Secretary, Department of Family and Community Services v Burton

1. [1]

   The plaintiff, the Secretary of the Department of Family and Community Services, commenced these proceedings by summons filed in Court on 14 July 2017.

2. [2]

   The defendants are Paul Robert Burton and Andrew Katelaris. I will refer to the defendants as Mr Burton and, as he wishes to be called, Dr Katelaris.

Background

1. [3]

   The proceedings have arisen out of the circumstances in which the Secretary caused a child who has been given the pseudonym “Christopher” to be taken into care from his parents and ultimately placed under the parental responsibility of the Minister for Family and Community Services, by order of the Children’s Court of New South Wales. Christopher was removed from his parents on 19 May 2017, pursuant to an order issued under s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). The order was issued by the Secretary on the grounds that Christopher was “at immediate risk of serious harm”. The order asserted that Christopher was suffering from medical neglect, which included malnourishment and “critically abnormal” levels of potassium, and the failure of his parents to attend the hospital with Christopher for “the required follow-up medical appointments at John Hunter Hospital”.

2. [4]

   Mr Burton and Dr Katelaris have been associated, in different degrees, with an organisation called “The Church of Ubuntu”, which operates in Newcastle. Christopher’s parents are Queenslanders who have been in this State for a relatively short time and formed an association with members of the Ubuntu Church. Following the events that led to Christopher being removed from the care of his parents, there was a spate of posts on Facebook, which included videos, photographs and messages posted by many people about the circumstances of Christopher’s removal and his treatment and isolation from his parents. Some of those posts were made by Mr Burton and Dr Katelaris.

3. [5]

   Christopher has suffered since birth from quadriplegic cerebral palsy and other complex medical conditions, including seizures, which have had the result that, away from his parents’ care, he is required to be cared for in isolation 24 hours a day by professional carers in a commercial accommodation unit, and Christopher requires frequent serious medical intervention. (I should add that since his removal from his parents’ care, some arrangements have been made for Christopher’s parents to have limited but regular access to him).

History of the proceedings

1. [6]

   Because of the somewhat unusual course that these proceedings have taken, it will be appropriate to consider their procedural history.

2. [7]

   The Secretary sought the following relief in the summons:

3. [8]

   The Secretary also filed a notice of motion in Court on 14 July 2017, in which the Secretary sought interlocutory relief substantially in the form of the final relief sought in the summons.

4. [9]

   Following an interlocutory hearing that took place on 14 July 2017, Rein J as duty judge, delivered a judgment on 18 July 2017. Because of the nature of the subject matter of these proceedings, his Honour’s judgment has not been published.

5. [10]

   Rein J made the following interlocutory orders:

6. [11]

   It will be sufficient for present purposes to explain the basis for his Honour making these orders by noting that Christopher was removed from his parents forcibly by caseworkers with the assistance of members of the police force in the presence of sympathisers, including Mr Burton. A somewhat chaotic amateur video was taken of these events (unsurprisingly, given the nature of the events) which included a running commentary by Mr Burton that was subsequently posted on Facebook. In the manner in which Facebook operates, a relatively substantial number of posts were subsequently made by sympathisers of Christopher and his parents. They also took to wearing T-shirts with Christopher’s face stencilled on the front.

7. [12]

   It should be recorded that Christopher is from an indigenous Australian family and this may have contributed to the level of community emotion that has been generated by his removal from his parents.

8. [13]

   From the Secretary’s perspective, the events following Christopher being taken into care called for action on the Secretary’s part, because many of the Facebook posts were highly emotionally charged and aggressive in tone, caseworkers employed by the Department were identified as were medical professionals retained by the Secretary to treat Christopher, and the continuation of what could fairly be described as a Facebook campaign, albeit by many unrelated persons, was capable in the Secretary’s opinion of compromising the Secretary’s ability to provide to Christopher the intense level of care and medical treatment that is essential to his very life, by reason of the fear that the campaign instilled in many of the people charged with the responsibility for Christopher’s welfare.

9. [14]

   On 20 July 2017, Rein J made the following orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Suppression Orders Act):

10. [15]

    Annexure “A” to these orders consisted of a suitably redacted copy of his Honour’s amended reasons for judgment.

11. [16]

    On 5 September 2017, the Secretary’s claims were set down for final hearing before me commencing on 29 November 2017 for three days.

12. [17]

    The Secretary filed an amended summons on 13 October 2017, and then on 29 November 2017, the first day of the hearing, the Secretary was given leave to file in Court a further amended summons.

