Court of Appeal Supreme Court New South Wales Medium Neutral Citation: GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 Hearing dates: 7 November 2019 Date of orders: 07 November 2019 Decision date: 07 November 2019 Before: Brereton JA at [1] Emmett AJA at [27] Decision: Leave to appeal refused, with no order as to costs. Catchwords: FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim parental responsibility order to the Minister – application to return child to parent's care CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where imminent proceedings in specialist Court – where no seriously arguable error – leave refused Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) s 44, s 69, s 90 Cases Cited: AB, Re [2019] NSWSC 316 AB, Re (No 2) [2019] NSWSC 566 Director‑General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217 GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1073 GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1146 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218; (1992) 15 Fam LR 392 Category: Principal judgment Parties: Mother (applicant) Secretary, Department of Families, Disabilities and Community Services (first respondent) Minister, Department of Families, Disabilities and Community Services (second respondent) Father (third respondent) Child (fourth respondent) Representation: Counsel: F M Douglas QC with G R Rubagotti (applicant) C McGorey (first and second respondents) BB (third respondent, self-represented) K Wooi (solicitor, independent legal representative for fourth respondent) Solicitors: Barclay Churchill Lawyers (applicant) Crown Solicitors Office (first and second respondents) File Number(s): 2019/305649 Publication restriction: Non-publication order re identity of the child or anything that would identify or tend to identify the child. Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Duty List Citation: [2019] NSWSC 1146 Date of Decision: 3 September 2019 Before: Slattery J File Number(s): 2019/62836 [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.] Ex Tempore Judgment 1. BRERETON JA: In accordance with its usual practice in matters that arise in the protective and parental jurisdictions, the Court orders that the name of the child the subject of these proceedings not be published nor anything that would identify or tends to identify the child. 2. This is a difficult and distressing case. All concerned in it are no doubt motivated by the best interests of the child in question, albeit that on more than one side their positions have become entrenched. The distressing aspects were eloquently portrayed in the submissions of the child's father. 3. The child whose best interests are the paramount consideration in these proceedings is the 15 year old son of the applicant RG and the third respondent BB. He is separately represented by the fourth respondent. There is pending in the Children's Court a care application under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) by the first respondent, the Secretary, Department of Families, Disabilities and Community Services, in which the Secretary seeks to have a supervision order formerly made in respect of the child, rescinded, and a parental responsibility order in favour of the Minister substituted for it. Those proceedings are listed for hearing next Monday, 11 November 2019, for eight days before the President of the Children's Court. In the meantime, pursuant to an assumption into care under s 44 of the Care Act on 21 February 2019, and an interim parental responsibility order under s 69 of the Care Act made on 27 February 2019, the child is in the interim parental responsibility of the second respondent, the Minister. Should the application for a parental responsibility order in the Children's Court be dismissed, then the interim order would lapse and parental responsibility would revert to the child's parents, potentially subject to the continuing supervision order if it is not rescinded. 4. It is neither possible nor necessary in these reasons to reiterate the whole history of the proceedings, or the medical and parenting issues that arise and have been traversed in the various applications that have been made to date. The child has a diagnosis of autism spectrum disorder level 3, as a result of which he engages in avoidant restrictive food intake behaviour, which may or may not deserve an additional diagnosis of Avoidant Restrictive Food Intake Disorder. His condition deteriorated during 2018, but he remained in the care of his parents, subject to a hospitalisation in mid-2018, until his assumption into care, as I have mentioned, in early this year. However, following his removal from his parents and his placement in the care of the Minister, his disorder has proved more or less intractable, both in the hands of the hospitals to whose care he has been entrusted most of the time, and in short periods when he has been discharged from hospital into separate accommodation supervised by disability carers. 5. The child says that his sole aim is to go home and that he will eat at home, and that he has twice engaged in periods of eating over the last several months but that has not achieved a return to home for him. As I understand it, it is not the subject of contest that the child's strongly held and expressed wishes are to return home to the care of his parents. 