaging our integrity, self respect, dignity, legal and human rights and overall health, - both physically and psychologically – and particularly including the health of our little daughter.
- 4. Contact Order for overnight weekend access visitation rights with his daughter child to begin the sooner possible and take place at the fathers [sic] home.
- 5. Order permitting the plaintiff/father to personally be able to take his daughter child to medical practitioners for second or more oppinions [sic] regarding her health and welfare and to same regards for D.O.C.S. to provide him with any of his daughter child’s past, present or future medical reports the father may request of them.
- 6. Order allocating sole parental responsibility to to [sic] the father.
- 7. Order as to damages – ‘DAMAGE [sic] ARE AT LARGE’ and concurrent with 3 above are of the sum of $5 million with accrued interest and court costs and a further $1 million or part of a million equal to that of every year or part of a year that my daughter child remains outside my sole custody and care from the date of this application. ”
15 In support of the summons the plaintiff has filed an affidavit which, as I have said, takes issue with various affidavits and reports which were before the Local Court in 2005 and, I assume, 2006, and were before the District Court in 2007.
16 The claim for damages is not properly commenced by summons. Such a claim in damages for tort would need to be properly pleaded by statement of claim with proper particulars given. There is nothing in the plaintiff's affidavit in support of the summons which would indicate that the plaintiff has an arguable claim for damages against the Director-General. But even if there were such an arguable claim, it is not a claim that can be brought in the way it has been brought by summons. Paras 3 and 5 of the summons should be struck out.
17 The substance of the balance of the claim is that the plaintiff seeks an order from this Court allocating sole parental responsibility for the child to him. He seeks an order (which must be in the alternative) to provide for contact between him and his daughter in his home for overnight weekend access. He also seeks orders in relation to the obtaining of further medical reports in respect of Julia.
18 The jurisdiction of this Court to make orders of that kind is preserved by s 247 of the Act. The Act does not limit this Court's parens patriae jurisdiction in respect of children. However, the authorities plainly establish that the parens patriae jurisdiction is usually reserved for extraordinary circumstances where the welfare of the child is at imminent risk. As Palmer J said in Re Elizabeth [2007] NSWSC 729 (at [17]):
“ [17] There are, however, strong reasons of policy why the Supreme Court’s parens patriae jurisdiction should not be invoked where proceedings in the Children’s Court are apt and will meet the requirements of justice. 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 patriae 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. ” (Citation of authorities omitted)
19 There are aspects of the material in the affidavit of the case worker employed by the Department of Human Services and in the affidavit of the plaintiff that provide cause for concern. Particularly when Julia was younger there was reason for serious concern that her development was being delayed. The position appears presently to be improving, but the plaintiff has understandable concerns that his daughter's development may have been adversely affected for reasons associated with the care she was receiving, and in particular, the nourishment she was receiving. The most recent report of Dr Greg Rowell, a consultant paediatric physician, being a report following the consultation on 23 September 2010, is that Julia's developmental gains are impressive and that she has good general health. He proposes to review her again in four months’ time, that is, in January 2011. I will return later in these reasons to the question as to whether any, and if so, what orders should be made in relation to the plaintiff's being able to obtain a medical assessment of Julia and whether he should be able to discuss his concerns directly with Dr Rowell or some other specialist.
20 A further area of understandable concern from the plaintiff concerns the degree of contact he presently has with his daughter. Until about January of this year the plaintiff was seeing his daughter at least two days a week for, typically, about six and a half hours a day. Whatever may have been the reasons of the Children's Court for not allocating parental responsibility to the plaintiff in 2005 and 2006, the materials before me on this application do not suggest that the child's welfare would be placed at risk by his contact arrangements with her.
21 It appears from a record prepared by the case worker with the Department of Community Services that from mid February of this year, conflict has arisen between the plaintiff and Julia's carers being, as I have said, the plaintiff's brother and his brother's wife. It appears from the file note that on 22 February 2010 the carers received a letter from a solicitor the plaintiff had retained. That letter has not been placed in evidence before me, but it seemed to have precipitated a refusal by the carers to allow the plaintiff to have any contact with his daughter. Through the mediation of the Department, modified contact arrangements resumed, but the plaintiff now has contact with his daughter only for two hours each Saturday afternoon. As I understand it, that contact is supervised.
22 There is a real issue as to whether the child's carers may have exercised their powers by which they have sole responsibility in relation to the child's contact with her father, having regard to the straining of relationships between the plaintiff and them, in a way which may not be in the interests of the child.
