Supreme Court New South Wales Medium Neutral Citation: GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1073 Hearing dates: 16 August 2019 Date of orders: 16 August 2019 Decision date: 21 August 2019 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Children's Court care orders not set aside; other orders made Catchwords: FAMILY LAW – Children – Parens patriae jurisdiction – Whether Court should set aside care orders made by Children's Court Cases Cited: G v Family and Community Services [2019] NSWSC 229 GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 Re AB [2019] NSWSC 316 Re AB (No 2) [2019] NSWSC 566 Category: Principal judgment Parties: The mother (Plaintiff) Secretary, Department of Family and Community Services and Justice (First Defendant)) Minister for Families, Communities and Disability Services (Second Defendant) The father (Third Defendant) The boy (Fourth Defendant) Representation: Counsel: C McConaghy (Plaintiff) C McGorey (First and Second Defendant) The father (Self represented) E Stolier (Fourth Defendant)) Solicitors: Rennie Lawyers & Notaries (Plaintiff) Crown Solicitor (First and Second Defendants) K Wooi (Independent solicitor for the Fourth Defendant)) File Number(s): 2019/62836 Publication restriction: No JUDGMENT Summary 1. These proceedings concern a boy ("the boy") who has been diagnosed with autism spectrum disorder (Level 3) and avoidant restrictive food intake disorders (not eating). He is shortly to be discharged from a hospital in Newcastle. 2. The boy is nearly 15 years old and, pursuant to care orders of the Children's Court, he is currently under the parental responsibility of the Minister for Families, Communities and Disability Services (the "Minister") who administers what is now the Department of Family and Community Services and Justice (the "Department"). The care proceedings are listed for "final hearing" on 11-15 November 2019 before the President of the Children's Court at Parramatta. 3. The plaintiff in these proceedings is the boy's mother (the "mother"). The first and second defendants are the Secretary of the Department and the Minister respectively. The third defendant is the boy's father (the "father"). The fourth defendant is the boy represented by his independent legal representative. 4. In urgent circumstances in the Equity Division Duty List more fully set out below, the mother invoked the parens patriae jurisdiction of this Court to have the orders of the Children's Court set aside and for the boy to be restored to her care. 5. At the conclusion of an extended one day hearing in Newcastle on 16 August 2019 the Court made these orders: "1. Direct the First Defendant to permit and facilitate the implementation of the specific recommendations set out in the report of Drs …. dated 15 August 2019 subject to the ongoing management of [the boy's] treating doctors at ….. 2. Permit any combination of his parents or grandparents not exceeding two persons to visit [the boy] not less than twice weekly unless the Minister for Families, Communities and Disability Services (the "Minister") or his delegate is of the view that any particular visit should not take place. 3. Promptly notify each of his parents (if possible, not less than 24 hours before) of any proposed or actual hospitalisation of [the boy] and the reasons for it. 4, Permit each of the parents, if they wish, to be trained in the use of the nasogastric tube for [the boy] and any other specific training that has been or will be given to [the boy's] carers. 5, Subject to the ultimate control and decision of the Minister or his delegate in consultation with the relevant health or other professional, permit each of the parents, if they wish, to be present at and, where appropriate, participate in therapeutic sessions or medical or psychiatric examinations of [the boy]. 6. Liberty to any party to apply on 24 hours' notice to the duty judge, with any such application only to be made by a party's legal representative where that party has one. 7. Note that the Court makes no order as to costs with the intention that each party bear his or her own costs. 8. Direct that the exhibits be returned." 1. These are the reasons for those orders. Ms C McConaghy of Counsel appeared for the mother. Mr C McGorey of Counsel appeared for the Secretary and the Minister. The father appeared for himself. Ms E Stolier of Counsel appeared on the instructions of the boy's independent legal representative. Procedural history 1. The procedural background is apparent from four judgments of this Court: G v Family and Community Services [2019] NSWSC 229 (Schmidt J); Re AB [2019] NSWSC 316 and Re AB (No 2) [2019] NSWSC 566 (Kunc J); and a recent judgment of the Court of Appeal in GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 (the "CA Judgment"). A full procedural history appears in paragraphs [3] and following of the CA Judgment, which I respectfully adopt, but which it is unnecessary to reproduce in these reasons. 2. The proceedings which were the subject of my earlier judgments concerning the boy were brought by the Secretary invoking the parens patriae jurisdiction in relation to extraordinary medical intervention that was required at the time for the boy's care. The proceedings which are the subject of this judgment, being proceedings by the mother challenging the orders of the Children's Court, were mentioned with the Secretary's proceedings, but were not the subject of any substantive hearing before me. At the conclusion of the Secretary's proceedings, when I discharged the orders made in those proceedings (see Re AB (No 2) [2019] NSWSC 566), I also made procedural orders in these proceedings: 1. Grant leave to [the mother] to file and serve an amended summons on or before 17 May 2019. 