Re Phillipa

[2008] NSWSC 1158

CITATION:	Re Phillipa [2008] NSWSC 1158
HEARING DATE(S):	24/10/08
JUDGMENT DATE :	24 October 2008
JURISDICTION:	Equity
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	24 October 2008
DECISION:	Proceedings dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE – summary dismissal – orders sought revoking orders of the Children’s Court – interim orders sought invoking the parens patriae jurisdiction – no exceptional circumstances warranting circumvention of the Children’s Court – allegations of perjury and conspiracy in lower courts not supported by evidence – no reasonable cause of action disclosed that would allow the Court to revoke orders of the Children’s Court – orders sought pursuant to the parens patriae jurisdiction were an abuse of process
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 (NSW)
CASES CITED:	Re Victoria [2002] NSWSC 647 Re Frances and Benny [2005] NSWSC 1207 Director-General of the Department of Community Services v Priestley [2004] NSWSC 639 Re Barbara [2006] NSWSC 536 Re Alan [2008] NSWSC 379 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
PARTIES:	Re Phillipa
FILE NUMBER(S):	SC 3939/08
COUNSEL:	Plaintiff: In person Defendant: I Bourke Child: K Reynolds
SOLICITORS:	Plaintiff: na Defendant: Crown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 24 October 2008

3939/08 Re Phillipa

CLOSED COURT

JUDGMENT

1 HIS HONOUR: The first defendant, being the Director-General of the Department of Community Services, applies under r 13.4 of the Uniform Civil Procedure Rules (“UCPR”) for the summary dismissal of these proceedings on the ground of that they are frivolous or vexatious and fail to disclose any reasonable cause of action.

2 The proceedings were commenced by summons filed on 28 July 2008. The plaintiff seeks orders to revoke or quash an order made by the Children's Court on 9 February 2005 allocating parental responsibility of her daughter to the Minister. She claims an order that all aspects of parental responsibility should be allocated to her, and that her daughter should be restored to her full-time care. She also seeks an order for the payment of costs from December 2003.

3 She seeks orders, by way of interim relief, that she have unlimited and unsupervised access to the child. I might here interpolate that, pursuant to an order made by Brereton J on 26 August 2008, the child is to be known in these proceedings as “Phillipa” and I will so refer to her in the rest of these reasons.

4 The plaintiff also seeks, by way of interim relief, orders directed to the foster carer of Phillipa relating to Phillipa's religious upbringing, dental and medical treatment and musical education. She also seeks orders to restrain Phillipa's foster carer and others from "manipulating" Phillipa or “inflicting fear” on her.

5 The summons wrongly named Phillipa as a co-plaintiff and named the case workers engaged by the Department of Community Services and a foster carer as defendants. However, on 26 August 2008, Brereton J made orders correcting the misjoinder and non-joinder of parties.

6 Phillipa is now 15. She is separately represented in these proceedings. She neither consents to, nor opposes, the Director-General’s application for summary dismissal.

7 During the hearing of this application on more than one occasion the plaintiff applied for an adjournment of the hearing. I have refused that application. In the course of my reasons for doing so I observed that there have been seven separate appearances before different judges in this division since the proceedings were commenced. On 26 August 2008, Brereton J had fixed the application for summary dismissal on 14 October 2008 and directed service of affidavit evidence of the defendants by 9 September 2008 and of the plaintiff by 7 October 2008. On 17 September 2008, Hamilton J adjourned the application to today in lieu of 14 October 2008. His Honour required the Director-General to serve any affidavit evidence to be relied on in this application by 19 September 2008 and for the plaintiff to serve any further affidavit evidence in response by 17 October 2008.

8 There is public interest in applications of this kind being dealt with expeditiously. They are customarily given expedition and the plaintiff has had, since at least the time she instituted the proceedings in July, the opportunity to serve affidavits which disclosed the substance of the case sought to be made by her summons. That is so quite apart from the orders made for service of affidavits in response to this application.

9 As will appear later in these reasons, the summons alleges various grounds for the relief sought which, in substance, amount to allegations of perjury or conspiracy in the conduct of proceedings in the Children's Court. But even if such a claim could properly have been brought by summons rather than by statement of claim, which I doubt, such allegations should have been properly particularised and the plaintiff should have served an affidavit with the summons, providing proper particulars of those allegations, that is to say, the facts on which they are based and evidence of those facts.

10 The background to this application is that, on 15 December 2003, the Director-General assumed the care responsibility of Phillipa pursuant to s 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). It appears from evidence tendered by the plaintiff that on that day, the plaintiff was escorted to Hornsby Hospital where she was scheduled for further assessment and treatment.