23 Neither the carers nor the child was represented before me. The Children's Court has jurisdiction to make contact orders under s 86 if a child is the subject of proceedings before the Children's Court. I express no view as to whether the child could currently be said to be the subject of proceedings before the Children's Court. But clearly she would be so subject if an application were made by the plaintiff for leave to apply for the rescission or variation of the care orders of 26 April 2006 under s 90. In other words, on the making of such an application for leave there would unquestionably be jurisdiction for the Children's Court to modify the contact orders. This Court, as the cases say, should respect the specialist jurisdiction of the Children's Court in cases such as these.
24 It is only those two matters that I have identified that appear to me arguably to raise grounds that could warrant this Court exercising its parens patriae jurisdiction. Having regard to the remedies available in the Children's Court I do not think it is seriously arguable that this Court in the exercise of its parens patriae jurisdiction would make orders altering the allocation of sole parental responsibility for Julia or altering contact arrangements.
25 In reaching that conclusion I take into account that clearly the Children’s Court could give leave for the plaintiff to bring proceedings for an order under s 90 to rescind or vary the care orders of 26 April 2006, if the Children's Court thought it appropriate to do so, having regard to the range of factors in s 90(2)(a). There have clearly been significant changes in relevant circumstances since the care orders were made in April 2006. The changes in contact arrangements are at least one such significant change.
26 It follows that these proceedings should be summarily dismissed. Before that is done, there remains the question as to the orders sought in paragraph 5 of the summons. It would be an extraordinary thing if a father were not able to consult with medical practitioners to obtain their opinions regarding the health and welfare of his daughter. The Director- General has no objection to providing the plaintiff with medical reports concerning Julia and some such reports have been provided to him today. The Director-General also, as I understand it, has no objection to the plaintiff’s speaking with Dr Rowell so as to express his concerns to Dr Rowell. Nor does she have any objection, as I understand it, to the plaintiff’s attending with Julia when she next sees Dr Rowell, subject to Dr Rowell's own decision as to whether the plaintiff should be in attendance during any consultation.
27 Given that Julia was last seen by Dr Rowell on 23 September this year and is due to see him again in January, it would not appear to me that there would be extraordinary grounds to invoke the Court's parens patriae jurisdiction to make an order requiring the child's carers to allow the plaintiff to take the child to be examined by another medical practitioner. As counsel for the Director-General said, it could be disruptive and detrimental to the child's interests to be taken to an excessive number of medical appointments. However, it is desirable that the plaintiff be able to contact Dr Rowell and, subject to Dr Rowell's own opinions, to be present during any consultation with Dr Rowell.
28 Counsel for the Director-General said that no order was required for such arrangements to be made because those were matters which, in any event, fell within the Minister's parental responsibility pursuant to order 1 made on 26 April 2006. However, it seems to me that the effect of orders 2 to 6 is to allocate all aspects of parental responsibility for the child to her present carers, subject only to the particular modifications made in orders 2, 3, 4 and 5. That is a matter which the Director-General should consider and may be a reason for the Director-General herself to consider in connection with any application under s 90.
29 The court can exercise its parens patriae jurisdiction without making the child a ward of the court. It seems to me that I ought to exercise that jurisdiction to modify the operation of orders 1 and 6 of 26 April 2006 so as to ensure that such suitable arrangements can be made for the plaintiff to attend on Dr Rowell as I have outlined. I will invite counsel to formulate such an order. Subject to that, I will order that the summons be dismissed.
[The parties addressed.]
30 I make the following orders:
1. Order that the Director-General of the Department of Human Services take reasonable steps to arrange a paediatric medical assessment of Julia and that, subject to the advice and recommendation of the medical practitioner who is to conduct that assessment, the plaintiff be permitted to attend that assessment. I note that an assessment of Julia is due to take place in January 2011 with Dr Greg Rowell, and that the Director-General proposes that the assessment, the subject of this order, be by Dr Rowell.
2. Order that the Director-General take reasonable steps to facilitate a telephone conference between the plaintiff and Dr Rowell or such other medical practitioner as might conduct the assessment, the subject of order 1, prior to the date to be arranged for the assessment of Julia.
3. Pursuant to r 7.36 of the Uniform Civil Procedure Rules order that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. I note that the legal assistance proposed is in relation to proceedings that the plaintiff may bring in the Children's Court pursuant to s 90 of the Children and Young Person's (Care and Protection) Act 1998, and for associated relief, including in relation to contact orders.
5. These orders may be entered forthwith.4. Order that the summons be otherwise dismissed.
31 I note that no order for costs is sought.