Re Tilly

[2015] NSWSC 1208

Supreme Court

New South Wales

Medium Neutral Citation:	Re Tilly v Minister for Family & Community Services [2015] NSWSC 1208
Hearing dates:	30 June 2015, 1 July 2015
Date of orders:	03 July 2015
Decision date:	03 July 2015
Jurisdiction:	Equity - Protective List
Before:	Brereton J
Decision:	Notice of motion dismissed; Secretary of Department of Family and Community Services relieved from undertaking.
Catchwords:	FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – application to prevent removal of child from plaintiff’s care – where allegations of mistreatment – where statutory obligation on department to remove child – whether Court can make orders inconsistent with statute – parens patriae jurisdiction – parens patriae power not capable of dispensing with statutory obligations – residual parens patriae power to remove child from Minister’s care in aid of statutory care responsibilities – held, Court has power to make child ward of Court – whether Court should exercise parens patriae jurisdiction – best interests of child – where removal would undermine child’s bonds with plaintiff – where need to protect child from risk of harm – where exercising jurisdiction would circumvent statutory child protection regime – held, Court should not exercise parens patriae jurisdiction. ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – whether rules of procedural fairness apply to decision of Children’s Guardian to impose interim bar on plaintiff’s performance of child-related work under (NSW) Child Protection (Working with Children) Act 2012 – where review mechanism specifically prescribed under Act through New South Wales Civil and Administrative Tribunal – held, decision not subject to rules of procedural fairness.
Legislation Cited:	(CTH) Family Law Act 1975 (NSW) Adoption Act 2000 (NSW) Child Protection (Working with Children) Act 2012, s 15(1), s 17, s 17(3), s 19, s 20, s 23, s 35(1), pt 4, sch 1 cl 2 (NSW) Children and Young Persons (Care and Protection) Act 1998, s 49, s 83(7), s 90, s 135A, s 137(1), s 138, s 139(1), s 140, s 247 (NSW) Children and Young Persons (Care and Protection) Regulation 2012, cl 42B, cl 42B(3) (QLD) Children’s Services Act 1965-1973, s 47
Cases Cited:	Carseldine v The Director of Department of Children’s Services [1974] HCA 33; (1974) 133 CLR 345 K v The Minister of Youth and Community Services [1982] 1 NSWLR 311; (1982) 8 Fam LR 756 P v P [1994] HCA 20; (1994) 68 ALJR 449; (1994) 120 ALR 545; (1994) 181 CLR 583 Re Baby S [2014] NSWSC 871 Re Frieda and Geoffrey [2009] NSWSC 133; (2003) 40 Fam LR 608 Re Tilly and Minister for Family and Community Services [2015] NSWSC 229 Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 Re Woolley; Ex parte Applicants M276/2004 by their next friend GS [2004] HCA 49; (2004) 79 ALJR 43; (2004) 210 ALR 369; (2004) 225 CLR 1 TF v Department of Family & Community Services [2015] NSWSC 694
Category:	Principal judgment
Parties:	RB (plaintiff) Director General, Department of Family & Community Services (first defendant) Secretary, Department of Family & Community Services (second defendant) Life Without Barriers (third defendant) Office of the Children’s Guardian (fourth defendant)
Representation:	Counsel: P O’Dwyer SC (plaintiff) Ms G E Mahony (first and second defendant) M Higgins (third defendant)   Solicitors: Gordon & Barry Lawyers (plaintiff) NSW Crown Solicitor (defendants)
File Number(s):	2015/46266

Judgment (ex tempore)

1. HIS HONOUR: The fundamental question in the proceedings presently before this Court is whether the child known for the purposes of these proceedings as Tilly, a girl who was born on 29 March 2012 and thus slightly over three years of age, is, pending the hearing of proceedings presently before the Children's Court on 3 August 2015 for three days – that is to say, only a month hence – to remain in the care of the plaintiff RB, with whom she has been placed temporarily since 6 March 2014, or is to be removed from her care.