13. [18]

    Orders 2 and 3 of the further amended summons sought an elaborated form of the relief originally sought in order 1 of the summons. That relief was:

14. [19]

    It is to be noted that order 2 sought by the Secretary is substantially the same in its description of the prohibited conduct as order 1, save that order 1 seeks a restraint against the defendants’ own conduct, while order 2 is a restraint against the defendants “permitting others” to publish what the Secretary sought to establish as the offending information. That amendment introduced into the case the question of what is meant by the concept of a person “permitting” other persons to publish on Facebook information of the nature listed.

15. [20]

    The further amended statement of claim sought a further order 2A, the chapeau of which was in the following terms:

16. [21]

    The pleading then sets out 23 separate instances over the period 6 July to 27 November 2017 of posts and videos made or shared on Facebook. Nine instances consist of posts or videos shared by third parties on Mr Burton’s Facebook timeline. Eight instances consist of posts or videos shared by third parties on both Mr Burton’s and Dr Katelaris’ Facebook timelines. One instance is a post made by Dr Katelaris on Mr Burton’s Facebook timeline. One instance is of a Facebook post made by Mr Burton on Mr Burton’s own Facebook timeline. Another is a post made by Dr Katelaris on Dr Katelaris’ own Facebook timeline. The final instances consist of two cases where one third party has shared a post and a video from the Facebook timeline of a second third party on Mr Burton’s Facebook timeline.

17. [22]

    On the face of it, little practical difficulty would be likely to arise in respect of the Court making orders that Mr Burton and Dr Katelaris remove Facebook posts and videos from their own timelines. A subsidiary difficulty may arise as to whether such orders should be made if there is reason to believe that a substantial number of third parties have already shared those posts on their own or other persons’ Facebook timelines. The removal of the posts and videos from the defendants’ Facebook timelines may not solve the problem to which the orders are directed. That problem may be exacerbated where what has happened is that third parties have shared their own posts and videos on the timelines of Mr Burton and Dr Katelaris, or where posts or videos have been uploaded to other websites. In most cases original posts and videos will be retained on the Facebook timelines of the users who originally made the posts and uploaded the videos, unless those users have deleted or hidden those posts and videos, and if sharing has taken place with Mr Burton and Dr Katelaris, it is likely that sharing would also have taken place with many other Facebook users. The difficulty in judging the effectiveness of any mandatory removal orders made against Mr Burton and Dr Katelaris in these circumstances will be increased. Suffice it to say, that the request by the Secretary for the making of these orders introduced novel and difficult questions concerning the capacity of the Court to control communications made using the Internet and social media, in this case by the use of Facebook, in an effective manner. The exercise may require that the Court have a relatively sophisticated understanding of the manner of operation of Facebook. Similar problems were considered by the Court of Appeal in the context of the application of the Suppression Orders Act in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125, particularly in the judgment of Basten JA at [66]-[70].

18. [23]

    The Secretary deleted the claim for an injunction restraining the defendants from breaching s 105 of the Care Act.

The hearing

1. [24]

   At the hearing, the Secretary was represented by Ms England of counsel, and Mr Burton and Dr Katelaris appeared by themselves unrepresented.

2. [25]

   At the outset of the hearing, on the application of the Secretary, I made an order under s 8(1)(a) and (c) of the Suppression Orders Act, applying throughout the Commonwealth, that pending further order there shall be no disclosure of the evidence or submissions in the proceedings save for the proper purposes of the proceedings. I also made a separate order that, pending further order, the affidavit of the Secretary’s principal witness, Ms Blair Collier, affirmed 29 November 2017, as well as exhibit CP4 to that affidavit, will be included in the meaning of “evidence” in the order made under the Suppression Orders Act.

3. [26]

   The purpose of this interlocutory non-disclosure order was to ensure that, pending the Court having a further opportunity to consider the issue in more detail, what the Secretary claimed was the damage caused by the Facebook campaign was not exacerbated by further publication on Facebook or other media of the evidence led and submissions made by the Secretary at the hearing. A blanket order for non-disclosure was made in part because there were a substantial number of supporters of the defendants in court, and there was a reasonable basis for fearing that the actions that were the subject of the Secretary’s claims for relief could be repeated by the publication of aspects of the Secretary’s evidence and submissions if the non-disclosure order was not made, even if only on a temporary basis.

4. [27]

   In evidence, the Secretary read five affidavits of Ms Collier and tendered three exhibits to her affidavits. The Secretary also read an affidavit of Ms Alison Michalk. Ms Michalk’s evidence was proffered on the basis that she was an expert in the operation of Facebook, and that her evidence could assist the Court in understanding how orders made against the defendants that required changes to be made to their Facebook timelines would take effect and limit the dissemination of the information intended to be restricted by the orders. Both Ms Collier and Ms Michalk were cross-examined by the defendants.

5. [28]

   Much of the hearing time was taken up by the playing of parts of a number of videos that had been posted on the defendants’ Facebook pages, as well as a video taken of a public address given by Dr Katelaris.

