Re Paul

[2023] NSWSC 1635

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re Paul [2023] NSWSC 1635

Hearing dates:

23 and 30 November, 4 and 7 December 2023

Date of orders:

7 December 2023

Decision date:

07 December 2023

Jurisdiction:

Equity

Before:

Lindsay J

Decision:

Orders made, upon an exercise of parens patriae jurisdiction over a child, for the purpose of giving restorative effect to orders of the District Court of NSW (upon appeal from the Children’s Court of NSW in care proceedings) in circumstances in which, although not anticipated by the orders of the District Court, shortly after those orders were made the Secretary exercised a statutory power to assume the care responsibility of the child without notice to the mother of the child, or the child, and without the leave of any Court.

Catchwords:

FAMILY LAW AND CHILD WELFARE – Parens patriae jurisdiction of the Supreme Court – Child welfare under State legislation – Proceedings in District Court on appeal from Children’s Court – Administrative action taken by departmental Secretary to assume care responsibility of child – Exercise of parens patriae jurisdiction – Orders made restoring the child to the care, custody and control of the mother as contemplated by District Court

Legislation Cited:

Children’s Court Act 1987 NSW

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

Supreme Court Act 1970 NSW

Uniform Civil Procedure Rules 2005 NSW

Cases Cited:

George v Children’s Court of NSW (2003) 59 NSWLR 232

P v NSW Trustee and Guardian [2015] NSWSC 579

Re Eve [1986] 2 SCR 388; 31 DLR (4th) 1

Re: Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608

Re M (No 4) [2013] NSWCA 97

Secretary, Department of Health and Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218

Re Victoria [2002] NSWSC 647; 29 Fam LR 157

Category:

Principal judgment

Parties:

Plaintiff: Mother
First Defendant: Secretary, NSW Department of Communities and Justice
Second Defendant: Child

Representation:

Counsel:
Plaintiff: S Prince SC and A Searle
First Defendant: M Anderson
Second Defendant: Independent Child Representative

Solicitors:
Plaintiff: Thrive Workplace Consulting and Legal
First Defendant: NSW Crown Solicitor
Second Defendant: Neligan Law

File Number(s):

2023/00365527

JUDGMENT

INTRODUCTION

Context

1. These reasons for judgment are published in aid of orders made on 7 December 2023 (and speak as at that date) as the culmination of a series of hearings on that day, and three days earlier, upon consideration of an application for an exercise of the Court’s inherent parens patriae (protective) jurisdiction affecting a child the subject of administrative action by the Secretary, NSW Department of Communities and Justice (the “Secretary”) as delegate for the Minister responsible for the Department, and judicial proceedings in the Children’s Court of NSW (“the Children’s Court”) and the District Court of NSW (“the District Court”), under the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Care Act”).

2. The current proceedings focus attention upon:

1. a judgment of the District Court (constituted by Olsson SC DCJ) published on 5 December 2022, and orders made on 17 April 2023 to give effect to that judgment, on appeal from final orders affecting the child made by the Children’s Court on 10 June 2021;

2. administrative action taken by the Secretary on 12 September 2023 to assume the care responsibility of the child (for the second of two times) notwithstanding that, as a step towards restoration of parental responsibility for the child to his mother as contemplated by the District Court, the child was on 19 May 2013 returned to live with his mother;

3. the pendency of proceedings in the Children’s Court on an application by the Secretary, subject to a grant of leave by the Court, for an order that the care orders made by the District Court be rescinded, with the intent that parental responsibility for the child be allocated to the Minister for Families and Communities until the child attains 18 years of age; and

4. the question whether it is in the best interests of the child pending the determination of the Secretary’s application to the Children’s Court that he remain in the custody and care of the Secretary (as delegate of the Minister) or that he be permitted, within a time frame contemplated by the District Court, to return to his mother’s custody and care.

3. It is common ground in these proceedings that it is not necessary to canvass reasons for judgment published in earlier litigation between the child’s mother and the Secretary.

4. Nevertheless, the procedural context in which the current proceedings were instituted includes several judgments that should be formally noticed: CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740 (Rees J); CM v Minister for Families, Communities and Disability Services [2020] NSWCA 347 (Macfarlan and McCallum JJA); CM v Secretary, Department of Communities and Justice [2021] NSWCA 244 (Macfarlan, Brereton and McCallum JJA); CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442 (Slattery J); and CM v Secretary, Department of Communities and Justice [2022] NSWCA 120 (Leeming, Kirk JJA and Simpson AJA).

5. Contextually, reference might also be made to the judgment published as JW v Department of Communities and Justice [2023] NSWDC 466 (Coleman SC ADCJ) in which the District Court declined to refer to the Court of Appeal a question whether the Secretary had committed a contempt of court in assuming care of the child following the District Court’s allocation of parental responsibility for the child’s residence to the mother.

6. In the course of the hearing of the current proceedings in this Court the several earlier judgments evidencing conflict between the mother and the Secretary were but briefly mentioned. Counsel agreed that it was sufficient for the Court to note the chronology of events going back to the time when on 3 March 2020 the child was (for the first of two times) assumed into the care of the Minister under the Care Act, the point at which the mother, the child and the Secretary commenced their litigious engagement.

The Current Proceedings

7. The central personality in these proceedings is a “difficult” nine year old boy (whose welfare is the paramount consideration) born to a single mother (now aged 60 years) who conceived him, as her only child, via IVF treatment using the contribution of an unidentified father.

8. The immediate question before the Court concerns management of arrangements for care of the child and, in particular, the regime of care to be provided for him in terms of residence and associated care.

9. In short, is it in the best interests of the child that he live with his mother (with whatever support is available to them) or that he remain under the close supervision of the NSW Department of Communities and Justice, a government agency, in institutional care pending restoration of him to the care of his mother at an indefinite future time.

10. This is not a routine case of a mother incapable of self-management unable to manage the affairs of her child. There is no want of capacity for self-management on the part of the mother. She is an educated woman, in good health, with no history of drug or alcohol abuse.