2. Tilly was removed from the care of her birth mother on 25 December 2013 on account of concerns about exposure to domestic violence, abuse of drugs and alcohol, and neglect. Under (NSW) Children and Young Persons (Care and Protection) Act 1998 ("the Care and Protection Act"), s 49, the Secretary of the Department, as the Director-General referred to in the legislation is now known, has care responsibility for Tilly. Tilly was, as I have said, placed with the plaintiff on 6 March 2014 as a temporary placement, pending determination as to the ultimate question of parental responsibility and permanent placement. The Children's Court, on 25 February this year, made a finding pursuant to Care and Protection Act, s 83(7), that there is no realistic possibility of restoration to the birth parents, and it follows that it is likely, unless an application under s 90 of that Act were to succeed, that parental responsibility for the child would be allocated to the Minister, until she attains 18 years of age. On the same day, the present plaintiff was joined as a party to the Children's Court proceedings as she seeks to have Tilly remain on a long term basis in her care.

3. Tilly’s placement with the plaintiff is managed by an organisation called Life without Barriers ("LWB") which is a "designated agency" for the purposes of Care and Protection Act, s 139(1)(b). Under s 138, arrangements for the provision of statutory out-of-home care may only be made by a designated agency or the Children's Guardian, and a person other than a designated agency or the Children's Guardian who places or arranges for the placement of a child in statutory out-of-home care is guilty of an offence.

4. Under Care and Protection Act, s 135A, statutory out-of-home care is home care that is provided in respect of a child for a period of more than 14 days pursuant to a care order of the Children’s Court or by virtue of the child or young person being a protected person. “Protected person” means a person who is a ward of this Court or subject to an order of this Court in its parens patriae jurisdiction and of whom the Minister or the Secretary has custody or care pursuant to an order of this Court, or a person under the parental responsibility of the Secretary under the (NSW) Adoption Act 2000, or a person in respect of whom the Minister or Secretary has parental responsibility pursuant to an order under the (CTH) Family Law Act 1975. Under s 140, the designated agency that places a child or young person in the out-of-home care of an authorised carer has a responsibility to supervise the placement.

5. There is some evidence that Tilly has done well in her placement with the plaintiff. A report dated 29 July 2014, after Tilly had been in the plaintiff's care for about four months, entitled "Out of Home Care Assessment Report" and prepared by a paediatric fellow and a paediatrician, concluded that Tilly had made good progress in her current placement and included observations that throughout the assessment she appeared to have a strong attachment to her carer – the plaintiff – demonstrated by seeking her out for emotional comfort and reassurance, sitting on her lap whilst drinking milk from a bottle, and hugging her, as well as going out to explore and then returning back to the plaintiff. A more recent report, obtained by the plaintiff on 18 March 2015 from a paediatrician, reports that Tilly is a healthy child with no medical problems, fully immunised, who appears very happy and content in the plaintiff's care, and concludes that she seems happy and healthy and obviously has a close relationship with the plaintiff. Neither of those reports contains anything that would suggest any problem in the care that Tilly is receiving from the plaintiff, or in the relationship between them.

6. Tilly has a half-brother who was removed from his mother's care at birth. He is now aged 12 months, and is presently in temporary care arrangements elsewhere.

7. The plaintiff is 47 years of age. So far as I can tell, from the limited evidence available on this urgent application, she is at least now the sole parent of two boys, aged 17 (or 18 today) in one case and 15 in the other. She was an "authorised carer" for the purposes of Care and Protection Act, s 137(1)(b). As such, she is a person with whom children in statutory out-of-home care can be placed.

8. On 31 July 2013, the Office of Children’s Guardian issued a Working with Children Clearance to the plaintiff, valid for a period of five years. She was originally approved by LWB as a single foster carer on 30 November 2009, and that approval was renewed after review on 22 December 2010, 21 November 2012 and 8 October 2013. It is said that on the last occasion the renewal was for a period of 12 months, although that is not entirely clear on the evidence. Since 2009, she has fostered a number of children, as well as having her two teenage boys, already mentioned, in her care.

9. Three children (whom, for present purposes, I will call the “L” children) were placed with her on 9 October 2009 when they were aged eight, seven and six years respectively. They remained in her care until 22 March 2013. On 10 March 2010, one of those children made allegations that the plaintiff had hit him with a tennis pole or racquet and smacked one of them. LWB found the first of those allegations to be false, and the second was not sustained due to lack of evidence of weight.