6. [29]

   Affidavits of both Mr Burton and Dr Katelaris were read and they were cross-examined on behalf of the Secretary. The defendants also called three witnesses who were supporters of Christopher and his family. For obvious reasons, the evidence called in support of the defendants’ case could not be given in a professional manner, and the Court took a liberal view in allowing the defendants and their witnesses considerable freedom to present their evidence in the manner that was convenient to them.

7. [30]

   The consequence of the manner in which the hearing was conducted was that the evidence was able to be finished in the three days that were allotted to the hearing, but the hearing could not be completed by the parties making their submissions to the Court.

8. [31]

   It became apparent during the course of the hearing that it would be difficult for the defendants to make submissions concerning the significance of the various videos that had been played to the Court, and it would also be difficult for the Court to make a decision on the claim, without there being prepared a transcript of the videos, as well as a document prepared on behalf of the Secretary that identified the specific conduct of the defendants that was the subject of the Secretary’s complaints, and stated the basis of the Secretary’s case that the conduct warranted the making by the Court of the orders sought by the Secretary. The Secretary recognised that it would be necessary for this information to be prepared and provided to the defendants and the Court to assist the process of the Court receiving the parties’ submissions.

The further hearing and the short minutes of order

1. [32]

   The proceedings were stood over to 6 December 2017 for further hearing. On that date Dr Katelaris did not appear. The court was informed by Mr Burton that Dr Katelaris was in gaol on remand for what I understand to be matters unrelated to those the subject of the present proceedings. The Secretary and Mr Burton made submissions to the Court, on the basis that the transcript of the videos remained outstanding, and that it would be necessary for the Court to make provision for some form of additional submissions after the transcript and the further material required to be provided by the Secretary became available.

2. [33]

   The submissions made on behalf of the Secretary on 6 December 2017 were made by reference to draft short minutes of order provided to the Court by Ms England before she commenced her address.

3. [34]

   The draft short minutes of order provided for the vacation, from the date of the proposed orders, of order A made by Rein J on 18 July 2017, as the Secretary proposed that the Court should make revised interlocutory orders as set out.

4. [35]

   They also provided for the vacation of the non-publication orders that I made at the beginning of the hearing on 29 November 2017, by orders 1 to 4 made on that day. As I understand it, this approach was proposed by the Secretary on the basis that the temporary non-publication orders that I made would no longer be necessary once the revised interlocutory orders were made. (I note that the Secretary probably intended to refer to orders 1 to 3 and order 5, as order 4 was the order by which the Court granted to the Secretary leave to file the further amended summons).

5. [36]

   The short minutes of order then sought by order 3 to 5 the following orders:

6. [37]

   As I understand it, the Secretary sought these orders in lieu of the order that Rein J was asked to make on an urgent basis to ensure that the interlocutory restrictions on the defendants were more closely tied to the Children’s Court proceedings as well as these proceedings, and also to specifically protect the categories of persons the subject of sub-orders (c), (e) and (h).

7. [38]

   It is also to be noted that, while Rein J made his interlocutory order in the exercise of the Court’s parens patriae jurisdiction against the defendants, these substitute orders were sought under the Suppression Orders Act, so that they would be enforceable against third parties, provided the existence of the orders was brought to the attention of the third parties: see Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (above) at [71]. I will consider below whether the Court has power to make the orders as formulated by the Secretary under the Suppression Orders Act.

8. [39]

   Then, by order 6 of the short minutes of order, the Secretary sought an order in the terms of par 2A of the further amended summons that is considered above at pars 20 and 21 of this judgment. By orders 7 and 8 the Secretary sought stipulations as to the time by which the defendants were required to comply with order 6.

9. [40]

   Order 9 provided for a timetable by which the Secretary should file and serve transcripts of all video evidence and particulars of each alleged contravention of s 105 of the Care Act and breach of non-publication orders made by the Children’s Court. Order 10 provided for the defendants to respond by indicating any areas of dispute with the Secretary’s transcripts. By order 11, the matter was to be relisted for resolution of any dispute about the transcript and further oral submissions on a date to be fixed.

10. [41]

    Finally, by order 12 a timetable was to be provided for the Secretary to file and serve any notice of motion and supporting documents concerning any alleged contempt by the defendants of the orders made by Rein J on 18 July 2017.

11. [42]

    The effect of the orders sought in the short minutes of order provided by the Secretary and the submissions made on this Secretary’s behalf was that the Court was asked to make varied interlocutory orders pending the completion of submissions and the final determination of the Secretary’s claim. In the meantime, the interlocutory orders made by Rein J would continue to operate according to their terms. As it happened, the Court did not make any orders as set out in the short minutes of order, but reserved its interlocutory judgment on the basis that it would consider what additional case management directions should be made.

