Re Madison
[2014] NSWSC 1874
•24 December 2014
Supreme Court
New South Wales
Medium Neutral Citation: Re Madison [2014] NSWSC 1874 Hearing dates: 18, 19 and 23 December 2014 Decision date: 24 December 2014 Jurisdiction: Equity Division - Protective List Before: White J Decision: Refer to para [103] of judgment
Catchwords: CHILD WELFARE - orders made in the parens patriae jurisdiction for recovery of child to be placed with father and for father to have authority to detain her - proceedings pending in Children's Court - Minister unable to provide secure accommodation - application by Minister to discharge orders and by father to vary orders Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Family Law Act 1975 (Cth)Cases Cited: Re Thomas [2009] NSWSC 217
Re Elizabeth [2007] NSWSC 729
Re Frances and Benny [2005] NSWSC 1207
Marion's case (1992) 175 CLR 218
R v Gyngall [1893] 2 QB 232
DOCS v Y [1999] NSWSC 644
Re Josie [2004] NSWSC 642; (2004) 32 Fam LR 64Category: Procedural and other rulings Parties: The Father (Plaintiff)
Director General, Department of Family and Community Services (1st Defendant)
Secretary, Department of Family and Community Services (2nd Defendant)
Children's Court of NSW Bidura (3rd Defendant)
Madison (4th Defendant)Representation: Counsel:
In person (Plaintiff)
C McGorey (1st and 2nd Defendants)
B Samuel (4th Defendant)
Solicitors:
Crown Solicitors Office (1st and 2nd Defendants)
Submitting Appearance (3rd Defendant)
Brian Samuel & Associates (4th Defendant)
File Number(s): 2014/311835
Judgment
HIS HONOUR: These proceedings concern a 16-year-old girl who has been given a pseudonym, Madison.
On 2 July 2014, the Director General of the Department of Family and Community Services assumed care of Madison. An application for a care order under the Children and Young Persons (Care and Protection) Act 1998 was filed in the Children's Court on 7 July 2014.
On 10 July 2014, Madison was placed under the parental responsibility of the Minister until 18 July. On 18 July, she was placed under the parental responsibility of the Minister until further order.
On 24 October 2014, on the application of Madison's father and in the exercise of the Crown's parens patriae jurisdiction and with the ultimate support of the Secretary of the Department of Family and Community Services, who is the Director General, and the Minister, I made an order directing the police to recover Madison and to deliver her to her father. I made an order authorising Madison's father to detain her at his residential premises using no more force than was reasonable and necessary to do so and I authorised him to use force being not more than was reasonable and necessary to restrain her in order to prevent her from injuring herself or others.
I made other orders, including orders that would permit the Department of Family and Community Services to remove Madison to a place of secure accommodation if one were available. I also ordered that until and including 7 November 2014, Madison's father have joint parental responsibility for her with the Minister, but that his parental responsibility be subject to any direction that the Minister may give as to any particular matter concerning Madison.
On 7 November 2014, those orders were extended. At that time, the Secretary and the Minister supported the extension of the orders. A further order was made that the Children's Court not be precluded from varying the existing interim care orders. The matter was relisted before me on 18 December 2014.
On 19 November 2013, the child's father had filed a notice of motion seeking orders to require the Secretary and the Minister to make moneys available to him for Madison's medical care and extra-curricular activities. An application for similar relief had been made to me on 7 November 2014 but I did not make the orders then sought. The father's notice of motion filed on 19 November was dismissed by Stevenson J on 21 November 2014.
On 12 December 2014, the child's father filed a notice of motion that sought the following orders:
"1 That the filing fee for this motion be remitted till the finality of these proceedings.
2 That the first and second defendant be ordered to continue to pay for the cost of Madison's Psychologist until further order of this Court or until such time as her psychologist deems it no longer necessary to continue her treatment.
3 That the role of Madison's representation be reverted to that of direct legal representative, in both this Court and in the Children's Court.
4 That the matter in its entirety be uplifted to this Court for separation and expedited hearing of the issues and evidence, under principles in Re Linda [2011] NSWSC 1596; the likelihood of multiple further proceedings if not heard in Supreme Court
5 That until further order of this Court the care and parental responsibility of Madison be returned to the Plaintiff and the first and second respondents be ordered to provide such assistance as has been thus far requested."
I had anticipated when the matter was returnable on 18 December that it would not involve any substantive hearing. I had indicated that any further substantive hearing should take place in the Children's Court. My expectation was incorrect and the matter proceeded late on 18 December and on 19 December as time was available. There was a further hearing on 23 December in circumstances to which I will come.
At the hearing on 18 December, the Secretary and the Minister, without having filed a notice of motion, nonetheless sought orders in substance that the orders made on 7 November 2014 be discharged. The effect of that would be that the Minister would have sole parental responsibility for Madison until further order, pursuant to the order made by the Children's Court on 18 July.
Background to orders of 24 October and 7 November 2014
It is necessary to say something of the extensive background to this case and to the orders made on 24 October. It appears that the young person's father, the plaintiff, has been her primary carer since she was very young. There have been many issues in relation to Madison and a number of risk of harm reports over the years have been provided to the Department of Community Services. Most were addressed at the time. Many, including later ones, but also some earlier ones, relate to risks attending Madison's having contact with her mother and her mother's use of drugs and association with drug dealers.
Madison's father says that she has had free access to marijuana and was provided with marijuana by her mother from about the age of 11 or 12. He deposed that until the age of 12, Madison was doing well academically and was a representative athlete. He says that after recommencing a relationship with her mother, her behaviour worsened and she was suspended from two schools. In February this year, Madison responded to being "grounded" by her father by going to live with her mother.
A number of issues arose from that. The father applied to the Federal Circuit Court to have Madison returned to his care in accordance with earlier orders made in the Local Court under the Family Law Act 1975 (Cth), but the application was declined, apparently without a substantive hearing.
Madison returned to her father's care in the late evening of 2 June 2014 in an extremely agitated state. Her mother obtained an apprehended violence order against her, apparently because Madison had physically attacked her mother, accusing her of having ruined her life.
Madison informed her father that she had a severe marijuana addiction. He consulted his general practitioner who had previously worked on issues concerning Madison's mental health. He confiscated Madison's marijuana, but, in accordance with what he says was advice given to him by his general practitioner, he rolled marijuana into twelve small individual cigarettes to be given to her to help her withdraw gradually.