10. On 13 September 2010, four more allegations were made in respect of the plaintiff’s care of the L children, including using a back shed as a timeout area on a number of occasions late in the day or in the evening when it was dark, and smacking. Those allegations were found to be not reportable conduct in two cases, not sustained due to lack of weight of evidence in the third case, and false in the fourth.

11. A further allegation was made in respect of the plaintiff’s care of those children on 12 July 2012. It was dismissed by LWB as “not in jurisdiction”. A fourth set of allegations, including slapping, choking and other physical maltreatment, was made on 22 September 2011. LWB found all of those allegations to be false. A fifth allegation of assault was made on 1 December 2012. It was found by LWB to be false.

12. On 21 March 2013, it appears that all three “L” children (who may have been at school, I cannot tell with certainty from the evidence) together made disclosures of multiple physical assaults and ill treatment, including threats with knives, as a result of which the children were removed from the placement and placed elsewhere on 22 March 2013.

13. It is important to appreciate that, in the context of this case, it is not possible to investigate the truth of any of those allegations, and it is also important to remember that not a single one of them was found sustained by LWB who investigated them. That said, it is a rather extraordinary litany of complaints by three children over a period of some three years, when the youngest was aged between six and nine and the oldest between eight and 11 (or thereabouts).

14. Nine months later, after the removal of those children, on 10 January 2014, two boys then aged 13 and 11 were placed with the plaintiff. Again so far as can be ascertained from the limited available evidence, the placement appeared to proceed well for about five months, but strains in it emerged in about May of 2014. It seems likely that these boys posed not inconsiderable behavioural challenges, and that the plaintiff found them difficult to manage.

15. On 26 April 2014, one of the boys made an allegation that he had been smacked, albeit softly, in response to refusing to eat his vegetables. LWB found that to be not reportable conduct.

16. Following an incident which occurred on or about 22 August 2014, of which accounts differ in significant respects, she requested that they be removed from her care, and they were removed on or about 25 August and placed elsewhere. At that time, the plaintiff said that she wanted to focus on younger children, preferably girls.

17. After their removal, the two boys made a number of allegations of mistreatment by the plaintiff. They alleged that on 20 August 2014, the plaintiff had hit one of them in the head, and then tried to strangle him. They alleged that on 23 August 2014, she had slapped one of them and then later threatened to stab him with a knife. They alleged that she had slapped one of them as a result of not eating his food.

18. After investigation, the LWB officer found those three allegations sustained. Other allegations, including consistent hitting, a threat to kill one of the boys and a physical assault, were found not to be sustained due to lack of evidence of weight. A seventh allegation made by the boys was that the plaintiff hit Tilly often or frequently. The LWB officer found that, on the balance of probabilities, the allegation that a physical assault occurred on Tilly was sustained.

19. Criticism has been made of the investigation undertaken by LWB. It has been observed that, particularly when they were interviewed a second time, leading questions were in some respects asked of the boys. It has also been observed that relevant potential witnesses suggested by the plaintiff, including her natural children and including the carers at the childcare centre that Tilly attends, were not interviewed.

20. Those are valid criticisms, and were this a criminal case requiring proof beyond reasonable doubt, there would be serious questions as to whether this report even approached the standard that would be required. That said, the LWB officer has produced a report of 59 pages of single spaced typing which, it might be said, considers in detail and analyses with some discipline and rigor the various allegations and responses, to reach conclusions that are expressed to be on the balance of probabilities.

21. I do not read the Chief Judge’s observations in her Honour’s judgment of 13 February of this year [Re Tilly and Minister for Family and Community Services [2015] NSWSC 229] in earlier proceedings, to which I will come, as nearly as censorious of this report as was at times suggested. I accept that it is imperfect, but in an environment in which the opportunities to call and cross-examine witnesses do not exist, at least in the same way as they do before a Court, it seems to me that a fairly diligent and detailed approach was taken to endeavouring to resolve difficult questions.

22. It was, of course, while the two boys were placed with the plaintiff that Tilly was also placed with her on 6 March 2014. Following the completion by LWB of its investigation, it determined to remove Tilly from the plaintiff’s care and place her elsewhere. It endeavoured to do so, with very little notice, on 12 February this year. The plaintiff thereupon commenced proceedings in this Court to obtain an interim interlocutory injunction ex parte restraining the removal of Tilly that day, which injunction was continued when the matter returned before the Court on 13 February by the Chief Judge.