6. The parental jurisdiction of this Court has been invoked, in respect of the child, on a number of occasions in the course of this year. Initially, applications were made by the mother, in substance for orders returning the child to her care and terminating the Children's Court proceedings. Then, the jurisdiction was invoked by the Secretary, who sought the Court's authority for extraordinary medical treatment for the child. Such an order was made by Pembroke J on 15 March 2019, and extended by Kunc J on 21 March, and subsequently terminated by Kunc J thereafter. [1] 7. More or less concurrently, the mother again invoked the jurisdiction, seeking orders for the return of the child to his parent's care and the dismissal of the Children's Court proceedings. Her summons claiming that relief was summarily dismissed by Lindsay J, but on appeal this Court set aside the summary dismissal, so that the mother's summons remains on foot. [2] 8. There were subsequently a series of further interlocutory applications by the mother before various judges of the Equity Division, which culminate in the present application to this Court. On 16 August 2019, Kunc J in the duty list arranged a one day hearing in Newcastle – including a visit to the hospital so that his Honour could see the child – as a result of which his Honour declined the mother's application for an order effectively returning the child to her care, but made a number of further orders which are of some current significance. [3] Those orders required, relevantly, that the Secretary: 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 … 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. 1. His Honour summarised the effect of his judgment as follows: [4] [46] 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). [47] 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. 1. Thus what his Honour sought to do was, recognising the approaching hearing before the President of the Children's Court, to make some orders that would give the parents a greater involvement and sense of involvement with the child in the meantime, but also to allow the matter to progress to a full if not exhaustive hearing and determination by the specialist court entrusted primarily with these matters. 2. On 3 September 2019, Slattery J gave reasons for dismissing a further application made by the mother which his Honour had heard in the duty list on 30 August 2019. [5] In that application, the mother had sought substantially the same relief that she had sought before Kunc J. Essentially, his Honour concluded that there had been no sufficient change of circumstances in the period since Kunc J's decision up until the time of the proceedings before Slattery J to justify departing from the regime that Kunc J had put in place. 3. Next, on 12 September 2019, Robb J gave reasons for not permitting the mother to file a notice of motion seeking, yet again, similar relief. Subsequent to that, further material was provided to Robb J, in particular a second expert report of Professor Einfeld. That was provided to his Honour in chambers, pursuant to an invitation that had been held out in the previous judgment to do so. His Honour's chambers responded more or less to the effect that while acknowledging that Professor Einfeld's report might well be relevant to the Children's Court proceedings, it did not justify reopening what Kunc J had determined. 4. Before this Court is the mother's application for leave to appeal from the orders of Slattery J and Robb J. If leave be granted, the applicant mother would seek orders for the return of the child to her, and the dismissal of the proceedings in the Children's Court. 5. This Court, constituted as it presently is by two judges, at short notice for the purpose of hearing the wife's expedited application for leave to appeal, has authority only to determine an application for leave to appeal; it could not proceed, concurrently, to deal with and dispose of the appeal. Notwithstanding that, because of the gravity of the underlying issues and the fundamental importance of this child's welfare and the intractable difficulties it seems to present, the scope of the hearing has ranged somewhat further than normally would be the case on an application for leave. Nonetheless, important considerations on an application for leave to appeal are whether there is an arguable case of error in the judgments below, and whether there is utility in the grant of leave. 6. Viewed broadly, there are not insignificant marks of strength to the applicant's substantive case. The report of Professor Einfeld, in particular, provides significant support for the argument that if – as appears to be the case – the hospitals have not been able to provide a viable solution after nine months, then it is time to see if the parents cannot do any better. The second report of Professor Einfeld – which I think puts the case more strongly than the first – was not before Slattery J, though it was provided to Robb J in chambers before the last of his Honour's in chambers decisions. 7. Before this Court, further matters emerged which might well demonstrate a change in circumstances since the judgment of Kunc J. I have referred above to the orders his Honour made in respect of contact with the parents and information about hospitalisation. In an affidavit which was handed up to the Court this morning, Ms Anne Marie Connelly, a Manager Client Services in the Department of Communities and Justice (previously the Department of Family and Community Services), deposed, amongst other things, that the child was transferred from John Hunter Hospital to Sydney Children's Hospital at approximately 10.45am on 1 November 2019; that at 2.02pm that day (that is to say after the transfer had taken place) his parents were notified that he had been transferred; and also that contact visits would not take place until assessments had taken place. It was said that the department had delayed informing the parents of the transfer date and time, due to concerns that the mother may present to the hospital which could cause distress to the child. However genuine that view might have been, it is not easily if at all reconcilable with order 3 made by Kunc J, and it was not for the Department to make that decision. 