11. Nor is this a routine case of a neglected child traumatised by domestic violence.

12. It is the case of a child who, by reason of congenital health conditions, presents many challenges to any carer (whether the mother or a public officer) charged with his day-to-day care. He has been diagnosed with several medical conditions – disabilities - which explain much of what, absent those conditions, could reasonably be described as wilful misbehaviour.

13. The mother’s devotion to the child is not in question, nor his to her. Nevertheless, she has struggled to look after him on her own without adequate support.

14. The Department’s concern for the welfare of the child is not in question any more than is that of the mother. I proceed in this judgment on an assumption that the Department has endeavoured, according to its lights, to do what the Secretary of the Department has, in good faith, perceived to be necessary for the safety and well-being of the child. Nevertheless, agents of the Secretary have struggled to look after the child when he has been separated from his mother, with whom he desperately wants to live.

15. His “misbehaviour” since he was recently taken into care by the Secretary has been of a nature and order more serious than that earlier observed when he was in his mother’s care. He has manifested suicidal thoughts; physically attacked several carers retained by the Secretary to supervise him; escaped from confinement without any apparent intention to return; and destroyed property on multiple occasions as an expression of his frustration with confinement by the Secretary.

16. Viewed in the abstract, he might well have been the subject of several “risk of harm reports” (for which sections 23-24 of the Care Act provide) had he not been in the care of the Secretary under whose supervision such reports are received. That fact is mentioned not as criticism of the Department but as a measure of difficulties inherent in management of the child’s care.

17. The course of engagement between Departmental officers and the family constituted by mother and child has not been such as to foster the mutual trust necessary for positive outcomes. The possibility cannot be excluded that some of the distrust that has tainted the relationship between Departmental officers and the mother is cultural. She is culturally Chinese, living on her own (but with some family, at least a sister, in Sydney) in a culturally foreign environment.

18. The Secretary has peremptorily taken the child into care on two occasions, on both occasions exercising a statutory power to take the child into custody at his school without notice to mother or child.

19. On 3 March 2020 the boy was assumed into the care of the Minister under section 44 of the Care Act. After several proceedings in the Children’s Court, the Equity Division of this Court, the Court of Appeal and the District Court, the child was on 19 May 2023, on terms, returned to live with the mother pursuant to orders made by the District Court (on an appeal from the Children’s Court) on 17 April 2023.

20. On 12 September 2023 the Secretary again took the child into care upon an exercise of power under section 44 of the Care Act. As required by section 45 of the Act, on 15 September 2023 he filed in the Children’s Court an application under section 90 of the Act (including an application for leave to bring the application) for the care orders of the District Court to be rescinded.

21. In accordance with a requirement of section 90(2) of the Care Act, the Secretary’s application for leave to make an application for rescission of the District Court’s care orders sets out several grounds in support of a grant of leave. In essence, they recite the child’s “mild intellective disability and extremely low adaptive functioning” (leaving him “at risk of physical harm as he lacks the cognitive maturity to ensure his own safety”) and the perceived inability of the mother to meet his needs (leaving him to be “exposed to cumulative harm as a result of his needs not being met”) and her perceived inability to “de-escalate” the child “consistently without support”. She is also said to have been unco-operative with Departmental staff members allocated under a Safety Plan to assist her in caring for the child.

22. The Secretary’s concerns about the safety and care of the child are summarised in the seventh and eighth grounds stated in support of a grant of leave, here extracted with editorial adaptation:

[7]   There is no clear way forward to ensure that [the child’s] needs will be met once DCJ’s role reduces, as is planned for a restoration. While it is acknowledged that caring for [the child] would be very difficult and tiring, there has been ongoing harm despite the, at time of assumption, daily assistance of support workers and [the child] attending school during the day. [The mother] has also been reported to be verbally abusive towards staff at both of [the child’s] school [sic], further limiting her ability to parent him effectively without DCJ as an intermediary. She has not been able to de-escalate [the child] when he is angry, and he is physically assaulting her. It would be devastating to [the child] if he inadvertently caused his mother a serious physical injury. It is also concerning that [the mother] has begun to retaliate physically, as physical discipline was another concern at the time of [the child’s] original assumption into care.

[8]   The Safety Plan of 31 August 2023 was no longer workable and could not prevent [the child] being exposed to immediate risk if he is living with [the mother]. It is not sustainable for there to be two workers in attendance at all times when [the child] is with [the mother] to assist when he places himself at physical risk. Nor can DCJ have any confidence that [the mother] would accommodate such attendances, even if it was arranged, given the past instances of breaching her undertaking not to allow [the child] is to be unsupervised, refusing entry to workers already engaged, and her unpredictable response to being before the Children’s Court again.”

23. The formal position taken by the Secretary in the Children’s Court consequentially upon this second removal of the child from the care of the mother has been that parental responsibility for the child should be allocated to the Minister until the child attains the age of majority at 18 years.

24. In this Court the Secretary has conceded that the child should be restored to the mother but seeks to retain the care responsibility for the child so as, he hopes, to stabilise the care arrangements for the child before restoration to his mother.

25. The difficulty, on both sides of the record, is how to manage that process in a constructive way. The mother contends for an early return of the child to her care, with support available from the Department and with National Disability Insurance Scheme (NDIS) funding. As the Secretary, not the mother, currently has the care responsibility for the child the Secretary, not the mother, has the requisite authority to deal with the National Disability Insurance Agency (NDIA). The Secretary contends for retention of the child by the Department with opportunities for access afforded to the mother until “in due course” (possibly, but not necessarily, in March 2024) the child is returned to live with the mother. Both sides agree that restoration of the child to the mother should be an orderly process.

PROCEDURAL CONTEXT

26. By a summons filed on 17 November 2023 the plaintiff (“the mother” of the second defendant, “the child”) seeks from the Court:

1. Orders by way of judicial review (pursuant to the Supreme Court Act 1970 NSW, section 69) challenging, upon the basis of alleged jurisdictional errors, the validity of:

1. a notice purportedly made by the first defendant (the Secretary) pursuant to section 44 of the Care Act and relied upon by the Secretary to assume “the care responsibility of the child” (as defined by sections 3 and 157 of the Care Act) on and from 12 September 2023.