Later, Madison admitted to her father that when she was with her mother she had become addicted to the drug known as ice. He attempted to get her into a residential rehabilitation program. When she escaped from his unit, at the urging of Madison's father, the police took Madison to the emergency Department of the Sydney Hospital at Randwick.
On 24 June 2014 the Department of Community Services received a Risk of Significant Harm Report from the hospital, stating that on the previous night after Madison had been brought into the emergency department by police after her father had been concerned about her mental state and drug use. The report stated that there was concern for Madison's psychological safety at home and there was a report that her father had previously provided her with marijuana and was currently using marijuana. The report also expressed concern about the father's mental health.
On 25 June the Department of Community Services received another risk of harm report that stated that Madison had been on a 10-day drug binge, using ice, cocaine and other drugs, and had been in a psychotic state when she was admitted to the ward. She remained in hospital for a period of about a week. Reports from the hospital to the Department included a report that Madison's father had brought a bag of belongings to the hospital that included inappropriate items, amongst which was a bag of white powder that was presumed to be an illegal substance. The father says that the bag in fact contained bicarbonate of soda that his daughter used to whiten her teeth. There is no contrary evidence, and I can assume that had the white powder that the father admits having brought into hospital contained an illicit drug, the Secretary and the Minister would have provided evidence of that.
On 2 July 2014 a staff specialist with the Sydney Children's Hospital sent an email to the Department of Community Services, stating that the hospital had outstanding concerns about Madison's safety if she returned home to live with her father. The doctor said that Madison stated she would like to return home to live with her father, but was ambivalent about this at times and might wish to take up alternatives if these were available. The doctor said that her father was also keen to have her home, but was very concerned about the conflict between them, and worried about the potential for ongoing drug use, and had some insight into his own limitations in offering her appropriate support. The doctor said that the father was eager to take up offers of outside help and was keen for Madison to consider a rehabilitation program, and it would be helpful if someone from the Department could meet with Madison and her father to discuss potential options. There were no current grounds to keep Madison in the hospital as an involuntary patient. Hence, on 2 July the Director-General assumed the care of Madison.
Caseworkers from the Department noted that the father stated that he was concerned as to how Madison paid for her drug habit as he was aware that her friends had dealings with older men to get drugs. He stated that he was not aware of Madison's ice use and stated that it was her mother who had introduced Madison to ice and supported her use of it.
A placement for Madison had been found at a refuge in the Hurstville/Sylvania area, known as the Entity Youth Refuge. The application and report initiating care proceedings in the Children's Court stated that this refuge was deemed appropriate as there were no other residents there at the time and staff would be able to provide one-on-one care for Madison.
It is unsurprising that the Children's Court made orders giving parental responsibility for Madison to the Minister on 10 July. However, as early as 10 July, a caseworker with the Department reported that Madison had admitted to smoking ice and cannabis since her discharge from hospital. The caseworker reported that the Department was working towards trying to get her to a rehabilitation centre but she remained ambivalent about that. She said that she was happy in the refuge and did not wish to return to the care of her parents. A caseworker at the Entity refuge had advised the Department the previous day that Madison was not interested in going into a drug rehabilitation program. Staff at the refuge discovered drugs in her room. These were confiscated. At about this time Madison agreed with the caseworker that she was addicted to drugs. She was told that the refuge could help her with support services when she was ready for them. She advised the refuge centre that her mother had given her an ice pipe the first time in order to "get back at" her father, and her mother had continued to give her ice while she was staying with her mother. It is not clear how much, if any, of this information was provided to the Children's Court when the interim order was made.
It may seem extraordinary that the Department would allow the young person to remain at the refuge where there was nothing that could be done to prevent her continuing to be supplied with drugs, including ice. But it does not seem that there was any other facility available to take Madison. None of the rehabilitation programs to which the Department could obtain access for Madison would take her on the basis of an involuntary enrolment, and it appears that the Department did not seriously contemplate her return to her father's custody.
Things got worse. Madison absconded from the refuge on, it seems, 15 August 2014, although I was told on 23 October or 24 October that she had absconded on 10 August.
The Department's caseworker did not have contact with her again until after her recovery about two months later. A caseworker at the Entity refuge advised the Department on 28 August, that the refuge had not been able to contact Madison on her phone. They had spoken with the father, who thought that she had changed her SIM card so that it could not be tracked. The father advised that Madison and her mother had broken into his house and Madison had cleaned out her room and taken anything of value. The Entity refuge caseworker said there was a very good chance that Madison was spending time with her mother and possibly staying at her mother's house. The Department attempted to telephone Madison without success. They were advised on 2 September by the police that Madison had not been arrested.
On 2 September the Entity caseworker advised Department that staff at the Entity refuge had been able to get hold of Madison on her phone the previous night and reported that Madison had told the staff that she was on ice again.
Madison temporarily returned to her father's unit on 3 September. He told her, correctly, that she needed to return to Entity and to comply with the rules of the Department of Community Services. He was concerned that Madison was now a full-time drug user and that nothing seemed to be being done by the Department or by Entity to save her from that. He believed she was living on the streets and was homeless.
He filed an affidavit in the Children's Court on 5 September 2014, describing his concerns. He noted in his affidavit that the refuge and support workers had conceded that there was nothing they could do to curb Madison's self-destructive behaviour. It appears that this affidavit was filed in an attempt that he be given parental responsibility. He says that he sought to file an application under s 90 of the Children and Young Persons (Care and Protection) Act to vary the existing orders, but was advised that the application was not in proper form and, if the orders were to be varied, an application would need to be made in proper form.
On 21 October the father was informed by police that Madison was again in the company of her mother. According to his evidence, he informed the Department's caseworker, who told him that she was arranging a meeting with the mother: apparently, at least in the father's view, with the aim of seeking to involve the mother further in the relationship with her daughter.
Madison's father instituted proceedings in this Court on 23 October 2014. He approached me as duty judge and I gave him leave to file a summons, supported by a lengthy affidavit that included a sufficient background to the proceedings to indicate the urgency of the situation. The summons seeks a variety of relief and asserts grounds for relief that would appear to challenge the validity of orders made in the Children's Court on administrative law grounds, as well as alleging negligence against the Department and claiming relief which, if given at all, could only be given in the parens patriae jurisdiction. I was concerned with what appeared to me to be a critical issue concerning Madison's imminent welfare, and risks, perhaps to her life, if she continued to live without any proper care in the association of drug dealers and perhaps other criminals, and the risk of her prostituting herself to obtain moneys for a drug habit.