8. Moreover, at paragraph 30 of the same affidavit, it is said that contact was suspended between 14 September and 24 September. How that is reconcilable with order 2 made by Kunc J, which limits the forming of an opinion that contact is undesirable to a particular occasion, is also not at all clear. It is therefore not difficult to understand why the parents might have come to the view that the Department is acting somewhat unilaterally – in their words, as a "law unto itself" – in these respects. Those matters, which tend to show that what Kunc J was seeking to implement was being circumvented if not defeated, might amount to a change of circumstances which could be raised on a new application in the Equity Division. Most, if not all, of these circumstances arose after the last of the judgments the subject of the present application, and could not have been raised on those applications. 9. In addition, although this is not clear, there remains a concern that the child might be receiving treatment that would require the Court's permission in accordance with cases such as Marion's Case [6] and Director‑General, Department of Community Services; Re Thomas. [7] Whether the child has been subject to such restraints or confinement as exceeds what is within the scope of ordinary parental responsibility is not at all clear at this stage, but it is equally not clear that he has not been. 10. Some submissions have been made concerning the mother's parenting capacity, which is said to be a very important consideration in the Children's Court proceedings. In many care proceedings, the parenting capacity of a parent is a vital issue. In this case, it will ultimately be a matter for the President of the Children's Court to weigh the various issues, although one might be attracted to the view that the crucial question here is what course is best going to encourage and incentivise the child to eat, rather than concerns about marginal defects in parenting capacity arising from a supposed psychotic illness which, if it exists at all, certainly does not appear to be florid. This is a case in which, perhaps exceptionally, the short term seems to be at least as important, if not more important, than the long term future for the child. 11. All those matters, as I have said, give marks of strength to the parents' case. Against that, on an application for leave to appeal, there are a number of powerful considerations. The first is the proximity, indeed now imminence, of a comprehensive and detailed hearing by a specialist Court. That Court, presided over by a very experienced judge in the relevant specialist jurisdiction, will be able to examine, in much more detail and with much more thoroughness than this Court could, the issues that arise. Moreover, there has been, as it were, a consistent approach since the judgment of Kunc J on 16 August of this year, that the proceedings should be managed in a way which facilitates progressing to a determination by the President of the Children's Court consequent upon what is now that imminent hearing. 12. Despite the attraction of the submission that it is now time to "give the alternative a go" and return the child immediately to the parents, I am – not without a little regret, but nonetheless firmly – of the view that it would be quite irresponsible and incorrect for this Court to derail the imminent proceedings in the Children's Court, or to pre-empt them by making a decision on what is, after all, a very short hearing, without cross‑examination of lay or expert witnesses, on issues that are difficult and controversial. 13. Moreover, it is not established clearly, or for that matter at all, that there is seriously arguable error in the judgment of Slattery J, or those of Robb J, on the facts that were known to them and before them at the time. In my view, their Honours were, with respect, right to say that the circumstances presented to them did not amount to a sufficient change of circumstances since 16 August to justify departing from the course carefully charted by Kunc J towards a full and final hearing in the Children's Court. 14. It may be that the matters to which this Court has adverted, and in particular the fact that Kunc J's regime has in some respects apparently been circumvented, could warrant a different outcome on a further application to the Equity Division. That said, the parents might be well advised to focus for the time being on the impending hearing in the Children's Court, rather than on a further application to the Equity Division. 15. For those reasons, I have come to the conclusion that leave to appeal must be refused. 16. These being proceedings in the parens patriae jurisdiction, there is greater flexibility than in ordinary inter partes litigation in the exercise of the Court's discretion as to costs. 17. I propose that leave to appeal be refused, but that there be no order as to costs. 18. EMMETT AJA: I agree with everything that has fallen from Brereton JA. I agree with his Honour that the appropriate order is that the application for leave be dismissed and that there be no order as to costs. ********** Endnotes 1. Re AB [2019] NSWSC 316 and Re AB (No 2) [2019] NSWSC 566. 2. GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177. 3. GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1073. 4. GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1073. 5. GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1146. 6. Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218; (1992) 15 Fam LR 392. 7. (2009) 41 Fam LR 220; [2009] NSWSC 217. 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: 18 November 2019