2. interim care orders ostensibly made by the Children’s Court in proceedings numbered 2023/00294407 (the current Children’s Court proceedings) on 28 September, 26 October and 6 November 2023 (under the Care Act) placing the second defendant under the care, custody and control of the Secretary.

2. Orders, upon an exercise of the parens patriae jurisdiction of the Court, for the return of the child to the care, custody and control of the mother for residence.

27. Section 44 of the Care Act appears in Chapter 5 of the Act, entitled “Children’s Court proceedings”, Part 1 of that chapter (entitled “Emergency Protection and Assessment”) and in Division 1 of that Part (entitled “Emergency Removal”). Division 1 comprises sections 43, 44 and 45, here extracted:

“Division 1 Emergency removal

43 Removal of children and young persons without warrant

(1) If the Secretary or a police officer is satisfied, on reasonable grounds—

(a) that a child or young person is at immediate risk of serious harm, and

(b) that the making of an apprehended violence order would not be sufficient to protect the child or young person from that risk,

the Secretary or police officer may (without the need for any authority other than that conferred by this subsection) remove the child or young person from the place of risk in accordance with this section.

(2) If the Secretary or a police officer suspects a person is a child and suspects on reasonable grounds—

(a) that the person is in need of care and protection, and

(b) that the person is not subject to the supervision or control of a responsible adult, and

(c) that the person is living in or habitually frequenting a public place,

the Secretary or police officer may (without the need for any authority other than that conferred by this subsection) remove the person from any public place.

(3) If the Secretary or a police officer suspects a person is a child or young person and suspects on reasonable grounds—

(a) that the person is in need of care and protection, and

(b) that the person—

(i) is or has recently been on any premises where prostitution or acts of child prostitution take place or where persons are used for the production of child abuse material, or

(ii) is or has recently been participating in an act of child prostitution in any place or is being or has recently been used for the production of child abuse material in any place,

the Secretary or police officer may (without the need for any authority other than that conferred by this subsection) remove the person from the premises or place or any such adjacent place.

(4) For the purposes of this section, the Secretary or a police officer may (without the need for any authority other than that conferred by this subsection)—

(a) enter any premises or place in which the Secretary or police officer suspects the child or young person (or the person suspected on reasonable grounds of being a child or young person) may be, and

(b) enter the premises or place (and any adjacent place, if the Secretary or police officer suspects on reasonable grounds that the person, having just left the premises or place, is in the adjacent place), and

(c) search for the person in the premises or place and in any such adjacent place.

(5) Until a person removed under this section is placed in the care responsibility of the Secretary, the person must be kept separately from any persons who are detained for committing offences, who are on remand or who are subject to an order under section 33(1)(g) of the Children (Criminal Proceedings) Act 1987.

(6) A person authorised to exercise powers by a subsection of this section may exercise any or all of the powers, as appropriate in the circumstances.

(7) In this section—

act of child prostitution has the same meaning as in section 91C of the Crimes Act 1900.

child abuse material has the same meaning as it has in Division 15A of Part 3 of the Crimes Act 1900.

place means any place, whether or not a public place, and whether or not on premises.

Note—

Part 3 of Chapter 15 (Removal of persons and entry of premises and places) confers various ancillary powers on persons who exercise functions under this section.

44 Secretary may assume care responsibility of child or young person in hospital or other premises

(1) If the Secretary—

(a) suspects on reasonable grounds that a child or young person is at risk of serious harm, and

(b) is satisfied that it is not in the best interests of the child or young person that the child or young person be removed from the premises in which he or she is currently located,

the Secretary may, instead of removing the child or young person from the premises under a power of removal conferred by or under this Act, assume the care responsibility of the child or young person by means of an order in writing, signed by the Secretary and served on the person (whether or not a parent of the child or young person) who appears to the Secretary to be in charge of the premises.

(2) An order under this section does not cease to have effect merely because the child or young person to whom it relates is transferred to different premises.

45 Application to Children’s Court for care order

(1) If a child or young person is removed from premises or a place under a power of removal conferred by or under this Act or the care responsibility of a child or young person is assumed by an order under section 44, the Secretary must make a care application in the Children’s Court for one or more of the following care orders in respect of the child or young person—

(a) an emergency care and protection order,

(b) an assessment order (within the meaning of Division 6 of this Part),

(c) any other care order.

(1A) The care application must be made within 3 working days after the day (the relevant day) on which the removal or assumption of care responsibility occurs. If this would permit the care application to be made more than 5 days after the relevant day, the application must instead be made no later than on the fifth day after the relevant day or (if the fifth day is not a working day) no later than the first working day after that fifth day. A working day is any day that is not a Saturday, Sunday or public holiday.

(2) On the hearing of the application, the Secretary must explain to the Children’s Court why the removal of the child or young person without a warrant was considered to be necessary.

(3) Despite subsection (1), the Secretary is not required to apply for any order of the Children’s Court if the Secretary considers that no order is necessary, but the Secretary must explain to the Children’s Court at the first available opportunity why no care application was made.

(4) Sections 61, 64, 67, 68, 70 and 90A apply to an application for an emergency care and protection order. The other provisions of Part 2 do not apply to such an order.

Note—

This section holds the Secretary accountable for the serious decision to remove a child or young person from his or her family suddenly.

If the Children’s Court considers that the removal of the child or young person was not warranted in terms of the Act, or was conducted in an inappropriate manner, adverse comment could be made in court or other steps taken to draw the matter to the attention of the Minister. However, the making of an order should not be refused, or the child or young person discharged from the care responsibility of the Secretary, only because of the inappropriate manner of the removal. The paramount issue for the Children’s Court is the safety of the child or young person and not the procedural failures of those with the statutory responsibility for the protection of children and young persons.

In the case of removal pursuant to a warrant issued by an authorised officer under section 233, the authorised officer who issues the warrant should first consider whether the child or young person could be adequately protected if an apprehended violence order were sought which might provide for the removal of the alleged perpetrator. The matter should be brought before the Children’s Court at the first available opportunity and an emergency care and protection order sought if further protection is necessary.”