I stood over the summons to 2pm that afternoon. The Minister and the Secretary were represented. Mr Samuel, solicitor, who had been appointed as the child's direct legal representative in the Children's Court, also appeared. The matter had been in the Children's Court that morning. I was told that the proceedings in the Children's Court had been stood over, with directions for the filing of care plans and a response, but compliance with those directions had been prevented because Madison was missing. The solicitor for the Secretary and the Minister confirmed that there was no physical way of compelling Madison to return to the refuge and no way of keeping her there against her will. The Department sought an adjournment to make enquiries about options for the child, initially for possibly a week, and in order for further enquiries to be made with the police. I adjourned the proceedings to 4pm on Friday, 24 October on the basis that if any urgent orders needed to be made for Madison's recovery, they might be executed over the weekend.
On the following day I was advised that the Department was actively looking for Madison and had been in contact with her mother. Madison's mother advised that Madison had been with her until the previous day, but they had had an argument and she had taken off. I was told that Madison's mother lived at Penrith and the Department was going to contact the Penrith police and ask them to do a welfare check over the weekend and attend the premises to see if Madison was there. This was more than two months after Madison had absconded from the Entity refuge.
I asked whether there was anywhere for Madison to go and was told that a placement was available again at that refuge. The initial position taken by the Department was that a recovery order directing the police to locate Madison and deliver her in a way to be specified would be premature. But ultimately the Department accepted that it was in Madison's best interest that she be recovered and that she be placed in a place of secure accommodation. None was then available, except with Madison's father. Notwithstanding the concerns expressed in affidavits filed by the Minister in the Children's Court concerning the father, it was clear that returning Madison to her father was the best available option. Accordingly, I made the orders that I have summarised above. In making those orders, I had regard to the principles stated in Re Thomas [2009] NSWSC 217 that has been repeatedly followed in subsequent cases.
Madison was located on 31 October 2014. Consistently with the orders I made on 24 October, she was taken to the Prince of Wales Hospital for assessment and was discharged and then taken to her father's residence.
When the matter came before me on 7 November, the Department supported a continuation of the existing orders, with some presently immaterial modifications. A Ms Allen, who is employed as a caseworker with the Department, stated that she believed Madison remained at high risk of absconding, whether from her father's residence or from a residential facility. She went on to say:
"31. Community Services['] preferred option is for [Madison] to reside at a secure residential rehabilitation facility from which [Madison] could not abscond. Inquiries are still being made in this regard.
32. On 6 November 2014 I made further enquiries with the Ted Noffs Program in Canberra. I spoke with 'Paul' who informed me that the Ted Noffs Program in Canberra does accept involuntary clients who are court ordered to attend the program, but that the program does not engage in restrictive practices. Paul informed me that the Ted Noffs Program in Randwick offers a comparable service.
33. As at the date of this affidavit, the Ted Noffs Program in Canberra does not have any vacancies for a female client. Further enquiries will be made with the Ted Noffs Program in Randwick and a message has been left with this service.
34. Community Services is concerned with the potential for altercations, physical or otherwise, occurring between [Madison] and [the father] such as those that occurred between 1 and 3 November 2014. However, when weighing up the risks, I presently consider [Madison] is at a greater risk should she go missing again."
On 7 November the Secretary and the Minister sought power to remove the child from the father's custody into secure accommodation if an urgent need arose. I made an order permitting that course, noting an undertaking given to the father that at least three days' notice would be given before any step was taken to move Madison from his custody to a place of secure accommodation, unless urgent circumstances arose making it necessary to move her more quickly.
The father raised issues concerning a lack of funding for Madison's welfare. In relation to those concerns, I said:
"7 He also raises issues concerning lack of funding for the child's welfare. He refers, for example, to the fact that he does not have the financial resources to meet the gap in payments due to a psychologist who should be working with the child, or to provide facilities which he says the child needs to further her sporting interests such as gym or pool memberships or replacement for a go-cart.
8 He says that Madison thrives on sport and that sport provides an outlet for her which if not available is likely to be filled with drugs, whereas if the outlet is available, the risk of her relapsing is considerably reduced.
9 These are matters which the Department I am sure will take into account, but I do not think it would be a proper exercise of the parens patriae jurisdiction for me to give any directions to the Minister in those respects. I do not know what other competing demands there may be on whatever funds might be available. Making decisions about providing such funding are part and parcel of the parental responsibility the Minister has under the orders of the Children's Court.
10 I also do not think it would be consistent with principle if I were to adjust the orders that I have made as to how the joint parental responsibility for Madison is to be shared.
11 The parens patriae jurisdiction is to be used only in exceptional circumstances. Due regard must be had to Parliament's intention that issues of the kind which now arise are to be dealt with in a specialist court established for that purpose.
12 When I made orders on 24 October 2014 I was satisfied there were such exceptional circumstances. Madison was at serious risk of imminent harm. It was no exaggeration I think to say that at that time the application involved matters of life and death.
13 I am not in any way seeking to minimise the serious questions that will arise on an ongoing basis concerning Madison's care and treatment. But it does seem to me that those are matters which Parliament has entrusted to the Children's Court and which should be dealt with there.
14 Unless a further order is made, the present orders would preclude the Children's Court from adjusting interim care responsibility. I will make further orders that would expressly permit the Children's Court to deal with questions which will arise on both a final and interim basis."
The grounds on which the Secretary and the Minister now seek to have the earlier orders discharged so that Madison will again come under the sole parental responsibility of the Minister until further order can, I think, be summarised as follows. First, they say that Madison, when in her father's care, has been assaulted and that she is at risk of physical harm if she remains in her father's custody. Secondly, that her father in any event is not an appropriate person to have care of Madison. In this respect, I understand that they rely upon an amended care plan filed in the Children's Court that makes assertions to that effect. Thirdly, and related to the first two reasons, it is said that it is in Madison's best interest that she not remain in her father's custody but reside again in the Entity refuge. Fourthly, they submit that in any event, even if Madison remains in her father's custody, the extraordinary powers given to him by the orders of 24 October and 7 November authorising him to use reasonable force to detain her or to prevent her from injuring herself or others should be discharged.