Events after the hearing

1. [43]

   The Court was not able to make its decision on the outstanding issues before the end of the Court’s term and then the Court’s vacation intervened.

2. [44]

   On 9 January 2018, during the Court’s vacation, an unsolicited email was sent to my associate by Mr Burton. The email was also sent to the solicitors at the Crown Solicitors Office who have the carriage of these proceedings for the Secretary. The email attached a letter dated 9 January 2018 that was addressed to me. Partly because of the time when the letter was received, and partly because it is generally not my practice to read communications that are not sent with the prior consent of a party’s opponent, I did not read the letter until it was eventually brought to my attention by my associate. I disregarded most of the letter because its contents were not appropriate to be read by a judge whose decision is reserved, but I noticed that, at the beginning of the letter, Mr Burton advised that, on 21 December 2017, he had been charged with 11 offences relating to the events the subject of these proceedings.

3. [45]

   I caused these proceedings to be relisted on 19 February 2018, for the primary purpose of making directions to enable the hearing of the proceedings to be completed. I also decided that I should raise with the Secretary’s legal representatives the significance of the criminal charges of which I had been informed by Mr Burton.

4. [46]

   At the directions hearing on 19 February 2018, counsel for the Secretary confirmed that Mr Burton and Dr Katelaris had been charged with offences against s 105 of the Care Act.

5. [47]

   I raised the issue of whether it was appropriate for the present civil case to continue while the criminal charges were pending. After some discussion, Ms England obtained instructions given on behalf of the Secretary and informed the Court that the Secretary no longer sought to proceed at this time with the claim for all of the orders in the short minutes of order provided to the Court on 6 December 2017. As I understand it, the Secretary took the view that in view of the fact that the defendants are self-represented, it would not be appropriate for the Secretary to prosecute the civil claim for final injunctions, or to make an application for contempt of the existing interlocutory orders, while the criminal proceedings under s 105 of the Care Act are pending against the defendants.

The new short minutes of order

1. [48]

   The Court was informed that the Secretary now only seeks the making of the following orders that were originally included in the short minutes of order:

2. [49]

   The primary consequence of this change of position by the Secretary is that it is no longer necessary for the Court to grapple with what I considered to be the practically and conceptually difficult questions that would have been involved in the making of orders that specifically require the removal of material from the defendants’ Facebook timelines. It would have been necessary for the Court to be able to make valid determinations of precisely what effective changes the owners of personal Facebook accounts can make of their own motion. It would also have been necessary for the Court to consider the relative consequences of the removal of information from two Facebook pages when the same information may be included in a substantial number of other Facebook pages that are beyond the control of the Court. The defendants have raised the argument that they should not be singled out and made the subject of coercive orders, if the making of those orders is effectively pointless because the same information is spread widely across Facebook, and will continue to be propagated notwithstanding the Court’s orders. They are matters that may still have to be considered in the future, but they will only now arise if the Secretary revives the application for final relief in the terms of order 6 of the short minutes of order.

3. [50]

   If the Court decides that it is appropriate to make alternative interlocutory orders in terms of order 3 of the short minutes of order, then it will follow that it is also appropriate for the Court to make order 1 to vacate the existing interlocutory orders from the date of the new order.

4. [51]

   It will also be appropriate for the Court to make order 2 in the short minutes of order, although for the reason that I have set out above the order to be made will refer to “Orders 1 to 3 and 5” instead of to Order 4. I will give the Secretary the opportunity to confirm that this change should be made before I actually make the order.

The new order under the Suppression Orders Act

1. [52]

   The only remaining issue at this stage is whether the Court should make a substitute interlocutory order in the terms of order 3 of the short minutes of order.

2. [53]

   It is to be noted that the equivalent orders to order 3 in the further amended summons (being orders 1 and 2) were sought pursuant to s 66 of the Supreme Court Act 1970 (NSW), or in the alternative pursuant to the Court’s parens patriae jurisdiction. It seems to be implied from orders 4 and 5 of the short minutes of order that order 3 is sought pursuant to the Suppression Orders Act.

3. [54]

   That implication was confirmed by Ms England at the hearing on 6 December 2017, where she described order 3 as being a “non-publication order as opposed to an order being directed to the defendants”, and referred to the Suppression Orders Act, as the statutory source of the Court’s power to make the order (T 242.5).

4. [55]

   The power to make a non-publication order is contained in s 7 of the Suppression Orders Act, which provides:

5. [56]

   A non-publication order is defined in s 3 of the Suppression Orders Act as meaning “an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”.

