Court of Appeal Supreme Court New South Wales Medium Neutral Citation: GR v Secretary, Department of Communities and Justice; The Minister Families, Disabilities and Community Services [2021] NSWCA 234 Hearing dates: 20 September 2021 Date of orders: 28 September 2021 Decision date: 28 September 2021 Before: Simpson AJA Decision: 1. Concurrent applications for leave to appeal and appeal expedited. 2. Notice of Motion otherwise dismissed. 3. Applicant to pay respondent's costs. Catchwords: CHILD WELFARE – care proceedings – interlocutory application – whether care order should be stayed – whether orders should be made allowing child to live with mother or allowing daily contact – whether parens patriae jurisdiction should be invoked. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Children's Court Act 1987 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) [1985] 2 NSWLR 685; D v C [2018] NSWCA 190 GR v Secretary, Department of Communities and Justice [2019] NSWCA 177 GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198 GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 259 GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 348 GR v Secretary, Family, Disability and Community Service [2020] NSWSC 668 GR v The Department of Communities and Justice [2021] NSWSC 1081 Category: Procedural rulings Parties: GR (a pseudonym) (Applicant) Secretary, Department of Communities & Justice (First Respondent) The Minister Families, Communities & Disability Services (Second Respondent) AB (a pseudonym) (Fourth Respondent) Representation: Counsel: N/A M Anderson (First & Second Respondent) Solicitors: Self-represented (Applicant) Crown Solicitor of NSW (First and Second Respondents) Ms Phillips (Independent Legal Representative for Fourth Respondent) File Number(s): 2021/262590 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Equity – Expedition List Citation: GR v The Department of Communities & Justice [2021] NSWSC 1081 Date of Decision: 27 August 2021 Before: Sackar J File Number(s): 2020/123080 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. SIMPSON AJA: This proceeding concerns an order made under s 79 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care and Protection Act") allocating to the Minister, Families, Disabilities and Community Services all aspects of parental responsibility for a young person who has been referred to as "AB", an appellation I will adopt. The order was originally made on 3 April 2020 in the Children's Court by the President of that court. Pursuant to s 91 of the Care and Protection Act AB's mother (who has consistently been referred to as GR, also an appellation I will adopt) appealed against the order ("the s 91 appeal"). Pursuant to s 22A of the Children's Court Act 1987 (NSW), because the order was made by the President of the Children's Court, the appeal was taken to be an appeal to the Supreme Court. The parties to the appeal were nominated as: * Department of Communities and Justice ("Department") (first defendant); * Minister for Families, Community and Disabilities Services ("Minister") (second defendant); * BB (AB's father, third defendant); * Krstina Wooi (fourth defendant), an Independent Legal Representative granted leave to represent the interests of AB) ("ILR"). GR, as plaintiff in that proceeding appeared unrepresented, as she has in the present proceeding. The Department and the Minister were represented by Dr D Kell (the Crown Advocate) and Mr M Anderson. Ms Wooi appeared for herself. 1. On 27 August 2021, after a fourteen day hearing, Sackar J ("the primary judge") dismissed the appeal and confirmed the allocation of all aspects of parental responsibility to the Minister until AB attains the age of 18 years: GR v The Department of Communities and Justice [2021] NSWSC 1081. 2. On 10 September 2021 GR filed in this Court a summons seeking leave to appeal against that order together with a draft notice of appeal. She identifies as first respondent the Secretary of the Department ("Secretary"); otherwise the parties are named as the defendants in the s 91 appeal. 3. Any appeal for which leave is granted will be an appeal in accordance with s 75A of the Supreme Court Act 1970 (NSW). Such appeal is to be by way of rehearing (subs (5)); this Court has the powers and duties of the Supreme Court, including powers and duties concerning the drawing of inferences and the making of findings of fact (subs (6)). The Court may, by subs (7), receive further evidence but where, as here, the appeal is from a judgment after a trial or hearing on the merits, only on "special grounds" (subs (8)). 4. The President of the Court of Appeal has directed that the application for leave to appeal and (if leave is granted) the appeal be heard concurrently. 