In the case of the relief sought by the father, he says in summary, first in relation to the first order sought in the notice of motion, that he is living in circumstances of extreme poverty and simply cannot afford to pay the filing fees in these proceedings. All of his savings have been exhausted over the last eight months or so in his endeavours to protect his daughter, and he has inadequate funds for her needs.
As to the second claim for relief sought in the father's notice of motion, he submits that Madison is seeing a psychologist. The Department had indicated its willingness to fund the gap between the Medicare rebate and the psychologist's charge but, according to the father, has not done so. It has indicated its intention to discontinue the services of the psychologist after completion of the 10 sessions for which a Medicare rebate is available and to refer her to the Prince of Wales Hospital Adolescent Unit that offers free counselling, whereas it would be in her best interest to continue with her current psychologist in whom she has expressed confidence. That was the position taken by the Department, but I was informed yesterday that the Secretary has agreed that funding of the psychologist would continue to be provided after the completion of the current 10 sessions. I will deal with the appropriate orders to be made in this respect in due course.
As to the third claim for relief, the father submitted that Madison's legal representative was not adequately assisting her and he should appear only as a direct legal representative to put the case that Madison herself could put, without expressing his independent opinion.
As to the fourth claim for relief, the father says that there is an unnecessary duplication of proceedings. It is oppressive for him, being unrepresented and impoverished, to have to litigate in two courts. He also complains of the fairness of the hearing and treatment he has received in the Children's Court, and I understand him to express concerns as to the fairness of a likely future hearing in that court.
As to the last claim, namely that he be given care and parental responsibility of Madison and that the respondents be ordered to provide such assistance as he has thus far requested, he says that the Department is not properly acting in the role of a parent; that it proposes again to submit Madison to the risk of exposure to drug dealers; that it has not provided him with the financial assistance that a responsible parent would have provided him when he has had custody of Madison and that is needed for her welfare, so as he can provide recreational activities which will provide an outlet for Madison's emotions.
The parens patriae jurisdiction
Before dealing with these particular matters, I turn briefly to the jurisdiction which I am exercising, namely, the Crown's parens patriae jurisdiction. That jurisdiction is to be exercised only in exceptional circumstances where proceedings are pending in the Children's Court. In an oft-cited passage in Re Elizabeth [2007] NSWSC 729, Palmer J said (at [16] and [17]):
"[16] It is well established that the Supreme Court's parens patri 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 patri 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 patri 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."
In Director-General, Department of Community Services, Re; Thomas, Brereton J reviewed a number of cases concerning the width of the parens patriae jurisdiction and quoted, amongst others, the following observations, namely, that of Young CJ in Eq (as his Honour then was) in Re Frances and Benny [2005] NSWSC 1207 (at [17]) that:
"In exercising that jurisdiction the court's concern is predominantly for the welfare of the person involved. It is not a jurisdiction that is bogged down at all with any technicalities. It is a quite separate jurisdiction to the supervisory jurisdiction that is committed to this court by way of prerogative orders under which this court supervises inferior courts and tribunals to make sure that they do justice and right to all people before them",
also, the statement by Brennan J in Marion's case (1992) 175 CLR 218 at 279-280, citing R v Gyngall [1893] 2 QB 232 at 241, that:
"The court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child ",
as well as other statements in Marion's case, and of Austin J in DOCS v Y [1999] NSWSC 644 (at [99]) that:
"...contemporary descriptions of the parens patriae jurisdiction over children accept that in theory there is no limitation on the jurisdiction."
As Brereton J said in Re Thomas (at [29]):
"The breadth of the jurisdiction has often been emphasised; indeed it has been said that it is without limitation, although to be exercised with caution."
The parens patriae jurisdiction extends to the Court's imposing conditions on the exercise by individuals and also by the Minister of their parental responsibilities, whether or not the Children's Court could impose such conditions (compare Re Josie [2004] NSWSC 642; (2004) 32 Fam LR 64).
The particular aspect of the parens patriae jurisdiction that was considered and applied by Brereton J in Re Thomas was the provision of authority to a person having parental responsibility for a child or young person (in that case the Minister) to use reasonable force to detain him or her under close supervision and in secure accommodation where the child or young person is at serious risk of harm to himself or herself or to others. Brereton J said (at [28]) that the indefinite confinement of a 15-year-old child in secure premises that he could not leave of his own volition was beyond the ordinary scope of parental responsibility and required the sanction of the Court. His Honour went on to say:
"While it can be accepted that parents have authority to interfere or restrict the liberty of their children to some extent, I cannot think it extends to the indefinite confinement of a 15-year-old."
His Honour was satisfied that within the parens patriae jurisdiction the Court, if the circumstances made it necessary to do so, could authorise such confinement.
Those were the principles I had in mind when I made the secure accommodation orders on 24 October and 7 November. I would prefer not to express a concluded view as to whether it is within the ordinary parental responsibility of a parent to detain a child, even a child of 16 (or "young person" as such a person is known for the purposes of the Children and Young Persons (Care and Protection) Act), if necessary, to protect the child or young person from exposure to drugs and drug dealers. But because there is at least doubt about that question, it is appropriate that the Court make the necessary orders where the circumstances show that they are necessary.
I will deal first with the application of the Secretary and the Minister to discharge the existing orders.
Application by the Secretary and Minister to discharge orders
As I have said, the reason for the change of stance taken by the Department are concerns for the physical safety of Madison if she remains in her father's custody. Ms Allen deposed in her affidavit of 17 December that on 12 December 2014 she was told by Madison that her father:
"had been assaulting her, stating that he had been hitting her and that he had grabbed her by the head and pulled her into the bathroom. [Madison] stated she wanted the incident recorded but was not looking for any assistance tonight. [Madison] also stated that the incident began after [Madison] asked her father to stop contacting a friend of George (alleged drug dealer). [Madison] stated the incident lasted for approximately thirty minutes and consisted of [the father] yelling at and hitting her and also stated that [the father] had been shaking her head with both of his hands. [Madison] stated she was not injured and was not in any pain. When I asked [Madison] if there was somewhere safe for her to go, she stated that her father ... would recover her and 'drag' her back. When I mentioned calling the Police, [Madison] became hysterical stating she did not want Police involved however, after some discussion she did agreed [sic] to contact Police should [the father] assault her again. [Madison] also indicated that [the father] had calmed down and that everything was okay."