2. Direct that the amended summons be listed for directions before Lindsay J on 20 May 2019 at 3.00pm. 1. I made those orders to regularise these proceedings and to return them to the management of Lindsay J in his Honour's capacity as the Protective List judge. 2. On 24 June 2019, Lindsay J dismissed the mother's amended summons. The mother appealed against that decision. Her appeal was upheld in the CA Judgment delivered on 18 July 2019. The effect of that success was to reinstate the mother's amended summons. 3. It remains the case that the care proceedings in the Children's Court are listed for "final hearing" before the President of that Court on 11-15 November 2019 at Parramatta. On Monday, 12 August 2019, when I was sitting as duty judge, the mother relisted these proceedings and pressed the Court for an urgent final hearing. The reason for the urgency was that the boy was to be discharged from hospital at Newcastle on the following Monday, 19 August 2019. The Secretary had made new out of home care arrangements with medical support into which it was proposed that the boy should be transferred upon his discharge from hospital. The mother did not want this to occur. 4. With the co-operation of the parties and the Court's administrative staff, I was able to list these proceedings for final hearing at Newcastle the following Friday, 16 August 2019. The reason for sitting at Newcastle was that I was informed that the boy was now conscious and able to communicate. I formed the view that justice demanded that, to the extent possible, I should hear from the boy himself about what he wanted to happen to him. There was evidence before the Court about the boy's condition which made it clear that the only practical way for the Court to do this, having regard to both his physical and mental wellbeing, was for me to speak to him face to face in the hospital at Newcastle. That is what occurred. 5. The proceedings were conducted by reference to the mother's further amended summons dated 9 August 2019 which included: "1. That this application be heard instanter. 2. That the Court invokes the parens patriae jurisdiction. 3. That the Interim Orders of the Children's Court of 27 February 2019 for [the boy] (born XX XX 2004) made pursuant to s 69 of the Children and Young Persons (Care and Protection) Act 1998 be set aside. 4. That the Children's Court Proceedings (2018/XXX) commenced by the Department of Family and Community Services pursuant to s 61 of the Children and Young Persons (Care and Protection) Act 1998 be dismissed. 5. That [the boy] be discharged from XXX to the care of his mother where he will reside at XXX. 6. In the alternative, that until such time as [the boy] is discharged from XXX he is able to have two hours daily contact with his mother and other family members and upon discharge [the boy] be placed in the care of his mother…" The boy 1. The evidence of the boy's treating doctors, which the Court accepts, is that he is now medically stable and that his weight – 48.9 kg the day before the hearing – is within the healthy weight range for a boy of his age. This may be contrasted with his dangerously low weight of 35 kg in February 2019 as a result of which he was hospitalised and subsequently transported to Sydney. He was placed in a medically induced coma to provide him with adequate hydration and nutrition (this procedure being the subject of my judgment in Re AB [2019] NSWSC 316). 2. Even the mother's expert medical witness described the boy's recent progress in the hospital at Newcastle in these terms (T80:3-9): "… I think they've done a wonderful job but it's been very slow and it's been partial and that's been despite the fact that he's being cared fulltime there by professionals whose job, whose training, extensive training, extensive experience and job is dealing with very disturbed children and adolescents, requiring in-patient treatment and that's nurses, you know, the occupational therapists, the art therapist, as well as the doctors. And supported by supervision and a whole series of structures." 1. On the morning of the hearing, I was able to visit the boy at the hospital. I did so in the company of two employees of the Department who were known to the boy and with whom he was comfortable. 2. I was told that the boy may not respond to my questions or might only give short written answers. I was also informed that he had displayed long periods of selective mutism but that he could speak when he wanted to. 3. The boy's carers and his grandparents (the latter having visited him the day before my visit) had told the boy that "the judge" would be coming to see him. After being silent for a minute or two, the boy started to respond to my questions verbally and we had a conversation which lasted several minutes. He clearly knew who I was and what my role was ("making decisions"). While his answers took a little time to be given, they were appropriate and responsive to the questions I asked him. His demeanour in answering my questions suggested that he was very intelligent. He told me that, notwithstanding having books to read and being able to watch television, he was bored in the hospital. 4. The main points which emerged from our conversation were: 1. He wanted to go home. 2. He wanted to be cared for by his mother. 