GR v The Department of Communities and Justice [2021] NSWSC 513

Supreme Court New South Wales

Medium Neutral Citation: GR v The Department of Communities and Justice [2021] NSWSC 513 Hearing dates: 7 May 2021 Date of orders: 7 May 2021 Decision date: 10 May 2021 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See para [37] Catchwords: CHILD WELFARE — Care proceedings — Contact order Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 Category: Procedural rulings Parties: GR (plaintiff) Secretary, Department of Communities and Justice (first defendant) Minister for Families, Communities and Disability Services (second defendant) The Father (third defendant) K Wooi (Independent Legal Representative for Child) W Hoyles (Guardian et litem) Representation: Counsel: GR (self represented) M Anderson (first and Second defendants) Father (self represented) K Wooi (for Independent Legal Representative for Child)

Solicitors: Self represented (plaintiff) Crown Solicitors (1 and 2nd defendants) Self represented (3rd defendant) K Wooi (Independent Legal Representative for Child) File Number(s): 2020/123080

Judgment – ex tempore 1. By amended summons dated 23 April 2020 GR by her appeal seeks to challenge the decision of the Children's Court of 3 April 2020 and amongst other relief, seeks a recovery order for the child, her son, into her care. 2. I have been case managing the appeal proceedings for some time. The appeal was to be heard for two weeks last November / December 2020 (November 23, 24, 25, and December 7, 8, 9, 10 and 11). 3. By reason of certain interlocutory proceedings brought by GR the appeal was adjourned and is listed to proceed before me for the two weeks commencing 5 July 2021. 4. There have been other interlocutory proceedings before me since last year dealing with various matters, including access to documents for the appeal. 5. I should also add that on 17 May 2021 there is to be heard before the Court of Appeal leave applications by GR against decisions of mine of last year refusing GR judicial review of the care order of the Children's Court and also refusing to replace or dismiss the Independent Legal Representative of the child. 6. Last week, and not for the first time, GR has requested certain contact or access arrangements concerning the child be made. In the current motion before the court (which takes the form of draft short minutes) she seeks certain orders which would allow her access to the child on 9 May for a full day in his residential home without supervision, and with privacy and that she be allowed to spend time alone in his bedroom, kitchen, lounge or other room in the house, and including preparing meals together and excursions from the home. 7. Other orders are sought beyond 9 May. GR also seeks to be permitted daily two hour zoom video calls with the child and weekly full day visits in person to his residential care home. In particular, while GR is in Sydney between 13 and 22 May 2021, she seeks to be permitted to visit the child in person in his residential home and take him food, prepare and have meals with him, and take him on excursions for up to six hours per visit. 8. The history of proceedings brought by GR from time to time is extensive to say the least. A survey of the multiple applications she has been party to is chronicled to a large extent by Ward C J in Eq in GR v Secretary, Department of Communities and Justice [2020] NSWSC 739. 9. By order of the Children's Court on 3 April 2020, all aspects of parental responsibility for the child including contact were allocated to the Minister. The Children's Court, however, made no orders in respect of contact between the child and GR. 10. There is ample power for this court to make contact orders, s.86 Children and Young Persons (Care and Protection) Act 1998 (NSW). Such orders can be made on an interim or final basis, s.62. Interim orders can be made pending a final determination, ss.69 and 70. 11. The history of the current arrangements is set out in the submissions of the Secretary, paras 10-19. Those arrangements have their genesis in orders made by Kunc J in November 2019. 12. This motion as it were is proceeding in a somewhat unstructured way but given its urgency and the fact the GR is a litigant in person, albeit an experienced one, I am prepared to entertain the motion in this manner. 13. The child (DOB 27 October 2004) has been the subject of many medical reports over the years. Two of the most recent are those of Professor Stewart Einfeld of 29 April and that of Dr Michael Fairley of 3 May 2021. I shall return to these shortly. 14. The child is now a young man and has previously been diagnosed with Autism Spectrum Disorder. He has been under treatment for some years. He had been seriously ill at one stage requiring admission to hospital. 15. From the medical reports of recent years it cannot be gainsaid that the relationship between GR and the child has from time to time been fraught. 16. In his report of 27 March 2020 Dr Fairley, a child and family psychiatrist, (not having interviewed the child) having noted his Autism Spectrum Disorder since infancy, was concerned that the parents had not demonstrated a capacity to utilise and co-operate with services that could benefit the child. 17. In his report of 20 April 2020 Dr Fairley expressed the view that the child should be capable of forming and expressing an opinion about his wish for contact with his parents. 18. However, Dr Fairley writing again on 2 November 2020 (having visited him on 19 October 2020) was caused to say that the child's then care arrangements were "excellent" and that they afforded him the best chance of recovery, which could take, he thought at that stage, up to two years. He recognised the fragile nature of the child's condition and that return to GR's care should be gradual at [22]-[25]. 