Re: Gabrielle and Frank [2011] NSWSC 944

Supreme Court New South Wales

Medium Neutral Citation: Re: Gabrielle and Frank [2011] NSWSC 944 Hearing dates: 10/08/2011 Decision date: 10 August 2011 Jurisdiction: Equity Division - Protective List Before: McDougall J Decision: Application for interim care order dismissed. Catchwords: EQUITY - parens patriae jurisdiction - matters favouring exercise of jurisdiction - whether inability to appeal the refusal of interim orders at first instance pursuant to s91 of Children and Young Persons (Care and Protection) Act 1998 (NSW) warrants exercise of jurisdiction - whether justification exists on facts for overriding first instance decision - summons dismissed. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Re Elizabeth [2007] NSWSC 729 Re Liam [2005] NSWSC 75 Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 Category: Principal judgment Parties: Director-General, Department of Family and Community Services (Plaintiff) Minister for Family and Community Services (Second Plaintiff) The children's mother (First Defendant) Her current partner (Second Defendant) Representation: Counsel: M Higgins (First and Second Plaintiffs) M Barnett (First Defendant) P Guterres (Independent Legal Representative) Solicitors: Crown Solicitor's Office (NSW) (Plaintiffs) File Number(s): 2011/256659

Judgment 1HIS HONOUR: The Director General of the Department of Family and Community Services moves urgently for orders including that a decision of the Children's Court of New South Wales made on 8 August 2011 be quashed and that the proceedings be remitted to the Children's Court for the matter to be redetermined according to law; and that, in the meantime, the children in question be placed under the interim parental responsibility of the Minister for Family and Community Services. 2The children in question are known as Gabrielle and Frank. Gabrielle is currently aged six years and five months. Frank is currently aged five years and five months. The interest of the Department was enlivened on 15 July 2011. That appears to have been as a result of a communication from the father of the children's mother, who is the first defendant in these proceedings. The material before the learned Children's Court magistrate and before this court included an affidavit of the father (for clarity that is the father of the children's mother and thus the grandfather of the children; for convenience, I shall refer to him as "the grandfather"). The affidavit proved a number of things: in particular, what was said to be a series of text messages received by the grandfather from his daughter between 8.01 am on 15 July 2011 and 2.35 pm on 22 July 2011. Those of particular relevance to the Department, leading to the initiation of enquiries, were the ones of 15 July. 3The grandfather said further, that he did not think that his daughter, the first defendant, was capable of providing appropriate care for the children; in particular because of her drug use. 4Thereafter, on 19 July 2011, the department obtained a warrant removing the children from the care of the mother. Case workers interviewed the children at their school. On 22 July 2011, care applications were filed in the Children's Court. The applications were supported in the usual way, by a body of documents including affidavits setting out, among other things, interviews conducted between case workers and the mother and her current partner, who is frequently referred to as the children's stepfather. 5On the return of the application, on 2 August 2011 an interim order was made placing the children in the parental responsibility of the Minister. The matter was adjourned to 3 August 2011 so that the mother could obtain legal advice. It was further adjourned from that date to 8 August 2011. On 8 August 2011, Magistrate Prowse refused the application for an interim order, and adjourned the matter for mention to a later date to consider the application for substantive, or final, relief. The material before his Honour included the application and its supporting documents, affidavits of case workers and an affidavit of the children's grandfather. 6The matter came before me yesterday. Counsel then appearing for the Director General sought to invoke both the court's inherent jurisdiction to supervise the proceedings of inferior tribunals -- specifically, in this case, through the remedy of certiorari and the court's parens patriae jurisdiction. As the debate evolved yesterday, it became apparent that reliance was placed principally on the latter source of jurisdiction. That, no doubt, reflected the limitations inherent in the remedy of certiorari, and the fact that those limitations did not trammel the court's parens patriae jurisdiction. It may have reflected also the fact that, as I said in Re Liam [2005] NSWSC 75 at [29], the court in the exercise of its parens patriae jurisdiction could, in appropriate cases, grant relief that would otherwise be available if the remedy of certiorari were applicable and were granted. 7When the matter continued to a final hearing today, the application was pressed only on the basis of the court's parens patriae jurisdiction. 8The material to which I was taken in the course of argument included the affidavits to which I have referred and, through them, notes or records of interview conducted between case workers and the mother and between case workers and the children. The latter documents indicated that the child Gabrielle had said to the case worker that on at least one occasion her mother's partner, whom I have called the stepfather, smacked her. The specific occasion referred to was amplified to "lots of times" but no specificity was given. The only description was that the smacking was indicated by hand on the child's bottom. 