3. He was happy to have the carers and other professionals who had been involved in his care to date continue to be involved in looking after him once he went home. 4. He understood the importance of continuing to eat normally and said that he would do his best to do so. 1. I was informed by the Department's employees that, particularly over the previous two or three days, he had improved considerably in the amount of food he was eating during the day. Nevertheless, he still had a nasogastric tube inserted which the boy told me that he understood was used to feed him at night while he was asleep to supplement what he ate during the day. I accept the evidence of his treating doctors that real progress has been made in the boy coming to accept being fed through the nasogastric tube and that he has generally ceased his earlier behaviour of pulling it out. Part of the plan for the boy's ongoing treatment is to continue to feed him through the nasogastric tube at night until such time as he is eating the full daily recommended amount of nutrients normally. The evidence 1. The mother gave evidence and was cross-examined at length. A well-qualified medical expert gave evidence in the mother's case and was cross-examined by telephone. The boy's two primary treating doctors at the Newcastle hospital gave concurrent evidence and were cross-examined. Finally, the boy's case manager employed by the Department also gave evidence and was cross-examined. 2. As will be apparent from the orders set out in paragraph [5] above, the Court did not accede to the mother's application to set aside the Children's Court's orders. Barring any unforeseen developments, the boy's status will be dealt with finally and in a considered way by the Children's Court in November. In those circumstances, and given the likelihood that much, if not all, of the evidence which was put before me may be relied upon in the Children's Court, I do not think it appropriate either to set it out in any detail or to comment upon it. These reasons are confined to the specific matters upon which the Court relied in making the orders set out in paragraph [5] above. The parties' submissions 1. All parties acknowledged that the liminal question for the Court was whether the mother had demonstrated "exceptional circumstances", being the standard which must be satisfied before this Court will interfere with orders made by the Children's Court exercising its specialist jurisdiction (see, for example, the CA Judgment at [11]). 2. Given the broad and beneficial nature of the parens patriae jurisdiction, what constitutes "exceptional circumstances" will necessarily be very specific to the facts of the particular case. The categories of such circumstances are not closed and no useful purpose would be served in trying to define them beyond giving proper recognition to the fact that they must be "exceptional". 3. In this case I was satisfied that the mother had demonstrated "exceptional circumstances" sufficient to warrant the Court at least considering her application. Those circumstances were that a very important point was about to be reached in the boy's treatment – his discharge from hospital to out of home care – and it was common ground that the Children's Court would not be able to consider the boy's situation before the impending date of his discharge. At least at the level of generality, there was much to be said for the proposition that, if possible, the boy should be discharged to what might be seen as a permanent destination (home) as opposed to something that might turn out to be only temporary pending the final decision of the Children's Court (the out of home care that had been arranged by the Department). 4. Being satisfied that there were "exceptional circumstances" opened the gate to the Court considering the mother's application. However, in this case those circumstances did not, in and of themselves, warrant the Court acceding to the mother's application. 5. Based upon the expert medical evidence called in her case, it was submitted for the mother it would be in the boy's best interests to be returned to the mother's care at the family home. It was said that the mother's parenting capacity was less of an issue than her ability (which it was said she had demonstrated either in her visits to the hospital or in her statements to various people) to: 1. Ensure that the boy ate; 2. Ensure that the boy maintained minimum standards of hygiene; and 3. Encourage the boy to attend school. 1. Because the mother is currently not working, it was submitted that she would be able to care for the boy full time and take advantage of the maximum NDIS funding of $43,000 to which he is entitled to meet his various medical and other needs. One of her affidavits also included the following: "8. I undertake to take [the boy] to monthly consultations with his general practitioner for check-ups, weigh ins and treatment plans. 9. I undertake to ensure that [the boy] receives psychological treatment as a result of his hospitalisation and ordeal. 10. I undertake to inform FACS with weekly updates of [the boy's] progress for the first two months and thereafter monthly updates. 11. Once [the boy] is at a healthy weight and the GP is content with his improvement, I will ensure that [the boy] returns to school as quickly as possible." 1. The father, who is currently separated from the mother, supported the mother's application, albeit in terms to which I will return in paragraph [45] below. 