23. In a judgment delivered on 13 February [Re Tilly and Minister for Family and Community Services [2015] NSWSC 229], the Chief Judge, after making some observations about the LWB investigation, concluded (at [15]):

In the circumstances, notwithstanding the very firm submissions made by Ms Stevens of counsel (for the defendants) that I should not continue the injunction, I intend to do so for the time being. This will enable the consolidation of the applications before various Courts and Tribunals in respect of Tilly and will also enable a more orderly approach to any transition, if that is what is to happen.

24. Her Honour therefore ordered that, until 2 March 2015, the respondents, who were then the Minister and the Secretary, be restrained from taking any steps to remove Tilly from the care of the plaintiff, reserving leave to the defendants to bring an application to discharge the injunction on one day’s notice on any new or further evidence.

25. In referring to the applications before various Courts and tribunals, her Honour was referring to the proceedings pending in the Children’s Court in respect of Tilly’s care and parental responsibility for her, and proceedings pending in the New South Wales Civil and Administrative Tribunal (“NCAT”) by way of review or appeal of LWB’s decisions to cancel the plaintiff’s authorisation and to find the allegations, to which I have referred, sustained. There was also an application to NCAT for review of LWB’s decision not to accept the plaintiff as a candidate for long term care of Tilly. At that time, it was envisaged that the proceedings in the Children’s Court would be determined within about a fortnight of 13 February.

26. On 17 February 2015, LWB informed the plaintiff that in light of the recent investigation and findings of sustained allegations of reportable conduct, it was required to review her suitability to remain authorised, and to determine whether that conduct posed a significant risk of harm to children, and was proceeding to undertake that review immediately. It pointed out that this did not affect the separate right to seek a review of the reportable conduct investigations, about which further information was provided. LWB requested that the plaintiff contact them within 14 days in connection with the review of her carer authorisation. The purpose of that invitation was to enable her to make submissions and to provide information in that respect.

27. On 27 February 2015, NCAT adjourned the proceedings before it to 24 March and noted an undertaking by LWB that no steps would be taken to remove the child from the plaintiff until the determination of the pending Children’s Court proceedings, except where LWB reasonably considered that there was an immediate risk of harm to the child or where the carer’s authorisation was suspended or revoked by LWB, thereby preventing the continuation of the child’s placement with the plaintiff.

28. The proceedings in this Court returned before Rein J on 2 March 2015, when orders were made that the Department pay the plaintiff’s costs of the proceedings, and the Secretary gave to the Court an undertaking that:

No steps will be taken by the Secretary of the Department of Family and Community Services to remove the child Tilly from her placement with her current carer before the resolution of proceedings number 224/20143 in the Children’s Court of New South Wales except where the Secretary or his delegate reasonably considers that there is an immediate risk of harm to the child on fresh information about such risk of harm.

29. The order reserved liberty to the parties to apply in general, “and in particular, including the event that the plaintiff’s authorisation as an authorised carer is cancelled or revoked.” In my judgment, it is very clear that that undertaking would have conveyed to any person reading it that, except in the event of immediate risk of harm, the Secretary (and implicitly the Secretary’s Department and those acting in connection with the discharge of the Secretary’s care responsibility for the child) would take no step to remove the child from the plaintiff and that if the plaintiff’s authorisation as an authorised carer were cancelled or revoked, the Secretary would exercise the liberty to apply before endeavouring to remove the child.

30. Meanwhile, LWB conducted a review of the investigation findings, and confirmed those findings. By (NSW) Child Protection (Working with Children) Act 2012 (the “Working with Children Act”), s 35(1), LWB, as a reporting body, was bound to notify the Children’s Guardian of the name and other identifying particulars of the plaintiff, it having made a finding that she had engaged in conduct specified in cl 2 of sch 1 of that Act – namely, “any serious physical assault of a child”. In turn, as it was bound to do by Working with Children Act, s 15(1), the Children’s Guardian conducted a risk assessment of the plaintiff, being the holder of a clearance, to determine whether she posed a risk to the safety of children, the Guardian having become aware that she was subject to an assessment requirement, that assessment requirement being the matter referred to in cl 2 of sch 1 of the Act to which I have referred.