9The child Frank indicated likewise that the stepfather "smacks us with hand". He was asked to demonstrate and apparently demonstrated "along the length of arm" and amplified this by saying "sometimes belt on arm". He was then asked, "when smacks with belt where does he smack you?" He replied "[o]n bottom". He said that this occurred "one time". If the notes are an accurate record of the questions and answers, it is apparent that Frank suggested that there had only been one occasion when the stepfather smacked him with a belt, and that there was some lack of clarity as to whether this happened on the arm or on the bottom. 10There is also material in the interviews with the children to suggest that they had witnessed unsavoury scenes of domestic violence between their mother and the stepfather. That appears to have included episodes of shouting, and at least on one occasion when, according to the children, the stepfather pushed their mother against a wall, and according to Frank made a hole in the wall or the door. Gabrielle said that on one occasion she ran down the street looking for help but was unable to find it. 11The text messages to which I have referred are somewhat equivocal. They start at 8:01am with the mother asking the grandfather to "ring me soon please". There followed a message at 8:15am apparently asking the grandfather to "pls take care of my babys". That message is somewhat confused both because of its distinctive orthography and lack of punctuation (which is not, I think, an entirely unknown characteristic of text messages) and, more significantly, because it concludes with the words, "Love u frank xx". Whoever "frank" is or was, the evidence does not disclose; it is certainly not the grandfather, the current partner or the children's father. 12In the next text message, sent at 10:39am, the mother referred to an ambulance going past and to her thinking "it was time to go". It seems to be the case, looking at that message, that it was composed over a period of time; and that over that period the mother left home to do some shopping and returned to "wait for those boys in their white coats". 13I should interrupt the narrative to say that counsel for the Director-General suggested, in submissions this morning, that this text message showed "suicidal ideation". Whilst I do not go so far as to say that that attribution of meaning is a nonsense, it is certainly an inventive interpretation of the text. I do not accept it. 14The next text message sent at 1:56pm says that the daughter did not "want police here," but repeated that she was both "serious" and "alive" and leaving her phone off. Presumably, there had been some query from the grandfather and prompted that message. 15The next text message is, perhaps, of key importance. It was sent at 2.15 pm on 15 July and reads: dad everything is ok but not ok. I want ya to come get tha kids because I truthfully dont even want them. Im so tired n ino its tha drugs and all tha hurt in my life but I cant just let strangers take them. Me and james r just talking kids r playing outside. 16It becomes apparent thereafter that to the extent that the mother had asked the grandfather to take the children away or to take care of them (see the 8:15am message, involving the confusing reference to "frank") she began to change her mind. That process is demonstrated quite clearly over further text messages sent, on 15 July 2011, at 3.35 pm, 4.07 pm and (on 16 July) 8.26 pm. The last of those reads: Tell tha welfare that im leaving tha kids wiv friends and im going to do this on my own bcos I hav bn seeing tha dr n gettin help..Im not gonna let tha kids go dad sorry. They startn school again soon.They got mates n ive got friends that r willing to help me do this, not fair to uproot tha kids again! I aint lyin here.Anyways I will speak 2 ya in morn wen ya call.Call tha dogs off pls.Love ya xx 17I should note that in one of the interviews conducted by the Department's case workers at which the mother was present, the mother effectively sought to repudiate those text messages and to suggest, in effect, that her father "was lying about the texts" and "setting her up". Whether or not that is so I cannot conclude. There is some evidence in the material put forward by the Department to suggest that the grandfather is prone to exaggeration (to put it no higher). He apparently reported to the department that, on one occasion when a maternal uncle and cousin had gone to check on the mother, the stepfather "had apparently found out about them coming and was waiting for them with a Samurai sword". That was coupled with a statement from the father to the effect that the partner "had done six years in Queensland for manslaughter". Such material as there is which sets out the history of matters in Queensland in 2007 goes nowhere near supporting those extremely serious allegations. There is simply no suggestion that the stepfather has served any time "for manslaughter", and the Samurai sword appears to have morphed from "a 20 centimetre long knife". 18I mention those matters not because it is possible, on the basis of them, to make any finding about the grandfather's credibility, but simply to demonstrate that there may well be something in the mother's proposition that her father, for whatever reason, was trying to make life difficult for her. 19One matter that is clear is that the mother and the stepfather use illicit drugs. They include marijuana. There is some suggestion that there were other drugs involved. The mother has been asked on a number of occasions to submit to urinalysis but has declined to do so. For reasons that I do not quite follow, that was said to indicate some support for the proposition that she is not a fit and proper mother. 