Re M v Department of Community Services (No 3)

[2013] NSWSC 552

Supreme Court

New South Wales

Medium Neutral Citation:	Re M v Department of Community Services (No 3) [2013] NSWSC 552
Hearing dates:	23 April 2013
Decision date:	26 April 2013
Jurisdiction:	Equity Division - Duty List
Before:	Rein J
Decision:	Orders that the plaintiff's notice of motion and summons be dismissed with no order as to costs.
Catchwords:	Setting aside decision of District Court - parens patriae jurisdiction - exceptional circumstances required - whether an order in the nature of a writ of certiorari should be made - whether there was a failure to observe some applicable requirements of procedural fairness
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) District Court Act 1973 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Re Alan (2008) 71 NSWLR 573; [2008] NSWSC 379 Re Cameron [2012] NSWSC 1453 Craig v State of South Australia (1995) 184 CLR 163 Druett v Director-General of Community Services [2001] NSWCA 126 Re F: Litigants in Person Guidelines (2001) 27 FAM LR 517 Re Louise and Belinda [2009] NSWSC 534 Minister for Community Services & Anor v The Children's Court [2003] NSWSC 863 Re Victoria; Director-General, Department of Community Services v Children's Court (NSW) [2002] NSWSC 647; (2002) 29 FAM LR 157
Category:	Principal judgment
Parties:	BM (plaintiff) The Department of Community Services (first defendant) DC (second defendant) MB (third defendant) MS (fourth defendant) DM by his direct legal representative Ms Shannon Pennicott (fifth defendant) JM by his direct legal representative Ms Debbie Flynn (sixth defendant) RM (seventh defendant) HM (eighth defendant) ZM (ninth defendant)
Representation:	Counsel: Plaintiff in person Mr T. Allen (first and sixth defendants) Ms M. Barnett (second defendant) Ms A. Murphy (third defendant) Ms R. Dart (fourth defendant) Mr C. Wilson (fifth, seventh, eighth, ninth defendants) Solicitors: NSW Crown Solicitors (first and sixth defendants) Maggie Ormand Pty Ltd (second defendant) Rowley & Associates (third defendant) Legal Aid NSW (fourth defendant) Friedlieb Byrne Pty Ltd (fifth defendant) Debbie Flynn & Associates Lawyers (sixth defendant) Pogson Cronin (seventh, eighth, ninth defendants)
File Number(s):	2012/196633

Ex tempore Judgment

1. REIN J: The plaintiff ("BM") is self represented and is the mother of five children, DM (15 years of age), JM (14 years of age), RM (5 years of above), HM (4 years of age) and ZM (2 years of age). DC is the father of DM and JM and MB is the father of RM and HM and MS is the father of ZM.

1. In November 2011 after intervention by the Department of Community Services ("DOCS"), for whom Mr T. Allen of counsel appears, all five children were removed from BM's care and control and the children were initially placed in temporary foster care. A short time later ZM was placed in the care of MS. On 12 December 2011 a finding was made in the Children's Court, by consent and without admission, that all five children were in need of care and protection under the relevant provision of the Children and Young Persons (Care and Protection) Act 1998 (NSW) "the Care Act"). BM has informed me from the Bar table that she did not, in fact, consent to the orders or to the children being in need of care, and that the concession made on her behalf was made in breach of her instructions to her then legal representatives.

1. During 2012 BM made a number of applications seeking interim restoration of all children and, or, contact orders and also made an application to reopen the finding made by the Children's Court Magistrate on 12 December 2011. All of BM's applications were unsuccessful. In December 2012, the Children's Court made final orders placing DM and JM in the care of their father DC, placing RM and HM in the care of their father MB and placing ZM in the care of his father MS.

1. In these proceedings, Ms Barnett of counsel appears for DC, MS Murphy of counsel appears for MB, Ms Dart solicitor appears for MS, and Mr Wilson of counsel appears for the children instructed by legal representatives appointed to act for each of the children.