29. On 23 June 2015, the Children’s Guardian sent to the plaintiff a letter advising that, having conducted that risk assessment, it had concluded that there was a likelihood that she posed a risk to the safety of the children, should she engage in a child-related role, and had decided that she was subject to “an interim bar” under Working with Children Act, s 17. That section provides that the Children’s Guardian may, at any time after commencing an assessment of a holder of a clearance, determine that the holder is subject to an interim bar on engaging in child-related work. That section also requires, by subsection (3), that the guardian, as soon as practicable after imposing an interim bar, notify to the holder and any employer or proposed employer of the holder engaging in child-related work that she is subject to an interim bar.

30. (NSW) Children and Young Persons (Care and Protection) Regulation 2012, cl 42B, provides that the authorisation of a person as an authorised carer is automatically cancelled if the person is subject to an interim bar. By subsection (3), the designated agency that supervises the out-of-home care of a child in the care of a person whose authorisation is cancelled must, within 48 hours of becoming aware of the cancellation, ensure that the child no longer resides with the person.

31. On 26 June 2015, without any attempt to exercise the liberty to apply referred to in this Court’s order of 2 March, LWB sent a letter to the plaintiff’s solicitor advising that, after conducting its own risk assessment and by reason of the interim bar, it had decided that it was appropriate that her authorisation be cancelled. It also explained that by reason of the Children’s Guardian’s decision to impose an interim bar, her authorisation was automatically cancelled. The letter continued, “accordingly, we advise that we intend to change T’s placement today.” Some advice was given about applying for a review of the Children’s Guardian’s decision, and the letter continued:

In accordance with our obligations under cl 42 of the Care and Protection Regulation, we will collect T from your home at 2pm today. Please ensure that she is ready and her belongs are packed ...

34. The plaintiff did not comply with that demand and, later on the same day, LWB sent to her solicitor a further letter which indicated that they had made a “Helpline report” to the Department and asked that she immediately arrange for the child to be collected either by the Department or by LWB. Confronted with this, the plaintiff, late on the afternoon of last Friday 26 June, applied ex parte to White J, sitting as duty judge, for an order restraining the Minister, the Secretary, LWB and the Children’s Guardian from taking steps to remove the child from her care.

35. Criticism has been advanced, and some effort embarked upon to adduce evidence, of the manner in which the plaintiff’s solicitor made that approach; and in particular, in whether proper notice was given to the Crown Solicitor of the application. It is common ground that the Crown Solicitor was notified that an application was to be made. It is clear enough that the respondent’s solicitor in the Crown Solicitor’s office requested to be told when the plaintiff’s solicitor was leaving her office to go to Court, and to be provided with the relevant documents. The plaintiff’s solicitor has explained that she gave instructions to her assistant to forward that material as she left the office to approach the Court, which could not have been very long before 4pm last Friday afternoon, and that due to a distraction in the office, her assistant did not forward the documents immediately or in a timely manner.

36. Given the contemporaneous statement of the plaintiff’s solicitor as recorded in the transcript before White J on 26 June that “…my assistant has arranged for copies of the documents that I seek to file in Court to be served upon each of those parties, and I indicated to each of the parties that I would be seeking an order from this Court restraining, at least until further order, the removal of the child Tilly…”, I am not in doubt that that was the solicitor’s state of mind when she was before the Court, and that she had given such instructions to her assistant. In any event, I think there needs to be some appreciation of the circumstances that confronted the plaintiff’s solicitor – a highly urgent situation in which, so far as appeared, despite a solemn undertaking by the head of a government department to this Court, steps were going to be taken by persons who, whether or not strictly agents of the Secretary, were discharging the Secretary’s responsibility, in defiance of that undertaking without exercising the liberty to apply which had been specifically reserved to cover that very eventuality. The situation could easily have been defused if the solicitor for the plaintiff had been told, as the Court ultimately was, that all these demands were simply requests for the voluntary delivery up of the child, and there was no intention to effect any involuntary removal without first approaching the Court to be relieved of the undertaking.

37. However, those are really side issues, although given the attention they received in the course of the hearing, I have felt it necessary to explain why I see nothing meriting criticism in the plaintiff’s solicitor’s conduct, although it is admittedly unfortunate that the Crown was not notified with greater speed, particularly given the conversations that took place. If there is any call for criticism, which I do not propose to dispense, it would lie on the other side.