5. By notice of motion filed on 14 September 2021 GR sought 12 interlocutory orders. A hearing took place on 20 September 2021, at which GR pressed for: * an order staying the order of the Supreme Court of 22 August 2021 (by which the s 91 appeal was dismissed); * an order staying the order of the Children's Court of 3 April 2020 (by which all aspects of parental responsibility for AB were allocated to the Minister); * alternatively, an order that would enable her to live with AB, or, as a further alternative, that she have daily contact with AB, either by "Zoom" video link or in person; * leave to issue a subpoena requiring the Westmead Children's Hospital to produce certain records. 1. GR's objective in the proposed appeal is to recover the day to day care and custody of AB. To this end, she also seeks, in the notice of motion, an order that the parens patriae jurisdiction of the Court be invoked. 2. Not sought in the notice of motion, but identified orally by GR as a further order she seeks, is an order that the Secretary and his delegates not consent to any medical treatments for AB without the leave of the Court. 3. GR supported her application by an affidavit affirmed by herself on 17 September 2021, to which I will return. Also put before me for the purpose of the notion of motion was the White Folder that has been prepared for the application for leave to appeal proceedings. Included in the White Folder are the draft notice of appeal, GR's summary of argument, three documents purporting to be expert reports, the opening and closing submissions made by GR in the s 91 appeal, GR's submissions in response to submissions made by the ILR in the s 91 appeal, and her submissions on the medical evidence (again, in the s 91 appeal). 4. At the conclusion of the hearing of the notice of motion, I granted expedition of the application. The hearing before the primary judge 1. As indicated above, a lengthy hearing before the primary judge took place over fourteen days in July and August 2021 (although it may be that the evidence concluded after 10 days and the last four days were taken up with additional applications). Thirty one volumes of documentary material were in evidence. The following factual background is drawn predominantly from the primary judgment, although I have also had regard to numerous other judgments of the Supreme Court and this Court in applications made by GR, in particular a judgment of Ward CJ in Eq of 16 June 2020, which recites a detailed chronology of previous applications made by GR, and the results of those applications: GR v Secretary, Department of Communities and Justice [2020] NSWSC 739. Factual background 1. AB was born on 27 October 2004. Until 27 October 2018 he was, within the meaning of the Care and Protection Act (s 3) a "child". Thereafter, until 27 October 2022 he is and will be a "young person" in the terminology of the Care and Protection Act. The extensive provisions concerning care, protection and guardianship of the Care and Protection Act are applicable. 2. AB has been diagnosed with autism spectrum disorder. On 29 June 2018, pursuant to s 44 of the Care and Protection Act, AB was "assumed into care" by the Secretary. That power may be exercised where the Secretary suspects, on reasonable grounds, that a child or young person is at risk of serious harm and is also satisfied that it is not in his or her best interests to be removed from the premises in which he or she is currently located. If satisfied of those circumstances, the Secretary may, instead of removal, assume the care responsibility of the child or young person. 3. At the time the s 44 power was exercised AB was seriously underweight. Since early 2019 he has spent a considerable amount of time in hospital. In July 2018 proceedings were commenced in the Children's Court for a "care order" under s 61 of the Care and Protection Act. A "care order" is an order with respect to the care and protection of a child or young person. Section 71 spells out the grounds on which a care order may be made. On 28 August 2018 the President of the Children's Court found, pursuant to s 71(1)(b), that AB was in need of care and protection. (There are two limbs to s 71(1)(b); the first is that the parents of the child or young person in question acknowledge that they have serious difficulties in caring for the child or young person; the second is that the child or young person is in need of care and protection. GR does not dispute that she and BB (AB's father) had acknowledged serious difficulties in caring for AB.) 4. An agreement was, apparently, reached for the return of AB to GR and BB, on certain undertakings being given. However, in February 2019, AB was again assumed into care under the provisions of s 44. There followed lengthy negotiations and a great deal of litigation in the Supreme Court. On 27 February 2020 the President of the Children's Court found that there was no realistic possibility of restoring AB to his parents and his Honour made an interim order for the care of AB, and required the Secretary to file an amended care plan addressing permanency issues. It was in response to that care plan that the orders of the President of 3 April 2020 were made. 5. As indicated above, the order was, pursuant to s 79(1)(b), of the Care and Protection Act, that all aspects of parental responsibility be allocated solely to the Minister. It was that order that was the subject of the s 91 appeal. The primary judgment 1. The primary judgment runs to 869 paragraphs. In it the primary judge reviewed, in great detail, the evidence upon which it was contended, by the Secretary and the Minister, that AB was in need of care and protection. A great deal of medical evidence was before the primary judge. 