1. Although, the Children's Court final orders were made in December 2012 his Honour Magistrate Sbrizzi, on 9 November 2012, foreshadowed the orders that he was considering making following which BM commenced proceedings in this Court seeking to invoke the parens patriae jurisdiction of the Court. In those proceedings White J stayed the making of any final order by the Children's Court giving custody of RM and HM to MB until after the appeal to the District Court which BM said she wished to bring had been heard.

1. BM's appeal to the District Court was heard this month, commencing in April and running for a total of nine days. The learned judge of the District Court Olsson DCJ gave an ex tempore judgment last Friday 19 April 2013 rejecting BM's appeal and confirming the orders made by the Children's Court. On Friday 19 April 2013, BM sought to prevent the orders made by the Children's Court, and confirmed by the District Court, from being effected by application to the Equity Duty Judge who on that occasion was Sackar J. His Honour stood the matter over to the Duty Judge List for Tuesday 23 April 2013 and noted the undertaking given by DOCS that RM and HM would not be taken from their present location in NSW to Adelaide (where MB lives) before next Tuesday 3 May 2013.

1. BM's notice of motion of 19 April 2013 seeks:

(1)   A stay of the District Court orders in relation to RM and HM "pending determination of appeal in the Supreme Court",

(2)   Interim and final orders that RM and HM be restored to her care,

(3)   Interim orders that she have a minimum of two hours contact per week with ZM,

(4)   A final order for equal and shared responsibility with MS for the care of ZM,

(5)   Leave to amend her originating summons with the effect that she will no longer be seeking relief in relation to DM and JM except for travelling costs.

1. The originating summons, to which the BM refers, is a reference either to the summons commencing an appeal (Part 50) of 22 June 2012, filed in this Court, or a similarly headed document dated 21 November 2012. The first of these was filed in response to a decision of the Children's Court that the children should be removed from BM's care. The second was a response to the decision of the 9 November 2012 in which the proposed orders were foreshadowed by Magistrate Sbrizzi and to which I have referred.

1. BM believes that Justice White's decision of 5 December 2012 permitted her to "relist" the matter in order to attack the decision of the District Court.

1. I should also mention that BM brought another application in February this year which came before Slattery J in which she sought to have RM and HM removed from MB, which application was refused.

1. Although BM did seek in the District Court an order that DM and JM be placed in her care, she does not now seek such an order. Even in reference to ZM, she does not seek an order that ZM be taken out of the care of MS, but does seek a variation of the orders made by the Children's Court and confirmed by the District Court.

1. Of course it is understandable, given BM's lack of legal training and assistance from professionally qualified persons that she is confused about the procedural issues. Nevertheless it is important to stress at the outset that the Care Act does not provide for any appeal to this Court from decisions of the Children's Court or from the District Court. Although no appeal can be brought to this Court it has been long recognised that it does have a protective role in relation to children which can lead in very restricted circumstances to orders being made that overarch the decisions of lower courts in the jurisdictional hierarchy. This jurisdiction known as the parens patriae or wardship jurisdiction is not an "appellate" jurisdiction. I shall say more about the restriction on its exercise.

1. Potentially there is a second basis on which the Supreme Court can intervene in respect of a matter heard in a lower court even where there can be no appeal, as such from the decision. Section 69 of the Supreme Court Act 1970 (NSW) relevantly permits this Court to grant relief in the nature of certiorari. The Care Act, I should note, expressly preserves the Supreme Court jurisdiction: s 247. Within what was formerly described as the writ of certiorari, a number of matters can be ventilated - they are referred to in Craig v State of South Australia (1995) 184 CLR 163, 175-176 as "jurisdictional error, failure to observe some applicable requirements of procedural fairness, fraud and 'error of law on the face of the record'".

1. BM seeks to invoke both the parens patriae jurisdictions and s 69 jurisdiction. In relation to s 69 jurisdiction she asserts that she has not had a fair hearing in the District Court. In relation to the parens patriae jurisdiction, BM accepts that the authorities require her to establish exceptional circumstances in order for the Court to intervene but she maintains that those exceptional circumstances exist. In her affidavit of 19 April 2013 she has set out in paragraph 2 the matters which she says are the exceptional circumstances of this case, namely:

(1) If a stay is not granted than it is likely that my appeal in the Supreme Court will fail.