38. The real issues are whether, notwithstanding the dictates of the statutes to which I have referred, the Court can and, if so, should, make orders having the effect that the child remain in the care of the plaintiff until the determination of the proceedings in the Children’s Court. In this respect, the plaintiff relied principally on Children and Young Persons (Care and Protection) Act, s 247, which provides that nothing in that Act affects the jurisdiction of the Supreme Court.

39. What that means is that, although a detailed statutory regime is provided by the Children and Young Persons (Care and Protection Act), the Court’s parens patriae jurisdiction is preserved. But that does not mean that the statutory regime is irrelevant to the exercise of the parens patriae jurisdiction. First, I am unable to accept that the preservation of the parens patriae power enables the Court to make orders that require a person to act contrary to statute law or which are directly inconsistent with statute law. In P v P [1994] HCA 20; (1994) 68 ALJR 449; (1994) 120 ALR 545; (1994) 181 CLR 583, Brennan J (as the later Chief Justice of Australia then was), albeit in a judgment that was in dissent on the outcome, addressed the interaction of the parens patriae power and statute law (at 619-620) and, with reference to high authority in the United Kingdom, explained that the fundamental principle was that the prerogative powers had to yield to statute and that the prerogative powers, including the parens patriae power, could not authorise a Court to dispense with the statute law. Similarly, in Re Woolley; Ex parte Applicants M276/2004 by their next friend GS [2004] HCA 49; (2004) 79 ALJR 43; (2004) 210 ALR 369; (2004) 225 CLR 1, McHugh J (at [101]) said, in the context of the power to detain unlawful non-citizens who were children:

The parens patriae jurisdiction of the courts cannot be invoked to read down the legislative direction that children who are unlawful non-citizens must be detained in immigration custody.

40. Accordingly, I cannot, under the guise of the parens patriae power, make an order restraining the defendants from performing their statutory duties, nor an order permitting the plaintiff to commit what would be an offence under the Working with Children Act.

41. However, that is not the end of the matter, because the preservation of the parens patriae power enables the Court, by making the child a ward of care, to remove her from the care responsibility of the Minister, and to place her care responsibility elsewhere, for example, with the plaintiff.

42. It is well established that the residual parens patriae power is to be rarely exercised, only in an exceptional case – for example, where the child’s interests are not being served by being in the parental responsibility of the Minister. But that this type of course can be taken in an appropriate case appears from a number of cases. In Carseldine v The Director of Department of Children’s Services [1974] HCA 33; (1974) 133 CLR 345, Mason J (as the later Chief Justice then was), with whom Barwick CJ and McTiernan and Stephen JJ agreed, held that the inherent jurisdiction of the Supreme Court (in that case, of Queensland) in relation to the custody of infants, had not been abolished by the (QLD) Children’s Services Act 1965-1973 in respect of a child admitted to the care and protection of the Department by a declaration of the Director made under that Act. Although the case was perhaps stronger because it involved a child voluntarily admitted under s 47, rather than one made a ward of the Department by order of the Children’s Court, his Honour said (at 366):

In considering whether there is a necessary implication that the inherent jurisdiction is displaced, it must be kept firmly in mind that in accordance with tradition the guardianship and custody of infants has been the subject of judicial determination. Hitherto curial orders have been central to the entire concept of guardianship and custody. A total departure from the procedure of judicial determination and the substitution for it of a system of administrative discretion is, I think, a conclusion not lightly to be attributed to the statute unless its language and provisions clearly compel that result. Although the legislative scheme is far-reaching I do not think that its extensive character is a sufficient ground for concluding that the prerogative jurisdiction of the Supreme Court is entirely displaced. There may be occasions for its exercise in aid of the Director's statutory responsibilities or when it appears that the Director is not discharging his responsibilities or exercising his powers in conformity with the Act.

43. While acknowledging that, in the case of an order for admission to care and protection made by the Children’s Court, the position was less clear, his Honour said (at 364):

Even so, notwithstanding the far-reaching nature of the statutory scheme, it may be possible to say that the inherent jurisdiction is not wholly ousted and that it remains available to be exercised, not in competition with the care and protection which is vested in the Director by the Act, but in aid of his statutory responsibilities, and if need be, when the Director is not performing his duties and exercising his powers in accordance with the Act.