6. [57]

   The grounds upon which a non-disclosure order may be made are set out in s 8 of the Suppression Orders Act, which provides:

7. [58]

   As has been noted above, the Secretary appears to rely upon the grounds in pars (a) and (c) in this case.

8. [59]

   The difficulty that I have with the basis for the orders sought relied upon by the Secretary is that, while s 7 vests the power to make non-publication orders in “a court”, the information that may be the subject of the order is described by reference to “proceedings before the court” in the three places where that expression is found in s 7. The use of the definite article “the” has the natural consequence that the order under the Suppression Orders Act must be sought from and made by the particular court before whom the relevant proceedings are being conducted: see QBE Insurance (Australia) Limited v Australian Broadcasting Commission [2015] NSWSC 1585 at [5] per Campbell J. Although this conclusion follows clearly from the literal wording of the section, it is also implicitly recognised in the statement by Basten JA in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (above) at [36], where his Honour spoke in terms: “The primary purpose of all of the grounds set out in s 8(1) except the first is to permit a court to protect witnesses and parties in proceedings before it from disclosure of information about them to the general public” (emphasis added).

9. [60]

   It is clear from the judgment of Basten JA in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (above) at [51] that the power in s 7 of the Suppression Orders Act is not limited to material disclosed in court proceedings, but extends to the publication of material having no connection with court proceedings except in its capacity to affect current or future proceedings. However, whether the information relates to material that is disclosed in court or other material that may affect proceedings, it must concern a party to or witness in proceedings before the court or some related or associated person to a party or witness, or must concern evidence or information about evidence given in proceedings before the court. In the case of these proceedings the court is the Supreme Court.

10. [61]

    It appears from the terms of order 3 in the short minutes of order that, except for par (h), in each case where the order is sought in relation to proceedings before a court, that court is the Children’s Court: see pars (a), (b), (d) and (f).

11. [62]

    The orders sought in order 3(h) could be made by this Court in so far as it seeks a non-publication order in relation to the witnesses in these proceedings.

12. [63]

    The orders sought in order 3(c) and (e) are not defined by reference to proceedings in any court, so they could not strictly be made in the terms sought under the Suppression Orders Act, but could be made by this Court if it had jurisdiction to do so on the basis of some source other than the Suppression Orders Act.

13. [64]

    I appreciate that part of the Secretary’s purpose in formulating order 3, as a replacement to Order A made by Rein J on 18 July 2017, may have been to secure the benefit of a non-publication order that applied to the world at large, rather than the inter partes order that was made by his Honour, that only binds the defendants. It is the case, however, that the further amended summons seeks orders against the defendants based upon s 66 of the Supreme Court Act, or in the alternative the Court’s parens patriae jurisdiction. The wording of the orders sought is in slightly different terms to order 3 of the short minutes of order, but in my view it is permissible for a party in the Secretary’s position, at the end of an interlocutory hearing to suggest to the Court a slightly revised version of the interlocutory orders that were originally sought. It would be permissible for the Secretary to seek the making of orders by the Court against the defendants in the terms of order 3, exercising the same jurisdiction upon which the Secretary relied in the further amended summons.

14. [65]

    It would also be permissible for the Secretary to seek a revised form of order 3 that is permissible under s 7 of the Suppression Orders Act, in that the subject matter of the order is properly related to the proceedings before this Court. However, it must be remembered that the Secretary did not seek any relief under the Suppression Orders Act in the further amended summons. Relief was only sought under s 66 of the Supreme Court Act and under the Court’s parens patriae jurisdiction. The Secretary only notified the defendants that the Secretary claimed relief under the Suppression Orders Act when the Secretary first delivered the original short minutes of order to the defendants. I would hesitate to say that any strict formality is required for the making of an application for an order under the Suppression Orders Act, given that s 9 empowers the Court to make an order on its own initiative, and the subject matter with which the Suppression Orders Act deals may sometimes justify the making of an order on the application of a party or some other person having a sufficient interest without any formal notice. However, the fact is in the present case that the defendants are not legally represented, and the basis of the relief sought by the Secretary has changed in a manner that may well not have been understood by the defendants. In these circumstances it seems to me that the Secretary should take some formal step to introduce a claim based upon the Suppression Orders Act into these proceedings, and the defendants should be given an opportunity to make any further submissions that they wish to make, once that formal step has been taken by the Secretary.

Entitlement to continuing interlocutory relief

1. [66]

   I propose to give the Secretary an opportunity to respond, after I publish these reasons for judgment, to inform the Court whether the Secretary wishes to revise the terms of the short minutes of order, and if so, to provide a further draft of the short minutes of order to conform to the conclusions stated in these reasons. I will take that course because I am satisfied that the Secretary has established a case for continuing interlocutory relief, and the only real question is the appropriate terms of that relief. It is also likely that the Secretary can justify the making of an appropriately formulated order under the Suppression Orders Act in relation to these proceedings. In the meantime the interlocutory orders made by Rein J will continue to operate.