2. It was submitted for the Secretary and the Minister (and supported by the boy's independent legal representative), that there were very real doubts about the mother's parenting capacity and her willingness to cooperate in the ongoing medical and psychological treatment which the boy would require. Mr McGorey contended that the evidence clearly demonstrated that the out of home care arrangements that had been made for the boy upon his discharge (including a serviced apartment with two trained carers and the close involvement of medical and other professionals in monitoring the boy's progress) was clearly in the boy's best interests at this time. Furthermore, he submitted that the Court should proceed with caution because an unsuccessful restoration to the mother now would have very serious consequences as opposed to delaying any possible restoration until after the November hearing in the Children's Court. Resolution 1. The mother's application raised a clear choice for the Court. If the Court did not set aside the orders of the Children's Court, then the boy would be discharged to the arrangements that had been made for him by the Department and his future would be finally dealt with by the Children's Court in November. Alternatively, the Court could set aside the Children's Court orders and restore the boy to the care of the mother. 2. Against this background, there were three reasons why the Court declined to grant the relief sought by the mother and, instead, made the orders set out in paragraph [5] above. 3. First, the Court was satisfied that, in the absence of any viable alternative given the matters set out in paragraphs [35] to [45] below, the out of home care arrangements proposed by the Department would meet the boy's complex medical, psychological and social needs and, as such, were in his best interests. 4. Second, as far as possible the Court should proceed in a way which respects the primacy of the specialist jurisdiction of the Children's Court. While the mother may have demonstrated "exceptional circumstances" sufficient to warrant the serious consideration of her application by this Court, those circumstances did not justify setting aside the Children's Court's orders. The out of home care arrangements proposed for the boy were, for the moment, demonstrably in his best interests and would ensure that he was suitably cared for pending the November hearing in the Children's Court. As I will explain further below, I was satisfied that it was appropriate to engage the parens patriae jurisdiction of this Court both to consider the mother's application and, in the result, put in place a regime which might provide the Children's Court with information that could be of assistance in its final determination of the care application. 5. Third, and critically, the mother failed to provide sufficient evidence to satisfy the Court not about her willingness to care for the boy (that cannot be doubted), but her capacity to do so in his best interests. I did not accept the mother's submission that it would be enough for the Court to be satisfied that the mother could do the things set out in paragraph [27] above. 6. Simply put, for the Court to restore the boy to the mother it would be necessary (but perhaps even not sufficient) for the Court to be well satisfied both that the mother was capable of looking after the boy properly in the family home, and that she would co-operate with the medical and other professionals who it is obvious from the evidence will have to play a long term role in managing the boy's complex conditions and ensuring the best outcome for him. 7. I emphasise, as I did in remarks to the mother at the end of the hearing, that the Court has not found that she is not capable or suitable to care for the boy. All of the parties to these proceedings accepted, and as was acknowledged by the boy's treating doctors, that the "ideal" would be for the boy to be cared for by one or both of his parents in his home environment. However, that "ideal" assumed that either or both of the boy's parents could do so in the boy's best interests. 8. While the evidence did not permit the Court to make any negative conclusion on the question of the mother's parenting capacity, nor did it permit the Court to reach a positive conclusion in favour of the mother. However, there was evidence which demonstrated that there was a real question in relation to her parenting capacity which the mother would have to address, and which would be best addressed in an orderly and well prepared hearing in the Children's Court rather than in the necessarily exigent circumstances of a hearing in the duty list. I will give five examples of that evidence. 9. First, the mother did herself no credit in referring to the boy's treating doctors and others involved in his care in the most disparaging of terms. Having read the report of his treating doctors and having had the advantage of seeing them give their concurrent evidence, I have no doubt that the descriptions applied to them by the mother are completely unjustified. The mother's language casts doubt on her ability or willingness (or both) to respect the recommendations and opinions of the boy's treating professionals in circumstances where she says she disagrees with them. 10. Second, the mother gave as the basis for her disagreements with the treating doctors and others her own professional opinions as a medical practitioner. Regrettably for the mother, the Medical Council of NSW has decided to impose a condition upon her that "she not practise medicine". That decision was upheld by the NSW Civil and Administrative Tribunal. The mother informed the Court that she is currently appealing against the Tribunal's decision. Nevertheless, after hearing contested evidence on the question, the Tribunal accepted a characterisation of the mother's insight, behaviour and methods of communication that were adverse to her, including the possibility that she was suffering from some form of psychotic illness about which she lacked insight. For the purposes of her present application, it is not necessary that the Court accepts the truth of the Tribunal's findings. However, the