44. In this State, in K v The Minister of Youth and Community Services [1982] 1 NSWLR 311; (1982) 8 Fam LR 756, Helsham CJ in Eq referred to Carseldine and other relevant authorities, in concluding (at 323F) that:

…good reason would have to be shown why the court's jurisdiction over these children is excluded. I do not think there is any reason why it is excluded.

45. His Honour appears to have accepted that the Court could not interfere with the terms and conditions on which the Minister had exercised custody under the Act, but subject to that limitation, was of the view that (at 325-26):

…the inherent power of the court by delegation from the Crown of its prerogative right as parens patriae of looking after the interest of infants has not been displaced with respect to wards of the Minister in this State, except in so far as it concerns the appointment of guardians and the powers of guardians concerning custody. The power of the court goes beyond such matters. It extends to the control of the child itself, including matters relating to its welfare

46. The judgment of Palmer J in Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 has often been referred to, both in the context of holding that this Court’s parens patriae jurisdiction survives and can be employed inconsistently with a result reached under Children and Young Persons (Care and Protection) Act, but also for the proposition that the Court will exercise the jurisdiction in those circumstances only in an exceptional case [see also Re Frieda and Geoffrey [2009] NSWSC 133; (2003) 40 Fam LR 608 (White J), in which the parens patriae jurisdiction was exercised at the suit of the Minister to make an interim care order different from that which had been made in the Children’s Court, and more recently Re Baby S [2014] NSWSC 871 (White J) and TF v Department of Family & Community Services [2015] NSWSC 694].

47. If I was satisfied that the statutory straightjacket which requires the removal of the child from the care of the plaintiff in the circumstances were contrary to the best interests of the child, then it would be open to the Court to make the child a ward of the Court, thereby removing her from the statutory regime and placing her with the plaintiff, in which case she would not be in "statutory out-of-home care" as defined (because though a ward of this Court she would not be in the care or custody of the Minister or Secretary), and the interim bar and absence of a Working with Children Clearance would apparently not pose an obstacle to that course.

48. I have also considered whether a like result could be achieved by impugning the decision of the Children's Guardian to impose an interim bar for denial of procedural fairness, the plaintiff not have having been afforded an opportunity to be heard on that decision before it was made. However, on a review of the Working with Children Act as a whole, I think an intention that the rules of natural justice not apply to such a decision becomes apparent. The Children's Guardian is empowered under that Act to make various decisions adverse to an applicant for, or a holder of, a Working with Children Clearance. Section 19 provides that if the Guardian proposes not to grant a clearance to a person, it must notify the person in writing of the proposed decision and the opportunity to make a submission, and consider any submission so made before finally deciding the application. Thus, s 19 specifically provides for how a limited measure of natural justice is to be afforded in connection with a decision not to grant a clearance. Section 20 provides that notification of a final decision not to grant a clearance must, amongst other things, set out the reasons for the refusal and the right to seek a review of the decision under Pt 4.

49. Section 23 pertains to the cancellation of existing clearances. It provides that the Guardian must cancel the clearance of a person if it becomes aware that the person is a disqualified person or is satisfied that the person poses a risk to the safety of children. It must notify the holder of a clearance, and the notice must set out the reasons for the cancellation and the right to seek a review under Pt 4. In contrast to s 19, there is no obligation to give notice of intention to make the proposed decision to cancel. It appears that the intention is that a limited measure of natural justice is afforded by the ability to seek review of the decision under Pt 4.

50. Section 17 is the section that deals with interim bars, and it contains no requirement to give notice before imposing an interim bar and is thus to be contrasted with s 19. It provides that it must give notice that the holder is subject to an interim bar, and that the bar ceases to have effect in a number of circumstances, including 12 months after the bar takes effect. In other words, an interim bar is a temporary measure for up to 12 months, and in contrast to the other provisions, contains no inbuilt requirement for an opportunity to be heard, even after the decision is made. However, Pt 4 of the Act provides that an application may be made to NCAT by a person who is subject to an interim bar for an administrative review of the decision, "but only if the interim bar has been in force for more than six months." The intention appears to be that there be a limited measure of natural justice by way of a review application, but only if the bar has been in force for more than six months.