2. [67]

   I propose to consider whether in principle an order should be made on the application of the Secretary against the defendants in terms of order 3 of the short minutes of order under s 66 of the Supreme Court Act or the Court’s parens patriae jurisdiction, as sought in the further amended summons.

3. [68]

   It is convenient to divide the orders sought in pars (a) to (h) of order 3 into the following categories.

4. [69]

   First, pars (c) and (e) deal respectively with the name or images of any caseworker or manager casework who work with Christopher, or who have worked with him in the past, and the names or images of medical practitioners or other professionals who work with Christopher or have worked with him in the past. These paragraphs are not directly concerned with any court proceedings, and relate to the anonymity of various classes of persons who provide care to Christopher.

5. [70]

   Secondly, pars (a), (b), (d) and (f) concern the non-publication of information relating to Christopher’s name, images of Christopher, images of Christopher’s parents, all in connection with the Children’s Court proceedings about Christopher, and also details of the Children’s Court proceedings about Christopher. As is plain from this description, each category of information is qualified by the requirement that the information is provided in connection with the Children’s Court proceedings.

6. [71]

   Thirdly, par (h) is in a special category, in that it concerns the Secretary’s witnesses in these Supreme Court proceedings, albeit in connection with Christopher, the Children’s Court proceedings, or these Supreme Court proceedings. This is the only part of order 3 that may technically be able to be made under the Suppression Orders Act, as the information concerns proceedings before this Court.

7. [72]

   In considering the Secretary’s entitlement to an interlocutory injunction against the defendants, it is necessary to bear in mind that Rein J has already made Order A, and that order will continue to have effect until it is varied or discharged. There is no application before the Court to discharge the order, and no basis has been established by the defendants for the Court to interfere with the status quo.

8. [73]

   As Rein J recorded at [6], the care proceedings were initiated in the Children’s Court pursuant to s 61 of the Care Act on 24 May 2015. His Honour noted at [7] that the Children’s Court allocated all aspects of the parental responsibility for Christopher to the Minister, pursuant to s 69 of the Care Act, on 25 May 2017. As stated at [21], on the latter date the Children’s Court made an order that prohibited publication of information that “would identify or tend to identify individuals within the following groups of persons connected with proceedings, except for the purpose of the proper conduct of the proceedings”. Those groups, as recorded by his Honour were:

9. [74]

   Sub-paragraphs (a) and (b) are in similar terms to pars (c) and (e) of order 3 in the short minutes of order.

10. [75]

    Rein J further noted at [22] that the Children’s Court also on 31 May 2017 made an order prohibiting the publication of “information that comprises evidence or information about evidence, given in proceedings before the Court, except for the purpose of the proper conduct of the proceedings”, which included photographs and electronic recordings relating to the medical condition or treatment of Christopher by medical professionals employed at John Hunter Hospital, and any information relating to the treatment of Christopher with medicinal or other cannabis by other persons.

11. [76]

    It thus appears that the Secretary already has the benefit of orders made by the Children’s Court under s 7 of the Suppression Orders Act that are tailored to the proper subject matters in s 7 in respect of the proceedings in that court. It would seem to follow that what the Secretary should seek in these proceedings is an equivalent order from this Court that is tailored to the proper subject matters for an order under s 7 in respect of these proceedings.

12. [77]

    Rein J considered at [31] the basis upon which this Court may have jurisdiction to grant an injunction to prohibit the commission of a crime (the crime being the contravention of either s 16 of the Suppression Orders Act or s 105 of the Care Act) and held at [34], following the decision of Brereton J in Secretary, Department of FACS v Smith [2016] NSWSC 1384 and [2017] NSWSC 6, that the Court has power in the present context in the exercise of its parens patriae jurisdiction to grant injunctions in support of non-publication orders made by the Children’s Court, and the prohibitions contained in s 105 of the Care Act, where the “overriding concern” of “the protection of the interests and welfare of the child or children” justifies the grant of the injunction, having regard to the very wide breadth of the parens patriae jurisdiction. I share the view of Rein J, expressed at [34], that it is doubtful that s 66 of the Supreme Court Act creates a jurisdiction in this Court to issue injunctions in support of proceedings in some other court. However, it is not necessary to decide that question, as it is appropriate for me respectfully to follow Rein J’s decision on the availability of the parens patriae jurisdiction to support the grant of the injunctions sought by the Secretary against the defendants. Further, that decision has been made in these very proceedings, and should not be disturbed on the basis of any matters raised by the defendants at the hearing before me.