Ms Allen deposed that she interviewed Madison on 15 December 2014, at which Madison told her that her father had asked her not to talk with Community Services regarding the incident on the previous Friday; that an incident had taken place, following an argument with her father, in which her father started to talk about Cliff and George, as I understand it, being the names of the alleged drug dealers. Madison said in substance that she told her father to let it go but he wouldn't, and she "lost her shit" and went into the house, but her father wouldn't stop yelling and started hitting her. According to Ms Allen, she referred to her father as "the abuser". In her affidavit Ms Allen deposed:
"52. Community Services is still concerned about the risk of [Madison] going missing again. Balanced against that is the risk of ongoing altercations, physical or otherwise, between [the father] and [Madison] should [Madison] continue to reside with him.
53. [Madison] made allegations against [the father] on 3 November 2014 following police being called to his residence. Further detail of that incident is provided in my affidavit affirmed 6 November 2014 at paragraphs 21 to 24 and annexure J.
54. [Madison] has now alleged that [the father] assaulted her on 12 December 2014.
55. At the very least, the concern is that [Madison] and/or [the father] may be harmed in a physical altercation or exchange.
56. Community Services is also concerned for [Madison's] emotional wellbeing if she continues to reside with [the father].
57. [Madison] has stated that she would like to look at alternate residential options.
58. Community Services proposes that [Madison] be placed at Entity Youth Services located in Hurstville from 18 December 2014 onwards. Although [Madison] has expressed differing views about residing in a 'refuge', Community Services considers this the best possible option for [Madison] at this time.
59. Community Services has not yet assessed the person nominated by [Madison] and does not support [Madison] staying with that person at this time."
The reference to the allegation made by Madison against her father on 3 November is apparently to information received by the police from the child protection helpline, stating that a third party had rung up, stating that the "PN" had broken the leg of the "victim" and was stopping her from leaving the premises. The police attended the father's premises. The police report states that both parties (that is, Madison and her father) admitting to having a verbal argument but both denied any assault. The police report stated that the victim appeared in good health and neither party showed any signs of injury, although a later report stated that Madison told police, in the course of their investigation into the drug supply activities of another person, that she had lifted her leg in a defensive motion and her father had grabbed hold of it and lifted it, straining her muscles; whereas the father stated that Madison was being violent and was kicking him, and he took hold of her leg to restrain her and she lost her balance, resulting in a strain to her leg.
So far as the events of 12 December 2014 are concerned, the father gave a different version of events. He said:
"[Madison] was screaming at the end of the hallway, screaming 'Get out, get out, get out of here'. She came at me with a foot and a punch. I simply turned around and bear-hugged her. I may have shaken her and said, 'I'm not going to let you go until you have calmed down'. She calmed down. I told her to go into her bedroom and sit there until she had calmed down and I walked out of the hallway. ... I did not assault her. I did not shake her head. I did not hit her. I did not pull her into the bathroom. This entire altercation occurred in the hallway itself. ... I doubt it [the altercation] would have lasted four or five minutes. ... I obviously grabbed her and held her. I did not strike her, I did not kick her, I did not punch her, I did not slap her."
Much the same explanation was given by the father to Ms Allen at an interview on 15 December 2014. The father's version of events is consistent with other clear evidence that Madison is prone to occasional violent flare-ups.
Madison attended court on 18 December. I asked her about the events of 12 December that she reported to Ms Allen. She stated in substance that the events did happen in the way she described them to the Department and said that the altercation went on for 15 minutes. However, she also said about the incident, "We had an argument and I don't know, I wouldn't take it as far as abuse." I asked her how she coped with it and she said she left. She said that her preference was that she live with her father, who had her best interests at heart. This was said when the father was present in court. The father was asked to leave court. Madison adhered to her statement and did not want to make any change to it.
I think this is consistent with the father's version of the events that took place on 12 December.
In making that assessment, it should be said that the father's persistent attempts to provide care and protection for his daughter are wholly admirable. That has at times been acknowledged in the course of submissions by the legal representative for the Secretary and the Minister, although not given concrete effect in any dealings between the Department and the father.
After the hearing on 18 and 19 December there was a further turn of events that resulted in the matter being relisted for further hearing yesterday.
On Monday, 22 December Madison made a phone call to her psychologist and to a caseworker with the Department. She sounded like she was crying and she said, "No, I'm sick of this shit. He punched me in the face." The caseworker asked where Madison was. The caseworker asked, "Do you want me to come out and get you?" Madison said, "Yes, please." The caseworker got the car and, in the presence of another caseworker, attended the father's residence in the afternoon and removed Madison. The psychologist also called the Department to confirm that she had received a call from one whom she believed was Madison, who was crying and upset and who was hard to understand.
A call was made between a casework manager, Ms Bucci, and Madison on that afternoon. Madison told Ms Bucci that she could not be with her dad any more and that it was too much. She stated that her father had hit her in the face. Ms Bucci deposed, "I asked Madison if she was okay. She said 'yes'." She asked Madison if she were hurt and she said she felt light-headed before but was feeling okay then. Madison declined to see a doctor and said that, "I need to get out of there." The manager asked Madison where she wanted to be. Madison terminated the call. In a further call, the manager told Madison that, "the last time we spoke, we spoke about the need to have a plan B", and that "Entity [that is, the refuge] was that plan B". Madison stated that she did not want to go there, that she did not like it, and she would be there all by herself. The manager encouraged Madison to consent to going to the Entity refuge.
I should say that in the course of the hearing on 18 and 19 December the Secretary and the Minister had made it clear that although they thought that Madison should go to the Entity refuge, they would not seek to place her there without her consent.
I have some concern that the Department would seek to encourage Madison's going to the Entity refuge at that time, notwithstanding her report of having been hit by her father, when the question as to where Madison should reside was pending in this Court, and I had reserved judgment until today. Particularly is that so, given it would have been clear from remarks I made during the course of submissions, that I had at least a provisional view that Madison would be best off residing with her father, as it did not appear that there was any protection available, if she went to the Entity refuge centre, against her again associating with drug dealers and that there was a serious risk that she might become re-addicted to drugs. Madison had become drug-free when living with her father, although he says that in the last few days he had concern that she might have resumed drug-taking.
When the caseworkers attended Madison in her home, she opened the door, holding a knife. The place was in disarray. The father was not present. Madison abused her father to the caseworkers. She made threats of physical violence against him. One of the caseworkers said to Madison that it was interesting that she should say that as at court she had said that she wanted to be with her dad. Madison responded by saying, "Yes, my dad has good intentions but I lied my arse off in court." Madison was moved to the Entity refuge.