51. Accordingly, as things stand, although the matter has not been capable of full argument at this stage, I would not be inclined to find that the Children's Guardian was, in making a decision to impose an interim bar, obliged to afford the plaintiff an opportunity to be heard or otherwise to make submissions or adduce evidence.

52. I return then to the application of the parens patriae jurisdiction. In deciding whether the circumstances are sufficiently extraordinary to justify recourse to the residual parens patriae jurisdiction, the touchstone must be the best interests of the child. But those interests have to be seen in an overall context. So far as the best interests of the child are concerned, there are, it seems to me, two strongly competing considerations. It is undoubtedly in the interests of the child to have stability, and that existing and established bonds of attachment not be fractured. To remove the child at this stage from the plaintiff would do just that and fracture what appear to be prospering bonds of attachment between them (at least based on the two reports to which I have referred). It is usually even less desirable to disrupt the status quo only a month prior to a hearing which will make a determination about the child's future and permanent placement after a much more extensive hearing and much more detailed examination of the evidence than I have been able to undertake. That consideration, which can shortly be called the stability and attachment consideration, points strongly in favour of the best interests of the child being to remain where she is.

53. The strongly competing consideration is the principle, reflected in the Care and Protection Act, but also in the parens patriae jurisdiction, that protection of children from harm or the risk of harm is at the forefront of the exercise of the protective jurisdiction. I do not think I can overlook that five children – the “L” children and the two boys – who have been independently in the plaintiff's care over different periods of time, and where there is no reason to suspect any connection or communication between them, have each made litanies of complaints about the plaintiff's care of them. I am entirely conscious that many of these have been not sustained, and some of them have been found to be false by LWB. I am also conscious that there are some inconsistencies, even in the complaints that are found to have been sustained, and it may well be that ultimately none of them is shown to have any merit. That said, this raft of complaints by two different groups of children over a sustained period of time with some commonalities between them does give cause to think that it is unlikely that a court making a final decision about where Tilly should be placed will place her in an environment where there is some evidence of risk, when she could be placed elsewhere, knowing, in any event, that the placement with the plaintiff was only ever intended to be a temporary one.

54. Even if all the allegations of the five children as made are false, the fact remains that five children appear to have been very unhappy in the plaintiff's care. It is entirely possible that with a younger child and a girl, such as Tilly, the dynamics between them might be quite different, and there is reason to believe, based on the paediatric reports to which I have referred, that there is a very good relationship between them. But the evidence paints such a picture of potential risk that it is one that a court would have to be hesitant to embark upon, even for a month.

55. Those reservations are fortified, first, by the circumstance that this was always intended to be a temporary arrangement; secondly, by the fact that the Secretary has care responsibility for the child and favours the removal and replacement elsewhere of the child; thirdly, that the preferred long term plan from the Secretary's perspective appears to be to place the child with her sibling in permanent care, which is a very orthodox approach that might be thought would be likely to find favour in the Children's Court; fourthly, that because she is a single parent with two teenage boys, the plaintiff has no such in-built or in-house safety net as would often be available in other circumstances; and fundamentally, that by taking the course I have contemplated, the Court would effectively be subverting a statutory scheme which was deliberately established by Parliament for the purpose of doing its utmost to ensure the safety of children, including children in care, at the accepted price that this would sometimes be harsh and unfair to persons other than those children. This is a very important consideration. Effectively, Parliament has decided that the presence of risk as determined by the Children's Guardian should effectively operate as an immediate and automatic bar to a person being engaged in child-related work. This can, and not infrequently does, operate very harshly on people who may well be entirely innocent of what is suspected; but that is a price the Parliament has decided is to be paid for maximising, to the greatest possible degree, the safety of children, particularly children in out-of-home care.

46. Not without regret, therefore, I have come to the conclusion that I should not exercise the parens patriae jurisdiction and intervene. It follows that I should relieve the Secretary from the undertaking previously given and from which the Secretary now seeks to be relieved.

47. The Court orders that:

1. The notice of motion filed on 26 June 2015 be dismissed;

2. The Secretary of the Department of Family and Community Services be relieved from the undertaking contained in paragraph 3 of the orders made on 2 March and entered on 6 March 2015.

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Decision last updated: 26 August 2015