(2) If the orders of the Supreme Court are not stayed than it would be too much disruption to the lives of my children RM, HM and ZM.

(3) I believe my children RM and HM will be at risk of harm if placed with Mr Brinkworth and a stay was previously granted under parens patrei for these reasons. Despite the Judgement of Judge Ollsen, my concerns for my children should they be placed in his care are very real and I was unable to substantiate them as the evidence was not subpoena'd from crimestoppers or counsellors.

(4) I did not receive a fair trial. The listing Judge, Judge Truss accepted that the Crown would subpoena the medical and police material, therefore I was relying on the other side to subpoena this material and the Crown Solicitor did not subpoena MB medical records therefore no experts were called and all of his medical records were not made available to the court. I was not allowed to question my witness, Nurse Amanda who has worked in the area of mental health as to mental illness and all of this made for an unfair trial.

(5) In submissions, the District Court was misled by submissions of the lawyers as much of what was said was incorrect paraphrasing from the transcripts and in essence, incorrect. The crown submitted theories which were not correct based on the evidence. Previously Judge Delaney in the transcripts of 6 March 2013, told the Crown solicitors and the some of the lawyers off. Judge Ollsen considered the submissions of all of the lawyers and the submissions of a mother untrained in law. Some of this to me, perhaps seems unfair procedurally?

(6) I have not been given a fair trial or been treated fairly in that no legal remedy which allows my children to be returned to me has been offered to me, and under the Children's Act and under Re: Greta and Re: Cameron this is my legal right, and my children's legal right.

(7) The status quo for my children will change if a stay is not granted as they will no longer have weekly contact with each other but will be seperated and [the Nurse] gave evidence of the close relationship between RM, HM and ZM- there is further evidence in the contact diary and on DVDs.

(8) My children RM and HM and ZM have a right to each other and if RM and HMare not restored to me, their mother than they will be denied this right, and split up in different states of Australia.

(9) RM, HM and ZM have been having weekly contact and this status quo will change if RM and HM are sent interstate and not restored to me, their mother.

1. In the balance of her affidavit she sets out her version of events relevant to her resistance to the orders made by the Children's Court and the District Court. Counsel for the defendants maintain that the material in that affidavit is really an attempt to conduct an appeal from the District Court decision and that BM should not be permitted such an opportunity since no right of appeal exists and there is nothing new in the affidavit.

1. In relation to the certiorari relief which, in effect BM seeks, Mr Allen contended that, by virtue of s 127 of the District Court Act 1973 (NSW), any application for the exercise of prerogative writ can only be exercised by the Court of Appeal. Mr Allen referred me to Druett v Director-General of Community Services [2001] NSWCA 126 as authority for that contention. There is a decision of Forster J in Re Louise and Belinda [2009] NSWSC 534 in which a single judge of this Court did grant relief in the nature of certiorari on the application of DOCS. While Druett does support the contention that there is no right of appeal to the Court of Appeal from the District Court, I do not read Druett as providing support for Mr Allen's proposition that any claim for certiorari must be brought in the Court of Appeal rather than to the Equity division. In view of the urgency of this matter and the potential importance of the point and the absence of any legally trained person in opposition, I would prefer not to express any firm view on the issue but rather proceed on the basis, as did Forster J, that I do have jurisdiction to make an order quashing the District Court decision, were that warranted.

1. BM, although legally represented in the Children's Court, was not represented in the District Court. I am informed by Mr Allen, and BM did not dispute this, that he referred the learned trial judge to Re F: Litigants in Person Guidelines (2001) 27 FAM LR 517, particularly [253]. Mr Wilson said that it was mentioned on several occasions to Olsson DCJ.