11 On 16 December 2003, the Director-General filed an application to the Children's Court seeking an order that all aspects of parental responsibility with respect to Phillipa be allocated to the Minister for Community Services. On 17 December 2003, an interim care order was made in relation to Phillipa, allocating parental responsibility to the Minister.

12 It appears that there were extensive proceedings in the Children's Court. The plaintiff was, at least at some times, represented by a solicitor in the course of those proceedings.

13 On 9 February 2005, the Children's Court made a final order that the child be placed under the parental responsibility of the Minister until she attains 18 years of age. The Court also ordered that the plaintiff have supervised contact with the child for a minimum of four hours each week. The Court noted the Director-General's intentions to consider additional contact. There are other matters dealt with by the orders of 9 February 2005 to which it is not necessary to refer.

14 Phillipa was placed into a permanent foster care placement on 4 August 2006 where she remains. It appears that no appeal was brought from the orders of 9 February 2005.

15 In October 2007, the Director-General filed an application in the Children's Court seeking to vary the contact order. The grounds on which the Director-General alleged that the variation was warranted were that Phillipa had expressed the wish that the frequency of contact be reduced; that the plaintiff had sought unwarranted contact with Phillipa; that Phillipa was fearful that she would upset the plaintiff should she express a wish that contact be reduced; that Phillipa was fearful of the plaintiff's actions and behaviours; and the plaintiff exerted undue pressure on Phillipa to conform to the plaintiff's views.

16 The plaintiff denies the truth of those allegations. However, on 18 February 2008, the Children's Court ordered pursuant to s 90 of the Act that the contact orders made on 9 February 2005 be vacated and in lieu thereof, orders were made that the plaintiff have supervised contact with Phillipa once a month for a duration of four hours, such contact to be conditional upon the permission of Phillipa, as determined from time to time by the Director-General’s delegate, and the plaintiff presenting for contact in a stable emotional and rational state, as assessed by the Director-General’s delegate. Orders were also made for telephone contact. Other orders were made prohibiting the plaintiff from contacting Phillipa or her carers.

17 On 28 February 2008, the plaintiff appealed to the District Court against the Children's Court orders of 18 February 2008. The appeal to the District Court is by way of a new hearing and fresh, additional or different evidence can be adduced (see s 91 of the Children and Young Persons (Care and Protection) Act).

18 That appeal was dismissed by Ainslie-Wallace DCJ on 1 May 2008. Her Honour gave detailed reasons for dismissing the appeal.

19 The grounds for the relief sought in the summons filed on 28 July 2008 were described in the summons as follows:

“ 1-) My proceedings does not disclose cause of action or any other grounds prescribed in the rules.

2-) That the grounds of the original care application, and all other allegations in all documents filed before the Children’s Court are: nothing more than malicious falsehoods, deliberately untrue, a complete lies that is unfounded and deliberately misinterpreted myself and my daughter.

3-) The defendants [case workers] had involved themselves in a [major] conspiracy with others to be able to take [Phillipa] away from [the plaintiff].

4-) From the commence with my dealings with the defendants, I was treated like abuser, criminal and rapist.
5-) And they conducted the case with bitchy, nasty, malicious and unpleasant behaviour.
6-) It was very clear – that their intention, from the commence with my dealings with them, to take my daughter away from her mother.

7-) We were violated and abused and victims of an ignoble campaign of calumnies and lies, and attacking our good name, character and reputation.

8-) My defence [naming the plaintiff's solicitor in the Children's Court] deliberately failed, to file before the court applications to answer those malicious and falsely allegations.

9-) [My solicitor] deliberately play the incompetent before the courts.

10-) Allowing the opponents to succeed in their case, achieved their intention, managing to do what they’ve planned or attempted, all along with evidence/allegations that were nothing more than lies, false, stupidity, rubbish and irrelevant.

11-) There, is not provision in the Care & Protection Act for such allegations like mine.

12-) The [Children’s] Court, defendants and the former legal representatives had showed contempt to court, disregard the rules, of a court of law.

13-) The defendants had not provided objective, substantive or credible evidence or not evidence at all.
14-) The material that, the defendants put before the [Children’s] Court amounts to nothing more than deliberately cruel, evil, conjecture, assertions, rubbish, irrelevant an innuendos.

15-) Taking the children systematically away from their mothers, still exists in various forms, in many parts of the Australian society today.

16-) The former legal representatives [who are named] have engaged in and assist in conduct, that is calculated to defeat the ends of justice, in different way, in breach of the law.

Plus more, that, in due course will be [filed] before the court. ”

20 By her summons, the plaintiff essentially seeks to have the Court exercise the parens patriae jurisdiction of the Crown with respect to children. In substance, she also seeks to have the orders of 9 February 2005 set aside on the grounds of fraud. It may be that she also seeks to have the later orders set aside on the ground of fraud.