28. In the context of the present case, particular notice must be taken of the “Note” to section 45. The paramount issue for this Court, no less than for the Children’s Court, is the welfare (including the safety) of the child. The Court cannot, and should not, be distracted from the paramountcy principle by criticism of Departmental procedures not bearing directly on the welfare of the child.

29. Section 3 of the Care Act defines “care responsibility” to mean “the authority to exercise the functions specified in section 157”.

30. The nature of the concept of “care responsibility” can be discerned in section 157(1) of the Care Act, here extracted:

“157 Care responsibility

(1) The authorised carer of a child or young person has authority to do any of the following—

(a) to consent to medical treatment, not involving surgery, for the child or young person on the advice of a medical practitioner,

(b) to consent to medical treatment involving surgery that a medical practitioner certifies in writing needs to be carried out as a matter of urgency in the best interests of the child or young person,

(b1) to consent to dental treatment (including treatment involving minor dental surgery) that a dentist has advised needs to be carried out for the child or young person,

(b2) to consent to dental treatment involving dental surgery other than minor dental surgery that a dentist certifies in writing needs to be carried out as a matter of urgency in the best interests of the child or young person,

(c) to correct and manage the behaviour of the child or young person, subject to the regulations,

(d) to give permission to participate in activities, such as school excursions, that are organised for the child or young person,

(e) to make other decisions that are required in the day-to-day care and control of the child or young person.”

31. A “Care order” made by the Children’s Court under Part 2 of Chapter 5 of the Care Act can be the subject of an application under section 90 of the Act for its rescission or variation. “Interim care orders” can be the subject of an application (under section 90 AA of the Care Act) for their variation.

32. In these proceedings the child was the subject of a “care order” (made by the Children’s Court and, on appeal, varied by the District Court of NSW) at the time the Secretary assumed the care responsibility of him on 12 September 2023. As required by section 45 of the Care Act, the Secretary on 15 September 2023 filed his application under section 90 of the Care Act for leave to apply for a recission and replacement of orders made by the District Court on 17 April 2023. That application is presently listed before the Children’s Court for directions.

33. As the orders of the Children’s Court under challenge in these proceedings were made by the President of the Children’s Court (a judge of the District Court of NSW), the mother’s application to this Court for judicial review of orders made by the Children’s Court is assigned, in this Court, to the Court of Appeal.

34. By and with the consent of the parties, shortly after the summons was filed I made an order under the Uniform Civil Procedure Rules 2005 NSW, rule 28.2, to the effect that, all questions arising on an exercise of the Court’s parens patriae jurisdiction be heard and determined before any other question arising in the proceedings. Nothing in this judgment is intended to bear upon competing contentions that might be advanced on the mother’s application for judicial review.

35. If, upon the determination of the mother’s parens patriae application she seeks to pursue her judicial review application, these proceedings, to that extent, can be removed into the Court of Appeal.

36. At the invitation of the mother and the Secretary, the child was joined in these proceedings as a defendant; an order was made dispensing with any requirement that he be represented by a tutor; and an independent child representative was appointed to represent his interests in the proceedings.

37. It is common ground that the mother’s application for parens patriae orders is made within the authority of a judge of the Equity Division of the Court to decide and that the matters of immediate concern about the welfare of the child can be addressed on that application.

38. Upon an assumption that they are valid, the steps taken by the Secretary and the Children’s Court leading up to the commencement of proceedings in this Court were taken in reliance upon powers ostensibly conferred by the Care Act.

39. For the purpose of this judgment I assume that the Secretary acted in a bona fide manner and within the power conferred by section 44 of the Care Act when on 12 September 2023 he assumed the care responsibility for the child; and that no jurisdictional error attends the institution or conduct of the section 90 proceedings (currently on foot) subsequently commenced by the Secretary as required by section 45 of the Care Act, nor interim care orders made by the President of the Children’s Court (in favour of the Minister) under section 69 of the Care Act in those proceedings.

40. Section 247 of the Care Act provides that “[nothing] in this Act limits the jurisdiction of the Supreme Court”.

THE PARENS PATRIAE JURISDICTION IN CONTEXT

41. The focus for attention in this judgment is upon the question whether (notwithstanding an absence of jurisdictional error in the processes of the Secretary and the Children’s Court) there is an occasion, upon an exercise of the Court’s parens patriae jurisdiction, to order that the child be restored to the care of the mother on substantially the same terms as those contemplated by the orders made by the District Court on 17 April 2023.

42. In opposing any grant of relief upon an exercise of protective jurisdiction, the Secretary reminded me of what I wrote in P v NSW Trustee and Guardian [2015] NSWSC 579 at [25]-[31], to which I adhere:

“[25]   The efficacy of the administration of the State’s legal system for the protection of those in need of protection depends, in large part, on adoption by the Court of practice conventions in exercise of the jurisdiction it enjoys as a superior court. Reserving all its powers for cases in which they may be needed, the practice of the Court is to exercise purposeful restraint in deployment of its inherent jurisdiction, with the object of facilitating the work of statutory tribunals, and channelling appeals from tribunal decisions through the regulatory framework for which legislation (including clause 14) specifically provides. A recent confirmation of this approach can be found in CAC v The Secretary Department of Family and Community Services [2015] NSWCA 105 at [15]-[16].

[26]   The work of the Court in its administration of protective jurisdiction is, and for the due administration of justice in New South Wales must be, integrated with that of statutory authorities which bear the heavy burden of routine cases: in the finding of facts, in the making and revocation of orders, and in the day-to-day management of an elaborate administrative regime designed to protect the person and estates of individuals in need of protection.

[27]   Of these statutory authorities, three are quasi-judicial bodies staffed with personnel with specialist expertise, supported by administrative arrangements dedicated to the performance of specialist functions:

(a)   NCAT’s Guardianship Division focuses upon individuals unable, independently, to manage their person or property.

(b)   the Mental Health Review Tribunal focuses on forensic patients and, more generally, the care and treatment of people with a mental illness or mental disorder.