1. I have read the judgment of Olsson DCJ handed down on Friday 19 April 2013 which I have marked as Exhibit C. Although it was delivered ex tempore (no doubt due to the urgency of the matter), after a nine day hearing commencing on 8 April 2013, it contains considerable detail and exposes clearly the reasoning which has led her Honour to the conclusions to which she has come. Those reasons include a detailed assessment of BM's credit. It is clear that her Honour did not regard BM as a credible witness and that she preferred the evidence of witnesses called by the defendants including DC, MB and MS. I drew to the attention of BM the conclusions of the trial judge as to BM's credit contained in her Honour's judgment and it is rather revealing I think that BM said (T49.5-9) that she "was not aware" of that. Her Honour had the advantage of observing and hearing the witnesses first hand which is an important consideration: Re Gabrielle and Frank [2011] NSWSC 944, [33].

1. In Re Victoria; Director-General, Department of Community Services v Children's Court (NSW) [2002] NSWSC 647; (2002) 29 FAM LR 157, Palmer J was dealing with an application by DOCS' to stay an order of a Children's Court Magistrate granting custody of the child's mother until DOCS' appeal to the District Court could be heard. There was evidence that there was an appreciable risk that the mother would abscond from Australia, if she was granted custody, and there was evidence of significant injuries that had been inflicted on the child by the child's father on a number of occasions with the knowledge of the mother and without any effort by her to intervene. In the course of the judgment Palmer J, who granted the stay, made comments more generally about the parens patriae jurisdiction:

[4] In filing its Summons in this Court rather than commencing an appeal in the District Court, DOCS seeks to invoke this Court's inherent parens patriae, or wardship, jurisdiction, which is preserved notwithstanding specific legislation enacted by the State of New South Wales and by the Commonwealth of Australia to provide for the welfare of children: see s247 of the 1998 Act; Director-General, NSW Department of Community Services v Y [1999] NSWSC 644, para84-para97; Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79, at para21; Spruill v Director-General of the Department of Community Services [2001] NSWCA 413. Why DOCS has taken this course is of some significance - a matter to which it will be necessary to return.

...

[31] It is true that the 1998 Act does not limit the parens patriae, or wardship, jurisdiction of the Supreme Court. Nevertheless, I would think it 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. When a contest concerning a child has been fought in the Children's Court and a party is dissatisfied with the decision, an appeal should be made to the District Court under s91 of the 1998 Act, and any application for a stay of the Magistrate's order should be made to that Court pending determination of the appeal. It would only be in the most extraordinary circumstances that this Court should be asked, in the exercise of its parens patriae jurisdiction, to set aside or to affect the decision of a Magistrate in the Children's Court.

...

[36] In my opinion, I must have primary regard to the fact that the 1998 Act provides for the operation of a specialist jurisdiction within the Court system of this State. Matters concerning the welfare of children are to be dealt with by a Children's Court consisting of Magistrates highly experienced in the determination of such issues. The 1998 Act also specifically provides that appeals from the Children's Court lie to the District Court; s91 provides a machinery for the conduct of those appeals and vests the District Court with the appropriate jurisdiction to make all such orders as the Children's Court might make for the welfare of the child.

[37] I do not think that there should be encouraged a procedure whereby persons who have fully contested a matter in the Children's Court and wish to appeal can by-pass the appeal provisions of the 1998 Act and come straight to this Court seeking to invoke its inherent wardship jurisdiction. Quite apart from the fact that to do so would sanction a departure from the appeal procedure laid down by the legislature in the 1998 Act, such an application would involve a quite different question from that which is normally raised on an appeal. In an application to this Court in its wardship jurisdiction, the question is not whether the decision of the Children's Court, or of the District Court on appeal from the Children's Court, was right or wrong or whether the wide powers conferred on a Court under the 1997 or 1998 Acts were rightly or wrongly exercised or could have been better exercised. The question before this Court will be: what is in the best interests of the child as matters stand at the date of this Court's judgment. It may be that the circumstances revealed in, or flowing from, the decisions of the lower Courts have a great part to play in the consideration of that question, but they will not necessarily be conclusive. Indeed, in certain circumstances what transpired in the lower Courts might be utterly irrelevant to the question before this Court in the exercise of its inherent jurisdiction.