13. [78]

    In reaching the conclusion that the Secretary has established that appropriately worded interlocutory orders against the defendants should continue in the exercise of the Court’s parens patriae jurisdiction, as well as that an order under the Suppression Orders Act is justified so long as that order is properly formulated by reference to the proceedings before this Court, I have had regard to the following considerations.

14. [79]

    First, as I have noted above, the defendants have not established in principle any justification for the interlocutory orders made by Rein J to be set aside, and the only question is whether it is appropriate that those orders be varied in some way, and if so, what new interlocutory orders should be made.

15. [80]

    Secondly, the manner in which the people in the public gallery conducted themselves during the hearing justifies the Court in expressing the unusual conclusion, based on that conduct, that the Secretary is justified in the concern that the publication of the information that the Secretary wishes to restrain by the orders sought in these proceedings will have deleterious consequences to Christopher’s well-being. Many members of the public in the court room made frequent aggressive and intemperate interjections during the conduct of the Secretary’s case. The heckling of Ms England during the presentation of her case became so derisive and aggressive that it became necessary for me at one point to eject the public from the court room save for Christopher’s mother and grandmother. At another time Ms Fuller, one of the supporters, interrupted proceedings by continually thumping a large staff on the court room floor. The extremity of the situation can be seen in the fact that at the end of one of Mr Burton’s Facebook video sessions, which he concluded by singing John Lennon’s “All you need is love”, the members of the public in the court room burst into song and sang along with Mr Burton. This may seem to be amusing, but it was highly disrespectful to the Court, and only permitted on the principle that the best way to undermine authority is to attempt to exercise it ineffectually. The point is that the substantial number of people who came to Court each day to support the defendants gave flesh to the Secretary’s fear that the Facebook campaign was stoking an ugly, aggressive response to the actions of the Secretary, the caseworkers and the medical and other professionals who were responsible for Christopher’s care and welfare by doing the publicly important jobs that they are employed to do. Even accepting that the feelings expressed by persons in the public gallery and on Facebook may be sincere, the obviously threatening component of their conduct has no place in Australian society.

16. [81]

    Thirdly, the evidence tendered by the Secretary provides a very strong basis for the continuation of interlocutory relief, given that the Court is not at this stage asked to issue final injunctions.

17. [82]

    The Secretary already has the benefit of the two non-publication orders made by the Children’s Court, and also the protection of s 105 of the Care Act, such as it is.

18. [83]

    However, the evidence supports a strong interlocutory finding that the Children’s Court’s orders have been flouted and that fear of prosecution for offences against s 105 of the Care Act has been inadequate to protect the interests sought to be preserved by that section.

19. [84]

    There is evidence of many instances of officers of the Department having to respond to apparent contraventions of s 105 of the Care Act by sending warnings to journalists and to private individuals requiring them to cease or remedy conduct that infringes the section.

20. [85]

    The Secretary has made out a case that the content of the Facebook campaign and its frequency has had real consequences for the Secretary’s ability to provide the necessary care for Christopher, beyond the immediate consequences of the individual actions that arguably constitute breaches of the Children’s Court’s non-publication orders and infringements of s 105 of the Care Act. Those consequences include jeopardising the availability of medical care for Christopher, the disability support care available to him (including the manner in which contact with Christopher’s family can take place), and the availability of the Department’s caseworkers to work on Christopher’s case.

21. [86]

    In essence, the Secretary calls in aid the overarching protective power of the Supreme Court exercising its parens patriae jurisdiction to do whatever can be done to suppress the conduct that is putting Christopher’s care at risk, pending the Children’s Court being able to complete the case before it to determine the appropriate manner in which care should be provided to Christopher in the future.

22. [87]

    As this case is still at the interlocutory stage, it will not be necessary for the Court to analyse all of the evidence tendered by the Secretary, and it will be sufficient to refer to some of the more significant evidence.

23. [88]

    Ms Collier gave evidence of a significant number of Facebook posts made by Mr Burton, and also a number made by Dr Katelaris.

24. [89]

    On 27 June 2017, an officer of the Department sent an email to Mr Burton, in which she requested the urgent removal by Mr Burton of a number of Facebook posts that she suggested contravened the non-publication orders made by the Children’s Court and which were breaches of s 105 of the Care Act. Mr Burton responded in a relatively conciliatory way, and said in essence that he would do all he could to respond to the request as quickly as possible.

25. [90]

    However, on or about 4 July 2017, Mr Burton published a further lengthy entry on his Facebook Timeline that included:

26. [91]

    In the same timeframe, Mr Burton included a video in his Facebook timeline that had the caption: “20170519 [Christopher’s real name is stated] NSW State Government Child Abduction”. Although the image in the evidence is not clear, it appears to me that the image depicts Christopher’s mother over the shoulder of a member of the police force, as well, possibly, of Christopher’s father.