21 It is only in exceptional circumstances that a party is entitled to invoke the parens patriae jurisdiction where there are proceedings in the Children's Court. The parens patriae jurisdiction does not provide a separate avenue for appeal from decisions of the Children's Court or, for that matter, the District Court. The Children's Court is a specialised jurisdiction and the Act provides the avenue of appeal by way of a new hearing to the District Court.

22 In Re Victoria [2002] NSWSC 647 Palmer J said (at [36]-[39]):

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

[37] I do not think that there should be encouraged a procedure whereby persons who have fully contested a matter in the Children's Court and wish to appeal can by-pass the appeal provisions of the 1998 Act and come straight to this Court seeking to invoke its inherent wardship jurisdiction. Quite apart from the fact that to do so would sanction a departure from the appeal procedure laid down by the legislature in the 1998 Act, such an application would involve a quite different question from that which is normally raised on an appeal. In an application to this Court in its wardship jurisdiction …

...

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

23 In Re Frances and Benny [2005] NSWSC 1207, Young CJ in Eq said (at [18]), that he agreed with these observations. His Honour observed one of the exceptional cases in which the court acts is where it is urgently required to provide some protective order and there are no other curial processes available to provide instant relief. This is not such a case. (See also Director-General of the Department of Community Services v Priestley [2004] NSWSC 639 at [5]; Re Barbara [2006] NSWSC 536 at [17]-[19]; and Re Alan [2008] NSWSC 379.)

24 It is not reasonably arguable that this is such an exceptional case. It is more than three and a half years since the order granting parental responsibility to the Minister was made. So far as the orders varying the contact arrangements are concerned, there has been an appeal from those orders to the District Court by way of rehearing.

25 An appeal lay by leave to the Court of Appeal from the orders of the District Court dismissing the appeal from the Children's Court. Without in any way seeking to pre-empt any view that the Court of Appeal might take if such an application were now sought to be made out of time, it is sufficient to say that there is nothing in the reasons of Ainslie-Wallace DCJ that would suggest that it is reasonably arguable that a different order might be made in this court's parens patriae jurisdiction if it could otherwise be properly invoked.

26 However, it is clear that the plaintiff seeks to put her case on a wider basis. In substance, she alleges that the orders of the Children's Court were procured by fraud and by perjured evidence. Allegations of fraud should be pleaded and such proceedings should be brought by a statement of claim (UCPR, r 6.3(c)). Leaving aside the inappropriateness of the originating process, however such proceedings are brought, the allegations of fraud must be made with particularity and specificity (Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 700-701). The so-called grounds for the relief sought fail to do this. Moreover, the plaintiff has failed to file any evidence to show that there is a serious question to be investigated that any such fraud as alleged occurred. No affidavit was read by her on this application. As she is self-represented, I have also looked at the affidavits on the court file and there is no affidavit of substance in support of the summons. The documents tendered by the plaintiff on this application do not indicate that any perjury or fraud occurred. Nor do they provide any reasonable ground to suspect that it did.

27 In any event, a judgment will not be set aside on the grounds it was procured by fraud unless fresh facts have come to the attention of the moving party after the trial. The public interest in the finality of litigation precludes collateral challenges merely on the ground that the unsuccessful party or a witness has committed perjury (Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538-539 and 541). Not only is there no evidence of any such fresh facts, but no such fresh facts are suggested by the grounds stated in the summons.

28 The summons discloses no reasonable cause of action to set aside the orders of the Children's Court. The attempt to circumvent the orders of the Children's Court and of the District Court by invoking the Crown’s parens patriae jurisdiction with respect to children fails for the reasons indicated earlier in these reasons.

29 Insofar as the parens patriae jurisdiction is sought to be invoked, I would not summarily dismiss the proceedings on the ground they disclose no reasonable cause of action. The preferable ground for summarily dismissing the proceedings insofar as they seek to invoke that jurisdiction is that to seek to invoke the parens patriae jurisdiction in the present circumstances is an abuse of process. That is also a ground upon which proceedings can be dismissed under r 13.4. No different matters are raised by that ground than have been ventilated in the course of the hearing.

30 I also consider that, for the same reasons, no reasonable cause of action is disclosed because it is not proper to invoke the Court’s parens patriae jurisdiction in the present circumstances.

31 For these reasons I order that the proceedings be dismissed.

32 I should add after delivering these reasons, the plaintiff said that I should only concentrate on para 14. Paragraph 14 is the paragraph of the notice of motion by which the Director-General sought the order that the proceedings be dismissed and I have made that order.

33 I note that no party seeks an order for costs.

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