The father's explanation of the events of 22 December is that Madison physically attacked him with a frying pan (which she bent when hitting him) and with a knife. He grabbed her wrist with the knife and twisted her arm to make her release it. She kneed him in the groin. As he twisted her left wrist to make her release the knife, he slapped her to the right side of her face with his free left hand and told her to calm down. She stormed into the hallway, returning momentarily to take his phone. This all occurred a few moments before they were due to leave to attend an appointment with the psychologist. Madison told her father that she was on the phone to the Children's Helpline and to leave her alone. He went to the psychologist's office to discuss many issues.
Again, and without having heard Madison, the father's explanation is consistent with other evidence of Madison's behaviour. I certainly am not satisfied that the force the father used on 22 December was more than what was reasonable to try to diffuse the situation, and to protect himself from her attack.
In the amended care plan filed by the Minister in the Children's Court on 3 December 2014, the Department stated that in its assessment that there was no realistic possibility of Madison being "resorted [sic] to the care of her father". Various allegations were made in support of that contention. I do not know to what extent those assertions might be substantiated by evidence filed in the Children's Court in support of the Minister's application for final care orders allocating parental responsibility to the Minister alone. To a large extent they are not substantiated by the evidence read in this proceeding. If I considered that there was no realistic possibility of Madison being restored to the care of her father on the making of final care orders, I would not continue the existing care orders or vary them, but would make the order sought by the Secretary and the Minister. I am not of that view. I think there is a very realistic possibility of Madison being restored to the care of her father on a permanent basis. Indeed, for the reasons in this judgment and having regard to the record of Madison's circumstances when in the sole care of the Minister, I think that the father, rather than the Minister, is prima facie the proper person to have her care on a permanent basis.
As the Department acknowledges, and as I accept, there is a serious concern about the altercations between Madison and her father when she is in his custody. She seems to have outbursts of violence which she is unable to control. It is to be recalled that an apprehended violence order was taken out by her mother following a physical assault on her mother. The psychologist has expressed concern about violent outbursts.
There would be much to be said for removing Madison to a place where she could be safe if such a place were available, but there are limits on such places and there are other young people and children known to the Court who have even higher needs than Madison displays.
The question whether the present order should be discharged, really turns on whether one can be satisfied that Madison could be safe at the Entity Refuge. It is to be borne in mind that there is no mechanism available there to protect her from access to people with drugs and drug dealers. Her stay there must be voluntary. There is a curfew but there is no means of enforcing the curfew. Indeed, the curfew for a young person of 16, that is Madison's age, is as late as 9.30 pm on weekdays and 11.30 pm on Friday night and Saturday night. These are not curfews that are imposed where the manager of the centre, or the workers in the centre, know where the young people will be. It is not as if Madison can be allowed out in the knowledge that she will be staying with known friends. It is entirely up to her whether she returns or she does not.
The centre does offer facilities that would be to Madison's benefit. This was an important factor in the Department of Family and Community Services forming the view that it would be in her best interests to move to the refuge. The refuge employs workers to provide support to the youths who attend. There are four beds in the centre. The refuge makes referral to other services that provide assistance to such youths. It also has the capacity to support Madison until the age of 25. It has a relationship with a local high school at which it might be possible that Madison could be enrolled if she lived at the centre. But these and other benefits will only be available if Madison chooses to stay.
She has already expressed the view on a number of occasions that she does not want to stay at the Entity refuge. On 23 December, after she was moved there on the night of the 22nd, she informed her legal representative that she just wanted a break from her father. He asked her for how long, whether a few days or a week, and she said "maybe", she did not know. She told her legal representative that she did not want all her father's powers to be taken away. Thus, she has expressed the view that she does want to stay at the Entity refuge and that she does not. The father would see this as a repetition of the events that took place earlier this year when, chafing under the discipline that he imposed by grounding her, she moved out to her mother. That resulted in a spiral of drug-taking and, unfortunately it appears, sexual relations with older men from which she contracted a sexually transmitted disease. There is no mechanism in place if she is at the Entity refuge to prevent that happening again.
In my view, the risks of altercations between her and her father, with potentially serious risk to the father, but with some risks also to her if her version of events was correct (which I doubt), are far outweighed by the risks of her relapsing, and again taking up her association with the drug dealers who had access to her, or at least with whom she associated, when she was previously living in the centre. I do not think it is in her interests that she be moved from her father's custody, and I do not think that the Department should encourage her to the view that she can escape the constraints that he seeks to impose on her, and the boundaries which he seeks to impose, by suggesting a move to other facilities.
The Secretary and the Minister submit that the circumstances that pertained when the extraordinary orders were made on the principles of Re Thomas no longer pertain and that the orders permitting the use of reasonable force to detain Madison should be lifted. I do not agree. There is no evidence that the father has misused the powers that were conferred on him and I think that Madison's outbursts and erratic behaviour demonstrate that the powers may well be needed. I think substantially the same position pertains now as when I made the orders on 24 October, save that it is to be hoped that Madison is now drug free.
I have said that the father has concerns that she may have taken again to drugs. There was evidence tendered before me today that Madison returned to the refuge last night and that on her return there was no indication that she was drug-affected. That is encouraging, but it is not a sufficient reason to displace the concerns that I have referred to.
Father's application
I turn then to the father's application. So far as the remission of filing fees is concerned, I will make the appropriate recommendation to the Registrar. My understanding is that the regulations confer the discretion on the waiving or remission of filing fees on the Registrar, but I am clearly of the view that it would be appropriate for the Registrar to exercise the discretion in the way sought.
So far as the question of funding for the costs of the psychologist is concerned, the issue appears to have largely arisen because of lack of proper communication between the Department, the psychologist and the father. The Secretary has indicated his continued willingness to provide funding as required for Madison to continue with the current psychologist. I think it is accepted on all hands that it is in her best interests to continue with that individual.
A similar indication, although not expressed in the form of an undertaking, was given at the hearing before Stevenson J on 21 November. Ms Allen had deposed that the Department was willing to fund sessions beyond the initial set of 10. In the course of discussion with the Department's legal representative there was an exchange as follows:
"HIS HONOUR: Madison, she gets ten free sessions and the Department will now meet the gap between those ten free sessions, is this the idea?
HARTSTEIN: Yes, there is a gap of $55 a session, as I understand it.
