Re Madison (No 2)

[2015] NSWSC 27

Supreme Court

New South Wales

Medium Neutral Citation:

Re Madison (No 2) [2015] NSWSC 27

Hearing dates:

27 January 2015

Decision date:

27 January 2015

Jurisdiction:

Equity Division - Protective List

Before:

Ball J

Decision:

The plaintiff’s notice of motion be dismissed.

Catchwords:

FAMILY LAW AND CHILD WELFARE – application to vary orders for parental responsibility made under Court’s parens patriae jurisdiction – whether the Department has failed to comply with previous orders

FAMILY LAW AND CHILD WELFARE – orders sought for specific financial assistance – financial responsibility to provide for the child’s needs – whether Court can intervene in exercise of administrative discretion regarding financial assistance

FAMILY LAW AND CHILD WELFARE – orders sought to transfer proceedings from Children’s Court to New South Wales Supreme Court – no exceptional circumstances to justify transferClick here to enter text.

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:

Re Josie [2004] NSWSC 642
Re Madison [2014] NSWSC 1874

Category:

Procedural and other rulings

Parties:

The Father (Plaintiff)
Director General, Department of Family and Community Services (First Defendant)
Secretary, Department of Family and Community Services (Second Defendant)
Children’s Court of NSW Bidura (Third Defendant)
Madison (Fourth Defendant)

Representation:

Counsel:
In Person (Plaintiff)
Ms V Hartstein (First & Second Defendants)
B Samuel (Fourth Defendant)

Solicitors:
Crown Solicitor’s Office (First and Second Defendant)
Brian Samuel & Associates (Fourth Defendant)

File Number(s):

2014/311835

EX TEMPORE Judgment

1. By notice of motion filed on 20 January 2015, the plaintiff seeks to vary orders made by White J on 24 December 2014 in exercise of the Court's parens patriae jurisdiction, see Re Madison [2014] NSWSC 1874. The orders sought to be varied concern parental responsibility for the plaintiff's daughter who, for the purpose of these proceedings, has been given the pseudonym Madison.

2. Madison is 16 years old.

3. 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 (NSW) was filed in the Children's Court on 7 July 2014.

4. On 10 July 2014, Madison was placed under the parental responsibility of the Minister until 18 July 2014. On 18 July 2014, she was placed under the parental responsibility of the Minister until further order.

5. The circumstances leading up to those orders and the orders made by White J on 24 December 2014 are set out in some detail in White J's judgment. It is not necessary to repeat them here. It is sufficient to observe that Madison is a particularly difficult adolescent. It is apparent on her own admission that she is addicted to marijuana and ice. Those addictions developed while Madison was living with her mother who herself is a drug addict.

6. Madison absconded from the Entity refuge in which she was placed by the Department pending final care orders being made by the Children's Court and recommenced taking drugs. It is in that context that the father commenced these proceedings and White J made orders initially on 24 October 2014 directing that the police recover Madison and deliver her to her father. It was apparent at that time that the Department was not able to provide accommodation for Madison in a secure residential rehabilitation facility. For that reason, White J ordered that the father be authorised to detain Madison at his residential premises using no more force than is reasonably necessary to do so.

7. Those orders were extended on 7 November 2014. White J had intended that those orders would continue to operate until the Children's Court made final orders for the parental responsibility of Madison. However, on 18 December 2014, the Minister sought to have the earlier orders made by White J discharged so that Madison would come under the sole parental responsibility of the Minister. Those orders were sought following a number of altercations between Madison and her father.

8. On the other hand, the father sought an order that he be given sole care and parental responsibility for Madison and that the Department provide him with specific financial assistance to provide for Madison's welfare. The orders for specific financial assistance were sought in a context where the father is living in public housing, is in receipt of a Centrelink disability pension and received no family or other financial assistance in caring for Madison.

9. On 24 December 2014, White J rejected the application of the Minister and relevantly made the following orders.

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.

10. Order 6 is to be understood in the context where the evidence before White J was to the following effect (see Re Madison [2014] NSWSC 1874 at [87]):

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.

11. White J rejected the father's application for specific financial assistance. In doing so, he referred in his judgment (at [90]) to reasons he had given for rejecting a similar application on 7 November 2014. On that occasion White J said:

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.

12. White J also referred to the decision in Re Josie [2004] NSWSC 642, where Levine J said (at [30]):

What is in the best interests of the child would really be expected to be left to the discretion of the minister and the Director-General, having regard to limited funds allotted to the department for the protection of children in need of care generally. The legislation provides exclusively and exhaustively for the relief the Children's Court might order arising out of the obligations imposed on the Director-General and the minister, and also imposes limitations on the power of the court to create such relief. The Children's Court is not empowered by any provision of the Act to order the Director-General to provide support services, as that was a matter totally within the Director-General's discretion.