[38] That this is so is demonstrated by the fact that an order of this Court in its parens patriae jurisdiction does not set aside an earlier order made by a statutory Court such as the Children's Court; the statutory Court's order still stands although in a sense it may be said to be superseded where it is inconsistent with this Court's order, so that an injunction in the nature of prohibition would lie to restrain the statutory Court from enforcing its earlier inconsistent order: see In re Harris 37 SR(NSW) 17, at 28-29 per Jordan CJ and Long Innes J, and at 31-32 per Maughan AJ.

[39] As I have said earlier, this Court should not encourage any process by which those dissatisfied with the result of proceedings in the Children's Court can simply set at naught the proceedings in that Court and come afresh to this Court, invoking its parens patriae jurisdiction in order to argue all over again the matters that have been debated before the lower Court. If that were to be in any way encouraged, then parties would inevitably face the risk of being involved in a multiplicity of uncontrolled proceedings fought in the Children's Court and in the Supreme Court, with the distinct possibility of conflicting concurrent orders obtained in the Supreme Court and in the lower Court.

[40] What I have said indicates, in my view, the approach which, as a general rule, this Court ought to adopt when its wardship jurisdiction is sought to be invoked in what is in substance an appeal from a decision of the Children's Court. This approach is supported, in my opinion, by decisions of this Court such as Re Weir (1953) 70 WN(NSW) 78; Ping v Van Der Kroft [1982] 2 NSWLR 731; T v H (1985) 3 NSWLR 270, at 274; and Re Anna, Bruno, Courtney and Deepak (supra) at para20 to para22. Of course, as these authorities indicate, there may be exceptional circumstances in a particular case which justify the Court in departing from that general approach.

1. Re Victoria has been cited and followed in a number of decisions in this Court: see for example the reported decision in Re Alan (2008) 71 NSWLR 573; [2008] NSWSC 379, Gzell J. The situations in which this Court will intervene are very limited, even more so where there has been a final hearing and a right of appeal to the District Court has been exercised and determined.

1. BM, it is clear, feels aggrieved by the decision that has been reached and does not accept the correctness of the decision of the District Court. As Young J said in Re Cameron [2012] NSWSC 1453, 20 "the right of people to bring up their own children is a very dear right and one must be respected as far as possible". I fully accept that the removal of a child from a mother's care is a most serious intervention into the life of that person and child which should only be a result where the child's welfare requires it following, for example, demonstrated neglect, or either psychological or physical abuse, or disregard for the welfare of the child.

1. The Children's Court has been entrusted with the onerous responsibility of determining whether such an order should be made and the District Court of reviewing de novo orders made by the Children's Court when one, or more, of the parties to proceedings in the Children's Court feel aggrieved. When parents of a child have separated and live in different states that creates its own further special difficulty for the Children's Court and the District Court.

1. Where the courts below, pursuant to an extensive statutory regime, have made an assessment on the evidence of what is in the best interest of the child as they are required to do, some compelling established fact of actual or appreciable risk of harm would need to be demonstrated; rather than engaging in some process of redetermining the issues that were before the Children's Court or the District Court and reaching its own conclusions, as Palmer J in effect noted at [37] of his judgment.

1. It can be seen that what BM describes as the exceptional circumstances in this case includes claims of unfairness in the conduct of the trial. I shall deal first with the unfairness issue. It is referred to at 2(4), 2(5) and 2(6) of BM's affidavit, and it was dealt with in her oral submissions before this Court. Almost all of the complaints that she makes are really matters of a type that would (if they had any substance) be advanced on an appeal.