27. [92]

    A substantial number of people posted responses to this Facebook post by Mr Burton. A wide range of views were expressed, including by people who counselled Mr Burton against adopting and expressing extreme views. Many of the posts were, however, supportive of Mr Burton’s stated opinions, and some were expressed in extreme terms. For example, one contained the statement: “People are waking up FACS are a bunch of criminals”. Another, apparently posted by Ms Fuller stated: “I respect what Paul Robert Burton has written. The police now have the right to shoot to kill. Paul is prepared to be shot in his Endeavours to support all families that have had their children wrongfully taken with lies by a very corrupt department”.

28. [93]

    In response to a further email from the same officer of the Department dated 6 July 2017, which again warned Mr Burton that he should immediately remove the video from his Facebook page and remove or edit his Eulogy that referred to Christopher by name and threatened to reunite Christopher with his parents, Mr Burton responded on 7 July 2017 by stating, among other things:

29. [94]

    Dr Katelaris uploaded a post to his Facebook page on 6 July 2017 that included many references to Christopher’s real first name, as well as the names of Christopher’s parents. Dr Katelaris identified by name an officer of the Department who signed the protective order in relation to Christopher. Dr Katelaris insisted that the Secretary arrange a meeting with Christopher’s parents and supporters, and then stated:

30. [95]

    Dr Katelaris’ Facebook post included a photograph of him with Christopher in his wheelchair.

31. [96]

    On 7 July 2017, the officer of the Department who sent the warning letter to Mr Burton sent a letter by email in similar terms to Dr Katelaris. The letter included the statement: “I consider that publication of this email would also be a breach of the orders of the Children’s Court”. Dr Katelaris responded on 11 July 2017 by publishing the Department’s letter verbatim in a post on his Facebook page. In doing so he named Christopher on a number of occasions by his real name. He identified Christopher’s treating doctors by their real names, and also identified by name the officer of the Department who had sent the letter to him.

32. [97]

    The subject of the Facebook posts by Mr Burton and Dr Katelaris was taken up on the Facebook pages of many other persons. One that justifies particular mention is a Facebook post that includes images of two caseworkers employed by the Department, with the messages superimposed on the respective images “I traffic children for the state” and “I’m just doing my job stealing children”. The following message is superimposed over the bottom of the two images: “state sponsored child abuse ring”.

33. [98]

    Ms Collier gave evidence that the impact of all of the Facebook posts has caused the Department’s Manager Casework to become concerned for the willingness of service providers to provide care to Christopher. The Department’s staff is concerned about taking Christopher out in public due to the possibility of him being recognised from the social media publications. As a result of the name and photographs of specific caseworkers being posted on social media, one caseworker moved residence temporarily. That was because of concerns for her safety and fears that she would be recognised in public. Ms Collier has also been informed that members of the public have approached caseworkers regarding the social media publications. Another employee of the Department has been required to find alternative accommodation permanently due to ongoing safety concerns.

34. [99]

    Ms Collier also gave evidence of a conversation with one of the caseworkers involved in Christopher’s care, to the effect that Christopher’s disability support workers have had difficulty in finding service providers that are willing to treat Christopher. She gave evidence of specific examples of disability support workers expressing anxiety about caring for Christopher because of the possibility of their personal exposure in social media, the unwillingness of agencies to provide the services of registered nurses for Christopher’s care, and the difficulty in finding a general practitioner willing to take on Christopher as a patient.

35. [100]

    Finally, it is appropriate to set out the following extracts from a letter written to Ms Collier on 17 August 2017 by the Acting Executive Director, Children and Young People and Families Services of the John Hunter Children’s Hospital:

Conclusion

1. [101]

   In my opinion, the Secretary has demonstrated a strong case for the continuation of a regime of interlocutory injunctions that suppresses as far as possible infringements of the Children’s Court’s non-publication orders, as well as contraventions of s 105 of the Care Act. Christopher’s well-being justifies the intervention of the Supreme Court as both the non-publication orders and the threat of criminal liability have not proved to be sufficient to quell the extreme and threatening social media publications that have placed the ability of the Secretary to provide for the proper care of Christopher in considerable jeopardy. As I have also noted above, there may well be a case for this Court to make its own orders under the Suppression Orders Act in respect of these proceedings.

2. [102]

   For the reasons that I have explained above, I will invite the Secretary to reconsider the orders that are to be sought by revising the short minutes of order that have been provided to the Court. I will then consider what, if anything, ought to be done by way of inviting the defendants to make further submissions concerning the terms of the orders to be made.

3. [103]

   The Secretary is also invited to suggest redactions to these reasons for judgment in the same manner as occurred with Rein J‘s judgment.