HIS HONOUR: The Department will meet the gap for as many sessions?
HARTSTEIN: As required by the doctor pursuant to the mental health care plan. That will be revised by the psychologist from time to time, yes."
The Department resiled from that position but has again restated it. I will make orders in the exercise of the parens patriae jurisdiction that the Secretary and the Minister provide necessary funding for Madison's treatment by her current psychologist until she turns 18, or the psychologist recommends that the sessions be discontinued. That order will be made until further order. If the circumstances change, then the Secretary can seek a variation of that order. The position taken by the Secretary was not very clearly explained, in that I could not obtain a precise undertaking, but what I propose is in accordance with my understanding of the position that the Secretary accepts.
As far as the third order concerning the child's legal representative is concerned, it is sufficient to say that I see no basis for changing the order I made. Mr Samuel, who appears for the child, had expressed the wish that he be able to appear as an independent legal representative of the child in the Children's Court as well as in this Court. In that capacity he would be able to express his own opinion as to what would be appropriate in Madison's best interests. His submissions before me have been helpful. I made the order that he sought. I see no reason to discharge it.
So far as the application to transfer the proceedings from the Children's Court to this Court, or to stay the Children's Court proceedings is concerned, I do not think it appropriate to accede to that application. It is important that this Court recognise that the Children's Court is the specialist court that should deal with disputes such as the present. The parens patriae jurisdiction was only invoked because there were special circumstances which required the making of secure accommodation orders which the Children's Court would not have the power to make.
The matter has continued in this Court beyond the bounds in which it ought to have continued. It was my intention that I had sought to effectuate by my orders of 7 November, that any application to vary the interim orders made on that date should be dealt with in the Children's Court.
I accept on reading the orders that there may have been some doubt as to whether they were adequate for that purpose. I understand from what I was told that the Children's Court declined to deal with any application until the matter had been dealt with in this Court. I will make further orders to make it as clear as I can that any further applications to vary the orders I will make should be made in the Children's Court, unless orders are sought that the Children's Court would not have power to make, or an urgent hearing is required which cannot be provided in that Court, or there are other exceptional circumstances that warrant the further intervention of this Court.
I do not accept the father's submission that I should transfer all parental responsibility to him. I think it is important that the Department have a continued role in attempting to see to Madison's welfare, notwithstanding that I have been critical of the position taken by the Department to date. But there are concerns concerning the father's abilities adequately to provide for Madison's care and welfare. She is a very difficult child. The father, it has to be said, has brought up Madison's half-sister with outstanding success. The Department in its amended care plan filed in the Children's Court asserts that injuries that the father has suffered to his brain might impair his parental abilities. The evidence advanced in the case before me today, would not suggest that that is the position, and his success in bringing up his other daughter would not indicate that either. Nonetheless, I think it important that the Department continue to be able to interview Madison. But I also think it important that the Minister have parental responsibility for Madison's ongoing medical treatment, including her psychological care, her dental care and her education. Indeed, it is only the Minister who has the funds adequately to provide for that.
On the question of funding, the father is in receipt of a Centrelink disability pension. He receives no family assistance or any financial assistance for Madison. He should be entitled to that from Centrelink and I would hope and expect that the Department would provide whatever assistance it can to ensure that he receives the benefits from Centrelink that he should be receiving. He is in public housing and I am told that 25 per cent of his income is deducted for rent. He has only $457 per fortnight on which to live and support Madison.
When he made his application that was heard by Stevenson J on 21 November, he asked this Court to make orders requiring the Department to make funding available to him. In relation to that application, Ms Allen made an affidavit in which she explained that because the father is Madison's father and not a carer, he is not eligible to be paid a carer's allowance. The highest the standard statutory care allowance for a child of Madison's age is $459 per fortnight. The highest allowance is $1,133 per fortnight. Ms Allen went on to say:
"11. Even though the father is not eligible to be paid a carer's allowance, Community Services has discretion to provide financial assistance to the father to assist in his care of [Madison]. Community Services is willing to provide funding for reasonable expenses, such as the gap fee for [Madison] to attend with a psychologist and assistance with the costs of a reasonable extra-curricular activity. Funding for these expenses is not provided by way of a lump sum paid to carers or parents, but rather is usually paid by Community Services directly to the service provider upon receipt of an invoice or by way of reimbursing the parent for these costs."
The problem with funding only being provided either on receipt of an invoice or by way of reimbursing a parent for costs is that the father does not have the funds in which to pay the provider of services from which he might then be able to seek reimbursement.
He has explained in some detail, and I do not understand anything to have been put by the Department to gainsay what he says, that Madison would be greatly assisted if she could participate in various recreational activities. I need got go through them. Some are more expensive than others, but all, or at least some of them, could provide an outlet for Madison which she apparently badly needs. Without such outlets she is at a highly increased risk of reverting to her drug-dealing associates.
I do not think that I ought to make any order in relation to the provision of such funds by the Department for much the same reasons as I gave on 7 November. (See also Re Josie at [29] and [30].) But it is puzzling that no explanation has been proffered by the Department as to why no discretionary funding has been made available to the plaintiff at all since Madison has returned to his care.
It goes without saying that it would not be a proper ground to decline to exercise any discretion that Madison's father has been in conflict with individual officers with the Department, and that he has opposed the orders sought by the Department in the Children's Court and in this Court. It should also go without saying that it would not be a proper ground for refusing to exercise the discretion that the Department has sought orders for the placement of Madison at the Entity refuge and I have not accepted its submissions.
I cannot make the orders sought by the father, but I think it is important that the matters he raises be brought to the personal attention of the Secretary. In due course I will make an order requiring the relevant officers of the Department to bring to the personal attention of the Secretary the recommendation made in these reasons for judgment that the Minister give favourable consideration to providing financial assistance to the father to assist in his care of Madison without first requiring the father to incur expense.
It is appropriate to vary the existing orders in relation to the interim parental responsibility. The shared joint parental responsibility subject to the direction of the Minister has not worked. The father should have parental responsibility for Madison's residence and in deciding who has contact with her.
I was invited by Madison's legal representatives to make a supervisory order. I am not exercising jurisdiction under the Children and Young Persons (Care and Protection) Act, but in the exercise of the parens patriae jurisdiction, I will require the father to permit officers of the Department to interview Madison and assess her on giving reasonable notice. He has said that he would not let the current caseworker through his door. I do not accept that he is entitled to take that stance. I understand that he is angry with what he perceives to be a misrepresentation of his position and the giving by the caseworker of less than fully truthful evidence.