fact that such findings could be made by an experienced Tribunal after a contested hearing demonstrates that the mother's own mental health is a matter which will have to be properly considered in the final determination of any application to restore the boy to her care. 11. Third, the Children's Court has made an Assessment Order that an assessment be performed by a specified child and family psychiatrist in consultation with another named doctor to consider: "a. any views or wishes expressed by [the boy] and any factors, including his maturity, level of understanding and cognitive capacity, relevant to the weight to be given those views or wishes. b. the nature of the relationship and strength of attachment between [the boy] and each of the mother and father. c. the nature of the relationship between the mother and father; their proposals for [the boy]'s] future care, and their capacity to work together (if appropriate) to implement those proposals. d. the parenting capacity of each of the mother and the father, including each parent's capacity to provide for [the boy]'s physical, intellectual, emotional and medical needs. e. the mental and emotional state of the mother and the father and its impact (if any) on their parenting capacity. f. whether [the boy] is at risk of physical or psychological harm in the care of either parent, and if so, the nature and extent of that risk. g. any recommendations in relation to [the boy's] long term care arrangements. h. any other matter considered relevant by the expert." 1. There was no dispute that the mother has thus far refused to participate in that assessment. She gave evidence that she had been advised by her lawyer in the Children's Court (T31:5-9): "… that we don't have to participate and that it's not necessary because for six months [the boy] has been observed in hospital by multiple professionals and I've been examined for the purpose of the medical council proceedings by XXX, by, you know, four or five psychiatrists, …" 1. It was only in response to questions from me while she was giving her evidence that the mother said that she would now take steps to obtain a report from an expert of her own choosing on the matters the subject of the assessment order to adduce in the Children's Court. The mother's refusal to participate in the assessment ordered by the Children's Court was a matter of serious concern to me and weighed against the Court granting the relief she sought. 2. Fourth, I took into account this evidence given by the mother's expert medical witness under cross-examination (T75:8-12): "Q. That just in terms of the capacity of [the mother] to cope with proper care for [the boy] if he was returned to her care on Monday, for instance? A. Yeah. Q. Are you able to confidently say that she has that capacity at this time? A. No." 1. Fifth, when I asked the husband in the course of his submissions about his view of the mother's capacity, his answers (and the hesitant way in which he gave them) were less than fulsome in her cause (T108:22-44): "HIS HONOUR: … do you regard [the mother] as being capable and willing and safe to look after [the boy]? THIRD DEFENDANT: Yes, I think he has the best of - she has the best of intentions as a mother and how to be and-- HIS HONOUR: I'm going to stop you there. I have no doubt she has the best of intentions, but would you please answer my question. Do you have confidence that she is able to and is capable of being safe and appropriate and doing all the things that he needs to be looked after? THIRD DEFENDANT: Well, I would encourage FACS to engage with her prior to discharge. There is still time. I don't think they have any plan. They're only planning on that serviced apartment-- HIS HONOUR: I'm going to ask you one more time. Do you have confidence that [the mother] is capable and able and safe to look after [the boy] and provide all the things he's going to need? THIRD DEFENDANT: Yes, I have 100% confidence but she will need to get equal amount of confidence shown or displayed by FACS workers because, as the counsel here pointed out, those notes, I have read some of them, there are 500, a thousand-plus pages of those, but it is a bit biased and harshly critical." Conclusion 1. The Court's inability to come to a final conclusion in relation to the mother's capacity (as opposed to willingness) to care for the boy and to co-operate with his treating medical and other professionals means that the Court declined to grant the relief sought by the mother to set aside the Children's Court orders. Nevertheless, the evidence did justify orders to ensure that the arrangements proposed by the Department would be given effect (order 1), to provide for a minimum number of family visits to the boy (order 2), and for prompt notification in the event of relapse (order 3). 2. In relation to the question of the mother's capacity to care for the boy, how she conducts herself in the next three months and the evidence which she chooses to present to the Children's Court will be matters for her and her legal advisers. Nevertheless, the Court was satisfied that it would be in the boy's best interests (including perhaps to assist the Children's Court in its decision making) if the mother and - to the extent he wished - the father, were at least given the opportunity to demonstrate their willingness, ability and suitability to be involved in the boy's care. That is why the Court made orders 4 and 5. Whether the mother and the father choose to take advantage of those possibilities will also be a matter for them and, in the case of the mother, her legal advisers. ********** 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 August 2019