1. There is no allegation of bias on the part of the trial judge and it is important to bear in mind that this head of relief, i.e. unfairness, is a reference to a failure to comply with procedural requirements not "unfairness" of the result in some general sense. Subject to some specific matters, to which I will refer, there is nothing to which BM has pointed which establishes a failure to follow procedural fairness and many of the complaints about unfairness are really based on the trial judge's rejection of BM's evidence based on her Honour's assessment of BM's credibility, in turn based on all of the evidence before her including evidence given by BM and two witnesses called by her. The trial judge did not accept allegations made by BM about her former partners, or her assertions as to the unreliability of her two eldest children whose complaints about her were very significant, or her explanation and descriptions of her conduct in respect of the children

1. BM complains that Olsson DCJ refused to permit BM to lead evidence on the topic of MB's bipolar disorder from a nurse, called by BM, and refused to permit BM to cross-examine MB about aspects of his mental illness: see T22.17 of the transcript of 23 April 2013. Her Honour rejected the questions on the basis that they were so general that there was nothing in the answer to them that could assist the Court, as is revealed by the passage set out at T22.17 of the 23 April 2013 transcript. I think her Honour was entitled to take that view and an additional basis may have been open to her - namely, the absence of expertise in psychology of the nurse to give an opinion on the effects of bipolar disorder.

1. BM complains that she was relying on the Crown subpoenaing medical and police material. Therefore, she says she was:

...relying on the other side to subpoena this material and the Crown Solicitor did not subpoena MB material records therefore no experts were called... (see [14](4) above)

1. Even were it the case that potentially relevant material was not available through subpoena, of which I am by no means convinced, BM was entitled to issue subpoenas to adduce relevant evidence and cannot rely on DOCS' failure to adduce evidence to assist her in her own case as a basis of any unfairness.

1. BM claims that Olsson DCJ was "misled" by submissions of the lawyers as much of what was said was incorrect paraphrasing from the transcripts and, in essence, "incorrect" and that theories of the Crown were "submitted which were not based on the evidence": see [14](5) above. Whilst it is clear that her Honour did not accept BM's version of the events there is nothing to support the contention that there was any incorrect paraphrasing by the counsel for the defendants by which her Honour was misled, or that she was in fact misled, or that her conclusions were based on theories not supported by the evidence.

1. It is true that her Honour saw the nurse's evidence relating to BM's parents skills and caring, which the nurse describes as "appropriate", difficult to reconcile with other evidence. Her Honour noted that the nurse was a friend of BM's and concluded that her evidence had been coloured by the fact of their friendship. Her Honour said:

I have to weigh her evidence in the light of all of the evidence and to my mind it is wholly overwhelmed by the evidence to the contrary." (p 35).

1. Before me BM has made reference to the contact diary that she maintained in 2012, apparently for the purpose of the proceedings, and sought to rely on in the District Court. It would seem that her Honour regarded BM's contact diary as self-serving evidence with no probative value: see Exhibit A, T213.1219 and Exhibit C, p 31.

1. BM appears to contend that the District Court hearing was unfair because she did not have legal representation. A person who represents herself or himself in a Court proceeding is almost always at a distinct disadvantage but when they do so, either out of choice or due to a lack of funds and or refusal of pro bono assistance, the hearing cannot be characterised as unfair for that reason. Courts are required in dealing with a matter to take into account the fact that the litigant is not legally trained and to provide some guidance of the type helpfully described in Re F: Litigants in Person Guidelines. BM has not indicated any matter to my mind which would suggest that Olsson DCJ did not adhere to the guidelines.

1. BM is critical of the trial judge's conclusion that DC, MB and MS have a good relationship with their former partners (see p 14 of Exhibit C), saying that in a police report, "I say otherwise": see T44.7 -17 and T48.46-50. That is to say, it is her own contrary evidence on which she relies to assert that the judgment is flawed.

1. Another example of BM's complaint is that at the District Court hearing BM maintained that she suffered domestic violence at the hands of MS. Her Honour (at p 34 of Exhibit C) noted that, when pressed, BM "conceded there was no actual physical violence".