2. The primary judge made seriously adverse findings about the capacity of GR to care for AB. It maybe noted here that, although BB was a party to the appeal proceedings, he took no part in the hearing although, as the primary judge recorded, he sought to have contact with AB. 3. The adverse findings of the primary judge include the following: "[847] … [GR] has refused to accept directions from time to time as to how best to deal with AB's autism and in particular his diet. She is not respectful of any person to my observation who does not agree with the way she sees things. Her level of confrontation with caseworkers in particular is regrettable and she is unable to understand contrary to AB's interests. She has not been able to take directions and guidance. [848] In short for any number of the above reasons she is quite ill suited to have AB in her care (s90 (6)(e)). … [849] In all of the circumstances I am unable to be satisfied that GR is capable in any sense in having the responsibility of AB at home with or without assistance. I am not satisfied GR has the capacity rationally or objectively of giving his condition the necessary therapy required by it [sic] the priority it needs. I do not consider even assuming best intentions, AB would be in a safe, calm, and respectful environment if he was with GR in her care. At the moment AB is developing his confidence in a conflict-free, no pressure setting. He has it seems a trusting constructual relationship with his carers especially Mupo, Gary and his psychologist (s 90(6)(d)). That should not be disturbed or interfered with it as I consider it would be very much to his detriment and contrary to his best interests. [850] On the evidence I am not satisfied GR would listen to and/or cooperate with, as would be vital, the medical and other professionals who will have to play a long term role in managing AB's complex presentation (s 90(6)(e)). AB's wellbeing cannot be left to GR's prejudices or whims if for some reason she were to disagree with some recommended cause. She did not exhibit before me, as far as I could detect, any sincere willingness to take direction or guidance from those she disagreed with. It would be risky in the extreme in my view to change the current arrangements even though the progress which is undoubtedly occurring is slow. It would be contrary as I have said to AB's interests to interfere with the stability and relative calm which currently exists in AB's present care and I do not propose to do so. …" (Section 90(1) provides for rescission or variation of care orders; s 90(6), to which the primary judge inferred, states the matters that must be taken into account before a rescission order is made.) 1. His Honour accordingly concluded: "[863] Taking into consideration the findings of the President of the Children's Court which I endorse, the recommendations of the experts, medical and care professionals before me during the hearing, I do not believe that there is anything in the evidence that warrants a departure from the orders of the Children's Court. It is, in my view, in the best interests of AB that he remain in his current placement until he turns 18. … The next period before AB reaches 18 is crucial in his development and continued recovery, and he will be best accommodated in his current placement." 1. His Honour proceeded to make the orders I have already mentioned. 2. "The Details of Appeal" set out in the draft notice of appeal state that GR will seek leave, under s 75A(7) of the Supreme Court Act, to adduce further evidence. It is also stated that GR seeks leave to file a writ of "habeas corpus ad subjiciendum"; leave to challenge the "Deprivation of Liberty" of AB, and "a prompt decision pursuant to article 37 of the United Nations Convention on the Rights of the Child"; that the whole decision of the Supreme Court be set aside and the judgment of this Court substituted; and a declaration that the proceedings in the Supreme Court were "Void Ab Initio". Finally, GR will seek an order in the nature of an injunction restraining the Secretary and the Minister and their delegates from taking any further or new actions against the appellant [GR] or [AB] without the leave of this Court (that is, the Court of Appeal) after a contested hearing. 