19. On 3 May 2021 (having seen the child on 1 April) Dr Fairley stated that the child had expressed no interest in seeing his mother or father although he expressed an interest in going home because he wanted to be left alone with access to the internet and an opportunity to make his "app", see [4] and [17]. 20. Professor Jureidini, a consultant psychiatrist, has provided reports but they go as best as I can understand them to the child's treatment regime. Those reports are from 2020. 21. Professor Stewart Einfeld had also provided reports on 25 March 2020 and 9 November 2020. He is a child and adolescent psychiatrist. He expressed the view that the child was receiving a high quality level of care. He also described the relationship with both parents as a dysfunctional mother/ father/ child interaction. In those reports he thought that there was need for therapy not just for the child but for the parent/ child relationship. Without it he felt the real advances made by the child would be lost. 22. In his most recent report of 29 April 2021, he indicated he had visited the child in company with Dr Fairley on 29 March 2021. Professor Einfeld indicated that the child did not wish to see his parents not however because he found it stressful but because interpersonal contact away from his home was irrelevant. Although not obviously depressed he thought the child remained "severely impaired compared with a healthy 17 year old." He also expressed the view that the child expressed less motivation to contact either of his parents than he did in October 2020. But he wanted to go home. In the end he thought the current placement provided the best opportunity for useful mother- child therapy. 23. Dr Anthony Milch, a child, family and adult psychiatrist has been retained by the Secretary. In his report of 3 September 2020 (commenting on his previous report of 4 October 2019) he expressed the view that GR's intermittent abuse and unstable mental state had continued to undermine the child's progress and care, [8]. 24. He also commented on the differing expert opinions on the child's treatment and in particular the stress caused by ongoing litigation on all concerned but especially the child, [9] and [11]. 25. As a result of what he described as the child's complex needs, [14], he thought his then care arrangements should remain in place. 26. Dr Milch has prepared a more recent report of 6 April 2021. He conducted a review of the child on 17 March 2021. For that purpose he conducted additional interviews with a number of carers and Dr Lisa Fahey, who is a treating doctor. 27. He had also been provided with a large array of materials. Dr Milch expressed the view that the child had made significant progress since his discharge from Westmead Hospital, [5]. According to Dr Milch, the child repeatedly stated he wanted to return home "but did not identify any connection with his parents", [7]. 28. Overall Dr Milch thought there had been a "dramatic improvement in the child's physical health and mental state since 4 October 2019", [69]. Despite however his significant disabilities he had "thrived in response" to his current situation, [74]. 29. Dr Milch is of the view that contact with his parents should proceed in a safe and consistent manner, [78]. 30. Dr Milch is also of the view that the child should remain in his current care placement, [86]. 31. The Secretary relies on the affidavit of Ms Amy Eldridge of 6 May 2021. On the face of her evidence there have been difficulties encountered from time to time especially with GR during contact in relation to the mode and manner of contact GR has with the child [23]-[32]. On the face of that material, difficulties have arisen from time to time as a result of GR's attitude to directions to her as to how to communicate with the child. She has been, on one view of the evidence, resistant to directions which again on the face of the evidence has caused the child anxiety and distress. There have also been difficulties reported as a result of communications between GR and staff. I have not heard any oral evidence about these matters at the moment. 32. However all of this evidence and more is to be before me in July and I emphasise none of the current materials have been tested in any sense. In all of the circumstances I am of the view that no change to the current arrangements should occur for the moment. Given the history of this matter and the child's condition, changes should not be made on the run. 33. There are factual matters about which the court will need to be satisfied and make findings as a foundation for the future. The experts have differing views on some issues which need properly to be ventilated and resolved in the child's interest. 34. GR submits that to deprive the child of contact with his mother is an abuse of power and some of the views she attributes to Dr Fairley and Professor Einfeld, [8]-[12]. These views, however, need carefully to be considered in context and more importantly after further questions have been posed in the light of for example Dr Milch's recent report. 35. It is clearly not in the child's interests that there be a rushed or half-baked assessment done for the possibility for short term contact in the near future. His conditions and future in all relevant respects will thoroughly be ventilated and considered in the July hearing. 36. The Secretary has no objection to contact taking place on a supervised basis, [5]. GR's co-operation, indeed collaboration, with carers and the like is essential. 37. For the moment and pending the imminent hearing in July, the status quo is in the child's best interests and should be maintained. I would therefore reject GR's application. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2021