Supreme Court New South Wales Medium Neutral Citation: G v Family and Community Services [2019] NSWSC 229 Hearing dates: 7 March 2019 Date of orders: 07 March 2019 Decision date: 07 March 2019 Jurisdiction: Common Law Before: Schmidt J Decision: Summons dismissed. Catchwords: FAMILY LAW — Children — Parens patriae — Whether orders setting aside interim care orders should be made — Orders refused Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97 Category: Principal judgment Parties: G (Plaintiff) Family and Community Services (First Defendant) Bandyopadhyay Bhaskar (Second Defendant) Representation: Counsel: M Melville (First Defendant) Solicitors: G, self-represented (Plaintiff) Crown Solicitor's Office (First Defendant) File Number(s): 2019/73876 Publication restriction: Nil Judgment 1. In proceedings brought by summons last week, Button J dismissed an urgent application brought by G for orders concerning her son, then admitted as a patient and receiving care in hospital. He had been removed from her care and later been placed under the supervision of the Secretary of Family and Community Services, under orders made by the Children's Court: see ss 43, 44 and 76 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). 2. Despite having been informed by the Registrar that to further move the Court, G would have to bring further proceedings, her first summons having been dismissed, she repeatedly sought to file an amended summons in those proceedings. This was because, she explained today, she was unable to afford the filing fee to commence further proceedings. 3. Upon giving an undertaking that she would make application for fee relief and if not granted, would pay the applicable filing fee, I permitted G to file the summons which she had purported to e-file and serve upon FACS at 4.24 am today. Thereby she sought orders: "1 Set aside interim care order of FACS of … 2 Urgent child recovery order of .., to the care of his mother … 3 This summons to be returnable instante 4 Order FACS is to take no further action against .. until further order of this Court 5 Costs for this application" 1. These are the reasons why I refused to make those orders and dismissed the summons, without any order as to costs. 2. Unlike the proceedings before Button J, the only evidence by which G supported her further application was an "expert's report", which comprised a letter from a GP, Dr Cooke, who had received instructions from G by way of an attached letter in which she explained, in immoderate terms, her beliefs about her son's treatment and welfare; and a 2018 hospital discharge summary. 3. In his letter Dr Cooke expressed the opinion that G had: "a plausible story about being a good mother and is suitable to be his carer. This seems reasonable. See her attached letter, I have not[sic] other input to go on. She will attach his JHH 01/07/2018." 1. From this letter it was apparent, however, that: 1. Dr Cooke had received an account from G as to the circumstances in which her son had been admitted to the intensive care unit, which today she described as having involved, amongst other things an abduction by police at gunpoint from his school and her son's death and resuscitation, as the result of his mistreatment, both in and out of hospital; 2. G's accounts departed markedly from the case advanced by FACS in the Children's Court, which had resulted in the orders G seeks to challenge being made, which resulted in him continuing to be hospitalised for treatment, initially in intensive care. 3. Dr Cooke had not seen the Hospital Discharge Referral attached to the "expert's report", which outlined the circumstances in which G's son had come to be admitted to hospital in July 2018, after failing to present for an outpatient appointment, at a time when he weighed only some 38kg; he refused both food and fluids; and was finally discharged, in the hope that he was more likely to eat at home. 1. From G's submissions today, it also became apparent that Dr Cooke was not one of her son's treating doctors. But she led no evidence from any of them, to support her application. G did urge the Court not to dismiss her summons, without taking steps to seek opinions from her son's treating doctors, but these are adversarial proceedings and it is not for the Court to investigate evidence which parties elect themselves not to lead in support of applications which they make. 2. To advance her case G explained her concerns and beliefs about her son's ongoing mistreatment in hospital and at the hands of FACS. 3. On the case advanced for FACS, however, his weight had fallen to 35 kg, before his recent admission to hospital, shortly after he was removed from G's care. 4. In the result, nothing which G advanced today persuaded me that there was any evidentiary basis upon which it could be concluded that her concerns, even given the extravagant terms in which they were expressed, provided a foundation for the Court's exercise of its parens patriae jurisdiction. 5. Her opinions, despite her medical qualifications, are not a basis on which such a conclusion could be reached. Nor was the "experts report" on which she relied. 6. As discussed by Ward JA, as she then was, in Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97 at [22], "exceptional circumstances are required for this Court to interfere with orders that have been made by judicial officers exercising specialist jurisdiction such as those in the Children's Court." 7. Such circumstances are not established when there are errors alleged against such judicial officers in the exercise of discretion, such as failing to give due weight, or giving disproportionate weight to particular matters, or where there is an error of fact that does not go to the fundamentals of the case: at [23]. Nothing even of that kind, however, was on this application sought to be established. 8. Nothing which G advanced by this further application established any error in what has thus far transpired in the Children's Court, let alone the exceptional circumstances which must exist, before this Court will intervene in ongoing proceedings in that Court. 9. G has the opportunity to seek to have the interim orders the Children's Court has made varied, by advancing a proper evidentiary case for such a variation. The matter is next before the Children's Court on 16 March, 10. It is up to her to avail herself of that opportunity, if she wishes to do so. ********** 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: 08 March 2019