13. The notice of motion filed by the father relevantly seeks the following orders:

2.   That until further order of this Court the care and parental responsibility of Madison for education and medical care be returned to the Plaintiff forthwith.

3.   The first and second respondents be ordered to provide such assistance as has been thus far requested, including but not limited to:

(a)   To exercise the first and second defendant’s discretion to pay the father a carer’s allowance of $1033 per fortnight, backdated to 31 October 2014

(b)   To pay the cost of the assistance of a carer for 25 hours per week to assist the father with care and protection of Madison until the finality of legal proceedings.

(c)   To provide the sum of $1200 annually for registration and compulsory third party insurance for the family car until Madison attains the age of 18 years

(d)   To provide the sum of $5500 for the purchase of a second hand Rotax DD2 go kart for Madison to practice and compete.

(e)   To provide the sum of $6000 per year to enable Madison to attend one of the cheaper local catholic schools or dramatic arts school until attaining her HSC.

(f)   To provide the sum of $120 per week for the purpose of extra curricular tuition until such time as Madison attains her HSC.

(g)   Any other order that the Court sees fit to provide for Madison’s care and support.

4.   That the matter in its entirety be brought up to this Court and set down for hearing at the first available opportunity for 3 days, albethey non concurrent dates, or parts of days or otherwise at the determination of this Court.

14. These orders include orders that were rejected by White J on 24 December 2014.

15. In support of the motion, the father has filed an affidavit. In that affidavit the father says that Madison has relapsed at least twice in relation to intravenous drug use and that he has received no support or financial assistance from the Department despite the orders of White J. He also points out that the costs of keeping Madison in the refuge would be $500 a day.

16. Miss Bucci, an employee of the Department, has filed an extensive affidavit setting out what the Department has done and is willing to do following the orders made by White J. The father takes issue with a number of statements made in that affidavit.

17. It is not possible to resolve all the competing contentions of the parties on this application. However, I am not satisfied that the Department has failed to comply with the orders of White J. There was a case plan meeting on 9 January 2015 at which various aspects of Madison's welfare were discussed, including her schooling. The Department has indicated that it is willing to pay for extra curricular activities engaged in by Madison provided Madison commits to them.

18. There can be no doubt that the father is doing the best that he can for Madison in very difficult circumstances and there is at least some evidence to suggest that in the past he has not received the support he might reasonably have expected from the Department. However, I am not prepared to make the orders the father seeks.

19. White J concluded that it was in Madison's best interests that the Minister have parental responsibility for Madison's education and medical treatment. He did so because the Minister was in a better position than the father to discharge those responsibilities. Nothing has changed in that regard. In particular, the father's financial position makes it difficult for him to discharge those responsibilities. Of course, the father seeks to address those difficulties by seeking orders that his discharge of those responsibilities be funded by the Minister. But, however unfortunate it is, the father's position seems to me to rest on a misunderstanding.

20. A parent who has sole parental responsibility for a child has the financial responsibility for providing for that child's needs. The parent may be entitled to various forms of government assistance in meeting the child's needs, but what form of government assistance is available is a question of policy. It is not a question for the Court in the exercise of its parens patriae jurisdiction, although the Court may in appropriate cases make recommendations in relation to the exercise of administrative discretions and take steps to have those recommendations brought to the attention of an appropriate person, as White J did in this case. In some cases, the Court may intervene where the exercise of the discretion has miscarried. However, I am not satisfied that the discretion has miscarried in this case.

21. Where parental responsibility is vested in the Minister, as Levine J pointed out in Re Josie, it is largely a question for the Minister how that parental responsibility is to be discharged having regard to the limited funds available and the competing demands on those funds. It is possible to imagine cases where the Court could intervene where the Minister has failed to discharge his or her parental responsibilities by providing for the basic needs of the child such as adequate food, clothing, accommodation and health care. But, in my opinion, there is no evidence that the Minister has failed to discharge those responsibilities in this case. What the father seeks seems to me to go beyond those basic needs. Moreover, I accept that there are limits on what the Department can do without Madison's co-operation.

22. The father also seeks an order that the matter in its entirety be transferred to this Court and be set down for hearing at the first available opportunity for three days. For the reasons given by White J, I am not prepared to make such an order. As White J pointed out, Parliament has made it clear that, except in exceptional circumstances, this Court

23. should not intervene in proceedings that are ongoing in a specialist Tribunal which has been established to hear them. White J explained that the exceptional circumstances that caused him to intervene in this case did not justify the removal of the whole proceedings into this Court. Nothing has happened since to alter the position.

24. The father submits that it is more appropriate for the case to be heard in this Court because only this Court can make orders for the provision of financial assistance. But even accepting that that would be a reason for transfer, for the reasons I have given, the Court would not make the orders sought by the father in this case in any event. Consequently the reason advanced by the father does not provide a ground for transfer.

25. In those circumstances, the father's notice of motion must be dismissed.

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Decision last updated: 26 March 2015