However, I think it is important that the Department be able to continue to interview and assess Madison and I will make an order that will require him to permit that to be done. It would be a contempt for him to breach that order and it would obviously have serious implications for the continuance of the orders I will make if he were to breach it.
A particular issue arises in relation to Madison's education. She has been educated at home by her father for some time but effectively has lost a whole year of schooling. I understand that the reason that she had to be schooled at home was because of her misbehaviour in at least two other schools from which she was expelled or suspended. Finding a school for her may not be easy. It is desirable that she attends school, as I think all parties recognise. The father's concern is that a caseworker, according to him, has indicated only one potential school at which the Department proposes that Madison be placed. I will not give the school's name. The parties know the school in question.
The father says that the persons who have been dealing with drugs or their associates either have ready access to the school or attend it and he is concerned that if she is placed in that school again, her chances of relapsing into a drug culture will increase markedly.
I cannot rule on that question, but it would clearly be irresponsible for Madison to be placed in a school where she may associate with persons who have previously supplied her with drugs or with their associates and in the exercise of the parens patriae jurisdiction I will direct that she not be placed in a school where the officers of the Department have reason to believe that she may associate with such persons.
I also think it important that the Departmental officers consult with Madison's father before making a decision as to which school, if any, she should attend so that they can take on board any such concerns that the father can express. Moreover, given his knowledge of her prior schooling history, such consultation is obviously desirable.
The existing orders provide in substance that the Department can move Madison from her father's custody to a place of secure accommodation where she cannot escape. I made those orders initially in the thought that such a facility might be available to the Department. I am aware of at least one such facility, although, as I have said, places are limited and there is no reason to think that Madison would necessarily be appropriate for that place. As events have since transpired, and as no such secure place of accommodation has been identified, and as the father has had custody of Madison with a particular degree of success in that she is now free of drugs, or at least was, and it is to be hoped still is free of drugs, I think those orders should be discharged. If the Minister or the Secretary consider it appropriate that Madison be placed in some secure accommodation for which orders of the kind made in Re Thomas would be required, I think a fresh application should be made.
Balance of proceedings
The summons does not seek prerogative orders but makes allegations about proceedings in the Children's Court that can only be supported if prerogative relief was sought. If the father wishes to proceed with the applications for final relief in the summons, there is nothing to stop him from doing so. There has been no application for summary dismissal.
I have sought to explain from time to time some of the difficulties that the claims made in the summons face. I think the father should have the opportunity to discontinue the claims without penalty, that is to say without exposure to any liability for costs. If he does not, it will be necessary for the Registrar to make orders which I expect will include orders for the filing of pleadings.
Orders
For these reasons, I make the following orders:
1. Order that the application of the 1st and 2nd defendants ("the Secretary" and "the Minister" respectively) to discharge the orders made on 7 November 2014 be dismissed.
2. Order that orders 7, 8, 9, 10, 11, 12, 13, 14 and 15 made on 7 November 2014 be discharged and in substitution for those orders make orders 3 to 10 below.
3. Order that until the final determination of the proceedings in the Children's Court concerning the young person known in these proceedings as Madison, or until earlier order of the Children's Court or this Court:
a. Madison's father and the Minister have joint parental responsibility for Madison in the manner indicated below;
b. Madison's father have parental responsibility in matters concerning her residence, contact with and by other persons (but subject to order e. below), and religious, cultural, sporting, recreational and other matters relating to her day-to-day upbringing;
c. the Minister have parental responsibility for Madison's education and medical treatment (including treatment by a psychologist) and dental treatment, but subject to orders f. and g. below;
d. if Madison absconds from her father's residence or otherwise from his care, the Minister have parental responsibility for recovering Madison and if she so absconds, the Secretary and the Minister by their authorised representatives do what is necessary to give effect to orders 1-4 made on 7 November 2014;
e. Madison's father is to permit her to be interviewed and assessed by caseworkers or other authorised officers of the Department of Family and Community Services at reasonable times and on reasonable notice, and is to permit such persons access to his residence for that purpose;
f. in the exercise of the Minister's parental responsibility for Madison's medical treatment the Secretary is to provide necessary funding for Madison's treatment by her current psychologist until she turns 18, or the psychologist recommends that the sessions be discontinued, whichever occurs first;
g. in the exercise of the Minister's parental responsibility for Madison's education, Madison is not to be placed in a school where officers of the Department of Family and Community Services have reason to believe that she may associate with persons who have previously supplied her with drugs or with their associates, and are to consult with Madison's father before making a decision as to any school at which she is to be enrolled.
4. Order that the Secretary and the Minister forthwith return Madison to her father's custody.
5. Order that any application to vary or discharge orders 1-6 or 16 made on 7 November 2014 or to vary or discharge these orders may be made to the Children's Court or to this Court and nothing in the orders of 7 November 2014 or these orders is to prevent the Children's Court from varying or discharging these interim orders for the care of Madison if there is a material change of circumstances. Any application for variation or discharge of the orders should be made to the Children's Court unless that court would not have jurisdiction to make the order sought, or an expedited hearing is required and cannot be provided in that court, or other exceptional circumstances exist.
6. Order that officers of the Department of Family and Community Services having responsibility for instructing the Crown Solicitor in this proceeding cause to be brought to the personal attention of the Secretary the recommendation made in the reasons for judgment that the Secretary or the Minister give favourable consideration to providing financial assistance to the father to assist in his care of Madison without first requiring the father to incur expense.
7. Recommend to the Registrar that any filing fee payable by the plaintiff in respect of these proceedings be waived and that any filing fee that has been paid be remitted.
8. Order that the plaintiff's notice of motion filed on 12 December 2014 be otherwise dismissed.
9. Liberty to apply to the vacation judge during vacation or otherwise to the duty judge or to White J.
10. Give leave to the plaintiff to file a notice of discontinuance of all or any of the claims for relief in the summons with no order as to costs. Unless a notice of discontinuance is filed in respect of all of the claims for relief in the summons, order that the summons stand over to the Registrar's list for directions on 17 February 2015.
11. These orders are to be entered forthwith.
NOTE: That orders 1-6 and 16 made on 7 November 2014 continue in effect.
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Decision last updated: 31 December 2014
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