20As I have said, the matter came before the learned magistrate on 8 August 2011. His Honour had the advantage of hearing evidence from the mother. Because no transcript is available, I do not know what that evidence was. But more importantly, I do not know what impression the mother made his Honour. The only available note of his Honour's reasons is a summary document prepared by the Department's case workers, apparently whilst his Honour was giving reasons for judgment. His Honour accepted that the department had been obliged to investigate but is said to have concluded that there was not sufficient information or evidence even on an interim basis. 21It is apparent that the magistrate did not regard the children's allegations in their interviews as being of any great probative significance. He appeared to regard some of the allegations made as having been unlikely in any event. More importantly, he observed that since the children live with their mother and stepfather in a flat, one would expect there to have been reports of domestic violence if it included noisy altercations and the sorts of violent physical attacks apparently reported by the children. He noted that there had been no such reports either to the department or to the police. Further, he noted there was no evidence regarding signs of physical abuse on the mother. 22No doubt, the matters to which I have referred show why it was that counsel for the Department accepted that it was unlikely that the court would grant certiorari. There is no doubt that the court's parens patriae jurisdiction remains untrammelled, and that it can be exercised in a particular case even where the Children Court has declined to act. In this case, one circumstance that, perhaps, favours the availability of relief under the parens patriae jurisdiction is that the statutory mechanism for appeals from the Children's Court, under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (the Care and Protection Act ), does not apply to interim orders of the Children's Court: see s 91(1). I think it is likely, as a matter of construction, that the exclusion of appeals in relation to interim orders applies not only where interim orders are made but also where interim orders are refused. 23Counsel for the mother relied on the decision of Palmer J in Re Elizabeth [2007] NSWSC 729 to suggest that there was still a statutory review mechanism through s 90. Palmer J pointed out in that case at [18] that the Children's Court could rescind or vary an interim order if there were a significant change of circumstances. 24Of course, I accept that this is so. But in this case there has been no interim order made. It is, in my view, not the proper construction of s 90(2) to conclude that it applies not only where, as it says in terms, an interim care order has been made but also where an interim care order has been refused. All that is somewhat by the way because, as I have said, there is no doubt that this court's parens patriae jurisdiction is available in principle (see s 247 of the Care and Protection Act ). 25However, saying that this court's jurisdiction is available is one thing, but saying that it should be exercised without any regard to what happened before the Children's Court is quite another. In Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79, Hodgson CJ in Eq said at [20] to [22] that in circumstances where the court was being asked to make an order that displaced a considered order made within jurisdiction by another judicial officer, it might be possible, in the exercise of the parens patriae jurisdiction to go beyond the traditional circumstances in which certiorari might be granted. But, nonetheless, his Honour said, one should approach the exercise of the court's parens patriae jurisdiction, in circumstances where it was being asked to displace a considered order made within jurisdiction by a magistrate of the Children's Court,"on the basis that justification has to be shown for overriding the decision" of that magistrate. I followed that approach in Re Liam at [31], and I propose to follow it in this case. 26I start by expressing concurrence with the Magistrate's view that there were circumstances requiring the Department's investigation. However, that does not mean that there are circumstances requiring the court to intervene. 27In considering whether to intervene, this court should be guided by s 9(1) of the Care and Protection Act . That subsection specifies that in proceedings "concerning a particular child or young person, the safety, welfare and well-being of that child or young person are paramount." 28Subject to that paramount requirement, s 9(2) sets out a number of other principles to be applied. They include, by para (c) that subject to the paramount concern to protect the child or young person from harm and to promote its development, the course, if followed "must be the least intrusive intervention in the life of the child or young person and his or her family". 29Interim care orders are covered by ss 69 and following of the Care and Protection Act . The only jurisdictional requirement for the grant of an interim care order is that the court is to be satisfied that it is appropriate to do so. However, two things should be noted: (1) the Director General bears the onus of showing the need for the making of such an order; and (2) the order should not be made unless the court is satisfied that it is necessary. 