(c)   the Children’s Court of NSW focuses on individuals under the age of 18 years, variously described as “minors”, “infants”, “children” and “young persons” depending on context.

[28]   By its nature, the protective jurisdiction has a strong administrative flavour. Historically, its origins are found in delegations from the Crown to the Lord Chancellor, and much of the Lord Chancellor’s work was necessarily performed by his delegates or administrative staff: HS Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924), page 61; Leonard Shelford, A Practical Treatise on the Law concerning Lunatics, Idiots and Persons of Unsound Mind (Sweet, and Stevens & Sons, London, 1833), pages 25-27. The work of the Court, as the local repository of jurisdiction historically exercised by the Lord Chancellor in England, cannot, functionally, be entirely separated from executive government in one form or another: cf, M v M [2013] NSWSC 1495 at [10]-[20]: Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245 at [55]-[58]; PB v BB [2013] NSWSC 1223 at [10]-[16], [61]-[64] and [66]-[72]; W v H [2014] NSWSC 1696 at [54]-[63].

[29]   The machinery of government through which the Court’s protective jurisdiction is exercised – the administrative support provided to the Court by government – the rules of court and procedures through which business of the Court is transacted – changes from time to time without detracting from the operation of the Court’s inherent and supervisory jurisdictions: In re WM (a person of unsound mind) (1903) 3 SR (NSW) 552 at 561, 567, 569 and 570. In practice, this means that an exercise of protective jurisdiction by the Court is able, in the interests of a person in need of protection, to call upon an optimal mix of inherent and statutory jurisdiction. In the language of an earlier generation the Court, as a superior court, does not work within the constraints within which an “inferior”, statutory court or tribunal must operate. Nevertheless, the administrative regime of government within which the Court must act is important to an effective operation of its protective jurisdiction.

[30]   The overlapping work of the Supreme Court, the Guardianship Division of NCAT and the Mental Health Review Tribunal depends for its efficacy, in large measure, on the work of the NSW Trustee and Guardian (in particular) and other agencies of the State of NSW.

[31]   The work of the Children’s Court depends for its efficacy, in large measure, on the work of the Department of Family and Community Services, its Secretary and Minister.”

43. There is no dispute that, at the time they were made, the orders made by the District Court were binding on the parties to these proceedings unless and until displaced on an appeal to the Court of Appeal, by an order duly made by the Children’s Court under section 90 of the Care Act or upon an exercise by this Court of its parens patriae jurisdiction.

44. The Secretary’s assumption of the care responsibility for the child under section 44 of the Care Act represented a substantial departure from the scheme of the District Court’s orders.

45. It dramatically affected the day-to-day lives of both the child and the mother. In practical reality it imposed upon the mother, in any care proceedings consequent upon the course taken by the Secretary to challenge the District Court’s orders, a forensic burden which she would not have borne had the Secretary simply made an application under section 90 of the Care Act for a variation of the District Court’s orders on notice to the mother.

46. On the hearing of these proceedings the Secretary announced that his object was to work towards restoration to the mother of all parental responsibility for the child, an object of the District Court’s orders. That is not, however, what the Secretary’s section 90 application on its face seeks. On its face, it seeks an allocation of all parental responsibility to the Minister.

47. The manner in which the Secretary has sought to challenge the District Court orders otherwise binding on him calls for critical assessment upon an exercise of the Court’s parens patriae jurisdiction.

48. Accepting that he acted within power and with the best of motives when he peremptorily assumed the care responsibility of the child, he substituted an administrative fiat for carefully crafted orders made by a judge, on appeal from the Children’s Court, after an eight day contested hearing. He sought to displace the judge’s scheme of orders whilst, at the same time, keeping the child in confinement and limiting the child’s access to the mother, all the while (despite the best of intentions) provoking bad behaviour on the part of the child whose expectation (arising from knowledge of the District Court judgment) was that he would continue living with his mother.

49. The parens patriae jurisdiction of the Court over a person under the age of majority, a minor (once described as the “infancy jurisdiction” and now generally recognised as part of the “protective jurisdiction” of the Court) is governed by a central informing idea: that the jurisdiction exists for the care of those who are not able to take care of themselves (Secretary, Department of Health and Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218 at 258), and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the State, or others, or for the convenience of carers (Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4^th) 1 at 16-17, 19, 28-30, 31, 32 and 34, a judgment of the Supreme Court of Canada approved by the High Court of Australia in Marion’s Case).

50. This central, informing idea is reflected in Part 1 of Chapter 2 (sections 7-10A) of the Care Act, under the heading “Objects, Principles and Responsibilities”:

“Chapter 2 Objects, principles and responsibilities

Part 1 Objects and principles

7 What is the role of the objects and principles of this Act?

The provisions of this Chapter are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law.

8 What are the objects of this Act?

The objects of this Act are to provide—

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

9 Principles for administration of Act

(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows—

(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.

9A Principle of making “active efforts”

(1) The Secretary must act in accordance with the principle of active efforts in exercising functions under this Act.

(2) The principle of active efforts means—

(a) in taking action to safeguard or promote the safety, welfare and well-being of a child or young person—making active efforts to prevent the child or young person from entering out-of-home care, and

(b) for a child and young person who has been removed from the child’s or young person’s parents or family—

(i) making active efforts to restore the child or young person to the child’s or young person’s parents, or

(ii) for a child or young person for whom it is not practicable or in the child’s or young person’s best interests to be restored to the child’s or young person’s parents—to place the child or young person with family, kin or community.

Note—

See the permanent placement principles in section 10A and the placement principles for Aboriginal and Torres Strait Islander children and young persons in section 13.

(3) Under the principle of active efforts, the Secretary must also ensure active efforts are—

(a) timely, and

(b) practicable, thorough and purposeful, and

(c) aimed at addressing the grounds on which the child or young person is considered to be in need of care and protection, and

(d) conducted, to the greatest extent possible, in partnership with the child or young person and the family, kin and community of the child or young person, and

(e) culturally appropriate, and

(f) otherwise in accordance with any requirements prescribed by the regulations.