3. The six proposed grounds of appeal are set out at length, all of which (except one) being divided into sub grounds or what I take to be particulars of the grounds stated. 4. Ground 1 (which is headed "Merits") sets out four complaints about the conclusions of the primary judge with respect to the merits of the s 91 appeal. Ground 2, while headed "Inadequate Reasons" asserts not only inadequacy of reasons, but errors in the reasoning process of the primary judge. Ground 3 asserts jurisdictional error and error of law, including (but not limited to) failure to "establish jurisdiction pursuant to s 72" of the Care and Protection Act; and failure to comply with international obligations under the United Nations Convention on the Rights of the Child 1989. Ground 4 asserts noncompliance with provisions of the Australian Constitution, as "implied by the structure of Chapter 3" thereof. Ground 5 asserts "Equitable Fraud", particularised as acceptance by the primary judge of "false statements made by the Secretary and making findings contrary to the uncontested evidence". The final ground, ground 6, is headed "Costs", and asserts error by the primary judge in failing to give due consideration to "the enormous costs to the State of NSW and the Commonwealth Government (NDIS)" – ("National Disability Insurance Scheme"), "in keeping AB in care" in contrast to the nominal costs that would be incurred if he were returned to GR's care. 5. GR also relied on the additional material contained in the White Folder, in particular an expert psychiatric report by Dr Yolande Lucire, and a letter directed to the primary judge by a psychiatrist, Professor Stewart Einfield. I have read the expert report of Dr Lucire. She said, for example, that it was her opinion that returning AB to his mother's (that is, GR's) home should be the ultimate goal. Notably, she did not suggest that that goal could be reached in the current circumstances. I can see nothing else in Dr Lucire's report that assists in the determination either of the issues raised in the appeal, or, more particularly, in the notice of motion. It is clear that Dr Lucire has not met or examined AB. 6. Professor Einfield had given evidence in the s 91 appeal hearing. His letter was written after the completion of his evidence. His letter was, effectively, an update of the evidence he had given; he said that since giving evidence he had been given a "video tour" of the room GR proposed would be available to AB if he were to return home. To some extent Dr Einfield appears to have modified the views he had earlier expressed. However, he said: "[8] None of the above modifies my views about mother's problems with parenting. Nevertheless, if his [that is, AB's] dangerous weight continues, then it my view questions ought to be asked whether he isn't better off being sent home despite her difficulties. As I advised previously this can be done with a contract for adequate essential monitoring. [9] If the Court decides to continue the current arrangements dispite this development, perhaps because of the possibility that he will recover, then in my view, there should be a requirement that recovery is evident within a determined timeframe eg six weeks." 1. It can be seen that Dr Einfield's revised opinion is equivocal. Moreover, it was before the primary judge who expressly referred to it in his judgment at [533] and following. Conclusions with respect to the orders sought (i) stay 1. On the material before me I can see no basis for ordering either a stay of the primary judge's order dismissing the s 91 appeal, or of the order of the President of the Children's Court. While I accept that an applicant for a stay of a judgment or order is not required to establish that the appeal has reasonable prospects of success, and speculation on that topic may be inappropriate, nevertheless, it may be useful to make a preliminary assessment about whether the applicant has an arguable case: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) [1985] 2 NSWLR 685; D v C [2018] NSWCA 190 at [9]. On my preliminary assessment it is difficult to see any arguable case that GR can present, at least on the basis of the grounds of appeal as presently formulated. So far as I can ascertain the medical and factual matters GR will seek to advance in the appeal were all comprehensively considered by the primary judge and, undoubtedly, also by the President of the Children's Court. GR argued that circumstances have changed materially since the decision of the primary judge but there is no acceptable evidence to support that contention. Professor Einfield's revised opinion does not do so; the only other evidence is that of GR herself, in her affidavit. I do not find that evidence persuasive. 