1. BM had also contended that DC had been violent to her. Her Honour dealt with this but BM asserts that her Honour did not deal with her assertion that DC had been violent to her on other occasions. The assertion was made in cross-examination and BM's attention in cross-examination in the District Court was drawn to the fact that she had not referred to these occasions in her affidavit: see Exhibit 4, T370.12-13 of the District Court transcript. Her Honour did refer in her judgment to BM's evidence that DC had threatened her on more than one occasion and to the lack of corroboration: see p 16 of Exhibit C.

1. Another complaint of BM is that the trial judge found that she had hit her children with an implement (see District Court judgment, Exhibit C). She admitted before Olsson DCJ that she had hit her children with a wooden spoon and she accepted before me that it was an implement.

1. Another matter is that BM maintained and continues to maintain that the fact that MB has a bipolar disorder is the reason why the trial judge could not reasonably have accepted that he was a suitable parent for the child. Her Honour considered that point carefully and rejected BM's assertions. Her Honour did not ignore the evidence but took it into account along with the other material.

1. From Exhibit 3 it is likely that her Honour would have been aware that views had been expressed earlier, although the date is not clear from that document, that MB was not suitable to take care of RM and HM. However, like the Children's Court Magistrate, her Honour, having heard MB give evidence and based on all of the material before her, came to the view that the best alternative for RM and HM was that they be placed in MB's care, MB being the natural father of the children.

1. Another matter raised by BM was the absence of documents from Crime Stoppers, which she says would have recorded her calls of complaint about MB. As Ms Dart pointed out (at T33) this absence of documentation in no way affected the outcome of the hearing, because there is no dispute at the hearing that BM had made those calls. What was in issue in the District Court proceedings was whether the allegations which BM had made, and continued to make about MB, had a proper basis in fact and her Honour found that they did not.

1. Returning to the list of exceptional circumstances, I have already dealt with (4), (5) and (6) in [14] above. I now turn to the balance of exceptional circumstances claimed by BM. As I have already indicated BM has no right of appeal from the decision of the District Court. Item (1) is predicated on an incorrect assumption and therefore falls away.

1. So far as item (2) is concerned this seems to be based on the proposition that if the District Court orders are not stayed and BM succeeds in her appeal there would be disruption to RM, HM and ZM if fresh orders have to be made. That contention seems to be predicated on the assumption that BM has a right of appeal, which is to be protected. Again, for the reasons I have explained that basis is misconceived and the point must fall away.

1. Item (3) is a reiteration of the appeal, which has been determined adversely to BM. She has, herself, noted there that is she was not able to substantiate her claims of risk of harm.

1. Next, by item (7) BM contends that the status quo for her children will change if the stay is not granted and that the close relationship between RM, HM and ZM will be affected and that she will not be able to have a weekly contact with them. At the moment none of the children are with BM and have not been since November 2011. In a broad sense, however, there is no question that the District Court orders will make contact difficult for BM. That is the indisputable consequence of the District Court judgment. The admittedly significant consequences of the judgment of the Children's Court and the District Court do not render the judgment flawed or make the circumstances exceptional.

1. It must be borne in mind that all of the children were legally represented in the hearings that have been held so far, as they are today and were on Tuesday, and that the children, through their representatives, have indicated their support for the conclusions reached by the District Court. This is not a conclusive matter but to my mind it is an important consideration in a matter such as this.

1. It follows that, in my view, there has not been established exceptional circumstances of the type which is required for the Court to intervene and I decline to do so.

1. There was a further matter raised by BM in relation to travel allowances, which she claims DOCS should pay on her behalf so that she can travel to South Australia and Western Australia to see her children. That is not a matter that is appropriate for consideration in the parens patriae jurisdiction and there is authority which indicates that DOCS cannot be ordered to provide such assistance: see Minister for Community Services & Anor v The Children's Court [2003] NSWSC 863 per Grove J. It is not a basis to interfere with the orders made by the Children's Court, but I will enquire as to the means by which BM can ventilate her wish for financial assistance.

1. BM's notice of motion and summons should be dismissed with no order as to costs.

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