(4) Without limiting subsections (1)–(3), active efforts include—

(a) providing, facilitating or assisting with access to support services and other resources, and

(b) if appropriate services or resources do not exist or are not available—considering alternative ways of addressing the relevant needs of the child or young person and the family, kin or community of the child or young person, and

(c) activities directed at finding and contacting the family, kin and community of the child or young person, and

(d) the use of any of the following—

(i) a parent responsibility contract,

(ii) a parent capacity order,

(iii) a temporary care arrangement under Chapter 8, Part 3, Division 1,

(iv) alternative dispute resolution under section 37, and

(e) another matter, activity or action prescribed by the regulations.

(5) To avoid doubt, this section is subject to the requirement under section 9(1) that this Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

10 The principle of participation

(1) To ensure that a child or young person is able to participate in decisions made under or pursuant to this Act that have a significant impact on his or her life, the Secretary is responsible for providing the child or young person with the following—

(a) adequate information, in a manner and language that he or she can understand, concerning the decisions to be made, the reasons for the Department’s intervention, the ways in which the child or young person can participate in decision-making and any relevant complaint mechanisms,

(b) the opportunity to express his or her views freely, according to his or her abilities,

(c) any assistance that is necessary for the child or young person to express those views,

(d) information as to how his or her views will be recorded and taken into account,

(e) information about the outcome of any decision concerning the child or young person and a full explanation of the reasons for the decision,

(f) an opportunity to respond to a decision made under this Act concerning the child or young person.

(2) In the application of this principle, due regard must be had to the age and developmental capacity of the child or young person.

(3) Decisions that are likely to have a significant impact on the life of a child or young person include, but are not limited to, the following—

(a) plans for emergency or ongoing care, including placement,

(b) the development of care plans concerning the child or young person,

(c) Children’s Court applications concerning the child or young person,

(d) reviews of care plans concerning the child or young person,

(e) provision of counselling or treatment services,

(f) contact with family or others connected with the child or young person.

10A Permanent placement principles

(1) In this Act—

permanent placement means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person.

(2) Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles.

(3) The permanent placement principles are as follows—

(a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship,

(b) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is with a relative, kin or other suitable person in accordance with a guardianship order,

(b1) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is placement with a suitable person or persons jointly in accordance with an order made under section 79(1)(f), with the support of the Secretary under section 153(1) or financial assistance of the Secretary under section 161(1),

(c) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (b1), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted,

(d) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b), (b1) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law,

(e) if it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b), (b1) or (d), the last preference is for the child or young person to be adopted.”

51. The Court’s parens patriae jurisdiction is generally reserved for dealing with uncontemplated, or exceptional, situations where it appears necessary for the jurisdiction to be invoked for the protection of those who fall within its ambit: Re Eve [1986] 2 SCR 388 at 411; 31 DLR (4th) 1 at 17.

52. In the exercise of parens patriae jurisdiction over minors, the Children’s Court (constituted by the Children’s Court Act 1987 NSW) exercises specialist, statutory jurisdiction, subject to an appeal to the District Court or (on an appeal from a judgment of the President of the Children’s Court) this Court. A further layer of appeal lies to the Court of Appeal.

53. In cases in which the jurisdiction of the Children’s Court has been engaged, the Court exercises caution in making parens patriae orders lest it undermine the integrity of the statutory procedures, including the appeal process. The standard approach is that of Palmer J in Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40], supplemented by that of White J in Re:Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 and cases cited therein. The authorities demonstrate a consciousness of a need to support the work of the Children’s Court and, on a de novo appeal, the District Court.

54. In many cases the Court is reminded that, upon an exercise of parens patriae jurisdiction, it should defer to the expertise and experience of the Children’s Court when that Court is seized of a concurrent case at first instance.

55. The present case is distinctively different. That is because the Secretary has, by administrative action, displaced a considered judgment of the District Court upon appeal from the Children’s Court. The Secretary’s action, well meaning though it may have been, displaced the judgment of the District Court without notice to the parties (mother and child) primarily affected by the judgment. That action, taken without the leave of any court, and in circumstances in which there were strong reasons (recognised by the District Court) to allow the child to live with his mother, imposed on the mother and child a fresh forensic burden in seeking to be heard, as well as social disruption.

56. The Secretary assumed care responsibility for the child (under section 44 of the Care Act), and subsequently made an application to the Children’s Court (under section 90 of the Care Act) for leave to make an application for the rescission or variation of the care orders made by the District Court, in a manner arguably consistent with a deliberate disregard of the orders of the District Court.

57. The Secretary contends that there are no “exceptional circumstances” warranting orders being made upon an exercise of the Court’s parens patriae jurisdiction and that, accordingly, the mother’s application for parens patriae orders should be dismissed, leaving the Children’s Court to determine the Secretary’s pending section 90 application.

58. That contention is a matter of concern, in the particular case and generally, if the course of events instigated by the Secretary leading to the commencement of these proceedings is regarded by the Secretary as “unexceptional”.

59. The District Court’s orders of 17 April 2023 provided, as the child was told by the judge, for an orderly return of the child to the care of the mother, following the earlier assumption of care of the child by the Secretary on 3 March 2020. The ink on those orders was barely dry when, without the leave of any court, without first making an application under section 90 of the Care Act on notice to the mother or the child, and without any notice at all to the mother, the Secretary on 12 September 2023 assumed the care responsibility of the child for a second time.

60. No submission has been made in these proceedings, by any party, that the judgment of the District Court was plainly wrong, or to be disregarded. cf, Re M (No 4) [2013] NSWCA 97 at [23].

61. It is common ground that, in practical reality, a condition of a successful restoration of parental responsibility for the child to the mother is that, for a defined period of time, she be given professional support in caring for the child.

62. On both occasions that the care responsibility of the child was assumed by the Secretary the child was taken into care at school, leaving the mother without timely information about what had occurred.

63. The Secretary’s assumption of care responsibility for the child on 12 September 2023 was motivated, in part, by a concern that, if alerted to the Secretary’s plan to take the child into care, he would encounter strong resistance on the part of the mother and, possibly, the child.