30I set out ss 69, 70 and 70A: 69 Interim care orders (1) The Children's Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined. (1A) The Children's Court may make an interim care order prior to determining whether the child or young person is in need of care and protection, if the Court is satisfied that it is appropriate to do so. (2) The Director-General, in seeking an interim care order, has the onus of satisfying the Children's Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility. 70 Other interim orders The Children's Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings. 70A Consideration of necessity for interim care order An interim care order should not be made unless the Children's Court has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a final order or an order dismissing the proceedings. 31Of course, those sections are addressed to, and authorise, the Children's Court. But I proceed on the basis that, in the exercise of this court's parens patriae jurisdiction it should be guided by the same concerns. 32I have come to the conclusion considering the evidence in totality (and I have outlined only its most salient features above) that the relief sought by the summons should not be granted. In brief, my reasons for that are: (1) the only evidence of domestic violence is that coming from the children; (2) having regard to the allegations that the children make, one would have expected there to be some supporting evidence (either by way of reports from neighbours or by way of physical evidence); (3) further, one would have expected there to be demonstrated some sign that the children were suffering from psychological or emotional stress, but there is no such evidence in any of the Department's material; (4) although I do not wish to condone the use of illicit drugs in the presence of children, nonetheless, as the magistrate said, the use of marijuana "is not a standard reason for intervention even on the balance of probabilities and certainly not sufficient to warrant a removal or need of care"; (5) although there was some evidence directed to the mother's fitness as a parent, there is countervailing evidence in the department's material showing that the children appeared to be well cared for and provided for, with good food and with adequate toys; (6) although again there is some suggestion that the mother has been battling depression, on the Department's material she has now resumed her medication. 33Further, I take into account that all these matters and more were raised before the magistrate and considered by his Honour. I find it of particular significance that his Honour had the opportunity to hear the mother and assess her not only as a witness but as a person who was seeking that the care of her children be restored to her. It seems to me that it is very difficult for this court both to pay appropriate regard to the advantages enjoyed by the magistrate (picking up what Hodgson CJ in Eq said in Re Anna ) and, at the same time, to intervene not even on the basis of the material before the magistrate but on the basis of that material minus what seems to me to be a vital and, perhaps, crucial component. 34Much stress was placed on the text messages. I accept that at one stage in the course of those messages the mother indicated that she had wanted her father to take care of her children. However, to accept that by itself is insufficient. It is necessary to look at the progression of the mother's thoughts over the course of the day and into the next day. It is also necessary to bear in mind that those messages appear to have been written at a time when the mother was not taking her antidepressant medication, and that she has now resumed taking it. 35At the end of the day, I am required to consider whether the children are in need of care and protection. To come to that conclusion, I am required to conclude, on the basis of such material as I have, that their well-being is at risk because of the circumstances in which they live. In this context, it is notable that the grounds on which final orders are being sought from the Children's Court include that: (1) the children have been or are likely to be physically or sexually abused or ill treated (and there is no suggestion of sexual abuse); (2) their basic physical, psychological or educational needs are not being met and are not likely to be met; and (3) they are likely to suffer serious developmental impairment or psychological harm because of the environment in which they are living. 36The evidence of physical ill-treatment or abuse is limited to smacking and, apparently, on one occasion, chastising with a belt. There is no evidence that their basic physical or psychological or educational needs are not being met, and even less that they are likely not to be met. The matter thus comes back to the third ground, the likelihood of serious mental impairment or psychological harm. 37I accept that if there were serious ongoing domestic violence in the home, to which the children were witnesses, that could have a very significant adverse impact on them. But I am not satisfied that the evidence, so far as it goes (and bearing in mind what both the magistrate and I see as the absence of corroboration that one would have expected to have been available), is as serious as the Director General asserts. I take into account in this context that there has been no attempt to show that there is any indication that the children's psychological or emotional state has been adversely affected. 38There was much other material canvassed in the course of submissions. In the interest of time (and the hearing of this case has occupied considerable time already) I do not propose to recount it. It is sufficient to conclude that the case for relief has not been made out. 39Accordingly, I order that order 6 made yesterday (preventing the removal of the children from the township of Manilla) be discharged, and I order that the summons be dismissed.