2. Moreover, to stay both the order of the primary judge and the order of the President of the Children's Court would effectively be to determine the appeal, at least on an interim basis. Should the appeal then be dismissed steps would need to be taken to restore the status quo, being the situation at present. 3. In August 2020 (prior to the hearing of the s 91 appeal) GR applied for orders, in the exercise of the parens patriae jurisdiction, for placement of AB in her care. The order was refused: GR v The Department of Communities and Justice [2021] NSWSC 1081. On GR's application for leave to appeal against that refusal, Basten and McCallum JJA pointed out that a stay of the orders of the Children's Court would do no more than reinstate the interim order of 27 February 2019: GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198. That remains the position. 4. Finally, taking into account that the President has ordered that the application for leave to appeal be heard concurrently with the appeal if leave is granted, and that I have expedited the hearing of that application, I see no basis for disturbing the status quo. The adverse findings concerning GR's capacity to care for AB cannot be overlooked; there is nothing in any additional material before me to suggest that that capacity has altered. 5. I decline to order a stay, either of the order of the primary judge dismissing the s 91 appeal, or of the President of the Children's Court. (ii) alternative contact arrangements 1. As indicated above, GR sought an order for contact arrangements, specified either as via "Zoom video" or personal visits. The short answer to this application is that no evidence was placed before me on which I could conceivably make any orders to that effect. I decline to do so. (iii) parens patriae jurisdiction 1. The appropriate forum in which to invoke the parens patriae jurisdiction is the Equity Division of the Supreme Court. I accept that, notwithstanding that the present application is brought before me sitting as an acting judge of appeal, I hold a commission as an acting judge of the Supreme Court and could, if called upon to do so, exercise that jurisdiction. Nevertheless, the application is inappropriately brought in Court of Appeal proceedings: see GR v Secretary, Family, Disability and Community Service [2020] NSWSC 668 per White JA. Further, as the judgment of Ward CJ in Equity shows, GR has made repeated applications to the Supreme Court to invoke the parens patriae jurisdiction. In almost every case it has been refused. The applications and the results thereof are chronicled in the judgment of Ward CJ in Eq referred to above. Restraints have been placed upon the capacity of GR to bring proceedings invoking the parens patriae jurisdiction: GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 259 per Kunc J; GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 348. 2. In GR v Secretary, Department of Communities and Justice [2019] NSWCA 177; Basten, White and Leeming JJA considered the procedure by which the parens patriae jurisdiction maybe invoked: see [47] ff. Their Honours made it plain that caution needs to be exercised before invoking that jurisdiction in circumstances where the jurisdiction conferred by the Care and Protection Act is under consideration. It would, in my opinion, be entirely inappropriate to supplant the statutory jurisdiction already invoked by embarking upon a parallel course to the same (hoped for) results. (iv) subpoenas 1. In the notice of motion GR sought leave to subpoena the Westmead Children's Hospital for records. She provided a draft subpoena which seeks all records related to AB created between 6 am on 1 November 2019 and 6 pm on 17 September 2021. Although it was not referred in the notice of motion, AB also provided a copy of a similar subpoena directed to the John Hunter Hospital in Newcastle. 2. GR sought to support her application for leave to issue the subpoenas by saying that medical evidence had, in the past, been "suppressed". There was no evidence on which I could make such a finding. The primary judgment makes it plain that a great deal of medical evidence was produced in the s 91 appeal. 3. I am not satisfied that it is appropriate, at this time, to grant leave to GR to issue subpoenas to either the medical institutions involved. (v) orders restraining the Minister consenting to any medical treatment of AB without the leave of the Court 1. No basis was established for making any order of the kind proposed. I decline to do so. 2. The consequence is that the notice of motion must be dismissed. GR must pay the costs of the respondents. 3. The orders I make are: 1. Concurrent applications for leave to appeal and appeal expedited; 2. Notice of Motion otherwise dismissed; 3. Applicant to pay respondent's costs. ********** Amendments 01 December 2021 - Typographical errors. 21 February 2022 - typographical error 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: 21 February 2022