64. There appears to have been no intention on the part of the Secretary to challenge the orders of the District Court by an application under section 90 of the Care Act on notice to the mother without the child being taken into care by the Secretary.

65. An inference available to be drawn from the conduct of the Secretary is that, dissatisfied with the orders of the District Court and not wishing to abide proceedings in the Court of Appeal, a decision was made simply to start again by seizure of the child and subsequent fresh proceedings in the Children’s Court with the forensic advantage of possession, custody and control of the child.

66. It would not be fair to draw this inference without, however, acknowledging that the Secretary’s section 44 Notice of 12 September 2023 was based, inter alia, upon evidence of events post dating 17 April 2023. During that timeframe the child absconded from his mother. He threw things from the balcony of her fourth floor home unit. He broke the lock of the balcony door. He was suspended from school because of his behaviour there.

67. A problem with criticism of the mother’s care of the child is not only that the Secretary has fared no better with the care of the child but the mother has an apprehension, on reasonable grounds, that the Secretary’s engagement with her after the child was returned to her care was intended, not only to provide her with the assistance she admittedly needed in caring for a difficult child, but to gather evidence to be used against her in fresh proceedings.

68. The course of events has not been calculated to build up trust between the mother and the Secretary or those working under the direction of the Secretary. The Department has a deep scepticism of the mother’s capacity to care for the child and a reluctance to assume responsibility for the provision of care for the child at home, outside institutional care arrangements. The Department and the mother are burdened in their care for the child by reciprocal distrust.

69. The conduct of this child’s case by the Secretary’s Department has conformed to a pattern commonly encountered upon an exercise of the Court’s general protective jurisdiction where controversy attaches to arrangements for the care of a vulnerable person of whatever age.

70. In those cases it is not uncommon for a family member to assume control of the vulnerable person by taking possession of “the person”, isolating the person, restricting access to the person and controlling the narrative about what is in the best interests of the person.

71. By peremptorily assuming care responsibility for the child without notice to the mother (or the child), without the leave of any court, and without any prior application to a court that would permit a judge independently to supervise his administrative intervention in the lives of mother and child, the Secretary took possession of the child, isolated him and took control of the narrative, limiting the mother’s access to the child and causing distress to both mother and child.

72. That the child, in particular, was caused acute distress by his assumption into the care of the Secretary, and his subsequent confinement by the Secretary is apparent in his words, deeds and elevated behaviour, ostensibly aggravated by his expectation (informed by the District Court judgment, explained to him personally by the judge in chambers on or about 18 April 2023) that he could live with his mother.

73. The unruly, unpredictable behaviour of the child, attributable to his disabilities, is a cause for concern of the Secretary, the mother and the Court system. Nobody can predict the future or eliminate risk. The Secretary’s assumption of care responsibility for the child, intended to de-escalate his behaviour, dramatically failed to achieve its object and, to the detriment of the child, escalated tensions between mother and child (on the one hand) and the Department (on the other hand).

74. The best that can be done is prudential management of risk in light of past experience and present circumstances, looking forward with the benefit of professional advice where available. That is what must be done now, paying due deference to the considered and careful judgment of the District Court and updated evidence (including the parties’ competing expert evidence of health professionals) bearing upon the child’s personal circumstances.

75. Part of the function of a judge (be it a judge of the Children’s Court, the District Court or the Supreme Court) in a case such as the present is to provide a forum in which problems associated with caring for a “difficult” child can be addressed in an orderly way and shared.

76. Whoever might have day-to-day responsibility for the care of this child his need for protection requires that the mother and the Secretary, in the interests of the child, conscientiously endeavour to work together in a respectful manner that can generate trust. There is no guarantee that this child’s future will be free of risk of misadventure no matter who has responsibility for his day-to-day care. Experience teaches at least that.

77. Each of the parties to these proceedings has struggled to deal with an underlying problem. The welfare of the child (including his safety) requires him to live with his mother (with whom he has a strong mutual attachment), but to care for him at home she needs the assistance of specially trained carers which the Secretary has been reluctant to provide because of ongoing concerns about the mother’s ability to engage with carers, and a concern about exposure to an indefinite liability to provide funding for services not directly controlled by the Department in premises owned or controlled by the Department.

78. The mother’s case for return of the child to her care is supported by supplementary evidence adduced in these proceedings (over a formal objection on behalf of the Secretary) from an expert whose evidence was relied upon by the District Court judge whose orders of 17 April 2023 continue to operate until displaced by orders made under the Care Act.

79. I leave aside a question (raised by senior counsel for the mother) whether the District Court’s orders (which have taken effect as a care order of the Children’s Court) can be displaced by interim orders made by the Children’s Court pending the determination of an application for leave under section 90 of the Care Act.

80. In the circumstances of this case, upon my giving an indication of the nature of the orders I proposed to make in disposition of the mother’s parens patriae application, the parties (more particularly, the mother, the Secretary and the independent child representative) agreed upon a form of orders that included a notation that, in anticipation of the child returning home pursuant to the Court’s orders, they would make a joint application to the Children’s Court for the interim orders of the Children’s Court to be discharged.

81. The Secretary is to be commended for his willingness, albeit with reluctance, to engage in the formulation of arrangements (including funding of professional care) for the child to return to his mother’s care within a time frame broadly consistent with the District Court’s orders of 17 April 2023.

82. In practical terms, the Secretary’s resistance to the child returning to live with his mother without delay attendant upon the child remaining indefinitely in institutional care has turned upon:

1. a lack of trust on the part of the Secretary in the capacity and reliability of the mother to care for the child;

2. a strong preference on the part of the Secretary to retain control of the child in institutional care pending a determination by his Department that the mother has developed skills enabling her to manage the child’s behaviour;

3. the Secretary’s doubts (arising from unfamiliarity with particular carers) about the ability of the professional carers nominated by the mother as suitable to assist her in management of the child at home;

4. a reluctance on the part of the Secretary and the Minister (consistent with George v Children’s Court of NSW (2003) 59 NSWLR 232 at 257-258) to submit to a formal order, or to give a formal undertaking, as distinct from a formal statement of present intention, about the provision by the Department of funding of the professional carers nominated by the mother; and

5. a concern of the Secretary to maintain on the record an objection to an “early” return of the child to the mother in case the Department is exposed to criticism if a risk of misadventure with the child should materialise.

83. The practical reality is that, at the present time, the mother needs support if she is to take care of the child at home and, if he is to be protected from harm (including self harm), he needs the security and nurture that is uniquely available in the care of his mother. A regime of confinement of the child in institutional care is not risk free and, in my judgment, the welfare of the child is best served by accommodating his reasonable expectation (based upon the District Court judgment) that he would be permitted to live at home.

84. I do not intend, by giving effect to that judgment, to fetter proceedings in the Children’s Court, or the statutory powers of the Secretary, under the Care Act.

ORDERS

85. At the conclusion of the hearing on 7 December 2023 I made orders and notations to the following effect:

1. NOTE that these orders are made, upon an exercise of parens patriae jurisdiction of the Supreme Court of NSW, for the purpose of giving restorative effect to the orders of the District Court of NSW dated 17 April 2023 made in the proceedings numbered 2021/187593

2. ORDER that the Secretary, as delegate of the Minister, return the child to the mother within 24 hours of the date upon which [an identified provider of care services] confirms to the Secretary and the mother in writing that it is able to commence providing services for the benefit of the child in accordance with these orders.

3. NOTE that it is the intention of the Secretary that, from the time the child is returned to the mother in accordance with order 2 of these orders, the Secretary will fund the provision of services for the benefit of the child provided by [the care provider] and pay any invoices produced by [the care provider] to the mother for those services until such time as the Secretary and [the care provider] enter into a contract directly between themselves or until 5 December 2024 or further order of this Court or the Children's Court of NSW.

4. NOTE that it is the intention of the Secretary that, upon entering into a contract with [the care provider], the Secretary will continue to pay for the provision of services for the benefit of the child until 5 December 2024 (or further order of this Court or the Children's Court of NSW) and the arrangement recorded in notation 3 of these orders will be taken to have been spent.

5. NOTE that the provision of services to the child by [the care provider] is intended, by agreement between the Secretary and the mother, to be provided as set forth in annexure "A" to these orders but may be amended from time to time by agreement between [the care provider], the Secretary and the mother for the purpose of updating or changing the supports required for the care of the child.

6. NOTE that it is the intention of the Secretary to pay for the support services provided and invoiced by [the care provider] as reasonably required until such time as [the care provider] and the Secretary enter into an ongoing contract.

7. NOTE that the Secretary has informed the Court that he believes he can finalise a contract with [the care provider] within 6 weeks of the date of these orders and he will fund the provision of services by [the care provider] while negotiating the contract with [the care provider].

8. NOTE that the parties propose to work in consultation with each other to give effect to these orders to support the child, having regard to his disabilities and their agreed object of restoring the child to the care of the mother.

9. NOTE that it is the intention of the Secretary, the mother and the independent child representative to apply to the Children's Court of NSW for an order that the current interim parental responsibility order in favour of the Minister be varied to a time limited order to expire on the date of the child's return to the care of the mother pursuant to these orders.

10. RESERVE to the parties liberty, on reasonable notice one to the other, to apply for such orders (under the Children and Young Persons (Care and Protection) Act 1998 NSW) relating to the care of the child as they may be advised.

11. RESERVE to all affected persons liberty to apply for consequential relief in the working out of these orders.

12. ORDER that these proceedings be listed before Lindsay J on 21 December 2023 at 2pm for further consideration, or directions, as the nature of the case might require.

13. RESERVE all questions of costs.

14. ORDER that pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010 NSW there be no publication of the name of, or any information that would identify or tend to identify, the Second Defendant, being the child the subject of these proceedings.

15. ORDER that Order 14 is made on the basis of the grounds specified in ss 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act.

16. ORDER that Order 14 is to apply until 30 June 2039, throughout the Commonwealth of Australia.

17. NOTE that nothing in orders 14-16 of these orders is intended to prevent the Secretary, the mother or the independent child representative from communicating a copy of these orders to [the care provider] for the purpose of implementing these orders.

18. ORDER that these orders be entered forthwith.

ADDENDUM (21 December 2023)

86. On 21 December 2023 Lindsay J published these reasons for judgment after making the following orders and notations with a view to disposition of the proceedings:

1. NOTE that, on the joint application of the mother, the Secretary and the Independent Child Representative, the Children’s Court on 14 December 2023 made an order the effect of which was that that Court’s interim orders expired on that date.

2. NOTE that, pursuant to the orders made by this Court on 7 December 2023, the child was returned to the care of the mother on 14 December 2023.

3. NOTE that the Secretary’s application to the Children’s Court under section 90 of the Children and Young Persons (Care and Protection) Act 1998 NSW for leave to make an application under that section presently stands adjourned to 31 January 2024 for directions.

4. NOTE that, in these Supreme Court proceedings, the following questions remain for consideration:

1. what, if any, orders are necessary to deal with, or to dispose of, the balance of the proceedings bearing in mind the order for the separate determination of parens patriae questions made on 17 November 2023?

2. what, if any, orders should be made for the costs of these Supreme Court proceedings?

5. NOTE that no orders for costs are sought by, or against, the Independent Child Representative.

6. ORDER, subject to further order, that the Independent Child Representative be excused from further attendance before the Court in these proceedings.

7. ORDER that the mother file and serve no later than 1 February 2024 short written submissions on the two outstanding questions for this Court’s consideration.

8. ORDER that the Secretary file and serve no later than 9 February 2024 short written submissions on those questions and in response to the mother’s written submissions.

9. ORDER that these proceedings be listed before Lindsay J at 9 am on 14 February 2024 for further consideration, or directions, as the nature of the case might require.

10. RESERVE liberty to apply on two days’ notice in the meantime.

11. ORDER that these orders be entered forthwith.

****** 

Re Paul Redacted Annexure A (206353, pdf)

Amendments

22 December 2023 - At [2](a) the spelling of "Olssen" corrected to read "Olsson"

Decision last updated: 22 December 2023